text:
    Woodrow BROWN, Plaintiff-Appellee, v. NATIONAL OLD LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 13242.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.
    Writ Refused June 29, 1977.

      Emmons,. Henry & Reeves by Joseph A. Reeves, Jr., Jonesboro, for defendant-appellant.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff sued to collect benefits under a mortgagor’s disability policy issued by defendant to plaintiff on January 23, 1973. Defendant denied the claim on two grounds: (1) the “sickness” or disease which caused plaintiff’s disability commenced before the effective date of the policy; and (2) plaintiff made misrepresentations in the application for insurance with the intent to deceive or which materially affected the acceptance of the risk assumed by the insurer. (Louisiana Revised Statutes 22:619B).

The trial court rendered judgment in favor of plaintiff for the amount of the disability benefits plus penalties and attorney fees. Defendant appeals and plaintiff answers the appeal, seeking an increase in attorney fees. We reverse the judgment insofar as it awards plaintiff penalties and attorney fees; otherwise it is affirmed.

The policy provides benefits “for sickness or disease contracted and commencing after” the effective date of the policy. Appellant contends plaintiff’s present disability is not covered by the policy because it commenced in April 1968, some four years and eight months before the application for insurance was made.

In April 1968 plaintiff, complaining of pain in his hip, was seen by Dr. Cline, an orthopedist, to whom he was referred by Dr. McKeithen, the treating physician. Although Dr. Cline did not testify, a letter outlining his findings, diagnosis and recommendations was introduced into evidence. Dr. Cline found evidence of sciatic irritation and recommended that plaintiff be hospitalized for a period of bedrest, traction and heat, and be supplied with a back support.

Dr. McKeithen testified he followed these recommendations and that plaintiff had good results from traction and bedrest. He concluded the diagnosis was “probable herniated lumbar disc.” Plaintiff returned to work July 1, 1968.

The trial judge found the disability suffered by plaintiff in 1968 was the result of a strain to his back, probably caused by a degenerative disc disease, whereas the present disability is caused by a severe form of arthritis probably aggravated by the heavy manual labor which plaintiff was required to do in his employment. He concluded it was not established there was any relationship between the 1968 episode and plaintiff’s present disability.

Appellant contends the present arthritic condition is an extension of or connected with the previous degenerative disc disease; that the terms degenerative disc disease and arthritic condition are used interchangeably by the medical profession, specifically by the doctors in this case. We have been cited to no authority nor was medical or factual evidence presented in support of this contention, whereas appellee cites substantial medical authority to the contrary.

The burden is on the defendant company to prove the disease which caused plaintiff’s present disability commenced before the effective date of the policy. There is no direct medical evidence the back trouble upon which the present claim is based “commenced” before the effective date of this policy. Dr. McKeithen was unable to say, independently of any other testimony, that plaintiff had arthritis before the present onset.

We find the record amply supports the trial judge’s finding that appellant failed to establish appellee’s present disabling arthritis commenced before the effective date of the policy.

The questions contained in the application for insurance and plaintiff’s answers, asserted by defendant as relieving it of liability, are:

(1) Have you been under observation or had medical or surgical advice or treatment, or been hospital confined during the past five years? Answer: No.
(2) Are you now in good health and free from any disease or physical impairment to the best of your knowledge and belief? Answer: Yes.

The answers to the above questions were false since plaintiff had been hospitalized four years and eight months before the application and had been treated regularly for chronic sinusitis. However, appellee had from 1968 to the time of his disability in 1973, performed the duties of his employment involving manual labor.

In Gay v. United Benefit Life Insurance Co., 233 La. 226, 96 So.2d 497 (1957), the Louisiana Supreme Court rendered its first decision interpreting Louisiana Revised Statutes 22:619(B). The court held that before an insurer can avoid liability under a policy of insurance on the ground of false statements in the application, the company must establish that the false statements were made with the actual intent to deceive and that the facts were material. The courts have consistently followed Gay and have held the disjunctive “or” is to be treated as the conjunctive “and” and to avoid liability both conditions (actual intent to deceive and materiality) must be shown to exist. Fruge v. Woodmen of the World Life Insurance Society, 170 So.2d 539 (La. App. 3d Cir., 1965); Knight v. Jefferson Standard Life Insurance Co., 205 So.2d 485 (La.App. 1st Cir., 1967); Reed v. American Casualty Company, 317 So.2d 648 (La.App. 1st Cir., 1975).

The trial judge concluded that, although the answers were false, defendant had failed to show the answers were made with the actual intent to deceive. We agree with this conclusion.

We find the trial court erred in awarding plaintiff penalties and attorney fees. At the time defendant denied plaintiff’s claim it had received sufficient information about plaintiff’s past medical history to put a reasonable and prudent business man on his guard that the answers to the questions in the application were inaccurate. See La.R.S. 22:657. Defendant was entitled to litigate the issues to determine whether the ailment which caused plaintiff’s disability commenced before the effective date of the policy and whether the answers in the application were false and made with the intent to deceive.

That portion of the judgment awarding plaintiff penalties and attorney fees is reversed; in all other respects the judgment is affirmed at appellant’s cost.

      . La.R.S. 22:619(B) provides:
      In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.


source: Caselaw Access Project

license: Public Domain

text:
    Dennis Walter SMILEY v. STATE of Mississippi.
    No. 49625.
    Supreme Court of Mississippi.
    April 6, 1977.
    Rehearing Denied June 1, 1977.
    Gibbes, Graves, Mullins, Bullock & Ferris, C. Denton Gibbes, Jr., Laurel, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.


text:
    Larry Charles HOLLIMAN v. STATE of Mississippi.
    No. 49246.
    Supreme Court of Mississippi.
    April 27, 1977.
    Rehearing Denied June 1, 1977.
    Ray H. Montgomery, Canton, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Madison County; Rufus H. Broome, Judge.

Before GILLESPIE, C. J., and SUGG and BROOM, JJ.

AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER and LEE, JJ., concur.


text:
    CITY OF BILOXI, Mississippi, a Municipal Corporation v. TANGLEWOOD, INC. and M. F. Franks.
    No. 49336.
    Supreme Court of Mississippi.
    April 27, 1977.
    Rehearing Denied June 1, 1977.
    Vlahos & Caranna, Cono A. Caranna, II, Matt G. Lyons, Biloxi, for appellant.
    Virgil G. Gillespie, Gulfport, for appel-lees.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED ON DIRECT AND CROSS APPEALS.

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

GILLESPIE, C. J., took no part.


author: SMITH, Justice, PATTERSON, Presiding Justice,

text:
    E. B. MAGEE v. John GRIFFIN and General Motors Acceptance Corporation.
    No. 48983.
    Supreme Court of Mississippi.
    April 27, 1977.

      Roland C. Lewis, Jean D. Muirhead, Jackson, for appellant.
    Robert W. King, Jackson, for appellees.
    Before PATTERSON, P. J., SMITH and LEE, JJ., and FEDUCCIA, Commissioner.
   SMITH, Justice,

for the Court:

E. B. Magee has appealed from the final judgment of the Circuit Court of Lincoln County sustaining the defense of res judica-ta set up in the answer and dismissing his suit against John Griffin and GMAC in which he claimed to have suffered damages in that the defendants had caused him “to become ill, upset, to be humiliated, embarrassed, and to suffer much mental anguish,” to lose possession of his automobile and to incur attorney’s fees.

Magee’s declaration recited that he had financed his purchase of a Pontiac automobile through GMAC under a contract providing that he make monthly payments until the automobile was paid for. He alleged that “at all times material hereto, the defendant, John Griffin, was acting in his capacity as an agent, servant, and employee of the defendant, GMAC.”

Magee’s declaration charged that he had made the payments of $135.80 per month required by his contract with GMAC for the months of August and September, 1972 by mailing them directly to GMAC at New Orleans, that Griffin, as agent of GMAC, represented to him, Magee, that he should make the October, 1972 payment directly to Griffin in cash, and that his, (Magee’s) wife did so.

Magee alleged further that “it was not until July 7, 1973, that plaintiff was informed by a summons from the Circuit Court of Lincoln County that a default had been made in reference to his account with GMAC.”

Griffin and GMAC answered and interposed, among other defenses, the defense of res judicata, exhibiting the entire file in its former action brought against Magee in the Circuit Court of Lincoln County for “Claim and Delivery” [Title 11, Chapter 38, §§ 11-38-1 through 11-38-9 Mississippi Code Annotated (Supp.1976)] under its contract with Magee covering the sale and purchase of the automobile in question, based upon Ma-gee’s default in the payments required by his contract. It is undisputed that a summons was duly served upon Magee personally in the action and this fact is recited in Magee’s declaration in the present suit. It is also undisputed and recited in Magee’s declaration that he, Magee, deliberately failed to respond to the summons, declined to appear or answer, and allowed GMAC’s action to proceed to final judgment against him. There was no appeal from the judgment and the automobile was repossessed in due course under this judgment of the Lincoln County Circuit Court.

In the present case, the Circuit Court of Lincoln County, following a hearing conducted upon the defense of res judicata based upon the former suit, sustained the plea and dismissed Magee’s suit against Griffin and GMAC. It is from that judgment of dismissal that Magee now appeals.

Justices Smith, Robertson and Sugg are of the opinion that the action of the trial court in sustaining the plea of res judicata was correct, and that the judgment appealed from should be affirmed both as to Griffin and GMAC. Chief Justice Gillespie and Justices Inzer and Broom consider the court’s action to have been correct as to GMAC but to have been error as to Griffin and would affirm as to GMAC and reverse and remand as to Griffin. Justices Patterson, Walker and Lee are of the opinion that the trial court’s action was error as to both appellees and would reverse and remand. It will be observed, therefore, that six justices have voted to affirm the sustaining of the plea and the dismissal of Magee’s case as to GMAC and therefore the judgment appealed from will be affirmed as to GMAC.

Those justices voting to affirm both as to GMAC and to Griffin consider that the sine qua non, the indispensable fact necessary to Magee’s present suit is a wrongful repossession of the automobile and the alleged consequent humiliation, embarrassment and “mental anguish” occasioned thereby. It is apparent from the record, and this is not challenged, that GMAC, in its action brought against Magee, faithfully pursued the remedy which the law provides and that the repossession was accomplished under the solemn judgment of the Circuit Court of Lincoln County, lawfully obtained. It is of paramount significance, these justices' believe, that Magee was duly served personally with a summons in the Claim and Delivery action in the manner and form and for the time required by law and thus learned of the nature and purpose of the action against him. This is conceded and recited in Magee’s declaration in the present suit. It is also conceded in like manner that Magee deliberately, and for reasons known only to himself, declined to respond to the summons or to assert any defense, and particularly failed to interpose the affirmative defense of payment to Griffin, who was “at all times material hereto . acting in his capacity as an agent, servant, and employee of the defendant, GMAC.” GMAC’s action was predicated upon Magee’s default under his contract and proof of payment to Griffin “acting in his capacity as agent” of GMAC would have been a perfect defense. If Magee had pled payment and had prevailed he would have effectually prevented the repossession of the car and avoided the “embarrassment, etc.” which, in his present suit he claims to have suffered on account thereof. The final judgment in the claim and delivery action finally and, we think, conclusively, established Magee’s default and the right of GMAC to repossess; these issues may not now be relitigated by him.

Under the undisputed circumstances, we do not think Magee could deliberately refuse to answer the claim and delivery action and allow the facts charged in the declaration to be taken as true and confessed, that is, the fact that he was in default under his contract to pay, and willfully suffer the case to proceed to judgment, permit the automobile to be repossessed by legal process, and afterward maintain a suit against Griffin and GMAC, the central and essential issues in which would again be the legal right of GMAC to take the car following Magee’s default.

It is true that the law on this subject has not been dealt with uniformly in the cases and text books.

Learned treatises are invaluable aids to judges and are entitled to respect and consideration. However, the conclusions of authors (and decisions of the courts of other states) are not binding upon this Court and should be followed only to the extent that such conclusions and decisions clearly are based upon sound reason and common sense and are such as reasonably may be calculated to lead toward desirable results. A distinguished justice of the United States Supreme Court once remarked, (in effect) that he felt no obligation to perpetuate error or to follow decisions of that Court if he later became convinced that such decisions were wrong, unwise or foolish or had produced undesirable results.

Where the result of a principle or policy produces or is capable of producing clearly undesirable results it should be discarded as less than useful and a new principle or policy more in accord with reason and practical common sense substituted. Multiple suits, where one would suffice, are obviously undesirable. It should be made clear in this case that in Mississippi, where a court of competent jurisdiction, having jurisdiction of both the person and subject matter, proceeds to final judgment from which there is no appeal, the result is binding upon the defendant and the essential facts may not subsequently be relitigated.

It should be borne in mind that the suit by GMAC against Magee was one for “claim and delivery,” an entirely new and more comprehensive form of action than replevin, authorized by Mississippi Code Annotated sections 11-37-1 et seq. (1972), adopted March 28, 1973.

Mississippi Code Annotated section 11-38-7 (Supp.1976) (of the Claim and Delivery Act) provides:

The defendant, or any interested person, may contest the demand of the plaintiff on or before the return day of the writ by filing an answer in writing, under oath, of his claim or defense, itemizing his account, if any, and the case shall be then at issue between the parties, and shall be tried as other cases in the court. The judgment or judgments of the court shall adjudicate and adjust the rights of the several parties as to the subject matter of the suit, and cost may be adjudged accordingly.

It is apparent that an important purpose of the enactment of the legislation was to provide a new form of action whereby the entire controversy would be settled in one suit, thereby preventing the necessity of multiple suits and appeals arising out of the same subject matter which often resulted under the old replevin statutes. It should be noted that section 11-38-7, supra, provides that the defendant may contest the demand of the plaintiff by filing an answer, under oath, setting up his “claim or defense.” It also provides that the case be tried as other cases are and that the Court “shall adjudicate and adjust the rights of the several parties as to the subject matter of the suit.” Mississippi Code Annotated section 11-38-3 (Supp.1976) contains this provision: “The judge shall have jurisdiction to hear the cause, or any matter pertaining thereto . . . and to enter such orders and judgment thereon as to adjust the rights of the parties in the subject matter.”

In the suit for claim and delivery brought by GMAC against Magee under the new statutes, the Court found that Magee had defaulted, and then, “the court having had a hearing”, proceeded to find for GMAC, and to enter final judgment accordingly.

The subsequent suit by Magee against GMAC and Griffin was, in effect at least, an effort on Magee’s part to make a collateral attack upon the final judgment in the prior suit for claim and delivery by treating it as a nullity. This is not permissible.

In Strain v. Gayden, 197 Miss. 353, 20 So.2d 697 (1945), this Court said:

It is true that the judgment here complained of was by default, but it is also true that a judgment by default, where personal jurisdiction of a defendant has been obtained, is as conclusive either as an estoppel or bar as a judgment in a contested case. A judgment by default is attended by the same legal consequences as if there had been a verdict for the plaintiff. Freeman on Judgments, 5th Ed., Pages 1393-1395.

(197 Miss. at 365, 20 So.2d at 700).

The final judgment in the claim and delivery action may not simply be ignored by Magee. As this Court said in Bolls v. Sharkey, 226 So.2d 372 (Miss.1969)

A judgment imports verity, and on collateral attack, every presumption of law is in favor of the judgment. McIntosh v. Munson Road Mach. Co., 167 Miss. 546, 145 So. 731 (1933); and Martin v. Miller, 103 Miss. 754, 60 So. 772 (1912).

(226 So.2d at 376).

In Britton v. Beltzhoover, 147 Miss. 737, 113 So. 346 (1927), Britton had filed suit claiming to own an interest in certain property. In an earlier suit for attachment of the property, although no proper process was had upon Britton, she had entered her personal appearance. Notwithstanding this, Britton made no defense and suffered a judgment to be taken against her by default.

In her suit to partite the property, Brit-ton challenged the validity of the decree so taken. This Court rejected her contention saying: “At the next succeeding term of court in Adams County, judgment was taken by default, sustaining the attachment issue and directing the property attached to be sold, and personal judgment was taken against appellant (Britton) for said amount.”

The Court said: “We think the showing made in the bill (Britton’s attacking the default judgment) insufficient to excuse her from negligence in making proper defenses at that time in said suit. A party cannot sit idly by and let litigation go against him and afterwards seek to have same set aside, unless there is sufficient showing of fraud and deception by the parties to that litigation to excuse such lack of diligence.”

The new form of action created by the Legislature in Chapter 400 of the Laws of 1973 concludes: “The action created and established by this chapter shall be cumulative and in addition to all other actions presently available at law or in equity.” The action created by the chapter by its terms is entirely distinct in its scope and finality from that of replevin. This is emphasized by the revision of the replevin statutes at the 1975 session of the Mississippi Legislature, the present chapter on re-plevin appearing as sections 11-37-101 of Mississippi Code Annotated (1972), which leaves the chapter on Claim and Possession unaffected.

We think this ease demonstrates clearly the necessity for the application of the doctrine of res judicata in situations of this kind. That aspect of the doctrine of res judicata known as collateral estoppel, prevents the relitigation of the question of Magee’s default and the right of GMAC to repossess, as these were the central facts in the earlier case and were essential to the judgment obtained against him.

In Lyle Cushion Company v. McKendrick, 227 Miss. 894, 87 So.2d 289 (1956), this Court said:

Under the principle of collateral estop-pel appellant is precluded from relitigat-ing in the present suit specific questions actually litigated and determined by and essential to the judgment in the prior suit, even though a different cause of action is the subject of the present suit. The doctrine of res judicata has two aspects: (1) Merger of the cause of action into the judgment or as a bar precluding a party from maintaining another action on the same cause of action irrespective of what issues were litigated or determined in the former action, and (2) the principle of collateral estoppel which precludes relitigation in another action of a specific question actually litigated and determined by and essential to the judgment, even though a different cause of action is the subject of the subsequent proceeding.

(227 Miss. at 906, 87 So.2d at 293).

As this Court said in Etheridge v. Webb 210 Miss. 729, 50 So.2d 603 (1951):

Where a question of fact essential to a judgment is actually litigated and determined by a valid and final judgment, that determination is conclusive between the parties in a subsequent action on a different cause of action. A.L.I., Restatement of Judgments, Sec. 68.

(210 Miss. at 742, 50 So.2d at 606).

In essence Magee’s position in this case seems to be that he might, at his personal whim, or caprice, ignore with impunity the solemn processes of the circuit court, suffer final judgment to be taken against him (from which he did not appeal) adjudicating GMAC’s right to the automobile and then bring a suit upon an alleged wrongful repossession for damages alleged to have resulted therefrom.

It is, and should be, a paramount concern of the judiciary to prevent multiple suits where one suit will suffice. There is a tendency, perhaps, to forget that one who undergoes the rigors of an action, with all of its traumatic impact, loss of time, delay, substantial expense and disruption of his affairs, with consequent appeals and possible retrials and still other appeals, should be spared having to do this more often than is strictly necessary. Even the successful party after bearing the expense of one trial and of one appeal is, in many instances, hardly a winner.

The central and essential fact asserted in the claim and delivery action against Magee was his default under the contract and the consequent right of GMAC to repossess under the contract. His willful failure to answer or controvert, for whatever reason, amounted to a confession of the charge. Upon that basis the circuit court entered judgment “after a hearing”, which was a final adjudication of those matters. The conclusiveness of the judgment is in nowise altered by Magee’s refusal to appear or to assert his “claim or defense,” if he had any. Magee’s “abstention” could not prevent the circuit court from proceeding to final judgment, and this judgment, entered “after a hearing” effectively concluded and adjudicated the central and essential issues of Magee’s default and GMAC’s lawful right to possession of the automobile. It would be ironical indeed if GMAC, in an action in which due process was accorded Magee and in which the law was faithfully followed, should repossess the automobile under a solemn judgment of a court of competent jurisdiction, which finally adjudicated that Magee was in default and that GMAC was entitled to the automobile under its contract, and then, when that is all over and done with, permit Magee, who had allowed it all to happen, to exact damages predicated upon the repossession which was in all respects lawful.

AFFIRMED AS TO GMAC.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, SUGG and BROOM, JJ., concur.

PATTERSON, P. J., and WALKER and LEE, JJ., dissent.

REVERSED AND REMANDED AS TO GRIFFIN.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and WALKER, BROOM and LEE, JJ., concur.

SMITH, ROBERTSON and SUGG, JJ., dissent.

PATTERSON, Presiding Justice,

concurring in part and dissenting in part:

I concur with a majority of the justices who are of the opinion the trial court erred in sustaining the plea of res judicata interposed by General Motors Acceptance Corporation and John Griffin against Magee insofar as the same applied to Griffin. I dissent from the majority of the justices who are of the opinion the plea of res judicata was properly sustained as to General Motors Acceptance Corporation, hereinafter GMAC.

I am of the opinion res judicata has no application against Griffin, one of the appellees, for the reason he was not a party to the previous suit and neither is there an identity in this suit with the former. The present action is one of tort for fraudulent misrepresentation; the former suit was for claim and delivery, a possessory action. I think it logically follows that the alleged fraudulent conduct of John Griffin, the alleged agent of GMAC, is distinct from the former action brought by GMAC against E. B. Magee for repossession of an automobile pursuant to an installment contract.

It is well established in our jurisprudence that four identities must be present before the doctrine of res judicata is operative. According to Pate v. Evans, 232 Miss. 6, 97 So.2d 737 (1957), Rawlings v. Royals, 214 Miss. 335, 58 So.2d 820 (1952), and Palmer v. Clarksdale Hospital, 213 Miss. 611, 57 So.2d 476 (1952), and other numerous cases, these identities are: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or character in the person against whom the claim is made. There being no identity of the parties to this suit and the former, no identity of the causes of action and no identity of the thing sued for, a majority of the justices is of the opinion the trial court erred in sustaining the plea of res judicata barring suit by Magee against Griffin.

If the plea of res judicata is not applicable, the issue of whether Magee is collaterally estopped to pursue this cause of action has some significance. In this regard we note that a special plea of res judicata only was filed, however, it is presently suggested by appellees that collateral estoppel is meaningful even though it was neither presented to nor considered by the trial court. Although the order sustaining the plea refers directly to the identities of res judicata mentioned in Pate without comment upon collateral estoppel, Justices Smith, Robertson and Sugg are nevertheless of the opinion that Magee is collaterally estopped from pressing this action against both Griffin and GMAC. While there is little doubt that collateral estoppel is an aspect of res judicata and no doubt whatsoever that the purpose of both is to avoid needless suits occasioned by relitigating actions and issues previously determined, nevertheless there is a substantial difference between the doctrines, probably best portrayed by a statement from 46 Am. Jur.2d, Judgments, section 398 (1969), as follows:

The doctrine of res judicata has been declared to be a branch of and grounded in the law of estoppel, and the term “es-toppel” has frequently been used both in connection with the rule which precludes the relitigation of particular facts and issues, and the rule which precludes the relitigation of particular causes of action. However, although there may be circumstances under which the doctrines of res judicata and of estoppel may both be applied, the general principle of estoppel, while akin to, must be distinguished from, the doctrine of res judicata, since the former is based upon conduct, or a representation, and the latter upon an adjudication.

The cases cited lend authenticity to the distinction.

Assuming, but not deciding, the trial court included collateral estoppel as an aspect of its order sustaining the plea of res judicata, I think it was error. A review of Johnson v. Bagby, 252 Miss. 125, 171 So.2d 327 (1965), and indeed, the very cases presently cited in support of collateral estoppel, Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289 (1956), and Etheridge v. Webb, 210 Miss. 729, 50 So.2d 603 (1951), express an essential of the doctrine absent from this suit and that is there must have been a previous issue actually litigated before it becomes the basis for an estoppel. Compare Strain v. Gayden, 197 Miss. 353, 20 So.2d 697 (1945). This necessary ingredient is mentioned in our cases on the subject and some, Johnson and Lyle Cashion, supra, perhaps others, refer to Restatement of the Law, Judgments (1942), for this concept. Restatement of the Law, Second, Judgments (1973), expresses this theme in Section 68 in part as follows:

d. When an issue is actually litigated. When an issue is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined, the issue is actually litigated within the meaning of this Section. An issue may be submitted and determined on a motion to dismiss for failure to state a claim, a motion for judgment on the pleadings, a motion for summary judgment (see Illustration 10), a motion for directed verdict, or their equivalents, as well as on a judgment entered on a verdict. A determination may be based on a failure of pleading or of proof as well as on the sustaining of the burden of proof.
e. Issues not actually litigated. A judgment is not conclusive in a subsequent action as to issues which might have been but were not litigated and determined in the prior action. There are many reasons why a party may choose not to raise an issue, or to contest an assertion, in a particular action. The action may involve so small an amount that litigation of the issue may cost more than the value of the lawsuit. Or the forum may be an inconvenient one in which to produce the necessary evidence or in which to litigate at all. The interests of conserving judicial resources, of maintaining consistency, and of avoiding oppression or harassment of the adverse party are less compelling when the issue on which preclusion is sought has not actually been litigated before. And if. preclusive effect were given to issues not litigated, the result might serve to discourage compromise, to decrease the likelihood that the issues in an action would be narrowed by stipulation, and thus to intensify litigation.
It is true that it is sometimes difficult to determine whether an issue was actually litigated; even if it was not litigated, the party’s reasons for not litigating in the prior action may be such that preclusion would be appropriate. But the policy considerations outlined above weigh strongly in favor of nonpreclusion, and it is in the interest of predictability and simplicity for such a result to obtain uniformly.
An issue is not actually litigated if the defendant might have interposed it as an affirmative defense but fails to do so; nor is it actually litigated if it is raised by a material allegation of a party’s pleading but is admitted (explicitly or by virtue of a failure to deny) in a responsive pleading. .
In the case of a judgment entered without contest by confession, consent, pr default, none of the issues is actually litigated. Therefore, the rule of this Section does not apply with respect to any issue in a subsequent action.
(Emphasis added.)

The payment issue could have been interposed by the appellant in the possesso-ry suit for his automobile, but it was not, and Magee suffered final judgment by default against himself. His reason for not responding to the court processes and permitting judgment are unknown, but the fact of default and judgment thereon conclusively establishes, I think, that the issue of payment was never actually litigated by factfinding processes. Therefore, Magee is not collaterally estopped to pursue his tort action against Griffin, in my opinion.

Chief Justice Gillespie, Presiding Justice Inzer and Justice Broom concur with Justices Walker, Lee and myself to this juncture of this opinion. However, they concur with Justices Smith, Robertson and Sugg in their opinion that Magee is barred in this suit against GMAC by either collateral es-toppel or res judicata. I dissent from this viewpoint for the reasons heretofore given with regard to Griffin. To briefly restate, my reasons are there is no identity of the parties, no identity of the causes of action and no identity of the thing sued for between this suit and the former and the issue of payment has not been actually litigated. It is my opinion that the trial court erred in sustaining the special plea of res judicata as to both Griffin and GMAC.

The differences of opinion in this case result from an incongruity in our procedure. It is occasioned, I think, by adherence to the principle that a defendant may not counterclaim against a third party. The present factual situation is illustrative. It is true that Magee could have pled payment in the repossession suit (gleaned from the allegations of his present declaration) because of Griffin’s misrepresentations to him, but had he prevailed in this affirmative defense by proving misrepresentation, agency and payment, nevertheless it would have been effective only to defeat the possessory claim of GMAC. Magee would have been required, had he wished to pursue the cause of action, to file a separate suit for Griffin’s tortious conduct with the attendant complications of agency, scope of authority, etc. We observe that GMAC argues that Griffin was its agent on the collateral estoppel issue, but denies the agency in its answer. In either event the purpose of collateral estoppel or res judicata in preventing multiple suits is lost because relitigation is encouraged, if not required, by not permitting a counterclaim against a third party so that all issues might be settled in one suit at one time.

In this situation I think the penalty of default, suffering judgment, should not be enlarged beyond the issue of the suit in which an answer could have been interposed; that is to say, that it not be broadened to include collateral estoppel barring the tort suit unless the scope of the affirmative defense be increased commensurate with the additional penalty to allow a third party counterclaim so that all issues might be litigated in one suit. Stated differently, if the penalty from default in a single issue suit is to be increased by including collateral estoppel so as to bar a different issue, then I think a corresponding right should be accorded the defendant so he might litigate in one suit the different issue.

Finally, it is my opinion that if res judica-ta has application prohibiting Magee from his suit against GMAC, that it should be limited to the issue of possession which is not present in this suit.

WALKER and LEE, JJ., join in this opinion.


text:
    Purcell HEARN v. STATE of Mississippi.
    No. 49838.
    Supreme Court of Mississippi.
    May 4, 1977.
   Appeal from Circuit Court, Marshall County; William R. Lamb, Judge.

Michael L. Kemp, Holly Springs, for appellant.

A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, SUGG and WALKER, JJ.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and ROBERTSON, BROOM and LEE, JJ., concur.

SMITH, J., took no part.


text:
    Ernest AVANTS et ux. v. William A. HAYS.
    No. 49697.
    Supreme Court of Mississippi.
    May 4, 1977.
    Travis Buckley, Laurel, for appellant.
    Hobbs, Hobbs & Pieples, Ralph L. Pee-ples, Brookhaven, for appellee.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

Before GILLESPIE, C. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Charles GROSS v. STATE of Mississippi.
    No. 49820.
    Supreme Court of Mississippi.
    May 4, 1977.
    Hugh L. Bailey, Winona, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

Before GILLESPIE, C. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    MILLER-WILLS AVIATION, INC. v. SOUTHLAND OIL COMPANY, etc.
    Nos. 49378, 49985.
    Supreme Court of Mississippi.
    May 4, 1977.
    Young, Scanlon & Sessums, E. Stephen Williams, Jackson, for appellant.
    Wells, Gerald, Brand, Watters & Cox, Calvin L. Wells, Frank T. Moore, Jr., William B. Wicker, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Francis S. Bowling, Judge.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    In the Interest of Kenneth TEMPLETON, Jr. and Randy Wayne Owens v. STATE of Mississippi.
    No. 49688.
    Supreme Court of Mississippi.
    May 4, 1977.
    Miller & Miller, Harold Leon Miller, William 0. Townsend, Pearl, for appellants.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Youth Court, Rankin County; Thomas L. Zebert, Youth Court Judge.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Mrs. Ethel Marie SHINGLER v. Robert Donald SHINGLER.
    No. 49261.
    Supreme Court of Mississippi.
    May 4, 1977.
    Troutt, Moore & Johnson, Nat G. Troutt, Senatobia, for appellant.
    Garner, Whitten & Garner, David A. Gus-tafson, Hernando, for appellee.
   Appeal from Chancery Court, Tate County; L. E. Hannaford, Sr., Chancellor.

Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


text:
    NATIONAL SECURITY FIRE AND CASUALTY COMPANY v. Fred Joe HENRY et al.
    No. 49367.
    Supreme Court of Mississippi.
    May 4, 1977.
    Brooks & Guyton, William D. Brooks, Kosciusko, for appellant.
    Morris C. Phillips, Jr., A. R. Wright, Jr., Carthage, for appellee.
   Appeal from Circuit Court, Leake County; Roy Noble Lee, Judge.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

The presumptive validity of the trial court’s judgment has not been overcome.

AFFIRMED.


text:
    JAMES M. VARDAMAN AND COMPANY, INC. v. William T. WILKINS, Individually, and general partner of Hillebrandt Plantation, Ltd. and Hillebrandt Plantation, Ltd.
    No. 49391.
    Supreme Court of Mississippi.
    May 4, 1977.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Howard C. Ross, Jr., Jackson, for appellant.

Heidelberg, Woodliff & Franks, Robert T. Gordon, Jr., W. Swan Yerger, Jackson, for appellee.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

The presumptive validity of the trial court’s judgment has not been overcome.

AFFIRMED.


text:
    Etta Lee C. PAYNE, d/b/a Pass Road Real Estate v. Robert L. SPROUSE.
    No. 49771.
    Supreme Court of Mississippi.
    May 4, 1977.
    O’Barr, Hurlbert & O’Barr, Bobby G. O’Barr, Biloxi, for appellant.
    Sekul, Hornsby & Wallace, Thomas L. Wallace, Biloxi, for appellee.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.

AFFIRMED.


text:
    Raymond W. GORDON, II v. STATE of Mississippi.
    No. 49872.
    Supreme Court of Mississippi.
    May 4, 1977.
    Raymond W. Gordon, II, Pro Se.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst: Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    Ebb J. FORD, Jr. v. BOARD OF SUPERVISORS OF JACKSON COUNTY, Mississippi and Jackson County Port Authority.
    No. 49355.
    Supreme Court of Mississippi.
    May 4, 1977.
    Ebb J. Ford, Jr., Gulfport, for appellant.
    Megehee, Brown & Williams, Carl A. Me-gehee, Raymond L. Brown, Pascagoula, for appellee.
   Appeal from County Court, Jackson County; O. L. McLeod, Judge.

Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


text:
    Sidney C. RICHARDSON v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 49369.
    Supreme Court of Mississippi.
    May 4, 1977.
    Tighe & Tighe, B. Stirling Tighe, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Frank E. Shanahan, Jr., Asst. Atty. Gen., and John F. Salmon, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; George William Haynes, Chancellor.

Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


author: WALKER, Justice, for the Court:

text:
    Roger Lynn KENNEDY v. Janet Gayle McCain Kennedy GERVAIS.
    No. 48984.
    Supreme Court of Mississippi.
    May 4, 1977.
    Thomas J. Riley, Hattiesburg, for appellant.
    Ingram & Matthews, Jolly W. Matthews, Hattiesburg, for appellee.
   WALKER, Justice, for the Court:

Mrs. Gervais’ petition for rehearing is hereby granted. The opinion originally issued in this cause is withdrawn, and this opinion issued in its place.

This appeal must be dismissed for lack of jurisdiction. The final decree was entered by the Chancery Court of Forrest County, Mississippi, on January 10, 1975. The appellant admits that his appeal bond was not posted until April 3, 1975, eighty-three days after the rendition of the final judgment. Mississippi Code Annotated section 11-51-5 (Supp.1976) provides that appeals to the Supreme Court must be perfected within forty-five days after the rendition of the decree. An appeal may not be considered as perfected until the required bond has been posted. Miss.Code Ann. § 11-51-53 (1972). In this case, it is undisputed that the bond was not posted and the appeal not perfected within the forty-five days allowed by the statute. We have held that the failure to post bond within the time allowed by the statute deprives this Court of jurisdiction. See, e. g, Fisher v. Crowe, 289 So.2d 921, 924 (Miss.1974). Lack of jurisdiction, of course, may be raised at any time. Therefore, Mr. Kennedy’s appeal must be dismissed for lack of jurisdiction.

PETITION FOR REHEARING GRANTED, FORMER OPINION WITHDRAWN, AND APPEAL DISMISSED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


text:
    James CREELY v. Robert W. VAUGHN.
    No. 49229.
    Supreme Court of Mississippi.
    May 11, 1977.
    Robertshaw & Merideth, Randolph Noble, Jr., Greenville, for appellant.
    Miller & Dean, Mike L. Cordell, Green-ville, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.


text:
    Gordon L. MUSTIN v. Vernon A. CARRUTH, Sr., Executor of the Estate of Mildred C. Quin Mustin, Deceased.
    No. 49693.
    Supreme Court of Mississippi.
    May 11, 1977.
    Robert W. Brumfield, McComb, for appellant.
    T. F. Badon, Liberty, for appellee.
   Appeal from Chancery Court, Amite County; Bert H. Jones, Chancellor.

Before PATTERSON, P. J., and WALKER and LEE, JJ.

Appellant did not overcome the presumption that the Chancellor’s decision is correct and the case is Affirmed.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. FOX-EVERETT, INC., Great American Insurance Company, Inc. and Fidelity and Deposit Company of Maryland, Inc.
    No. 49387.
    Supreme Court of Mississippi.
    May 11, 1977.
    A. F. Summer, Atty. Gen. by Frank E. Shanahan, Jr., Asst. Atty. Gen.,' John F. Salmon, Heber A. Ladner, Jr., Jackson, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Lawrence J. Franck, Kenneth W. Barton, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Ventura MOORE v. STATE of Mississippi.
    No. 49944.
    Supreme Court of Mississippi.
    May 11, 1977.
    Karl W. Kepper, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

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

AFFIRMED.


text:
    Jimmy STEVENS v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
    No. 49154.
    Supreme Court of Mississippi.
    May 11, 1977.
    James B. Floyd, III, Tupelo, for appellant.

      Bramlett, Mounce & Soper, Michael G. Soper, Tupelo, for appellee.
    Before INZER, P. J., SUGG and LEE, JJ., and Commissioner PIGFORD.
   HOWARD R. PIGFORD, Commissioner for the Court:

This action originated in the Circuit Court of Lee County in a suit by the appellant, Jimmy Stevens, against the appellee, United States Fidelity & Guaranty Company, Inc. (U.S.F.&G.) to enforce the provisions of an uninsured motorist protection policy issued by the U.S.F.&G., to the appellant’s employer, G & N Motors. The policy covered the business vehicles owned and operated by G & N Motors in its business of automobile salvage and included the wrecker used by Stevens. While acting within the scope of his employment Stevens was injured by an uninsured motorist, and claimed he was covered by his employer’s policy. U.S.F.&G. denied liability, and at the conclusion of Stevens’ case, the court granted a directed verdict on the theory that appellant was not an insured under the terms of the policy at the time of the accident.

Stevens was injured on December 13, 1973 at a time when he was employed by G & N Motors as the operator of a wrecker of his employer. His duty was to respond to requests for a wrecker by proceeding to the scene of an accident to secure any disabled vehicle with his tow truck and then return to his employer’s premises with the damaged vehicle.

Around 6:00 p. m. on the date in question, Stevens answered an emergency call to remove from the highway a truck which had been damaged in a traffic accident. Arriving at the scene, Stevens attached his wrecker to the damaged truck and pulled the truck off the highway. A police vehicle was on the scene parked on the right-hand shoulder of the highway. Stevens stopped his wrecker parallel to the police car, with the police vehicle between the traveled portion of the highway and the wrecker. The vehicle being towed by the wrecker was to the rear of the police car, with its rear edge approximately four feet from the edge of the pavement.

After parking his wrecker, Stevens got out, left the motor running, the door on the driver’s side open, and all the regular and emergency lights on. He then began to sweep the debris from the collision off the highway with a broom carried in the wrecker for that purpose. After he finished sweeping the highway, Stevens started back to his wrecker, and had taken about two steps toward the wrecker when an automobile struck him. At this point Stevens had been out of his wrecker approximately one minute, and he was six to eight feet from the wrecker when struck. The towed truck was within touching distance of the appellant when he fell. As a result of this impact, Stevens suffered substantial injury, which required extensive medical treatment.

The driver of the car that hit Stevens was an uninsured motorist and Stevens sought compensation for his injuries from U.S.F.&G., the carrier of the uninsured motorist coverage on his employer’s vehicles. These efforts terminated in the directed verdict granted the U.S.F.&G. by the circuit court. The lower court felt that at the time of his injury Stevens was so far removed from his insured vehicle as to prevent him from being included within the definition of insured contained in the terms of the policy, but apparently the court did not consider the definition of insured contained in the Mississippi Uninsured Motorist Coverage Act, Mississippi Code Annotated, Sections 83-11-101, -111 (1972). Section 83-11-103 defines an insured as follows:

. the term “insured” means the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies, and a guest in such motor vehicle to which the policy applies, or the personal representative of any of the above; .

The statute creates two distinct classes of insureds with different coverage accruing to each class. The first class consists of the named insured, and while residents of the same household, his spouse and relatives of either. Their coverage against injury inflicted by uninsured motorists is quite liberal, extending to all circumstances when a member of the first class is injured by an uninsured motorist. This broad protection to members of the first class arises by virtue of the phrase “while in a motor vehicle or otherwise.”

The second class consists of any person, “who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies.” U.S. F.&G. argues that if the legislature had intended for permissive users to be protected while outside the insured vehicle, the phrase “while in a motor vehicle or otherwise” would have been inserted after the words “any person who,” in the statute rather than limiting their coverage to periods of “use.” If this contention is accepted then Stevens would be excluded from the statutory coverage as a permissive user.

We are compelled in interpreting this statute’s language to shape our decision in conformity with the public policy behind this legislation as expressed in Rampy v. State Farm Mutual Automobile Insurance Co., 278 So.2d 428 (Miss.1973).

In interpreting similar, if not identical statutes, the vast majority of jurisdictions have stated that the purpose of such uninsured motorist laws is to provide protection to innocent insured motorists and passengers injured as a result of the negligence of financially irresponsible drivers. A fine pronouncement of the policy considerations underlying uninsured motorist legislation is as follows:
A provision, drawn by the insurer to comply with the statutory requirement of uninsured motorist coverage, must be construed in light of the purpose and policy of the statute. Such a provision, drawn in pursuance of a statutorily declared public policy, is enacted for the benefit of injured persons traveling on the public highways. Its purpose is to give the same protection to the person injured by an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile covered by a standard liability policy. Such provisions are to be liberally construed to accomplish such purpose.

[278 So.2d at 432].

In addition, as pointed out by Parker v. Cotton Belt Insurance Co., Inc., 314 So.2d 342 (Miss.1975), the uninsured motorist statute is remedial in nature and must be liberally construed to accomplish its purpose.

The terms and provisions of the Mississippi Uninsured Motorist Coverage Act are written into every automobile liability policy issued in this state — unless the named insured shall reject the coverage in writing. United States Fidelity & Guaranty Co. v. Gough, 289 So.2d 925 (Miss.1974).

Stevens contends that he was using his employer’s vehicle with the consent of his employer at the time he was struck by an uninsured motorist and was therefore covered by the policy. The question in this case is, was Stevens “using” the wrecker at the time of the accident?

Black’s Law Dictionary, p. 1710, defines the verb use as “to make use of, to convert to one’s service, to avail one’s self of, to employ.” Webster’s Third New International Dictionary, p. 2524, defines use as “to put into action or service: have recourse to for enjoyment of: to carry out a purpose or action by means of: indicating any putting to service of a thing.”

Whether or not an injury arises from the use of a vehicle within the meaning of the statute depends upon the facts of each case. In this case it is obvious that the wrecker operated by Stevens would be used for removing disabled vehicles from the highway. Removing debris from the highway was a necessary part of the operation, and could only be accomplished by Stevens removing himself from the wrecker to perform this task. Stevens used the wrecker to secure the disabled vehicle, towed it to the shoulder of the highway and completed the necessary on site chore of sweeping debris from the traveled portion of the highway. Stevens used the wrecker from the time he left his employer’s premises until he returned with the disabled vehicle, and his temporary absence from the wrecker for the purpose of performing the necessary task of removing debris from the highway did not amount to abandonment of the use of the wrecker. It could not be seriously argued that Stevens was not using the wrecker if he had been struck while outside the wrecker attaching the disabled truck to it. We discern no difference in this and Stevens’ act of leaving the wrecker to sweep debris from the traveled portion of the highway. We hold that Stevens’ injuries arose out of the use of this wrecker; therefore, it was error to sustain the motion for a directed verdict.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: WALKER, Justice,

text:
    Robert L. ROBINSON v. STATE of Mississippi.
    No. 49878.
    Supreme Court of Mississippi.
    May 11, 1977.

      Mcllwain, Mcllwain & Cox, John H. Cox, III, Greenville, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court.

Robert L. Robinson was indicted in the Circuit Court of Washington County for the crime of embezzling a printing plate belonging to his employer, The Times Publishing Company of Greenville. The court, sitting without a jury, heard all the evidence and found Robinson guilty as charged. The court sentenced Robinson to a term of six months in the county jail, four of which were suspended. In his first assignment of error, Robinson contends that his conviction must be reversed because he was not tried by a jury. First, he contends that the right to trial by jury, guaranteed by Article III, Section 31 of the Mississippi Constitution of 1890, cannot be waived by the accused. Finally, he contends that, even if the right may be waived, the record must affirmatively reflect that the accused waived his right knowingly and voluntarily.

There is no merit whatever in Robinson’s first assignment of error. It has been settled in Mississippi that trial by jury in criminal cases may be waived by the agreement of the defendant and the prosecution. Prueitt v. State, 261 So.2d 119, 121-22 (Miss.1972). There is no need to reexamine that holding here.

Robinson’s second assignment of error requires us to elaborate on the nature and requisites of a waiver. Since the right to trial by jury in state criminal proceedings is an aspect of due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the waiver of that right is also governed by the Federal Constitution. The Supreme Court of the United States, speaking through Justice Black, has said, “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). We have indicated that similar standards of waiver are to be applied to rights secured by the Mississippi Constitution. See Morgan v. United States Fidelity & Guaranty Co., 222 So.2d 820, 829-30 (Miss.1969).

Robinson contends that in all cases the record must affirmatively reflect that the standards of Johnson and Morgan have been met. We disagree. As a general rule, this Court presumes that the decisions of the lower courts are correct. To the appellant falls the duty of insuring that the record contains sufficient evidence to support his assignments of error on appeal. See, e. g., Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973). A multitude of constitutional rights may conceivably be involved in any criminal proceeding. It would impose an unmanageable burden upon the trial courts to hold that the record of each trial must affirmatively show that no constitutional rights whatsoever have been violated. If we hold that such an affirmative showing is required where the right to trial by jury is involved, we can see no basis for refusing to extend the requirement to such rights as the effective assistance of counsel. We decline to place such a burden on our trial courts.

The more reasonable approach is to require the making of a record only when the defendant calls the question to the attention of the trial court. Our courts are always ready to protect and to vindicate the constitutional rights of the accused, but they require the defendant’s active cooperation. In this case, the defendant made no objection to his counsel’s waiver of trial by jury at the outset of the trial, nor did he raise the issue by a motion for a new trial. Either procedure would have allowed the trial court to hear evidence and to give full consideration to his claim. We believe that Watson v. State, 196 So.2d 893 (Miss.1967), is consistent with this approach. In that case, Justice Inzer wrote, “When constitutional rights are involved it is incumbent upon the trial court to have a full-blown hearing and a record reflecting the same.” Id. at 896. However, in that case, the defendant had notified the trial court of his lack of counsel by his motion for a continuance. In the present case, Robinson made no such effort before reaching this Court. Since the record does not show that Robinson’s waiver of his right to trial by jury did not meet the standards set forth in Johnson and Morgan, his conviction must be affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


author: ROBERTSON, Justice,

text:
    Judson F. LLOYD, M. D. v. JEFFERSON DAVIS MEMORIAL HOSPITAL et al.
    No. 49365.
    Supreme Court of Mississippi.
    May 11, 1977.

      George F. West, Jr., Forrest A. Johnson, Natchez, for appellant.
    Zuccaro, Riley, Pintard & Brown, Joseph S. Zuccaro, Natchez, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   ROBERTSON, Justice,

for the Court:

The appellant, Judson F. Lloyd, M.D., on April 18, 1975, filed a bill of complaint against the Jefferson Davis Memorial Hospital and its Board of Trustees in the Chancery Court of Adams County. Dr. Lloyd prayed that the court “affirmatively enjoin defendants to grant complainant full membership on the medical staff of the hospital commensurate with his training and skill.”

After a hearing in the chancery court, that court remanded the case to the Board of Trustees of the Hospital for further review and consideration. The Board of Trustees, after further consideration, voted six-to-one to deny staff privileges to Dr. Lloyd. The chancellor affirmed the judgment and decision of the Hospital Board, saying: ....

“[T]his Court does not have the authority to substitute its judgment for that of the Board of Trustees, where there is evidence to support it and it is not manifestly incorrect.”

The chancellor cited the case of Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir. 1971), in support of his decision.

The report of the Hospital’s Board of Trustees to the chancellor listed these reasons for finding against Dr. Lloyd:

“Some reasons advanced by those voting against admission of Dr. Lloyd to the Medical Staff included:
“That the Board of Trustees must necessarily rely to a great extent on the administrative decisions of the Medical Staff as to medical reasons.
“That the fact that the vast majority of the Medical Staff voted against the admission of Dr. Lloyd to the Medical Staff.
“There was also discussion and opinions that Dr. Lloyd does not possess fundamental medical knowledge and the ability to apply the knowledge he has, and further that he is unable to recognize his own mistakes. Some consideration was given to the fact that some letters received from other institutions rated Dr. Lloyd poor to fair and that several of them were not enthusiastically in his support. It was noted that some references were good and these were taken into account. It was also taken into account that Dr. Lloyd does have certain favorable ‘paper’ qualifications. There was general concurrence from those who voted against the admission of Dr. Lloyd that they did so sadly and they did not quarrel with or doubt Dr. Lloyd’s deep concern and compassion for his patients. It was also stated that the vote was not a popularity contest of Dr. Lloyd with his patients, but as to his medical competency to practice medicine at Jefferson Davis Memorial Hospital. It was the feeling of some members of the Board that the Medical Staff had gone to extremes to assist and aid Dr. Lloyd and that any hostility which he felt was due in large measure to his actions and that the hostility was not motivated because of his clientele, but because of his medical activities.”

In affirming this case, we adopt the reasoning of the Court of Appeals, Fifth Circuit, in Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir. 1971), wherein that Court said:

“No court should substitute its evaluation of such matters for that of the Hospital Board. It is the Board, not the court, which is charged with the responsibility of providing a competent staff of doctors. The Board has chosen to rely on the advice of its Medical Staff, and the court cannot surrogate for the Staff in executing this responsibility. Human lives are at stake, and the governing board must be given discretion in its selection so that it can have confidence in the competence and moral commitment of its staff. The evaluation of professional proficiency of doctors is best left to the specialized expertise of their peers, subject only to limited judicial surveillance. The court is charged with the narrow responsibility of assuring that the qualifications imposed by the Board are reasonably related to the operation of the hospital and fairly administered. In short, so long as staff selections are administered with fairness, geared by a rationale compatible with hospital responsibility, and unencumbered with irrelevant considerations, a court should not interfere. Courts must not attempt to take on the escutcheon of Caduceus.” 437 F.2d at 177. (Emphasis added).

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Clarence HARLEY v. STATE of Mississippi.
    No. 49565.
    Supreme Court of Mississippi.
    May 11, 1977.
    H. Clark Coleman, Jr., West Point, John P. Fox, Houston, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   ROBERTSON, Justice,

for the Court:

Clarence Harley was indicted by the grand jury of the Circuit Court of the First Judicial District of Chickasaw County, for the murder of Emmett Kirby, Jr. He was convicted of manslaughter and sentenced to serve a term of eighteen years in the state penitentiary with six years being suspended.

There were six assignments of error but we will discuss only two. We think there is merit in those two and are of the opinion that the conviction and sentence should be reversed and this case remanded for a new trial.

The two assignments of error, which we are sustaining, contend:

The trial court erred in refusing to permit the appellant to present to the jury certain threats made by the deceased against the life of the appellant which were communicated to the appellant by third parties.
In a murder trial wherein a principal issue was appellant’s state of mind upon confrontation by deceased and the reasonableness and apparent necessity of appellant’s actions, the trial court erred in excluding, as hearsay, prior death threats by deceased against appellant communicated to appellant by third parties.

The victim of the fatal shooting, Emmett Kirby, Jr., was the brother of appellant’s wife, Ladester Kirby Harley. Tliere was bad blood between Harley and his brother-in-law, Kirby, extending back into 1974. The appellant was allowed to testify of threats on his life made directly to him by his brother-in-law, Emmett Kirby, Jr.; he was also allowed to testify of threats against him made by his (appellant’s) wife and threats made directly to him by his stepson.

Appellant was not allowed to testify of threats by the deceased which were communicated to Harley by his wife and stepson. Harley attempted to testify of these threats to show his state of mind pn November 7, 1975, the day of the fatal shooting.

On Wednesday, two days before the fatal encounter on Friday, appellant had a run-in with his 16-year-old stepson Wendell Cousin, who lived in his home. This testimony was offered out of the presence of the jury:

“A Wendell Cousin. He throwed a .25 automatic on me also on that Wednesday morning, and that’s when the last remarks were made about her brother killing me, and that was on Wednesday. And that’s when I went and purchased that gun Wednesday evening when I got off from work, when the remarks were made that morning about her brother killing me.
“Q Tell specifically what was said there about him killing you.
“A When her son had that pistol and was trying to get to me. He was in the living room and I was in the kitchen, and he was trying to get to me with that gun and was begging his mother to let him kill me. His mother, she was fighting with him to keep him from killing me because she didn’t want her son involved. She was fighting with him — well, not fighting. She was scuffling him, trying to keep him out of the room where I was, and he had a .25 automatic, trying to get to me. And so that was the last words. She said, ‘No, don’t kill him.’ Said, ‘Emmett, Jr.’s going to kill him.’ That was on Wednesday morning after Halloween night.
“Q Now that was two days before this incident?
“A That’s right, and this trouble took place that Friday.
“Q Tell the Court what your state of mind was after getting reports of these threats.
“A I was real afraid for my life because it was more than one was threatening my life. Along with Emmett, Jr. was my wife and stepson, which was three of them right there involved in it, so that’s what I was so afraid of. More than one was threatening my life, so that was enough to scare anybody and make me afraid.”
“THE COURT: Mr. Fox, the objection is sustained. It is hearsay evidence and is not competent.
“MR. FOX: As to the step-child as well as the younger child?
“THE COURT: And as to what the wife said.”

It was fatal error to exclude this testimony because it was offered not for the truthfulness of the threats but merely to show the apprehensive state of mind of the defendant at the time of the fatal encounter.

The Supreme Court of Arkansas considered this type of testimony in Davis v. State, 533 S.W.2d 202 (Ark.1976). Davis was convicted of murder in the second degree and sentenced to 15 years in the Department of Correction. At his trial, he asserted self-defense and attempted to show that on the afternoon before the shooting his Aunt Gloria had told him that the deceased had threatened him. In finding that prejudicial error was committed when the trial court ruled out this testimony, the Supreme Court of Arkansas said:

“The author in 2 Wigmore on Evidence § 247 (3rd ed. 1940) states:
“ ‘(e) The actual making of the threats is immaterial, if there was a communication made to the defendant of supposed threats. This illustrates the contrast of principle with the doctrine of uncommu-nicated threats (ante, § 110).’
“From the foregoing authorities, we find that the accused is entitled to testify as to his apprehensions and that for that purpose his testimony, as to threats of the decedent communicated to him by third persons, does not constitute hearsay. It matters not whether the communications were truthful or untruthful but only that the third person made the communication to the accused and that he had a right to rely upon the communications to make him apprehensive of the decedent’s subsequent conduct.” 533 S.W.2d 203-04.
(Emphasis added).

Because of this fatal error, the judgment of the lower court is reversed and this cause remanded for a new trial.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: GILLESPIE, Chief Justice,

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Mrs. Thelma TYNER.
    No. 49347.
    Supreme Court of Mississippi.
    May 11, 1977.

      A. F. Summer, Atty. Gen. by Frank E. Shanahan, Jr., Asst. Atty. Gen., Jackson, Jack W. Brand, Newton, for appellant.
    Gordon & Mangum, R. Leon Mangum, Union, W. H. Johnson, Jr., Decatur, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice,

for the Court:

Mrs. Thelma Tyner sued the Mississippi State Highway Commission (Commission) demanding damages for damage to her property and a mandatory injunction requiring the Commission to install culverts on her property to carry water under her driveway. The Chancery Court of Newton County denied monetary damages but issued a mandatory injunction requiring the Commission to place two additional 24-inch culverts in the driveway on Mrs. Tyner’s property.

The Commission undertook a project to widen and overlay Highway 15 which runs in front of Mrs. Tyner’s property. In widening the highway, the Commission enlarged and extended portions of a drainage ditch and extended its culverts under the highway. It also concreted portions of the drainage ditch on the easterly side of its right-of-way which carried the water to a natural drain that runs from the highway right-of-way onto and across the Tyner property and under a driveway leading to the Tyner residence. These changes increased the velocity of the water but did not drain any additional area. The natural drainage ran under Mrs. Tyner’s driveway through a single 24-inch culvert. After the highway project was completed, Mrs. Tyner’s driveway washed out because of the increased velocity of the water and because the culvert was insufficient to carry the quantity of water going through the natural drainage and under her driveway. The chancellor found that there was no negligence on the part of the Commission; that there had always been some drainage problems associated with the drainage ditch that crossed a portion of Mrs. Tyner’s property; that due to the widening of Highway 15 and the enlarging and concreting of portions of the drainage ditch on the east side of the highway right-of-way, the velocity of the water was increased. The chancellor held that Mrs. Tyner was not entitled to any damages but ordered the Commission to install two additional 24-inch culverts the same length as the one culvert now located in Mrs. Tyner’s driveway.

The question is whether there is any liability on the part of the Commission where, without negligence, in the proper use of its right-of-way, it increased the velocity of the water that ran into the natural drain across Mrs. Tyner’s property.

It is well established in this jurisdiction and others that the owners of land along the border of a natural water course may accumulate surface waters and cast them into the natural drainage or water course without liability to the lower riparian owner, even though the flow of the water is accelerated and the volume increased. Board of Drainage Commissioners v. Board of Drainage Commissioners, 130 Miss. 764, 95 So. 75 (1922); 78 Am.Jur.2d, Waters § 132 at 580 (1975). The record is clear that the culvert under Mrs. Tyner’s driveway is insufficient to accommodate the flow of water. This was not the Commission’s responsibility but Mrs. Tyner’s.

For the reasons stated, we find as a matter of law there was no duty upon the Commission to install additional culverts on Mrs. Tyner’s property. The decree is reversed and the bill of complaint dismissed.

REVERSED AND RENDERED.

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


author: ENGLAND, Justice.

text:
    Julia VARGAS, Petitioner, v. AMERICANA OF BAL HARBOUR et al., Respondents.
    No. 48251.
    Supreme Court of Florida.
    Nov. 24, 1976.
    Rehearing Denied June 6, 1977.
    G. M. Nachwalter, of Nachwalter, Christie & Falk, Miami, for petitioner.
    John G. Tomlinson, Jr. of Williams & Tomlinson, Coral Gables, for respondents.
   ENGLAND, Justice.

By petition for the writ of certiorari, we are asked to review an order of the Industrial Relations Commission reversing in part a workmen’s compensation award for failure of the judge of industrial claims to state sufficient facts for Commission review. We have jurisdiction under Article V, Section 3(b)(3), Florida Constitution, and Sections 120.68(2) and 440.27, Florida Statutes (1975).

The relevant facts may be briefly stated. Julia Vargas suffered a compensable injury to her back while employed as a maid in the hotel Americana of Bal Harbour. After the presentation of conflicting testimony as to the extent of disability, the judge of industrial claims concluded that Vargas had suffered a 50% loss of earning capacity and ordered that compensation be paid accordingly. In his order the judge explained that his conclusion was

“Based upon the testimony of the Claimant, Mr. Harold Dunsky, Dr. William P. Deutsch, Dr. Freytes, Miss Gay Bondu-rant, Dr. Jules Trop, and Dr. Ivan Barrios, as well as upon all of the evidence introduced at the final hearing, and after carefully considering the Claimant’s restrictions, limited education, potential for employment on the open labor market, physical limitations and restrictions, and also upon careful consideration and examination of the testimony and reports of the vocational consultants and medical witnesses . . . .”

This is not the first matter which has been brought to us recently on the respective fact-finding roles of the Commission and industrial claims judges. The current difficulty apparently stems from variant views as to our directive in Pierce v. Piper Aircraft Corp., 279 So.2d 281 (Fla.1973). In that case we modified the prior requirement that judges of industrial claims set forth in their orders detailed fact findings, a duty originally placed upon the fact finder both to relieve this Court of the burden of gleaning facts from a cold record and to relieve the Commission of the need to examine the record for facts so that only law questions would come before it. As we explained in Pierce, placing such a burden on the fact finders may have been a wise policy when their determinations were being reviewed by a part-time Commission predominated by laymen. Pierce recognized the Commission’s reorganized status, under which the qualifications of commissioners were set at a level which would encourage, if not guarantee, the development of an administrative expertise which had often been lacking. In Pierce, therefore, we held that judges of industrial claims had only to state the ultimate material facts which justified their disposition of a claim, preferably with an explanation of why a particular fact was selected when complex or conflicting testimony had been adduced.

It is apparent that the Commission and the judges of industrial claims have not reached a workable, mutual understanding of Pierce. This confusion within the agency has caused deplorable delays in awarding deserved benefits to injured workers, and it has burdened this Court with the re-review of factual matters which do not warrant Supreme Court attention. Consequently, we take this opportunity to attempt once more to reconcile the need for specificity in fact finding with the expertise and responsibility of fact reviewers.

The foundation of Pierce, still valid today, is that the commissioners constitute an expert administrative agency, sitting as an administrative appeals board, whose procedures are such as to satisfy the due process requirements of the Florida and United States Constitutions and whose decisions are subject to judicial review within the discretionary certiorari jurisdiction of this Court.

We perceive the present intra-agency difficulties to arise not from these principles so much as from a misunderstanding of our explanations as to the changed status of the Commission and our more recent extension of deference to its expert judgments. We have frequently mentioned the fact that commissioners must now have the qualifications of judges of the district courts of appeal, and we have analogized Commission processes to procedures followed in the district courts. These analogies were accurate in the context of the limited purposes for which they were drawn, but they have apparently led judges of industrial claims to emulate circuit court judges who generally are not required to make a written account of the facts of a case. By our analogies, we may have led the judges of industrial claims from their rather precisely defined statutory duties.

The Legislature has imposed on each judge of industrial claims the primary duty of finding facts. Section 440.25(3)(c), Florida Statutes (1975), requires those findings to be written. This requirement provides an important service to the parties and to the Commission, in that it preserves in the record the findings of the agency assigned by law to bring industrial relations experience to bear on factual disputes peculiar to that area.

The detail in which such findings must be stated is succinctly described in Section 440.25(3)(c) as the “ultimate facts”, the same formulation we expressed in Pierce. This statutory directive requires the written identification of all facts essential to industrial claims decisions, with the degree of specificity as to recorded text, source in the record, or other identification determined in the context of the dispute. That was our holding in Pierce. In cases where there is limited or no argument concerning the facts, the judges need only state the basic facts required by law to exist in order to sustain or reject an award, and to identify the sources of those facts in the record. Where factual disputes exist, more specific findings are required as to the judge’s basis for reliance, again with adequate references to the record. By no means, however, do we here mean to resurrect the detailed discussion of testimony which was once imposed on judges of industrial claims. The statute does not require that degree of elaboration. It does, however, require cogency in fact finding.

In considering the case before us, in which the error complained of is a Commission remand for further fact finding, we apply the standard for our review announced in Scholastic Systems, Inc. v. Le-Loup, 307 So.2d 166 (Fla.1974), as further explained in Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976). A writ of certio-rari will issue only where it appears that the essential requirements of law have been ignored. Such has not been shown. The application of the Pierce doctrine in testing for “essentiality” obviously cannot be done mechanically, since the detail required in a fact statement will always depend on the nature of the dispute. It follows that an evaluation of the degree of fact sufficiency is better left to the expert understanding of the Commission than to the second-tier review of this Court. In these cases, therefore, we will not intervene when the Commission has reviewed the record and found a need for amplification, absent a clear showing that the Commission has acted arbitrarily. In this way, our review in Commission cases will comport with our review of like non-final orders of other agencies. For example, we recently granted a motion to quash a petition for a writ of certiorari which sought review of a Public Service Commission order remanding a case for further hearings. Yellow Cab Co. of Boca Raton, Inc. v. Mayo, 339 So.2d 1174, Order filed September 30, 1976 (Fla.).

The petition for the writ of certiora-ri in this case is granted for the limited purpose of assuming jurisdiction and issuing a binding ruling. As no showing of arbitrariness has been made, the requested relief is denied.

OVERTON, C. J., and ROBERTS, ADKINS, SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., dissents.

      . The judge also ordered payment for past and future palliative care by a chiropractor, and the purchase of an orthopedic mattress. On review, the Commission affirmed the award of an orthopedic mattress as based on competent and substantial evidence of need, but reversed as to palliative care. The Commission ruled that an agreement between the parties had withdrawn the claim for future palliative care, and that past palliative care had been performed without notice to the employer of its need or claimant’s desire.

      . Chicken 'N' Things v. Murray, 329 So.2d 302 (Fla.1976) (IRC upholding JIC’s findings); Brown v. Clifford Shover Bldg., Inc., 328 So.2d 838 (Fla.1976) (IRC remanding for more complete recitation of facts); Schafer v. St. Anthony's Hosp., 327 So.2d 221 (Fla.1976) (IRC remanding for more complete recitation of facts); Mahler v. Lauderdale Lakes Nat’l Bank, 322 So.2d 507 (Fla.1975) (IRC reversing JIC’s findings).

      . Brown v. Griffin, 229 So.2d 225 (Fla.1969).

      . See Section 20.17(6), Fla.Stat. (1975).

      . See n. 2 above.

      . See Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976); Mahler v. Lauderdale Lakes Nat’l Bank, 322 So.2d 507 (Fla.1975); Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974).

      . Levinson, The Florida Administrative Procedure Act: 1974 Revision and 1975 Amendments, 29 U. Miami L.Rev. 617, 679-680 (1975).

      . Scholastic Systems, Inc. v. LeLoup, n. 6 above; Sections 120.68(2), and 440.27, Fla.Stat. (1975).

      . The Industrial Relations Commission has been created as a separate unit within the Department of Commerce, Sections 20.17(6), and 440.02(8)(a), Fla.Stat. (1975), one of the twenty-five departments authorized to perform functions in the executive branch of government. Art. IV, § 6, Fla.Const. The judges of industrial claims are under the division of labor in the same department. Sections 440.02(8)(b), and 440.45, Fla.Stat. (1975).