author: REDMANN, Judge.

text:
    HERMAN INVESTMENTS, INC. v. LIGHTHOUSE CLUB, INC.
    No. 10275.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 1979.
    Moise S. Steeg, Jr., Randy Opotowsky, Steeg & O’Connor, New Orleans, for plaintiff.
    John J. McGuckin, Jr., New Orleans, for defendant.
    Before SAMUEL, REDMANN and BEER, JJ.
   REDMANN, Judge.

Questioning our jurisdiction in this appeal transferred to us by the Civil District Court for the Parish of Orleans, we moved to refuse the transfer. The district court transferred on the basis that it no longer has appellate jurisdiction over city court cases of an amount in dispute between $300 and $1,000, including this case from the Second City Court for possession of premises rented at $350 a month. We dismiss our motion and accept the transfer, but on the basis that an action for possession of immovable property is not one for an amount in dispute, and that the district court is given appellate jurisdiction over actions for possession only when the monthly rent is $100 or less.

The district court reasoned that evictions are cases of an “amount in dispute,” the amount being the monthly rent, and that La.Acts 1977 No. 593, amending C.C.P. 4921, “Procedure in cases involving three hundred dollars or less”, by providing for “appeal in such a case” to the district court, reduced the maximum amount of the district court’s appellate jurisdiction to $300 from the $1,000 provided by C.C.P. 4833 B (held applicable to New Orleans city court cases by Hibernia Nat. Bk. v. deGraauw, La.App. 4 Cir. 1977, 351 So.2d 1223, aff’d, La., 350 So.2d 1219).

Our view is that laws giving the district court appellate jurisdiction (thereby removing our own, Const.1974 art. 5 §§ 10(A) and 16(B); Hibernia, supra) over eases involving an “amount” apply literally to monetary demands. A demand for money owed as rent is such a monetary demand, but a demand for eviction from immovable property is not, notwithstanding that the property is rented for some amount per month or year or other period, and that the eviction is demanded for nonpayment of some amount of rent past due.

A city court has jurisdiction in certain eviction cases not because it has jurisdiction in cases of certain amounts in dispute, but because of an express grant of eviction jurisdiction. Thus C.C.P. 4835 grants to New Orleans city courts exclusive jurisdiction of eases of an “amount in dispute” up to $200 “and of suits by landlords for the possession . . . where the monthly rent” is not over $500, together with concurrent jurisdiction (with the district court) of eases of an amount in dispute up to $2,000, but not of evictions when rent is over $500 a month. (Jurisdictional statutes for other city courts have long been different; see Tete v. Hardy, La.1973, 283 So.2d 252. Today C.C.P. 4833 expressly grants them eviction jurisdiction “where the monthly or yearly rent, or the rent for the unexpired term of the lease,” does not exceed $2,000.)

There is no law providing appellate jurisdiction in eviction cases to the Civil District Court in express terms. Former Const.1921 art. 7 §§ 81 and 91 were interpreted, however, by Lichtentag v. Bowens, 1970, 256 La. 559, 237 So.2d 377, to grant appellate jurisdiction to the Civil District Court in eviction cases with monthly rent of $100 or less. Those provisions and that decision remain controlling today in respect to eviction cases in which the monthly rent is $100 or less.

Former art. 7 § 91 (continued as a statute by Const.1974 art. 14 § 16(A)5) governed the First City Court, but § 92 (now, in substance, R.S. 13:2151.4) gave the Second City Court “the same jurisdiction as the First City Court” (although in different areas of the city).

§ 91A provided as to the First (and therefore R.S. 13:2151.4 as to the Second) City Court that it

has exclusive original jurisdiction in all cases where the amount in dispute or fund to be distributed does not exceed one hundred dollars, exclusive of interest, including suits for the ownership or possession of movable property not exceeding that amount in value, and including suits by landlords for possession of leased premises when the monthly rent does not exceed one hundred dollars. It has concurrent jurisdiction with the civil district court ... in all cases [with exceptions] when the amount in dispute or fund to be distributed exceeds one hundred dollars but does not exceed one thousand dollars . . . , including suits for the ownership or possession of movable property not exceeding one thousand dollars in value. [Emphasis added.]

§ 91D provided:

Appeals from the first city court in cases where the amount in dispute or the fund to be distributed does not exceed one hundred dollars, exclusive of interest, shall be taken to the civil district court . as provided in . Section 81 . . . . Appeals in all other cases shall be taken to the court of appeal for the fourth circuit. [Emphasis added.]

§ 81 (now R.S. 13:1137) gave the Civil District Court

appellate jurisdiction over all cases tried in the city courts of New Orleans where the amount in dispute, value of the movable property involved, or fund to be distributed, does not exceed one hundred dollars . . . . [Emphasis added.]

The emphasized provisions of § 91A show that eviction suits are (1) expressly included within the lengthy phrase describing $100- or-less jurisdiction, but (2) impliedly excluded from the different phrase describing $100-to-$l,000 jurisdiction. The first phrase is defined as including suits for movables and including evictions of tenants, and the second phrase is defined as including suits for movables — and, by failing to add “and including” evictions, that second phrase excludes evictions from $100-to-$l,-000 jurisdiction.

The emphasized portion of former § 81 (now R.S. 13:1137) is worded like the $100-to-$l,000 phrase of § 91: by expressly including movables, it seemingly excludes evictions, in the grant of appellate jurisdiction to the Civil District Court. The emphasized portion of § 91D, however, in its grant to the Civil District Court of appellate jurisdiction uses verbatim the lengthy phrase of § 91A’s grant to the city courts of exclusive $100-or-less original jurisdiction. Lichtentag gave that lengthy phrase in § 91D the identical definition that § 91A establishes (including movables and including evictions).

Lichtentag’s ruling, was, moreover, expressly founded upon then art. 7 § 29’s limited grant of jurisdiction to the courts of appeal. It granted us jurisdiction when the district courts had original jurisdiction, either exclusive or concurrent. It did not grant appellate jurisdiction over cases within the city courts’ exclusive original jurisdiction. Thus, because art. 7 § 91A gave the city courts exclusive original jurisdiction in evictions when monthly rent was $100 or less, § 29 gave us no jurisdiction, and therefore appeal was to the district court.

Lichtentag’s language describing an eviction case as one of an “amount” in dispute must therefore be understood in this overall context. Lichtentag did not legislate a new definition, making suits for an “amount” out of all New Orleans city court eviction suits. Because the 1921 constitutional provisions together supported Lichtentag’s result in leases for $100 a month or less, we interpret Lichtentag within its own confines, and we reason that, in any other context, a suit for possession of immovable property is not a suit for an amount, equivalent to one month’s rent. (If one evaluate either lessor’s or lessee’s rights under a lease, the rights for the entire unexpired term must enter that evaluation; Governor Claiborne Apts. v. Attaldo, 1955, 227 La. 39, 78 So.2d 502. The lessee’s right to the rent for the remainder of the term, like the lessee’s right to occupancy, is worth more than one month’s rent unless the lease only has one month remaining.)

Accordingly, it is immaterial to this appeal whether C.C.P. 4833B grants the civil district court appellate jurisdiction in appeals when “the amount in contest” is $1,000 or less, as we held in Hibernia., or whether C.C.P. 4921B’s later $300-or-less procedure is in conflict with C.C.P. 4833B. What is here in contest is not an amount, but the right to possession of premises. Because the premises rent for more than $100 a month, the Civil District Court is not given jurisdiction of this appeal. Under Const, art. 5 § 10(A) jurisdiction is therefore ours.

Motion to refuse transfer recalled.

      . Art. 7 § 9 ID did provide, nevertheless, after granting $100-or-less appellate jurisdiction to the district court, that appeals “in all other cases” came to us. Thus if Lichtentag had held that neither § 81 nor § 91D gave the district court appellate jurisdiction over $100-or-less eviction cases, then § 91D would have given that jurisdiction to us. Art. 7 § 29 was not necessarily in conflict: it read “Any [other] provision of this Constitution or law to the contrary notwithstanding, the courts of appeal have appellate jurisdiction” (our emphasis) of cases within the district court’s original jurisdiction. That wording might have been interpreted only to prevent § 91D from decreasing, and not from increasing, our jurisdiction; § 29 did not say we did not have any jurisdiction that § 91D gave us.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    Gary R. SCHLEGEL v. Doris Bohn SCHLEGEL.
    No. 10203.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 28, 1979.
    Byrne W. Dyer, III, Gretna, for plaintiff-appellant.
    Corwin B. Reed and Edward J. Lassus, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   ON MOTION TO DISMISS

LEMMON, Judge.

This is a motion to dismiss, as untimely, an appeal from a judgment which denied a motion to change custody and dismissed a rule to cumulate past due child support payments and for contempt. The decision turns on whether the delay for applying for a new trial began in relation to August 28, 1978, the day the judgment was rendered and signed, or to August 31, 1978, the day notice of the signing of the judgment was mailed. We hold that the seven-day delay for applying for a new trial began to run on September 1, 1978 and expired on September 12, 1978 (September 4 being a legal holiday), and the 30-day delay for appealing began to run on September 13, 1978 and expired on October 12, 1978, so that the appeal filed on October 10,1978 was timely.

At the close of the hearing on August 7, 1978, the trial judge stated he “will deny the new rule for custody” and instructed counsel to prepare a judgment. Significantly, the judge left the matter open in order to allow the parties to work out the dispute over past due child support and indicated that the judgment should contain the disposition of that dispute.

Under these circumstances the matter should be regarded as having been taken under advisement, so that the delay for appealing did not commence until mailing of the notice of signing of the judgment. C.C.P. art. 1913. This view is in accord with the public policy of maintaining appeals whenever possible.

Accordingly, the motion is denied.

MOTION DENIED.

      . We do not reach appellant’s argument that October 9, 1978 (which was the last day for appealing, if the delay commenced on August 29, 1978) was a legal holiday under R.S. 1:55 A. However, we note that R.S. 1:55 E, which enumerates the legal holidays on which the clerk of the district court is required to close, does not include Columbus Day.


author: BOWLING, Justice,

text:
    J. D. BYNUM v. SWISS AMERICAN OF MISSISSIPPI, INC.
    No. 50762.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Rehearing Denied March 7, 1979.
    Parker, Averill & Butts, David 0. Butts, Jr., Tupelo, for appellant.
    Houston, Chamberlin & Houston, David W. Houston, III, Aberdeen, for appellee.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

J. D. Bynum, appellant (plaintiff below) appeals from a judgment for Swiss American of Mississippi, Inc. (defendant below). Only one question is involved in the appeal: That is, whether or not the lower court erred in sustaining appellee’s motion for a new trial after a jury verdict for appellant. The first trial resulted in a verdict for appellant. The second, nine months after the order granting a new trial, resulted in a verdict for appellee. We reverse and reinstate the judgment of the first trial.

On April 22,1975, appellant filed his declaration against appellee, alleging that on or about February 18, 1975, appellant was employed by appellee to manage a 2,000 acre farm owned by appellee in Monroe County, Mississippi. It was alleged that appellant was to be paid a salary of $1,000 per month in addition to a home, utilities and other benefits, and would continue for the balance of 1975, also it was alleged that on April 21, 1975, appellant’s employment agreement was terminated by appellee without reason or cause and he thereby was damaged in the amount of the benefits lost for the remaining part of the year. Punitive damages also were requested.

Appellee answered the declaration admitting the salary agreement but denying that it was for a specific period of time. Appel-lee affirmatively alleged that appellant’s termination was with cause because of his continued poor performance in his work and his frequent inattention to the requirements of his job. The answer further alleged that appellee would show that appellant was unable to properly supervise other employees and failed to exercise good judgment on behalf of the appellee.

Appellant filed a motion for a bill of particulars with an attached affidavit requesting an order of the court to require that appellee specify the time, place, circumstances, and persons present, and more particularly to specify what performance appellee contends was poor performance in appellant’s work. The motion further alleged that appellant was entitled to know the names, dates, and places of each alleged act of poor performance, together with the names and addresses of any witnesses to these acts, and the names and addresses of each worker alleged by appellee who was not properly supervised and the duties of such persons. The court entered an order requiring appellee to file a bill of particulars in accordance with the motion.

The verified bill of particulars filed by appellee gave the names of five employees who would testify pertaining to the affirmative allegations of appellee’s answer. The bill of particulars alleged that “employee, Sam Vasser, observed the plaintiff, J. D. Bynum, sleeping during hours that he was supposed to be working on Tombigbee Farms”; that “on one occasion, the exact date being unrecalled, employee, Roy Greer, observed the plaintiff, J. D. Bynum, sleeping when he was supposed to be working on Tombigbee Farms; although the exact time of this occurrence is unrecalled, it occurred during the normal working hours and on a normal working day. . .”; that “on numerous occasions, the exact count being unrecalled, as well as, the exact dates, . employee, Cecil Heard, observed the plaintiff, J. D. Bynum, sleeping when he was supposed to be working on Tombigbee Farms . . that “on one occasion, the exact date being unrecalled, employee O. C. Derring, while driving a tractor acted as a look-out so that plaintiff, J. D. Bynum, could sleep in his pickup truck at a time when he was supposed to be working on Tombigbee Farms . . . ”; that “on two occasions, the exact dates being unrecalled, employee, James Downing, observed J. D. Bynum sleeping at times when he was supposed to be working. Downing observed Bynum sleeping on one occasion in the field in a pickup truck, where the other persons present were Bynum’s children and O. C. Derring . . .”; that “on at least five different occasions, Swiss American of Mississippi, Inc. employee, Marcus Oswalt, observed the plaintiff, J. D. Bynum, sleeping at times when he was supposed to be working on Tombigbee Farms . . .”; that “Bynum frequently cursed the employees or farm hands which he was directed to supervise and thereby created a general air of discontent among the workers. The employees’ identities are Sam Vasser, Roy Greer, O. C. Derring and Cecil Heard.”

Although all of the employees listed in the verified bill of particulars were subpoenaed, appellee, in presenting its case, only introduced James Downing, Marcus Oswalt, Cecil Heard and Roy Greer. It was obvious that two employees listed in the bill of particulars, namely, Sam Vasser and 0. C. Deering, were not called as witnesses to verify the specific allegations of the bill of particulars.

The first trial resulted in a verdict for appellant in the sum of $9,148.36.

The trial was had on June 16, 1976. On June 23, 1976, appellee’s attorneys filed a bill of exceptions approved by the trial judge, which stated that the following occurred during the argument of the attorney for appellant:

BY COUNSEL FOR PLAINTIFF: I submit to you that none of these people, these two tractor drivers came in there, Cecil Heard came in there, they brought him in there and they didn’t put any of the rest of them on because they knew that they were not going to uphold them on this thing. .
BY COUNSEL FOR DEFENDANT: Now, we object to that, the witnesses were just as available to him, anybody that he wanted to subpoena here.
BY COUNSEL FOR PLAINTIFF: We didn’t subpoena them, they did, your Honor.
BY JUDGE SENTER: Overruled, you may argue the point.
BY COUNSEL FOR PLAINTIFF: (Continuing) They subpoenaed these witnesses but they didn’t use them because they knew that it was not true and they knew that these witnesses was not going to uphold them after they put those two on.
BY COUNSEL FOR DEFENDANT: If the Court please, we object again to that.
BY JUDGE SENTER: Overruled.

After hearing appellee’s motion for a new trial, one ground of which included the matters set out in the bill of exceptions, the court entered its order granting the motion, stating:

[T]his Court erred in overruling defendant’s objection to the remarks of plaintiff’s counsel made during the final argument in this case and pertaining to the fact that the defendant had certain witnesses under subpoena but did not call them to testify because their testimony would be unfavorable to the defendant. The complete transcript of this remarks is contained in the Bill of Exceptions filed in this cause.
That the general rule of law that is controlling in this case is simply that the failure of either party to examine a witness equally accessible to both is not a proper subject for comment before a jury by either of the parties. The mere fact that these witnesses either once worked for or now work for defendant does not, in and of itself, make them inaccessible to the plaintiff. .

The general rules regarding whether or not appellant’s attorney was permitted to make the observations in his argument, as hereinbefore set out, are discussed in the case of Brown v. State, 200 Miss. 881, 27 So.2d 838 (1946). Although that ease involved a criminal prosecution, it appears that the same principles apply whether in a criminal or civil case. In Brown, the error alleged was that the court erred in overruling the defendant’s objection to the argument of the county prosecuting attorney to the effect that the defendant failed to bring into court his brother as a defense witness. The Court, in discussing the question, set out the general rule that the failure of either party to examíne a witness equally accessible to both is not a proper subject of comment before the jury by either of the parties. The Court, however, went further and discussed exceptions to this general rule. It stated:

The mere fact that a witness may be hailed into court by the compulsory process thereof at the instance of either party does not necessarily make such witness equally accessible to each, or both. .
We held in Mississippi Central R. Co. v. Robinson, 106 Miss. 896, 64 So. 838, 839, that “Where the railroad company did not produce the engineer in charge of the train which ran down decedent, it is not improper for plaintiff’s attorney to comment upon the company’s failure, for the engineer was in its control and should have seen the entire occurrence.” There, the witness was equally accessible to both parties as far as production under process was concerned, although it may have been that a mistaken case of loyalty to his employer would have impaired the availability of his testimony to the opposite party to the extent he would not have been an impartial, unbiased witness, such a one as would serve the cause of justice for either with equal candor. Therefore, it was not improper to comment on the failure of the railroad company to put him on the witness stand. And, as the court said, “The question of the company’s negligence is at the same time a question of his negligence . Neither the language of the counsel, nor the failure of the court to instruct the jury to ignore it, is error.” The court also said in that case: “The rule that the failure of either party to examine a witness accessible to both should not be the basis of inference has, like all rules, its exceptions.”
We conclude that while the person of a witness may be accessible to a party, and his physical presence to testify may be procured by process, that is not the whole question; it is also, whether or not the testimony of the witness is equally available to such party. It is one thing for the person of a witness to be available, and his presence at court obtainable, but it is entirely another thing that what he knows can be equally availed of by the other party. We do not think that the testimony of this brother was equally available to the State as to his sister, codefendant with appellant, her husband, in this criminal prosecution.
The Supreme Court of Missouri, discussing this subject, said: “Now the term ‘available’ in the connection in which we are using it does not mean merely available or accessible for the service of a subpoena, since any witness who may be found may be subpoenaed at the instance of either party to any cause. Quite to the contrary, the ‘availability’ of a witness to one or the other of the parties to an action depends either upon such party’s superior means of knowledge of the existence and identity of the witness, or else upon the relationship of the witness to the party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation and make it natural that he would be expected to testify in favor of the one party and against the other. In other words, a witness may properly be said to have been peculiarly ‘available’ to one party to an action, so that upon that party’s failure to have produced him in court an inference arises that his testimony would have been unfavorable, when such party had so superior an opportunity for knowledge of the witness, or there was such a community of personal interest between the party and a witness, as in ordinary experience would have made it reasonably probable that the witness would have been called to testify for such party except for the fact that it was known or feared that his testimony would be damaging rather than favorable.” Huskey v. Metropolitan Life Ins. Co., Mo.App., 94 S.W.2d 1075, 1078. In that case the Court also said that failure of a party to produce such a witness not equally accessible to both parties because of above reasoning “not only gives rise to a legitimate inference that its production would have resulted unfavorably to him, but also rightfully entitles counsel for the opposing party, in the course of his argument to the jury, to comment upon his adversary’s failure to have produced such evidence.” In this case, the witness about whom the controversy raged, was a fellow-workman of the deceased policyholder in appellee company. See also Vol. 23, C.J.S., Criminal Law § 1099, p. 566, to the same effect.

In the case now before us the primary question was whether or not appellee had cause to terminate appellant’s employment. This issue was raised by appellee’s answer and was specifically spelled out in the verified bill of particulars. Two employees who were subpoenaed and not called by appellee and about whom appellant’s counsel commented as not testifying were Sam Vasser and O. C. Derring. Vasser, the first employee set out in the bill of particulars, according to appellee, would testify that on at least two occasions he had observed the appellant sleeping during hours he was supposed to be working on Tombigbee Farms. The bill of particulars further affirmatively alleged that employee O. C. Derring, while driving a tractor, acted as a lookout so that appellant could sleep. It was alleged in the bill of particulars that appellee had relied on this information in terminating appellant’s employment and would rely at the trial on this evidence of these two employees as well as others. In the court’s opinion, appellant’s attorney had the right to comment on the failure of appellee to present these employees after appellee, in its pleadings, stated it was relying on them to establish its case. The giving of this right to appellant’s attorney is mandated by the Court’s opinion in Brown, supra. Certainly the two witnesses were “equally accessible” to both parties by subpoena. We have to go further though and recognize that this fact alone, whereby the witnesses, according to Brown, “may be hailed into court,” does not make such witness equally accessible to each or both. Appellant was faced with the affirmative, verified allegation that appellee was relying on the testimony of these two employees not subsequently called at the trial.

We hold that the lower court correctly overruled appellee’s objection to the quoted argument of appellant’s attorney. As here-inbefore stated, this question is the only one raised in the appeal and there is no cross-appeal. We are forced to the conclusion that the cause should be reversed and the judgment rendered in the first trial reinstated here. It is, therefore, ordered that the original judgment in the sum of $9,148.36 entered by the lower court on June 22, 1976, be reinstated, together with interest at the rate of eight percent (8%) per annum from the date of the judgment.

REVERSED AND RENDERED.

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


author: LEE, Justice,

text:
    GATES RUBBER COMPANY v. Eunice C. DUKE.
    No. 50590.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Rehearing Denied March 7, 1979.

      Lott, Sanders & Gwin, Arnold F. Gwin, Greenwood, for appellant.
    Odom, Odom & McCain, Talbot 0. McCain, Greenwood, for appellee.
   LEE, Justice,

for the Court:

Mrs. Eunice C. Duke filed a products liability suit in the Circuit Court of Leflore County against Gates Rubber Company, seeking damages for the death of her husband. The jury returned a verdict in her favor in the sum of two hundred nine thousand nine hundred seventy-nine dollars twenty-five cents ($209,979.25). The trial judge entered a remittitur of fifty thousand dollars ($50,000), which was accepted by the plaintiff, and judgment was entered for her in the sum of one hundred fifty-nine thousand nine hundred seventy-nine dollars twenty-five cents ($159,979.25). Gates Rubber Company appeals and assigns fourteen (14) errors in the trial below.

Mr. William Duke was employed as manager of the Farmers’ Supply Cooperative at Schlater, Mississippi. The company sold, among other things, liquid anhydrous ammonia, and the plant was located near Schlater. On the afternoon of June 26, 1975, a customer brought his ammonia tank to the plant, and the tank was in the process of being filled with anhydrous ammonia from the Co-op’s transfer rack. The transfer was effected by means of a hose leading from the supply tank to the customer’s tank. Employee Love was handling the actual transfer of the ammonia.

Mr. Duke and the customer (Overstreet) were sitting in the Co-op office building when they heard a loud explosion and looked up to see Love running from the tanks yelling that the hose had burst. Mr. Duke and Overstreet ran out of the office; Duke picked up a gas mask and attempted to approach the transfer rack, but was turned back by the spewing anhydrous ammonia which rapidly vaporized on contact with the air. Duke, Overstreet and Love were forced to leave the plant and retreat up a gravel road leading to the highway as the wind blew the ammonia toward the office. Duke was driven in an automobile to a nearby telephone where he called the Farmers’ Supply Ammonia Plant for assistance. He and Roy Petty, who had driven to the area, then returned to the transfer rack with the windows of the automobile rolled up, Duke put on the gas mask, jumped out, ran to the rack and closed the valve thereby shutting off the flow of ammonia. He got back into the car and Petty drove to the highway. When Duke emerged from the car at the highway, he slumped to his knees and appeared to be sick. He was taken to the hospital where he remained for twenty-three (23) days and expired. His condition was diagnosed as pneumonitis caused by the inhalation of anhydrous ammonia and he also had suffered a myocardial infarction.

I.

The trial court erred in refusing appellant’s request for a peremptory instruction.

II.

The verdict of the jury and judgment of the court were contrary to law and against the overwhelming weight of the evidence.

The appellee contends that the transfer hose was defective as a result of the manufacturing process and that such condition existed when it was sold by appellant. After the accident, the hose was found to be discolored at the burst site, and appellee argues that this, along with other facts, indicates a defective condition in the hose.

Appellant contends that the hose was properly manufactured; that it was not defective after the manufacturing process, or when it was sold by Gates; that the hose had been maintained in a bent position (near the spud) for a long period of time which weakened it; and that the hose burst as a result of deteriorating from that condition.

Expert witnesses testified for the appellant and appellee in support of their respective theories of the case. Evidence as to whether or not the hose was defective when manufactured and sold by appellant was in direct conflict.

The rule on request for a peremptory instruction requires that all evidence favorable to the party against whom the peremptory instruction is requested must be accepted as true, all evidence in favor of the party requesting the peremptory instruction in conflict with that of the other party must be disregarded, and, if the evidence and the reasonable inferences to be drawn from same will support a verdict for the party against whom it is requested, then the peremptory instruction should be refused. Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652 (Miss.1975). When the evidence is in conflict the issues must be submitted to the jury for decision. Ricks v. Bank of Dixie, 352 So.2d 798 (Miss.1977).

In the present case, the evidence is in direct conflict and establishes an issue of fact for decision by the jury. We are of the opinion that the evidence supports the jury’s verdict on the issue of liability, and that the first two assignments are without merit.

III.

The court erred in granting Instruction P-5 requested by appellant.

Instruction P-5 was a sudden emergency instruction and told the jury that, if it believed Duke was confronted with a sudden emergency caused by the bursting of the hose and the escape of the ammonia, that such sudden emergency was not of Duke’s making, that Duke was not the cause of the sudden emergency, and that he acted reasonably and prudently after being confronted with same, then Duke was not negligent in responding to the sudden emergency situation.

Sudden emergency instructions have been granted frequently in automobile accident cases. In most situations, they are doubtful when requested and dangerous to a party’s case when given. The recent case of Wood v. Walley, 352 So.2d 1083 (Miss.1977), set forth the following requirements for applying the rule in an automobile accident case:

“(1) The motorist seeking the instruction must be driving in a reasonable and prudent manner; (2) the driver must be suddenly confronted with an unexpected and sudden emergency; (3) the emergency cannot be created or contributed to by the negligence or the wrongful conduct of the driver claiming the benefit of the rule; (4) the driver must be placed in a position of peril to himself; (5) the driver cannot have sufficient time in which to determine by rational deliberation the best alternative; (6) and that the degree of care to be weighed by the jury under the said emergency doctrine is that which a reasonably prudent and capable driver would use under the ‘unusual’ circumstances brought about by the sudden emergency.” 352 So.2d at 1086-1087.

The evidence in the present case indicates that Mr. Duke foresaw a situation might arise with reference to the escape of anhydrous ammonia because he kept a gas mask in his office; that he went out of the office and saw the vaporized ammonia being blown toward him by the wind; that he left the plant and went up a gravel road toward the highway; that he went to a nearby telephone and called the main ammonia plant for help; that he was driven back to the area where the ammonia was escaping; that he went to the ammonia transfer rack, put on the gas mask, got out and closed the valve which stopped the flow of ammonia, and then was driven back to the road where he became ill.

Under those facts and circumstances, the trial court erred in granting the emergency instruction. Appellant requested and was given the following instructions:

(1) Instruction D-7 told the jury that, if it believed the hose left the manufacturer in a reasonably safe condition and that the burst was due to the unreasonably long period of time with a bend in it where the hose left the spud, then the verdict should be for appellant.

(2) Instruction D-8 told the jury that Farmer’s Supply Cooperative was negligent in failing to have an excess flow valve on the transfer rack and that, if such negligence was the sole proximate cause of Duke’s death, the verdict should be for appellant.

(3) Instruction D-10 told the jury that the hose had been attached to the transfer rack for more than two (2) years, that Duke had been instructed by his employer to change the hose at least every two (2) years, which he failed to do, and that, if such negligence was the sole proximate cause of Duke’s death, the verdict should be for appellant.

(4) Instruction D-13 was a direct response to Instruction P-5 and told the jury that if it believed Duke got away from the escaping ammonia onto the highway and that he did not act as a reasonable and prudent person in going back into the ammonia under all the circumstances, then the jury must find Duke to have been negligent.

(5) Instruction D-14 told the jury that even though it believed the hose had a defect when it left the manufacturer, and that the defect caused the hose to burst, if the jury believed that negligence of Duke or Farmers’ Supply Cooperative were the sole proximate cause of Duke’s death, then the verdict should be for appellant.

(6) Instruction D-17 told the jury that, if Duke could have avoided his death by the exercise of reasonable care, and that his failure to exercise reasonable care was the sole proximate cause of his death, then the verdict should be for appellant.

(7) Instruction D-18 was a contributory negligence instruction and told the jury that, if it believed Duke committed a negligent act (or acts) under the other instructions given by the court, that proximately contributed to his injuries and death, then the damages should be diminished by that amount which otherwise would have been awarded to the plaintiff, in proportion to the negligence attributable to Duke.

All justices agree that the sudden emergency instruction (P-5) should not have been given. Justices Patterson, Smith, Robertson, Sugg, Walker, Broom and Cofer think that the instruction was prejudicial and constituted reversible error. Justices Lee and Bowling think that the error was cured by the above mentioned instructions for appellant, that, reading all instructions together, appellant could not have been prejudiced and the instruction does not constitute reversible error.

We all are of the opinion that the court committed no error in granting and refusing the other instructions complained of, under the facts presented by the record.

IV.

The court erred in permitting introduction in evidence by appellee of certain advertisements relating to the hose manufactured by Gates.

Advertisements of Gates Rubber Company extolling the safety and construction of the Gates anhydrous ammonia hose were admitted in evidence. It may be argued that the advertisements constitute an admission against interest by appellant. 29 Am.Jur.2d Evidence § 597 (1967); 31A C.J.S. Evidence § 283 (1964). A majority of the justices think that the admission of such evidence does not constitute reversible error. Justices Lee and Bowling are of the opinion that the advertisements were properly admitted. However, on retrial of the case, appellee should carefully consider whether they should be offered in evidence again.

We have carefully considered the remaining assignments of error and are of the opinion that either they do not constitute reversible error or that they will not occur on a retrial of the case, and we do not consider it necessary to discuss them here.

The judgment of the lower court is reversed and the case is remanded for a new trial.

REVERSED AND REMANDED.

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

LEE and BOWLING, JJ., dissent as to Parts III and IV.


text:
    Gary JOYNER v. DELTA BRICK & TILE COMPANY, INC.
    No. 50880.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Rehearing Denied March 7, 1979.
    Laurel G. Weir, Philadelphia, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Roger C. Clapp, Jackson, for appellee.
   Appeal from Circuit Court, Sunflower County; B. B. Wilkes, Judge.

Before PATTERSON C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


author: SMITH, Presiding Justice,

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY v. Frances HILLMAN.
    No. 50754.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    T. Kenneth Watts, Meridian, for appellant.
    Charles C. Pearce, Union, for appellee.
    Before SMITH, WALKER and BROOM, JJ.
   SMITH, Presiding Justice,

for the Court:

Frances Hillman recovered a judgment for $10,000 against United States Fidelity & Guaranty Company under the uninsured motorist provisions of an automobile liability insurance policy issued to her by that company.

In her suit, Hillman alleged that she had sustained injuries in an automobile accident which occurred on April 11, 1973, when her automobile and the truck of one Clark collided at an intersection. Clark was an uninsured motorist.

Photographs indicate that the left front fender of Hillman’s automobile struck the right side of the cab of Clark’s truck and show a crumpling of the left front fender of the Hillman automobile and some damage to its left front door. The damage to the truck was to the right front door of the cab.

The United States Fidelity & Guaranty Company has appealed from the judgment entered against it, assigning several alleged errors for reversal. While several of the assignments appear to have merit, in view of the conclusion we have reached it is necessary to notice only one. Hillman was precluded from recovery under the express terms of the policy and under Mississippi Code Annotated section 83-11-107 (1972), granting the right of subrogation to an insurer against an uninsured motorist for any amount which it may be called upon to pay, Hillman having executed a release of the uninsured motorist, without the knowledge or consent of the insurer.

Following the collision, according to Clark, the uninsured motorist, he and Hill-man remained at the scene for about an hour and each told the other that he was not hurt. This is supported by another witness who had come to the scene. Hill-man obtained an estimate of the cost of repairs to the automobile and, next day, in a conversation with Clark, she again told him she was not hurt. He asked her if she would give him a release if he paid her the amount shown by the estimate and she, again according to Clark, said “Hell yes, I’m not hurt.” Clark then went to his lawyer and had a release prepared. On April 13, he met with Hillman and her son, both of whom read the release, and Hillman was given a copy and Clark’s check. Hillman executed the release which was duly witnessed by one Gainey.

The release executed by Hillman was as follows:

RELEASE
KNOW ALL MEN BY THESE PRESENTS:
That I/We Frances Hillman for the sole consideration of One Hundred Forty Two and 38/ioo ($142.38) dollars, to me in hand paid by L. C. Clark, PAYER, the receipt whereof is hereby acknowledged, have released and discharged, and by these presents do for myself/ourselves/my/our heirs executors, administrators, and assigns release and forever discharge the said Payer and all other persons, firms, and corporations, both known and unknown, of and from any and all claims, demands, damages, actions, causes of action, or suits at law or in equity, of whatsoever kind or nature, for or because of any matter or thing done, omitted or suffered to be done by anyone prior to and including the date hereof on account of all injuries both to person or property resulting, or to result, from an accident which occurred on or about the 11th day of April, 1973, at or near Union, Mississippi, being llk miles West of Union, Miss., on Highway 492.
I/We understand said Payer, by reason of agreeing to this compromise payment, neither admits nor denies liability of any sort, and said Payer has made no agreement or promise to do or omit to do any act or thing not herein set forth and I/We further understand that this release is made as a compromise to avoid expense and to terminate all controversy and/or claims for injuries or damages of whatsoever nature, known or unknown, including future developments thereof, in any way growing out of or connected with said accident.
I/We admit that no representation of fact or opinion has been made by the said Payer or anyone on her, his, or their behalf to induce this compromise with respect to the extent, nature or permanency of said injuries or as to the likelihood of future complications or recovery therefrom and that the sum paid is solely by way of compromise of a disputed claim, and that in determining said sum there has been taken into consideration the fact that serious or unexpected consequences might result from the present injuries, known or unknown, from said accident, and it is therefore specifically agreed that this release shall be a complete bar to all claims or suits for injuries or damages of whatsoever nature resulting or to result from said accident.
IN WITNESS WHEREOF I/We have hereunto set my/our hand this 12th day of April, 1973.
In the presence of
S/ Malcolm Gainey
Malcolm Gainey
S/ Frances Hillman
Frances Hillman
Address Route Box 484
Conehatta, Miss. 37057

Hillman does not recall whether she told Clark that she was not hurt. She testified that she and her son met with Clark, that he gave her a copy of the release, both she and her son read it and that she executed it. She accepted Clark’s check, retained a copy of the release and two days later endorsed and cashed the check. She was allowed to testify that she thought she was releasing only the property claim.

Hillman testified that her insurer United States Fidelity & Guaranty Company was not informed of the accident, was given no notice of the settlement of the claim against Clark, the uninsured motorist, and knew nothing about any of these matters. Three weeks after the accident, Hillman’s attorney gave United States Fidelity & Guaranty Company the first notice that it had of the accident and propounded a claim against it under the uninsured motorist’s provision of the policy for injuries allegedly sustained by Hillman.

Clark is not a party to the suit. There is no allegation of facts which would render the receipt void. In fact, the defendant pled the release in its notice of affirmative matter in bar of recovery and plaintiff made no response thereto and failed to file any statement, written or otherwise, “of any special matter ... in denial or avoidance” of the release, as required by Mississippi Code Annotated section 11-7-59 (1972). The execution of the release by plaintiff, duly witnessed, a receipt of the copy thereof and endorsement and cashing of Clark’s check, are undenied and undeniable facts. Mississippi Code Annotated section 83-11-107 (1972) contains the following provision:

§ 83-11-107 Subrogation.

An insurer paying a claim under the endorsement or provisions required by section 83-11-101 shall be subrogated to the rights of the insured to whom such claim was paid against the person causing such injury, death, or damage to the extent that payment was made, including the proceeds recoverable from the assets of the insolvent insurer. .

In the Uninsured Motorist section of the policy issued to Hillman by United States Fidelity & Guaranty Company, under “Exclusions ”, appears the following:

This policy does not apply under Part IV [Uninsured Motorists Section]
(b) to bodily injury to an Insured with respect to which such insured, his legal representative or any person entitled to payment under this coverage shall, without written consent of the Company, make any settlement with any person or organization who may be legally liable therefor.

It is clear that Harthcock v. State Farm Mutual Automobile Insurance Co., et al., 248 So.2d 456 (Miss.1971), upon which appel-lee seeks to rely, did not involve settlement with an uninsured motorist. The Court, in its opinion, was careful to exclude from the scope of its decision in Harthcock cases involving settlement with an uninsured motorist. The court distinguished between the settlement of an insured with an insured motorist, as was involved in Harthcock, and settlement with an uninsured motorist. The Court made clear that settlement with an insured motorist did not impair any substantial right of the insurer. The ease did not involve a settlement with an uninsured motorist, which would have had the effect of cutting off the insurer’s right of statutory subrogation.

Appellee’s reliance upon Harthcock v. State Farm Mutual Automobile Insurance Co., et al., 248 So.2d 456 (Miss.1971) is misplaced. In Harthcock, this Court dealt with uninsured motorist provisions in certain motor vehicle liability policies where claimant had settled with an insured tort-feasor without consent of the insurer in violation of policy provisions.

In Harthcock, Mrs. Harthcock had sustained injuries when a motorcycle belonging to Lonzo Home, being operated by James Horne, on which she was riding as a passenger, collided with an automobile of one Roark. The Roark vehicle was covered by a policy of liability insurance issued by Southern Farm Bureau Insurance Company. Mrs. Harthcock’s husband was the insured in a policy of automobile liability insurance issued to him by State Farm and the Horne motorcycle was covered by a policy issued to Lonzo Horne by Universal Underwriters Insurance Company. This latter policy, however, contained provisions which the Court held afforded no protection to Mrs. Harthcock because “riders” were excluded and, therefore, the Court held that the motorcycle was an uninsured motor vehicle within the meaning of the Mississippi Uninsured Motor Vehicle Act. In this situation, Mrs. Harthcock settled with Roark, the insured motorist. Mrs. Harthcock sued State Farm and Universal under the uninsured motorist provision of their respective policies. The issue now under consideration was not before the Court in that case, as an examination of the Court’s opinion clearly shows. In Harthcock, this Court said, among other things:

Section 8285-54 Mississippi Code 1942 Annotated (Supp.1968) is in part as follows:
An insurer paying a claim under the endorsement or provisions required by Section 1 [§ 8285-51] shall be subrogat-ed to the rights of the insured to whom such claim was paid against the person causing such injury, death or damage, to the extent that payment was made;
The “person causing such injury” within the meaning of this section is the uninsured motorist. The statute is not concerned with other joint tort-feasors.

And further:

Universal’s policy contains the following exclusion with reference to the uninsured motorist coverage:
. to bodily injury to an insured with respect to which such insured, his legal representative or any person entitled to payment under this endorsement shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor.
State Farm’s policy contains a similar provision. Insofar as this exclusion applies to a tort-feasor other than the uninsured motorist, this provision is invalid. .
This exclusion, when applied to tort-fea-sors other than the uninsured motorist, is an invalid abridgement of the coverage required by the statute, and is void. (248 So.2d at 459-460).

In Alabama Farm Bureau Mutual Casualty Insurance Company v. Clem, 49 Ala.App. 457, 273 So.2d 218 (1973) cited by appellee, plaintiff, Mrs. Clem, riding as a passenger in the automobile of Mrs. Leonard, (insured by State Farm Fire & Casualty Company) was killed, as was Mrs. Leonard, when it collided with the automobile of one Hines, an uninsured motorist. A settlement of the claim for Mrs. Clem’s wrongful death was effected with Leonard’s estate and her insurer, State Farm, and the estate and insurer were released. Request was made of Alabama Farm Bureau Mutual Casualty Insurance Company, insurer of the automobile belonging to Mrs. Clem’s surviving husband, for leave to sue Hines. Alabama Farm Bureau granted this permission but specifically denied liability under the uninsured motorist provision in its policy issued to Clem. A judgment for $39,300 was obtained against Hines, the uninsured motorist, and suit to recover $10,000 of this amount was filed against Alabama Farm Bureau Mutual under the uninsured motorist provision of the Clem policy.

The decision of the Alabama Court of Civil Appeals, in allowing recovery, closely parallels that of this Court in Harthcock, supra.

The Alabama Court said:

The sole issue presented to this court is whether or not the exclusionary clause contained in the uninsured motorist coverage part of the policy is valid as to settlements with insured motorists by virtue of the insurance company’s subrogation rights. Although other states have upheld such clauses based upon protection of the insurer’s subrogation rights, we do not think that this is the case in Alabama.
In support of his argument, appellant cites us to Florida and Louisiana cases upholding such clauses. We must point out that the uninsured motorist statutes of both states include a liberal subrogation provision.
Alabama’s statute, however, contains no such provision. .
We therefore conclude that the exclusionary clause in question does not prevent a settlement with an insured tort-feasor under the circumstances of this case. The judgment of the trial court is therefore affirmed. (49 Ala.App. at 460-462, 273 So.2d at 221-222).

In Ford v. State Farm Mutual Automobile Insurance Company, 550 S.W.2d 663 (Tex.1977), cited by appellee, Mrs. Ford, a passenger in the automobile of Mrs. Harvey, was killed when it collided with the automobile of one Whitten, an uninsured motorist, whose negligence caused the collision. Settlement of Mrs. Ford’s death claim was made with Gulf Insurance Company, insurance carrier for Harvey. The Ford automobile was covered by a policy issued by State Farm Mutual, containing an uninsured motorist provision. There was no settlement with or release of Whitten, the uninsured motorist. The Supreme Court of Texas allowed recovery against State Farm under its uninsured motorist provision, but based the decision upon the ground that a waiver of the policy clause requiring consent of the company had occurred. The case does not involve the question now before this Court.

Gulf American Fire & Casualty Company v. McNeal, 115 Ga.App. 286, 154 S.E.2d 411 (1967), another case cited by appellee, and decided by the Court of Appeals of Georgia, involved the dispute with an insurance carrier as to whether the uninsured motorist provision of the policy issued originally covering a Volkswagen, belonging to McNeal, also covered an additional automobile afterward acquired by him, which was the automobile actually involved in the collision, in which Mrs. McNeal and her son sustained injuries. The Georgia law required, as a condition precedent to the suit against the insurer under an uninsured motorist provision, that suit be brought and recovery obtained against the known uninsured motorist. McNeal’s insurer denied all coverage and took the position that its policy did not cover the car involved and refused to consent to suit against the uninsured tort-feasor. The Court held that this was a waiver of the consent provision and that under these circumstances the plaintiffs were entitled to sue without the insurer’s consent.

Appellee also cites Hawaiian Insurance & Guaranty Company v. Mead, 14 Wash.App. 43, 538 P.2d 865 (1975), a case which involved a three-car collision in which Mead, the insured under a policy issued to him by Hawaiian Insurance & Guaranty Company, was injured. The other vehicles involved were operated respectively by Bilyeu’s Meats, Inc., and one David Hunter, the latter having been an uninsured motorist. Settlement was made by Mead with Bilyeu, and Bilyeu was released. No settlement with Hunter the uninsured motorist, was made. Mead’s insurer brought suit against Mead seeking a declaratory judgment that Mead’s settlement with Bilyeu’s, an insured motorist, without the company’s consent, prevented his recovery under the uninsured motorist provision of the policy. The Court held that it did not. The case did not touch the question now before this Court as to the effect of settlement with the uninsured motorist.

This Court, in disposing of the precise (but different) question involved in Harth-cock, made a reference to the Georgia Uninsured Motorists statute saying “The Georgia statute with respect to the requirements of the undertaking of the insurer are identical with the statute in this state.”

The Georgia Court, in Cotton States Mutual Insurance Company v. Torrance, 110 Ga.App. 4, 137 S.E.2d 551 (1964), Affirmed 220 Ga. 639, 140 S.E.2d 840 (1965), dealt with the question of the effect of a settlement by an insured with an uninsured tort-feasor in violation of the consent provisions of the policy. In Cotton States, the Georgia Court held that the insured’s petition against the insurer under the uninsured motorist provision of the policy failed to state a cause of action since the petition affirmatively showed that the insured’s rights under the policy had been forfeited in obtaining a judgment against the uninsured motorist in violation of a policy exclusion which provided that coverage would not apply where the insured made any settlement with, or prosecuted* to judgment any action against, any person or organization who may be legally liable without the written consent of the insurer. The Court held that the insurer was entitled to contract to protect its rights against the uninsured motorist and to exclude from coverage cases where judgment was obtained or settlement made with the uninsured motorist without consent of the insurer.

Oren v. General Accident Fire And Life Assurance Corp., 175 So.2d 581 (Fla.App. 1965), was a case in which the administra-trix of two persons killed when an automobile in which they were riding collided with the automobile of an uninsured motorist, had obtained judgments against the uninsured motorist without the consent of the insurer. The administratrix then brought suit against the insurer under the uninsured motorist provision of the insurance contract.

The policy contained the following provision under the Uninsured Motorists clause:

Exclusions

This policy does not apply
(b) To bodily injury to an insured, or care or loss of services recoverable by an insured, with respect to which such insured, his legal representative or any person entitled to payment under this coverage shall, without written consent of the company, make any settlement with or prosecute to judgment any action against any person or organization who may be legally liable therefor; (Emphasis added). (175 So.2d at 582).

This provision is identical in its material particulars with that involved in the case now before this Court. In Oren the trial court entered judgment against the plaintiff in favor of the insurer and the adminis-tratrix appealed. In affirming the trial court, the appellate court stated:

The exclusion clause in the contract was specific, clear and unambiguous. It provided that the policy did not apply where the insured or his legal representative made a settlement or obtained a judgment against a person who might be liable, without the written consent of the insurer. It is clear that these terms were violated when suit was filed and judgment obtained without the written consent of the insurer. (175 So.2d at 582).

The appellate court cited Rigel v. National Casualty Company, 76 So.2d 285 (Fla. 1954), wherein the Florida Supreme Court had stated:

We acknowledge the rules that if the language is plain and unambiguous, there is no occasion for the Court to construe it, . that if uncertainty is present, the instrument should be construed against the insurer, . . . that the Court should not extend strictness in construction to the point of adding a meaning to language that is clear, . and that the Court should construe the contract of insurance to give effect to the intent of the parties . . . . (175 So.2d at 582).

The Appellate Court then continued:

The language herein is plain, unambiguous, and specific, and requires no construction or interpretation by this court. The pleadings do not allege any attempt made to obtain “written consent” or that the insurer refused to give “written consent” to the suit; and there are no allegations which would constitute waiver or estoppel on the part of the insurer. (175 So.2d at 582).

The Oren case is cited with approval in Valdes v. Prudence Mutual Casualty Co., 207 So.2d 312 (Fla.App.1968), Bass v. Aetna Casualty And Surety Co., 199 So.2d 790 (Fla.App.1967), Aetna Insurance Co. v. Jordan, 189 So.2d 408 (Fla.App.1966).

Uninsured motorist insurance differs fundamentally from the liability coverage afforded by an automobile liability insurance policy. In the case of uninsured motorist insurance, under the statute, the insurer is subrogated to the rights of the insured against the uninsured tort-feasor. This is in keeping with time honored and long established principles.

In Thompson v. Aetna Insurance Co., 245 So.2d 206 (Miss.1971), this Court said: “The law has long been established in the state of Mississippi that when there is in the insurance contract a subrogation right and the insured releases the person whose negligence is the proximate cause of any damage to the insurable interest and thereby the insurer is prohibited from proceeding against the tort-feasor, the insured has no further rights to proceed against the insurer.”

In Thompson v. Aetna, supra, this Court said this:

The issue in this case is very limited and can be stated tersely as follows: Does the insured have the right to recover from the insurer the amount of the policy when the insured, without consent of the insurer and in violation of the terms and conditions of the policy, receives payment from a third party to whom a release has been given, thereby destroying the insurer’s right of subrogation in violation of the terms and conditions of the policy? This issue is conclusively settled in the following cases: Twin States Insurance Company v. Bush, 183 So.2d 891 (Miss.1966); Chandler v. State Farm Mutual Automobile Insurance Company, 200 Miss. 702, 28 So.2d 571 (1947); and Farmer v. Union Insurance Company of Indiana, 146 Miss. 600, 111 So. 584 (1927).
The law has long been established in the state of Mississippi that when there is in the insurance contract a subrogation right and the insured releases the person whose negligence is the proximate cause of any damage to the insurable interest and thereby the insurer is prohibited from proceeding against the tort-feasor, the insured has no further rights to proceed against the insurer. The insured, by executing the release in the case at bar, not only completely released the Alabama Great Southern Railroad Company, its agents, servants and employees together with all other subsidiaries of the Southern Railway System, but also released “any and all other persons, firms and corporations” from all damages resulting from the accident complained of to all property owned by the appellant. Thus the insurer was denied its contractual subrogation rights. The right to contract is precious and sacred to human endeav- or, and a valid contract is binding on the parties thereto.

In Pearce v. Pierce, 214 Miss. 344, 58 So.2d 824 (1952), involving a general release pleaded as a settlement of all claims, it was contended that the release involved only property damage. The release read as follows:

Release In Full
For the Sole and Only Consideration of Three Hundred and No/100 Dollars ($300.00) to me, paid, receipt of which is hereby acknowledged I hereby release and discharge Pierce Brothers and Ellis Pierce his or their heirs successors and assigns, and all other persons, firms or corporations who are or might be liable from all claims of any kind or character, which I have or may have against him or them, and especially because of all damages, losses or injury to persons or property, or both, whether known or unknown, developed or undeveloped, resulting or to result from accident on or about December 18,1950, at or near Bunker Hill Community, Marion County, Mississippi and I hereby acknowledge full settlement and satisfaction of all claims of whatsoever kind or character which I may have against him or them by reason of the above mentioned damages, losses or injuries. I have represented that the injuries sustained are permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and upon my own judgment, belief and knowledge of the nature, extent and duration of said injuries and that no representations or statements regarding said injuries or regarding any other matter made by the persons, firms or corporations who are hereby released or any person or persons representing him or them or by any physician or surgeon by him or them employed has influenced me to any extent whatsoever in making this release.
It is further understood and agreed the payment of said amount is not to be construed as an admission of liability upon the part of said person, firms or corporations; liability being by me or them expressly denied.
All agreements and understandings between the parties hereto are embodied and expressed and the terms of this release are contractual and not a mere recital.
I Have Read The Foregoing Release And Fully Understand It.
Signed, sealed and delivered this 3rd day of January, 1951.
In the presence of
Alford Pearce (Claimant sign below)
Mrs. Mae Speights Hathorn
Route No. Two C. R. Pearce (Seal)
Bassfield, Miss.

This Court then continued:

We need not set out the testimony by which the appellant sought to show that there was a misunderstanding or fraud in its procurement, or that it was orally agreed that it covered only damage to his car. Appellant testified that before he signed it, he read it and knew its contents, also that he accepted and cashed a draft issued pursuant to the agreement in the sum of three hundred dollars, on which was written “Payment of all claims arising out of an accident. Date of accident, December 18, 1950.” There is no issue whether this referred to the collision which is the basis for the suit herein.
While there are contentions alleging fraud, and representations at variance with the terms of the contract of release, fraud as to past or existing facts was neither alleged with conciseness nor proven with clear and convincing testimony, and, in view of a full understanding of the terms of the release, voluntarily executed, together with acceptance of the draft issued thereunder, the attack upon the release must fail. It merged all previous discussions and agreements, if any. See Koeing v. Calcote, 199 Miss. 435, 25 So.2d 763; Yazoo & M. V. R. Company v. Sideboard, 161 Miss. 4, 133 So. 669.

The cases may be classified generally as cases dealing with settlements with insured motorists, those dealing with cases in states where the insurer was not vested by statute with the right of subrogation, and those in states in which there are statutes vesting the insurer with the right of subrogation in cases involving uninsured motorists. The weight of authority appears to be that where the uninsured motorist statutes grant an insurer the right of subrogation, and a provision in the policy precludes settlement with an uninsured motorist without the consent of the insurer, the provision of the policy is valid and will be upheld.

Clark did not concede liability, and he and Hillman differed as to the circumstances under which the collision occurred and as to fault in connection with it. Both Hillman and Clark agree that she was given the release, that both she and her son read it, that she retained a copy, and two days later cashed the check. In explaining why he wanted the release, Clark said that Hillman had “Gone back on her word one time and he was afraid that she might do so again.” He considered that he was protecting himself, against a suit for personal injury as well as property damage. He also said that this was explained to Hillman by her son, although this is not admitted. Clark testified that the settlement came about after an estimate of the damage to the Hillman car had been obtained and he asked Hillman if she would release him if he paid the amount of the estimate and that she had enthusiastically agreed. However the facts may be, the release was pled with the responsive pleadings as an affirmative defense and no written statement or any other response was made by plaintiff setting out “any special matter which he intends to give in evidence in denial or avoidance of such special matter so given in the answer by the defendant, and to which it would have been necessary heretofore to reply specially had the defendant’s defense been specially pleaded; and if such special matter be not so alleged by the plaintiff, evidence of such matters shall not be given at the trial. . . .” Mississippi Code Annotated Section 11-7-59 (1972).

This statutory requirement was upheld in American Insurance Co. v. Prine, 244 Miss. 69, 140 So.2d 284 (1962).

Continued objections were made by appellant during the trial to testimony directed toward explaining or avoiding the settlement and release or varying its terms. In American Insurance Company, supra, this Court said that the admission of such evidence was error, citing Calvert Fire Insurance Co. v. Swain, 217 Miss. 773, 65 So.2d 253 (1953).

In any event, even if such testimony could be considered competent in what amounts to a collateral attack upon the release and where there was no pleading of anything in denial or avoidance of it, there was no testimony in the case capable of supporting a finding that the release is void.

It is undisputed that the insurer not only did not consent to, but had no part in the settlement between Hillman and Clark or in the execution of the release by Hill-man and that the insurer knew nothing of either. It is also undisputed that the fact that Hillman had been involved in an accident was not reported to the insurer until three weeks after the accident had occurred.

The clear and unambiguous provisions of the insurance contract, the subrogation right vested in the insurer by statute, under principles announced and adhered to by this Court for many years, require that recovery against the insurer under the circumstances of this case be denied.

REVERSED AND JUDGMENT HERE FOR APPELLANT.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Mary WILLIAMS v. LIFE INSURANCE COMPANY OF GEORGIA.
    No. 50852.
    Supreme Court of Mississippi.
    Feb. 14, 1979.

      Zuccaro, Riley, Pintard & Brown, Edwin E. Kerstine, Natchez, for appellant.
    Brandon, Handy & Blough, Jim C. Blough, Natchez, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Mary Williams filed suit in the Circuit Court of Adams County against Life Insurance Company of Georgia seeking recovery of double indemnity benefits in the sum of twenty thousand dollars ($20,000). Life Insurance Company of Georgia interposed an affirmative defense claiming that the suit was barred by the three-year statute of limitations, the trial court sustained the affirmative defense and entered judgment for the defendant. Mary Williams appeals and assigns as errors the following:

(1) The insurance policy issued to Thomas C. Williams by the Life Insurance Company of Georgia is a group policy with provisions giving comprehensive coverage to the insured and as such this policy is specifically exempt from the three-year statute of limitations governing only accident and health insurance under Mississippi Code Annotated Section 83-9-1 et seq. (1972).

(2) The insurance policy issued to Thomas C. Williams by Life Insurance Company of Georgia is a group policy containing comprehensive coverage and is specifically exempted from Title 83, Chapter 9, Mississippi Code Annotated (1972) and its three-year statute of limitations by virtue of Section 83-9-17 and thus the court as a matter of law must apply the six-year statute of limitations under Mississippi Code Annotated Section 15-1-49 (1972).

On December 2, 1970, Thomas C. Williams, an employee of Southwest Fishing and Rental Tool, Inc., filed an application for insurance and Policy # 13902-1 was issued to him effective December 2, 1970, the same date as the application. On March 19, 1973, Mr. Williams died as a result of drinking ethyl alcohol and taking a barbituate which had been prescribed for another individual. Proof of loss was filed by appellant, beneficiary in said policy, and on June 28, 1973, Richard C. Livingston, Claims Supervisor of the Group Claims Department, Life Insurance Company of Georgia, forwarded to appellant, in care of her attorney, a check in the amount of twenty thousand dollars ($20,000) for death benefits under Part I of the policy, together with a release for execution by appellant. The release reserved for appellant her right to pursue the accidental death benefit claimed under the policy, and the release, on its face, showed that it came from the Group Claims Department, Life Insurance Company of Georgia.

On July 6, 1977, four (4) years and three (3) months subsequent to accrual of the claim, appellant filed suit for the $20,000 accidental death coverage (double indemnity). All benefits provided in the policy are as follows:

“SCHEDULE OF COVERAGE
Part I: Life Insurance, before Insured’s 66th birthday.$20,000.00
amount on and after 65th birthday .. $10,000.00
Part II: Accidental Death, Dismemberment and Loss of Sight, before Insured’s 65th birthday Principal Sum of.$20,000.00
on and after 65th birthday Principal Sum of.$10,000.00
Part III: Weekly Income Benefit .$ Nil
Part IV: Maximum Daily Hospital Benefit-$36.00
Cash Deductible .$ Nil
Part V: Convalescent Nursing Home, Maximum Daily Benefit.$18.00
Part VI: Surgical, Aggregate Limit.$500.00
Part VII: Diagnostic X-Ray and Laboratory Examination Expense, Aggregate Limit .$50.00
Part VIII: Emergency Accident, Maximum Benefit .$25.00
Part IX: Radiotherapy Expenses, Aggregate Limit.$400.00
PartX: Major Medical Expense, Maximum Benefit .$10,000.00
Are Dependents Covered .? No
Initial Premium.$27.66”

Appellee contends that Mississippi Code Annotated Section 83-9-5(k), which is a part of Chapter 9, Title 83, Accident and Health Insurance, Mississippi Code Annotated (1972), governs here. It states:

“(k) A provision as follows:
Legal actions: No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty (60) days after written proof of loss has been furnished in accordance with the requirements of this policy. No such action shall be brought after the expiration of three (3) years after the time written proof of loss is required to be furnished.” (Emphasis added).

Appellant claims that Mississippi Code Annotated Section 83-9-17(3) exempts the present policy from application of the three-year statute of limitations and prevents application of said Section 83-9-5(k). The section sets forth:

“Nothing in sections 83-9-1 to 83-9-21 shall apply to or affect (1) any policy of workmen’s compensation insurance or any policy of liability insurance with or without supplementary coverage therein; or (2) any policy or contract of reinsurance; or (3) any blanket or group policy of insurance; or (4) life insurance, endowment or annuity contracts, or contract supplemental thereto which contain only such provisions relating to accident and sickness insurance as (a) provide additional benefits in case of death or dismemberment or loss of sight by accident, or as (b) operate to safeguard such contracts against lapse, or to give a special surrender value or special benefit or an annuity in the event that the insured or annuitant shall become totally and permanently disabled, as defined by the contract or supplemental contract.” (Emphasis added).

The threshold question to be determined is whether or not the policy issued to Mr. Williams is a group policy of insurance within the meaning of Section 83-9-17. Mr. C. D. Cothran, Jr., Assistant Vice President and Associate General Counsel with appellee, testified:

“Q. Is this agreement with the employers and the issuance of insurance thereunder ever done where there is just one employee?
A. No, sir.
Q. Do you have a rule as to the minimum number of employees?
A. Yes.
Q. What?
A. Three.
Q. Then it is a correct statement to say that before you have this agreement with an employer he must have at least three employees take out insurance with the company before Life of Georgia will go through with the deal?
A. Yes, sir.”

The following facts relating to the policy are pertinent:

(1) The application for insurance designated that it was for benefits provided under the Employee Protection Package of the employer listed below (Southwest Fishing and Rental Tool, Inc.).

(2) The termination clause in the policy provided that it would automatically terminate on the earliest of the dates “(a) at the end of any policy term (policy term equal to one month — page 1 of the policy) during which or at the end of which the insured’s employment with the employer stated on the first page ... is terminated,

(3) In the application for insurance the employee was required to execute the following: “I hereby request my employer to deduct from my earnings each month the amount, if any, required to cover my share of the premiums under the Employee Protection Package issued by Life Insurance Company of Georgia.”

(4) A minimum of three (3) employees were required to join in the insurance plan before appellee would issue such type protection to the corporation. There was no limit to the number in excess of three who might join.

(5) The employee had the right to convert the plan to an individual plan.

(6) The plan was limited only to employees of the corporation.

(7) Employment termination ended coverage of the policy.

(8) The employee obtained a lower premium payment price.

(9) There was a sharing of premium payments between the employer and employee.

(10) Payment of the initial $20,000 was made from the Group Claims Department of appellee.

44 C.J.S. Insurance § 15, at 479 (1949) defines “group insurance” as coverage of a number of individuals by a single policy. In the present case, the policy itself was issued and delivered to the insured rather than a master policy to the employer with a certificate of insurance to the employee. Although the record does not indicate the number of employees insured under the employment package plan, the issuance and delivery of a complete, self-contained and personalized policy to each employee did not remove the policy from the group insurance class, and did not convert it to an individual plan. Contracts, and specifically insurance contracts, are construed most strongly against the party drafting same and most favorably to the policyholder. Mutual Benefit Health & Accident Ass’n v. Blaylock, 163 Miss. 567, 143 So. 406 (1932).

We hold that the policy in question is a group policy of insurance within the meaning of Section 83-9-17 and is exempt from the three-year statute of limitations provided in Section 83-9-5(k). We further hold that the six-year statute of limitations, Section 15-1-49, controls here. New York Life Insurance Co. v. Gill, 182 Miss. 815, 182 So. 109 (1938). Since the case must be reversed and remanded for trial on the merits, in view of this decision, it is not necessary to decide whether any of the other exceptions set forth in Section 83-9-17 apply to the policy.

REVERSED AND REMANDED.

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

SMITH, P. J., took no part.


text:
    William H. HINDS v. Mary Ann PRIMEAUX.
    No. 50876.
    Supreme Court of Mississippi.
    Feb. 14, 1979.

      William M. Frisbie, Bay St. Louis, for appellant.
    Estes & Estes, George E. Estes, III, Gulf-port, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellee filed her suit in the Chancery Court of Hancock County to enforce a Louisiana decree awarding her monthly child support payments by the defendant as a part of a Louisiana divorce decree. The chancellor awarded appellee a decree in the total amount of past due child support payments. Appellant in this appeal alleges four principal assignments of error, namely:

1. The suit was barred by the Mississippi Statute of Limitations;

2. The court erred in not granting appellant a continuance;

3. The court erred in overruling appellant’s motion to set aside the decree and permit appellant to present evidence of his inability to pay prior to being cited for contempt; and

4. The Louisiana child support decree was not final; was subject to revocation by the Louisiana court, and, therefore, was not a foreign decree that could be enforced by the Mississippi court under the full faith and credit clause of the United States Constitution.

The permanent decree awarding appellee a divorce from appellant and requiring appellant to pay appellee the sum of $325 per month as child support was rendered by the proper court of Lafayette Parish, Louisiana, on June 6, 1969. In September, 1973, the appellant having paid nothing toward the monthly support requirements of the decree, the Louisiana court, on petition of appellee, reduced the past due monthly payments to a final judgment as of that time. Execution was then levied on that judgment. Soon thereafter, appellant moved to Harrison County, Mississippi. Appellee’s present suit requested a judgment in the total amount of all unpaid and past due support payments subsequent to September, 1973.

It is clear that Mississippi Code Annotated section 15-1-45 (1972) does not prohibit appellee from bringing suit for payments due after September, 1973. This statute of limitations permits such a suit if brought within seven years after the rendition of the decree. As hereinafter will be discussed, this limitation period was applicable only after September, 1973.

Regarding the alleged error in not granting a continuance, this question in reality is moot due to the undisputed proof in the case. Regardless of this, appellant knew of the trial date for several months and had ample opportunity to prepare for trial.

At the conclusion of the trial, the lower court granted appellee a judgment in the amount of $16,250, representing the total child support payments due from September, 1973, until the trial date. He then ordered appellant to pay $5,000 toward the decree within eight days after the decree and the balance of $11,250 within sixty days thereafter. Seven days after the final decree, appellant’s attorney filed a motion to set aside the decree, particularly the immediate payment part, and permit him to have a hearing as to appellant’s ability to make these payments. This request was denied and three days later the lower court issued an order directing that appellant be summarily arrested and incarcerated in the Hancock County Jail until he purged himself of contempt of court.

The above actions of the lower court were erroneous. This Court has held that the judgment debtor of a judgment such as in the case at bar is at least entitled to a hearing. This was refused and appellant was jailed without a hearing. We realize that the lower court could not have had much sympathy for appellant because of his prior actions. However, this did not relieve the lower court of its duty to follow constitutional guidelines and permit appellant and his attorney to present mitigating circumstances. At the least the court should have made an inquiry as to appellant’s ability to abide by the court’s order to pay the entire accumulated judgment within a very short time.

The cause cannot be reversed because of the court’s error in the above regard. An order was entered a week after appellant’s commitment to jail permitting this appeal. A reversal on the error stated would be of no avail due to the passage of time and the correct finding of the court granting appel-lee a judgment.

Appellant contends that the Mississippi Court erroneously gave appellee a judgment under the full faith and credit clause of the United States Constitution. He contends that the Louisiana decree of June, 1969, ordering appellant to pay monthly child support payments was not final for the reason that any time the Louisiana court could reverse the cause and could either reduce or eliminate past due support payments.

Appellant relies on the Mississippi Supreme Court case of Gallant v. Gallant, 154 Miss. 832, 123 So. 883 (1929). There this Court had a similar question before it regarding a Louisiana decree for support. The Court, through Justice Cook, issued an opinion regarding this question and discussed eases where the decree sued on was rendered in many states other than those from the State of Louisiana. The Court, in a well reasoned opinion, concluded that the court of this state could not give full faith and credit to decrees of other states under periodic support payment requirements when that state’s court retained such jurisdiction over the cause as to be able to amend or revise the decree ab initio. The Court, after discussing the Louisiana laws and cases, stated:

We conclude, therefore, that the decree of the Louisiana court is one that may be annulled, varied, or modified by the court rendering it, and consequently is not, as to such alimony, enforceable in this state under the full faith and credit clause of the Constitution.

It should be noted that the term “alimony” under the laws and procedure of Louisiana includes child support payments.

In 1937, the Supreme Court of Louisiana issued its opinion in the case of Snow v. Snow, 188 La. 660, 177 So. 793, wherein the same question was involved as was before the Mississippi Supreme Court in Gallant, supra. The Louisiana Supreme Court, although complimenting the well-reasoned opinion of the Mississippi Supreme Court in Gallant, held definitely that this Court was in error and that under Louisiana law [which is the same today] the past due child support payments could not be annulled, varied or modified by the court rendering the decree requiring such payments, and consequently held that the lower court “had no authority to release the defendant from his debt for the past-due installments of alimony” [child support payments]. This positive pronouncement by the Louisiana Supreme Court has been reaffirmed in several cases, including Pisciotto v. Cruda, 224 La. 862, 71 So.2d 226 (1954); Snow v. Snow, 188 La. 660, 177 So. 793 (1937); Williams v. Williams, 211 La. 939, 31 So.2d 170 (1947); Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89 (1950); and Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902 (1950). In those cases, the Louisiana Supreme Court specifically held:

The jurisprudence is well settled that a judgment for alimony, as to the amount that has become past due, is the property of him in whose favor it has been given, and is protected against alteration or annulment except by the method and for the causes prescribed by law.

It suffices to say that any exception to the law as pronounced by the Louisiana Court does not include the suit brought by appellee in the present case.

It is therefore necessary that we overrule the Mississippi case of Gallant v. Gallant, supra, insofar as it held that the Louisiana laws and decisions required a finding that the monthly child support payments were not final and, therefore, not enforceable in Mississippi under the full faith and credit clause of the Constitution. The Gallant opinion is still correct as it applies to those jurisdictions that retain such control over alimony and child support decrees so that past due payments may be changed or modified.

It necessarily follows that the lower court was correct in granting a decree in favor of appellee for the total amounts due under the prior Louisiana decree. As stated before, the amount of support payments at the time of the trial was in the total sum of $16,250. It developed at the trial, however, that during the years appellant had forwarded direct to his children for specific uses such as trips, Christmas, and a horse the total sum of $1,425. In our opinion he should be credited with this amount on the total judgment. We therefore amend the decree of the lower court and grant judgment here in the sum of $14,825 as of October 27, 1977, rather than the sum of $16,250 decreed by the lower court. This does not bar appellee from reducing subsequent unpaid payments to judgment or taking any other action available under Mississippi laws.

The cause is therefore affirmed in part, reversed in part and judgment entered here in the sum of $14,825.

AFFIRMED IN PART, REVERSED IN PART, AND JUDGMENT HERE.

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

SMITH, P. J., took no part.


text:
    The COLLEGE LIFE INSURANCE COMPANY OF AMERICA v. T. J. BYRD.
    No. 50881.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    Watkins, Pyle, Ludlam, Winter & Stennis, William A. Pyle, Richard F. Scruggs, Jackson, for appellant.
    Caldwell, Lee, Richardson & Medley, Michael R. Medley, Jackson, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant, The College Life Insurance Company of America, appeals from a judgment against it by appellee in the Circuit Court of the First Judicial District of Hinds County.

Appellee’s declaration alleged that on or about December 15,1976, he entered into an employment contract with appellant Insurance Company through its local general agent, Wilford Welch. It was alleged that Welch had full authority to employ appellee as an insurance sales representative for the Company and that the agreement between appellee and Welch was that appellee was to receive $800 per month and sales commissions. The declaration further alleged that he commenced work but was not paid according to the agreement, and charges that appellant failed to make the payments due to its wilful, wanton, malicious and intentional actions and that such actions constituted fraudulent conduct.

The case was presented to the jury on the question of whether or not Welch had authority to employ appellee. In the event this would be in the affirmative, the jury was permitted under instructions of the court to find both actual and punitive damages. The verdict was for appellee against appellant in the sum of $1200 as actual damages and $10,000 as punitive damages. By agreement, the actual damage award was reduced to $1100, representing the amount of salary contended by appellee to be owed.

Numerous assignments of error are propounded by appellant, however, in disposing of the appeal it is only necessary to consider two questions, namely: (1) Whether or not Welch had authority to employ appellee, and, if so, the conditions of employment; and (2) whether or not the actions of appellant as reflected in the record were sufficient to authorize an award of punitive damages.

Appellant contends that Welch only had authority to negotiate with appellee and that any final and binding decision would be made in the home office of the company in Indiana. It will serve no useful purpose to relate the voluminous testimony regarding appellee’s contact and negotiations with Welch. The testimony of appel-lee was positive that Welch represented to him that he had full authority to bind the company in the employment negotiations and the agreement to begin work on December 15, 1976, at $800 per month was a binding agreement at that time. Testimony was elicited from Welch that he had authority to enter into the agreement with appellee. Other supervisory personnel testified as to Welch’s authority to secure sales representatives. However, the record shows that appellee executed a “Special Agent’s Contract” form in blank, with the understanding that it would be forwarded to the company for its acceptance and execution. This was never done. Appellee stated that Welch’s explanation for the written instrument was that it was for the purpose of facilitating payment of appel-lee’s compensation.

The contract between Welch and appellant was introduced in evidence, which contract attempted to make Welch an independent contractor without authority to bind the company.

It was said by this Court in the case of General Contract Corporation v. Leggett, 224 Miss. 262, 79 So.2d 843 (1955):

Where the relationship of principal and agent exists, if the principal places his agent in a position where he appears, with reasonable certainty, to be acting for the principal, and his acts are within the apparent scope of his authority, obviously such acts bind the principal. Allen v. T. J. Moss Tie Co., 157 Miss. 392, 128 So. 351, and authorities too numerous to mention.

It clearly was a question for the jury as to whether or not Welch had authority from appellant to employ appellee.

The difficult question arises in considering whether or not there was sufficient evidence under the authorities to authorize a finding of punitive damages by the jury. There are several items of evidence as shown by the record necessary to consider. It was admitted by appellee that the contract he signed in blank would have to be forwarded to the home office of the company for final execution, although ostensibly for the purpose of making a payment record.

It was undisputed that before appellee had authority under the law to solicit and accept applications for insurance on behalf of appellant, it was necessary for him to secure a certificate of authority from the Insurance Commissioner of the State of Mississippi. The record shows that payment for this permit was not received in the office of the Insurance Commissioner until January 17, 1977, although the certificate was issued as of January 1, 1977. The certificate of authority was not forwarded to appellee until February 1, 1977. During the later part of December or the first part of January, appellee forwarded two applications to the company, together with checks for the first premium. It later developed that both of these checks were returned because of insufficient funds in the accounts on which the checks were written. On January 18,1977, one day after payment of appellee’s certificate of authority fee, a representative from the company’s home office came to Jackson and had a meeting with appellee and other company personnel. He advised them at that time that the Welch Agency was being discontinued as of that date. He advised them that he would try to get them a position with another agency. He made this effort but failed to do so due to the fact that the agency was filled.

Although appellee urges the contention that at the time he was hired by Welch the company knew that the Welch Agency would be discontinued, there is no proof of this in the record. In addition to the alleged authority of Welch, the principal evidence regarding any arbitrary nonpayment of salary on the part of the company was the testimony that telephone calls were made to the company during which payment was requested and promised. This is somewhat offset by the evidence that the fee authorizing appellee to sell insurance on behalf of the company was not received by the Insurance Commissioner until January 17, 1977. The certificate of authority was not mailed to the company and appellee until February 1, 1977, whereas the home office representative had closed the Welch Agency as of January 18.

This Court is clearly on record that punitive damages are authorized in a suit for breach of contract under certain conditions and elements of proof. We have said that:

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 & 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). ([Snowden v. Osborne (Miss.)] 269 So.2d [858] at 860).

We authorized an award of punitive damages in a breach of contract case in Standard Life Insurance Company of Indiana v. Veal, 354 So.2d 239 (Miss.1978), on the ground that the obvious breach was an “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. 664 (1915). ([Progressive Casualty Insurance Company v. Keys (Miss.)] 317 So.2d [396] at 398).”

We adhere to the rule that a party to a broken contract may have imposed on him a judgment for punitive damages where the evidence establishes a jury question on the above set out principles.

The declaration charged that the appellant engaged in “fraudulent conduct” toward appellee. The instructions were based on the jury finding appellant guilty of fraud by clear and convincing evidence. In cases [too numerous to cite] we have set out the elements of fraud and reaffirmed that it should be proven by clear and convincing evidence.

After carefully studying the record in the present case, and analyzing the entire evidence as well as that specifically discussed, we are of the opinion that appellee did not prove that the appellant insurance company through its authorized agent was guilty of fraud by clear and convincing evidence. As hereinbefore stated, it was a question for the jury as to whether or not the salary for one and one-half months was due appellee. We do not think there was sufficient evidence to find that the failure to pay this salary was the result of fraud or intentional, wilful misconduct on the part of appellant.

We therefore affirm the case as to the award of actual damages and reverse and render as to the award of punitive damages, and enter a judgment here for appellee against appellant in the sum of $1100.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

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