author: SCHOTT, Judge.

text:
    Mrs. Audrey OWENS v. NEW ORLEANS BUILDING MAINTENANCE, INC., et al.
    No. 8190.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre (Patrick W. Browne, Jr. and Timothy T. Roniger, New Orleans), for defendants-appellants New Orleans Building Maintenance, Inc. and Lillian Johnson.
    John J. McCann and Herman M. Sehroe-der, New Orleans, for plaintiff-appellee.
    Before LEMMON, BOUTALL and SCHOTT, Judge.
   SCHOTT, Judge.

Defendants, New Orleans Building Maintenance, Inc. (NOBM), and Lillian Johnson, have appealed from a judgment in favor of plaintiff for $228,020.13 and in favor of intervenor, Maryland Casualty Company, for $28,279.94, plus future compensation benefits payable to plaintiff. Plaintiff answered the appeal seeking an increase in general damages.

On May 31,1972, the 46 year old plaintiff was employed as a night auditor at the Royal Sonesta Hotel in New Orleans. At about 1:00 A.M. she had been working on the hotel’s restaurant receipts in the front office and, when they would not balance, she took them to a larger rear office where she could spread out these receipts and check closely for the error in the figures. She sat down at a desk a few steps across the room from the door through which she had entered.

Defendant Johnson was an employee of NOBM, which provided janitorial and custodial service for the hotel. When plaintiff entered the back office Johnson had been mopping the floor which was made of tile, perhaps vinyl. She had completed mopping around the desk plaintiff used before plaintiff entered the room. At the time plaintiff seated herself the mopping continued to plaintiff’s left in an aisle and then continued in back and to the right of plaintiff when the area around the door was mopped. Plaintiff found the error in the receipts for which she was searching, gathered them up, and as she had almost reached the door to return to the front office she slipped and fell in a seated position with her legs in a V shape, dropping the receipts on the floor. By this time Johnson had left the area around this door and had moved across the room to mop around another door. Upon hitting the floor plaintiff felt pain immediately and experienced an involuntary bowel movement. She went to the restroom to clean herself and there became nauseated and vomited. Shortly thereafter she left work and went home. Later that morning, during business hours, she spoke to the hotel manager who instructed her to go to the Baptist Hospital for an examination. This hospital visit was the beginning of a long series of hospitalizations, medical treatment and surgery.

At the Baptist Hospital she complained of pain in the low back. The examiner found tenderness in the sacrum. X-rays of the area were negative ánd a preliminary diagnosis of lumbosacral strain was made.

On June 2 plaintiff was examined by Dr. Donald De Loach, a general surgeon. He diagnosed a lumbosacral contusion and prescribed muscle relaxant and heating pad.

On June 14 and 26 plaintiff was examined by Dr. James Corcoran, a general surgeon. She complained of headaches and pain in her coccygeal area. Dr. Corcoran found that her coccyx had been pushed forward from trauma and was tender. He recommended that plaintiff be seen by a neurologist for an evaluation.

Plaintiff went to Dr. Evan Howell, a neurologist, on July 25, but in the meantime sought emergency medical treatment at the East Jefferson Hospital on July 19, and Ochsner Foundation Hospital on July 24. On the July 19 visit to East Jefferson, the history taken from plaintiff was to the effect that she had fallen at work and fractured her tail bone and was having headaches since then. The examiner described the headache as a throbbing right post cervical and occipital headache. Medication was prescribed and there is a note on the hospital report by Dr. John D. Jackson to the effect that plaintiff had an appointment to see him on July 26.

The record of plaintiffs July 24 visit to Ochsner Foundation Hospital includes two physicians’ report, containing the following pertinent items: She had been well until a fall at her office on May 31 and she suffered nausea, headaches and lumbosacral sprain since then. The day before this visit she fell down at her home striking her forehead and hematoma was found on her forehead. She had an appointment to see a neurologist on the following morning.

When Dr. Howell saw plaintiff on July 25 he took a history from plaintiff which included the following: Since the time of the injury she had severe throbbing headaches beginning in the back of her neck and radiating into the vertex region of her head. These were aggravated by walking. She also had occasional headaches consisting of severe sharp pain running from one temple to the other. She had experienced at least eight episodes where she got weak, staggered and lost consciousness. She complained of blurring vision. Dr. Howell conducted a full neurological examination and had X-rays taken. Because of the history she gave of the trauma, particularly the involuntarily bowel movement she had at the time, sphincter changes he found, and changes found on the X-rays, he recommended a myelogram. Plaintiff was hospitalized for this purpose on July 26 at East Jefferson Hospital. The myelogram indicated the possibility of disc disease in the lumbosacral spine and definite disc material extruding in the cervical spine. Cervical spondylolysis and a definite traumatic injury to the cervical spine were diagnosed and plaintiff was referred to Dr. Jackson, the neurosurgeon for continued treatment at the hospital.

Dr. Jackson recommended removal of the discs between C-4 and C-7. This was accomplished on August 7 by entrance into the neck from the front and the area was fused. On August 22 she was discharged, wearing a cervical collar which was to be worn from six to eight weeks. When Dr. Jackson next examined plaintiff on October 2 she was still having pain in the neck and shoulders and was told to continue with the cervical collar. From the myelogram Dr. Jackson was also convinced of the necessity for surgery on plaintiff’s lumbosacral spine but preferred to postpone this until plaintiff recovered from the cervical surgery.

On March 18, 1973, Dr. Jackson again admitted plaintiff to East Jefferson Hospital for a laminectomy. Parts of the discs between L-4 and S-l were removed. She was discharged from the hospital on April 1.

Thereafter, plaintiff continued to suffer pain in the right buttocks and right lower extremity, necessitating frequent prescriptions for drugs. She became depressed, leading Dr. Jackson to refer her to a psychiatrist. Her continued pain in the lumbar spine led Dr. Jackson to recommend a rhizo-domy which involved the placing of needles into the joints and the destruction of the spine nerves going to the joints. This was accomplished at Lakeside Hospital on March 13, 1974, in the area between L-3 and S-l, and she was discharged from the hospital on March 16. Because of plaintiff’s complaints of pain, Dr. Jackson referred her to Dr. Courtney Russo, an orthopedic surgeon.

Dr. Russo examined plaintiff on April 10 and diagnosed a ruptured intervertebral disc. He recommended a “radical” procedure which would include a fusion and would require plaintiff to be placed in a body cast extending from the breast to the knees for about three months. Plaintiff was admitted to East Jefferson Hospital for this purpose on May 12, and was discharged from the hospital in the east on June 4.

On August 2 plaintiff was admitted to the Baptist Hospital for removal of the cast, physical therapy and the fitting of a brace, which extended from the shoulder blades to the buttocks. She was discharged on August 26. A walker was prescribed for ambulation. By March, 1975, she was able to walk without the back brace.

Dr. Russo testified that plaintiff would never obtain complete relief from pain and would have permanent problems. In response to the question as to whether she would be a good candidate for a job involving prolonged sitting or standing, Dr. Russo said “I wouldn’t think any eight hour a day job, possibly part time but not full time.” He also stated that she was still having nerve root complaints as of May, 1975, and might require further surgery. In the meantime she had seen, on April 1, 1975, Dr. Kenneth Vogel, a neurologic surgeon.

On April 1, 1975, Dr. Kenneth Vogel, a neurologic surgeon, examined plaintiff. He too concluded that further surgery on the nerve roots would be required and recommended that she see Dr. Donald Richardson for this purpose.

Dr. Richardson did not testify at the trial, but Dr. Don Fontenelle, a clinical psychologist, testified that he saw plaintiff on June 3, 1975, at Dr. Richardson’s request for the purpose of determining whether plaintiff’s pain was real or psychosomatic. On the basis of his tests he reported to Dr. Richardson that there was no evidence of severe emotional disturbance. Plaintiff’s pain was not psychosomatic but was organically induced and therefore she was a good candidate for neurosurgery.

At the trial on June 23 and July 28,1975, plaintiff testified: She was still under medication and had pain in her leg, right hip, and lower back. She was unable to take the exercises prescribed by Drs. Jackson and Russo, and on their advice tried walking. Walking just one city block caused great pain. She saw Dr. Richardson once and another operation was discussed, but she was unwilling to undergo it. She has never been free of pain since May 31, 1972, and has discontinued her social life.

The trial judge itemized his award as follows:

Personal injury $60,000.00
Medical and hospital expenses, present and future 20,308.13
Loss of wages to date of filing suit 21,649.00
Loss of future wages 96,063.00
Future mental pain, anguish and suffering 30,000.00

In his reasons for judgment, the trial judge stated that he considered plaintiff’s injuries to be serious, that these injuries were the result of a fall on the floor caused by a wet substance negligently left there by defendant Johnson, that plaintiff was still disabled at the time of the trial and would probably be disabled for the rest of her life.

Defendants specify errors in the trial court’s finding any negligence on the part of defendant Johnson, failing to find contributory negligence on the part of plaintiff and making excessive awards for general damages and loss of future wages.

THE NEGLIGENCE OF DEFENDANTS

Defendants contend that they should be exonerated from liability on the basis of the duty risk formula of tort liability as set forth in the Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972) and Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962). Under this formula the initial question is that of the causal connection between the act or omission of the defendant and the resulting injury to plaintiff. The next question is whether there is a duty on the part of the defendant to protect plaintiff from the type of harm suffered and, finally, if such a duty is found to exist whether the defendant violated that duty.

Defendants’ first argument against liability is that the conduct of defendant Johnson did not cause the injuries suffered by plaintiff. In support thereof, they rely on the record of plaintiff’s visit to the emergency room at Ochsner Clinic on July 24, showing that she suffered a second slip and fall at her home.

This report cannot be isolated from the record but must be considered with the other evidence. Plaintiff told Dr. Howell on the day after her Ochsner visit that she had eight episodes of loss of consciousness since the date of the accident. She also testified that she was in perfectly good health before this accident. The trial judge apparently found that she was credible and we accept his credibility call. Furthermore, five days before she went to Ochsner plaintiff sought emergency treatment at the East Jefferson General Hospital with the complaint of throbbing, cervical and occipital headache. When this evidence is taken together it seems more probable than not that plaintiff’s ultimate disability was caused by the accident of March 31, 1972, and not by the fall she sustained on July 24. It is also probable, based on Dr. Howell’s history, that the fall of July 24 itself was the result of the accident of March 31. In any event, we are not in a position to disturb the factual conclusion of the trial judge that these injuries all resulted from the accident since it is based on reasonable credibility evaluations and factual inferences. Canter v. Koehring, 283 So.2d 716 (La. 1973).

More difficult to answer is defendants’ argument that Lillian Johnson owed no duty to plaintiff to protect her from the particular harm which she suffered in this particular ease. Their argument follows:

. . The owner or operator of a premises is obligated only to keep a premises free from hidden dangers, traps, or pitfalls which are not known to an invitee which would not be observed by the invitee in the exercise of reasonable care. The court is aware that this is the highest standard of care owed to anyone who comes on the premises of another, and this is the duty, if any, which the jani-tress owed to Audrey Owens. This is not to say, however, that the janitress had a duty to warn Audrey Owens of known or obvious risks. Audrey Owens knew that the floor was mopped every night. She knew that the floor was being wet mopped on the very night she slipped and fell. She knew that a recently mopped floor may be difficult to walk on at times. She knew that people sometimes slip and fall on recently mopped floors. Slipping and falling is perfectly logical, obvious, normal and ordinary risk which one assumes if one wishes to walk on a floor which one knows to have been recently mopped. It is not an unknown danger, trap, or pitfall.”

In support of their argument defendants rely on Rachal v. Brookshire Grocery Stores, Inc., 336 So.2d 1014 (La.App. 3rd Cir. 1976); Vegh v. Kaiser Aluminum and Chemical Corp., 259 So.2d 850 (La.App. 1st Cir. 1972); Kuhn v. Oulliber, 225 So.2d 317 (La.App. 4th Cir. 1969); Newell v. Zurich Insurance Co., 325 So.2d 745 (La.App. 1st Cir. 1976) and other cases which they say illustrate that defendant Johnson did not owe a duty to plaintiff to warn her of the obvious danger of walking on a recently mopped floor.

Before addressing ourselves to these cases and the legal theory relied upon by defendants, it is noted that they take issue with the basic fact finding of the trial judge that this area of the floor was wet or damp when plaintiff slipped. Defendant Johnson insisted that the floor was dry at the time of plaintiff’s fall, but plaintiff testified that some of the receipts which she dropped on the floor stuck to it because of the floor’s dampness. The trial judge concluded that the floor was wet and there would be no basis for us to conclude differently with respect to this factual determination.

The cases cited by defendants are distinguishable in that in each of these cases the object or condition which caused the plaintiff to slip was indeed obvious, whereas in our case the wetness of the floor was not necessarily obvious to plaintiff under the circumstances. In Rachal plaintiff knowingly walked across an expanse of floor where a janitor was cleaning up a spill of oil and she slipped but did not fall just prior to the time she did fall. In Newell, plaintiff was running in the rain on pavement with bare feet and the court found that this is a universally known hazard which the defendant had no duty to warn against. In Vegh plaintiff was intimately familiar with the slippery quality of bauxite mud and knowingly stepped into it, falling shortly thereafter. It is significant also that in each one of these cases plaintiff lost in the trial court and the judgment was affirmed by the appellate court so that factual findings of the trial judge were not being reversed in each case as defendants are asking us to do in the instant case. In the Kuhn case, this court did reverse the trial court which had found the defendant liable but there was a crucial distinction in the facts of that case.

In the Kuhn case plaintiff tripped over a board placed over a doorway to confine a small dog. This court observed that the board across the door was within the view of the guests for a considerable period of time before plaintiff fell over the board. Furthermore, the plaintiff admitted that she knew the defendant, who was her sister, had used the board in that manner on other occasions in the house and she visited her sister about once a month. This is in sharp contrast to the facts and circumstances of the instant case.

It is significant that defendant Johnson insisted that the floor was dry at the time of plaintiff’s fall. From the facts as found by the trial judge we now understand that the floor was wet, so that Lillian Johnson’s testimony can best be understood in the context that she thought it might have been dry because of the time intervening between her mopping and the time of plaintiff’s fall, but it turned out that she was wrong in this assumption. If Lillian Johnson thought the floor was dry by then how can it be said by defendants that plaintiff should have known the floor was wet? Also the clear water placed on this floor was not so obvious a hazard as was the board in the Kuhn case. It was more in the nature of a hidden trap under these circumstances. Furthermore, when plaintiff entered the room the area around the door where she fell had not yet been mopped. This occurred after plaintiff sat down facing away from the door and was intent on finding an error. By the time she found the error and got up Lillian Johnson was on the other side of the room. It does not necessarily follow under these circumstances that plaintiff should have known the floor was wet. Finally, the question of whether this was an obvious danger or one that should have been known to plaintiff under the circumstances is primarily a question of fact. There is sufficient evidence in the record to show that this was the type of danger which Johnson had a duty to warn plaintiff about when she knew or should have known, that plaintiff had been engrossed in her work at the desk.

PLAINTIFF’S CONTRIBUTORY NEGLIGENCE

From the foregoing discussion it follows that the evidence does not preponderate in favor of defendants on their plea of contributory negligence. After plaintiff found her error she started across the short expanse of floor to the door, expecting that floor to be in the same condition it was in when she entered the room. Lillian Johnson was not mopping that area at that time but had done so some undetermined time while plaintiff was busy searching for the error, and Johnson was now on the other side of the room. We cannot charge plaintiff with contributory negligence for not realizing the floor was still damp when Lillian Johnson herself thought it was no longer damp. We cannot say that the trial judge erred in rejecting defendants’ affirmative defense of contributory negligence under these circumstances.

QUANTUM

In effect, the trial judge awarded plaintiff $90,000 for her damages, notwithstanding that he itemized $60,000 for “personal injury” and $30,000 for “future mental pain, anguish, and suffering.” In this opinion we have meticulously outlined the course of medical treatment to which this plaintiff was subjected over the three year period between the date of the accident and the time of trial, and the uncontradicted medical evidence is to the effect that she has a permanent injury and will suffer pain indefinitely. We cannot say that the trial judge abused his discretion, especially considering the case of Coco v. Winston Industries, 341 So.2d 332 (La.1977).

Defendants have taken issue with the award to plaintiff for loss of future income in the amount of $96,063. Plaintiff, in her brief, contends that this award was inadequate in that it did not include a “cost of living” increase in such future wages.

The evidence on loss of future earnings consisted of the testimony of W. E. Groves, a consulting actuary. He testified that he estimated plaintiff’s work-life expectancy to be 21.3 years from the date of the trial and her life expectancy to he 28.6 years. He based this estimate on tables prepared by the U.S. Department of Health, Education and Welfare. Using an average wage of $7106 as the base together with a 4V2% discount he computed the present value of her loss of future earnings to be $96,063. He also used a 2% cost of living increase per year, discounting it to the present date at 4%% to arrive at an additional $18,451. The trial court did not award plaintiff the latter figure.

Defendants take issue with the actuary’s estimate of work-life expectancy, contending that plaintiff at age 50 could not reasonably be expected to work until age 71. They would have us accept a report by the U.S. Department of Labor which fixes a 50 year old plaintiff’s work-life expectancy at 15.6 years, and would have us compute her future earnings on the basis of the $7106 gross income for 15.6 years, using an investment rate of 7.5% and omitting any adjustment for the increase in the cost of living to arrive at future lost wages in the amount of $68,892.

The publication referred to by defendants was not placed in evidence but is only referred to in their brief, so that it is not properly before us. Furthermore, no expert witness was produced by defendants to substantiate their approach to computation of lost future earnings. On appeal we can say only that the trial judge arrived at a figure which finds support from the testimony of the only expert who appeared. Furthermore, the trial judge apparently counterbalanced any differential in the number of years of life expectancy by his refusal to allow any cost of living increase to be included in the figures, and in so doing we cannot say that his discretion was abused.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. Georgia LEWIS v. QUALITY DEVELOPMENT CORPORATION and the City of Biloxi.
    No. 49265.
    Supreme Court of Mississippi.
    April 6, 1977.
    Rehearing Denied Sept. 14, 1977.
    Sekul, Hornsby & Wallace, Thomas L. Wallace, Biloxi, for appellant.
    Vlahos & Caranna, Cono A. Caranna, II, Matt G. Lyons, Biloxi, for appellee.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

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

AFFIRMED.

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

Rehearing Denied; Walker, J., took no part in this dicision.


text:
    Leonard SMITH, Jr., et al. v. Mrs. Ida Belle HOWELL.
    No. 49497.
    Supreme Court of Mississippi.
    Aug. 17, 1977.
    Rehearing Denied Sept. 14, 1977.
    William T. Bailey, Lucedale, for appellant.
    Hurt & Dickerson, Gerald A. Dickerson, Lucedale, for appellee.
   Appeal from Circuit Court, George County; Darwin M. Maples, Judge.

Before INZER, P. J., ROBERTSON and BROOM, JJ., and W. W. BROWN, Commissioner.

AFFIRMED.


text:
    J. W. EATON et ux. v. Sandra M. McDANIEL.
    No. 50078.
    Supreme Court of Mississippi.
    Aug. 17, 1977.
    Rehearing Denied Sept. 14, 1977.
    Karl W. Kepper, Kepper & Leggett, Hat-tiesburg, for appellant.
    George L. Phillips, Jolly W. Matthews, III, Hattiesburg, for appellee.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

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

AFFIRMED.


author: JAMES D. HESTER,

text:
    Lewis Lamar BRIGHT v. STATE of Mississippi.
    No. 49788.
    Supreme Court of Mississippi.
    Aug. 17, 1977.
    Buckley & Ford, Travis Buckley, Laurel, for appellant.

      A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., SMITH, P. J., LEE, J., and HESTER, C.
   JAMES D. HESTER,

Commissioner for the Court:

On May 4, 1975 the appellant, Lewis Lamar Bright, shot and killed Richard Mansell Weaver at the apartment of the appellant’s estranged wife. He was indicted and tried for the crime of murder in the Circuit Court of Choctaw County. From a conviction of manslaughter and a ten (10) year penitentiary sentence he appeals. We affirm.

Appellant argues that the trial court erred (1) in granting State’s Instructions S-4 and S-5; (2) in refusing to admit testimony which tended to show that deceased had communicated threats to the life of appellant; (3) in overruling appellant’s motion for a directed verdict; and (4) in refusing to grant defendant’s instruction number ten.

Instruction S-4, to which in the trial court appellant made a general objection, is as follows:

The Court instructs the Jury for the State that to make a homicide justifiable on the grounds of self-defense, the danger to slayer must be either actual, present and urgent, or the slayer must have reasonable grounds to apprehend a design on the part of the deceased to kill him, or to do him some great bodily harm, and in addition to this, that there was imminent danger of such design being accomplished; and, hence mere fear, apprehension or belief, however sincerely entertained by one person that another designs to take his life or to do him some great bodily harm, will not justify the former taking the life of the latter party. A party may have an apprehension that his life is in danger and believe the grounds of his apprehension just and reasonable, and yet he acts at his peril. He is not the final judge; the Jury may determine the reasonableness of the ground upon which he acted.

The same instruction, with insignificant modifications, was attacked in Shields v. State, 244 Miss. 543, 144 So.2d 786 (1962), wherein this Court said:

The third instruction complained of by appellant has been used as a model by the prosecuting attorneys of this State for many years. In the case of Coleman v. State, 22 So.2d 410 (Miss.1945), this Court said: “This instruction has been approved in the criminal jurisprudence of this State ever since Wesley v. State, 37 Miss. 327 . and as late as Ransom, et al. v. State, 149 Miss. 262, 115 So. 208. This instruction, with identical language, was approved in the latest case dealing with it, Callas v. State, 151 Miss. 617, 118 So. 447.” The instruction was criticized in the ease of Bailey v. State, 174 Miss. 453, 165 So. 122; nevertheless, the Court finally said: “In our opinion, the instruction is not reversible error . .

Since the decision in the Bailey case, this instruction has been approved and followed many times. Turner v. State, 220 So.2d 295 (Miss.1969); Holmes v. State, 199 Miss. 137, 24 So.2d 90. The assigned error, is, therefore, without merit.

Appellant’s contention that the granting of Instruction S-5 constitutes reversible error because it cut off the defendant’s defense of self-defense is an assignment of error not properly preserved for review by this Court.

Appellant’s entire trial court objection to State’s Instruction S-5 was that “it does not properly state the law and especially so after considering the testimony in this case.” In Entrican v. State, 309 So.2d 851 (Miss.1975), the same general objection was held to be subject to Rule 14 of the Uniform Rules of the Circuit Courts of Mississippi, adopted February 13, 1971, and Rule 42 of the Rules of the Supreme Court of Mississippi.

Rule 14 of the Uniform Rules of the Circuit Courts of Mississippi provides in part:

When the requested instructions are submitted to the court at the conclusion of the taking of testimony the opposing attorney shall dictate into the record his specific objections to the requested instruction and specifically point out his grounds for objection. (Emphasis added).

Rule 42 of the Rules of the Supreme Court of Mississippi provides, among other things, that:

No assignment of error based on the giving of an instruction to the jury will be considered on appeal unless specific objection was made to the instruction in the trial court stating the particular ground or grounds for such objection. However, in extreme cases this Court may raise an objection to a jury instruction in order to prevent manifest injustice. (Emphasis added).

In Woods v. State, 183 Miss. 135, 184 So. 311 (1938), the Court said:

While it is true that it is a rare case in which this instruction is proper, it has been upheld in numerous cases when the facts necessary to sustain it are in evidence.

When all of the instructions are considered together, the inescapable conclusion is that the jury was generously instructed at the request of appellant on the law of self-defense, justifiable homicide, the burden of the State to prove that appellant did not kill the deceased in self-defense, and the right of the accused to shoot deceased to avoid the loss of life or to prevent great bodily harm to himself. Consequently, the trial court did not err in refusing to grant appellant’s requested instruction number ten.

There was no testimony elicited from any eyewitness to the homicide. The defense testimony consisted of five character witnesses establishing defendant’s reputation for peace or violence. It was only by virtue of the testimony of investigating law enforcement officers, testifying as to what defendant told them at the scene of the homicide, which formed the basis of any of the elements requisite to the granting of any instruction on self-defense or justifiable homicide. According to the testimony of Malcolm McMinn, Chief of Police of Ack-erman, appellant, who, having previously armed himself with a shotgun, made the following statement at the scene of the shooting: “I knew he was in there, and I just couldn’t stand it,” — a statement at variance with appellant’s theory of self-defense. Viewing the testimony in the light most favorable to appellant, the verdict was manifestly correct, and any other would have been clearly against the law and the facts. For these reasons, the court properly refused appellant’s request for a directed verdict.

Lastly, appellant contends that the court erred in refusing to admit testimony which tended to show that the deceased had communicated threats on the life of the appellant. There was no proof, by proffer or otherwise, that any threat made by deceased upon the life of appellant had been communicated to appellant. While an uncommunicated threat may be admitted for the purpose of establishing the state of mind of a person, we have reviewed the proffer of testimony made by appellant and fail to find therein any threat made by the deceased upon the life of appellant.

For these reasons, the lower court did not err in refusing to admit the testimony proffered by the appellant. Brice v. State, 167 Miss. 255, 148 So. 348 (1933).

No prejudicial error having been committed in Bright’s trial, and the verdict of the jury finding him guilty of manslaughter being supported by the evidence, the judgment and sentence should be and is hereby affirmed.

AFFIRMED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, 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:
    Charles V. COWART v. STATE of Mississippi.
    No. 50040.
    Supreme Court of Mississippi.
    Aug. 17, 1977.
    Merrida P. Coxwell, Jackson, for appellant.
    A. P. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi, wherein appellant was indicted and tried on the charge of embezzlement under Mississippi Code Annotated section 97-23-19 (1972), and upon a jury verdict of guilty was sentenced to serve a term of ten years in the state penitentiary.

The indictment, as amended, charged that:

Charles Cowart . . . being then and there the agent, servant and employee of Aaron L. Ford, did then and there by virtue of said employment, as such agent and servant, have in his possession and under his control $9,700.00 good and lawful money of the United States of America, the property of Aaron L, Ford, and did then and there fraudulently appropriate said $9,700.00 to his own use and did then and there wilfully, unlawfully and feloniously embezzle said money and convert the same to his own use with the wilful, felonious and fraudulent intent to cheat and defraud Aaron L. Ford,

Mississippi Code Annotated section 97-23-19 (1972), the statute under which appellant was indicted, provides, in part, as follows:

[I]f any . . . trustee ... or any clerk, agent or servant of any private person, shall embezzle or fraudulently . convert to his own use . any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, of employment, either in mass or otherwise, he shall be guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the penitentiary not more than ten years, or fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.

When comparing the indictment with the statute, it can readily be seen that the state elected to proceed against the appellant on the theory that he was the agent of Aaron L. Ford and not a trustee, since the word “trustee” as used in the statute was omitted from the charge in the indictment.

The testimony in this case clearly demonstrates that the arrangement under- which the appellant received the money that he is charged to have embezzled was that of an escrow agent. The record shows that Mr. Aaron Ford contracted with B. & H. Better Homes, Inc. to do certain remodeling work on his home in the City of Jackson to the extent of $115,630.00 plus 2V2 percent sales tax. A dispute arose between Mr. Ford and B. & H. Mr. Ford required and B. & H. agreed to furnish a performance bond. One Albert C. Viscounty agreed to furnish the performance bond but as a condition required that the construction money be placed in escrow. It was agreed by all the parties that payment on the construction would be made as work progressed. Mr. Ford was advised that appellant, Charles V. Cowart, would serve as escrow agent, whereupon Mr. Ford made out his check in the amount of $38,455.33 to “Charles Co-wart, Escrow Agent,” and this sum was deposited in the Deposit Guaranty National Bank to the account of “Charles Cowart, Escrow Agent.” Mr. Cowart subsequently purchased a Mark IV Continental [automobile] and paid for same by drawing two checks totaling $9,700.00 on the escrow account. The appellant was charged with embezzlement growing out of this transaction.

The first question to be decided is whether the appellant Cowart was an agent of Aaron Ford. The status of an escrow agent, whether a trustee or, in fact, an agent is discussed in 28 Am.Jur.2d Escrow section 11 (1966) where it says:

To create an escrow, there must be a depositary with instructions from the parties as to their agreement concerning the delivery and taking effect of the escrow instrument, and his agreement to accept the custody of the instrument upon the terms specified in the agreement of the parties. .
In a broad sense, every depositary of an escrow is the agent of both parties, since for the purpose of marking delivery upon the performance of the conditions, he is no less the agent of the grantee than the agent of the grantor. He is empowered to aid neither, being merely the conduit used in the transaction for convenience and safety; and he may, therefore, be looked upon as a special agent of both parties, with powers limited only to those stipulated in the escrow agreement. As a special agent, the authority of the agent must be strictly construed and not extended beyond that which is given in terms, or that which is necessary and proper for carrying the authority so given into full effect. It has also been said that the depositary is the agent or trustee for both parties until performance of the condition, but thereafter the dual agency changes to an agency not for both, but for each of the parties to the transaction in respect to those things placed in escrow to which each has thus become completely entitled. Sometimes it is said that from the time a deposit of an instrument is made in escrow, the escrow agent becomes the trustee of both parties. It has also been held that, strictly speaking, the depositary is not an agent at all, but rather the trustee of an express trust with duties to perform for each of the parties, which duties neither can forbid without the consent of the other. In other words, it is better to treat him, in accordance with his capacity, as a third party to whom the principal parties to the contract have entrusted certain authority by the escrow agreement; he must look to that entrusted authority for his powers and duties. When the depositary knows the terms of the agreement so that he may understand his duties, he acts by virtue of his own powers, and not as the agent of anybody.

The above discussion reflects the differences of opinion found in the authorities as to whether an escrow agent is in fact an agent or simply a trustee of an express trust with duties to perform for each of the parties. When discussing the scope of the meaning of the word “agent” in our embezzlement statute, this Court said in Fairchild v. State, 258 So.2d 254 (Miss.1972) that:

26 Am.Jur.2d, Embezzlement, § 26 (1966), and 3 Am.Jur.2d, Agency, §§ 21 and 17 (1962), set forth the tests to be applied:
“The term ‘agent’ as used in embezzlement statutes is construed in its popular sense as meaning a person who undertakes to transact some business or to manage some affair for another by the latter’s authority, and to render an account of such business or affair. The term ‘agent’ as employed in such statutes imports a principal and implies employment, service, and delegated authority to do something in the name and stead of the principal — an employment by virtue of which the money or property embezzled came into the agent’s possession.” (Emphasis added) 26 Am.Jur.2d at page 577.
“The question whether an agency has been created is ordinarily a question of fact which may be established the same as any other fact, either by direct or by circumstantial evidence; and whether an agency has in fact been created is to be determined by the relations of the parties as they exist under their agreements or acts, with the question being ultimately one of intention. The question is to be determined by the fact that one represents and is acting for another, . . . .” (Emphasis added) 3 Am.Jur.2d at pages 430-431.
“The principal must intend that the agent shall act for him, the agent must intend to accept the authority and act on it, and the intention of the parties must find expression either in words or conduct between them.” (Emphasis added) 3 Am.Jur.2d at page 428. (258 So.2d at 255-56).

In the case sub judice, Cowart undertook to hold the money delivered to him by Mr. Ford in escrow to be paid to B. & H. as the work on remodeling the home progressed. He was, in our opinion, acting as a special agent for both Ford and B. & H. with powers limited to those in the escrow agreement. He was, therefore, an agent within the meaning of Mississippi Code Annotated section 97-23-19 (1972).

The next question presented is whether the state met its burden of proof that Co-wart embezzled funds from the escrow account. The state seems to rely on the fact that Cowart drew two checks on the escrow account payable to Diamond Motor Company for the total sum of $9,700.00, one for $5,000.00 payable to Diamond Motor Company “For 1975 Mark IV” and the second check made payable to Diamond Motor Company in the amount of $4,700.00 “For 74 Mark IV Bal.” The checks were deposited to the account of Diamond Lincoln Mercury, Inc., and paid in due course. The state argues that the purchase of a 1974 Mark IV automobile was not an expenditure authorized by the escrow agreement.

At first blush, this argument seems persuasive. However, there was no proof for whom the automobile was purchased— no title certificate was introduced nor was there any testimony from Diamond Motor Company that the Mark IV was purchased in the name of the appellant or someone other than B. & H. or Mr. Viscounty who attempted completion work on the project when B. & H. defaulted. The evidence in this regard is highly unsatisfactory and justice demands a new trial. We are unwilling to say, under the record here presented, that the purchase of a Mark IV constituted embezzlement of the escrow funds without the state showing that the Mark IV was purchased for Cowart or some third person not entitled to receive funds under the escrow agreement or by a showing that the parties who were entitled to receive funds from the escrow agreement did not receive the Mark IV in payment of their services.

As to the appellant’s final assignment of error, we need only say that under the evidence presented in this case he was entitled to a circumstantial evidence instruction, although not the one submitted by him to the court as it attempted to define for the jury what would constitute a “reasonable doubt.”

The judgment of the lower court is therefore reversed and this cause remanded for a new trial.

REVERSED AND REMANDED.

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

BOWLING, J., took no part.


author: ROBERTSON, Justice,

text:
    Charles C. DAVIS v. STATE of Mississippi.
    No. 49958.
    Supreme Court of Mississippi.
    Aug. 17, 1977.
    Lawrence D. Arrington, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, ROBERTSON and BOWLING, JJ.
   ROBERTSON, Justice,

for the Court:

Charles C. Davis was indicted, tried and convicted in the Circuit Court of the First Judicial District of Harrison County for the murder on March 2, 1975, of James M. Bostick, security agent of the Illinois Central Gulf Railroad Company. He was sentenced to death.

This case was tried under Mississippi’s capital murder statute before our decision in Jackson v. State, 337 So.2d 1242 (Miss. 1976), in which we ruled that, in accordance with recent United States Supreme Court decisions, there must be a bifurcated trial, the first phase dealing only with the question of guilt or innocence of the accused of either the capital crime with which he was charged or, if warranted by the evidence, a lesser included offense. The second phase of the hearing is for the purpose of determining the sentence if the jury has found the defendant guilty of a capital crime, and at this separate hearing the defendant may present evidence of mitigating and extenuating circumstances, and the State in turn can either stand on the evidence already adduced or else re-introduce evidence of the aggravating circumstances of the crime.

In any event, the conviction and sentence must be reverséd and this case remanded for a new trial in accordance with the instructions given and opinion rendered in Jackson v. State, 337 So.2d 1242 (Miss.1976).

REVERSED AND REMANDED.

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


author: PATTERSON, Chief Justice, SMITH, Presiding Justice,

text:
    Martha Schuh SMITH, widow of James Dempsey Smith, Deceased v. Nelda T. HINTON.
    No. 49530.
    Supreme Court of Mississippi.
    Aug. 17, 1977.

      Harris & McLellan, William E. McLellan, III, David A. Harris, Jackson, for appellant.
    Satterfield, Allred & Colbert, William L. Colbert, Jr., Jackson, for appellee.
    Before PATTERSON, C. J., and SMITH and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

Mrs. Martha Schuh Smith is the widow and Mrs. Nelda T. Hinton is the ex-mistress of James D. Smith. The controversy between them is the proceeds of an insurance policy purchased by James D. Smith from Mutual Life Insurance Company of New York (MONY). When issued in 1969, Mrs. Smith was designated the beneficiary of the policy, the children of the marriage being the alternate beneficiaries. On November 14, 1973, the beneficiary was changed by the insured to Mrs. Hinton, his estate being named the contingent beneficiary.

Mrs. Smith and the executor of Smith’s estate brought this suit against Mrs. Hinton and MONY seeking the proceeds of the policy. The bill of complaint as amended alleged these theories for recovery:

(1) That James D. Smith was intoxicated when the change of beneficiary form was executed and was incompetent to understand and appreciate the purported change of beneficiary and it was void;

(2) That Mrs. Hinton had exercised undue influence upon Smith to entice and induce the change; and

(3) The policy had been "transferred to the appellant by inter vivos gift prior to Mrs. Hinton’s being designated the beneficiary.

In her answer Mrs. Hinton denied these allegations and filed a cross bill against Mrs. Smith and MONY asserting that she was the designated beneficiary of the policy and entitled to its benefits.

MONY interpled the policy proceeds and was nonsuited. The First National Bank tendered its resignation as executor and the cause proceeded to trial between Mrs. Smith as an individual and as executrix de bonis non of her husband’s estate and Mrs. Hinton.

The issue being joined, the Chancery Court of Hinds County, First Judicial District, heard the cause and concluded that Mrs. Smith was not the recipient of the policy by an inter vivos gift and that James D. Smith was not unduly influenced by Mrs. Hinton in procuring the change of beneficiary. Though unmentioned by the court, it is implicit from the court’s conclusion that it determined Smith was not incapacitated by alcohol when the last beneficiary form was executed. A decree for Mrs. Hinton was thereupon entered.

In Stepson v. Brand, 213 Miss. 826, 58 So.2d 18 (1952), it was held that a policy of life insurance may be made the subject of a valid parol gift provided all of the essential elements of a gift are present and, moreover, the power to change the beneficiary may itself be the subject of a gift. As to the latter we stated:

If, by contract or by way of gift, the right to change the beneficiary is waived, the beneficiary secures a vested interest which may not be defeated by the insured attempting to change the beneficiary. (213 Miss. at 835, 58 So.2d at 21)

Mrs. Smith assigns as error the sustaining of an objection to her testimony concerning the inter vivos gift alleged to have been made by her husband. The objection was sustained because the trial court was of the opinion that Mississippi Code Annotated section 13-1-7 (1972) [the dead man statute], rendered this evidence incompetent. In pertinent part Section 13-1-7 provides:

A person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person, which originated during the lifetime of such deceased person, or to establish any claim he has transferred since the death of such decedent. .

Of the numerous annotations under Section 13-1-7 there is the consistent thread that before the section becomes applicable, there must be-’a claim directly affecting the estate of a decedent. Poole v. McCarty, 240 Miss. 341, 127 So.2d 398 (1961), and Shepherd v. Johnston, 201 Miss. 99, 28 So.2d 661 (1947). We are of the opinion that Smith’s estate cannot be directly affected by the claim of his widow that she was the donee of the policy during her husband’s lifetime, and neither can it be affected by the claim of the last designated beneficiary, Mrs. Hinton. In the event Mrs. Smith prevails, her husband would have divested himself of his interest in the policy so that it would not become a part of his estate upon his death. On the other hand, if Mrs. Smith is unable to establish an inter vivos gift to herself, then by the terms of the policy Mrs. Hinton is entitled to its proceeds. One or the other of these eventualities will be determined by the suit, neither leaving a contingency by which the estate of Smith will be either increased or decreased. The appellant’s claim of an inter vivos gift is therefore not against Smith’s estate in our opinion. In Garner v. Townes, 134 Miss. 791, 100 So. 20 (1924), an analogous situation, we so held and find persuasive to this view Sheeler v. Sheeler, 207 Md. 264, 114 A.2d 62 (1955). We conclude the trial court erred in rejecting the testimony of Mrs. Smith in her attempt to establish an inter vivos gift of the policy from her husband.

We are of the further opinion there was no error in the finding of the trial court, from the facts then before it, that the insured was not unduly influenced by the appellee. The record discloses that Mrs. Hinton had no knowledge of the change of beneficiary to herself until she was informed by the insured of the change subsequent to the act. There is no persuasive evidence to indicate that her will dominated or replaced the free will and choice of Smith. The trial court is affirmed in this finding.

We are urged to hold that a confidential relationship arising from the meretricious relationship existed between Mrs. Hinton and Smith so that the burden of proof rested upon Mrs. Hinton to prove the gift was not violative or the product of the confidential relationship. The appellant cites Benner v. Pedersen, 143 So.2d 722 (Fla.App.1962), and Beatty v. Strickland, 136 Fla. 330, 186 So. 542 (1939), in support of this argument. We note the rule announced in these cases is in a decided minority and we are presently unwilling to opine that a meretricious relation, though long continued, is sufficient within itself to shift the burden of proof as is done in other confidential relationships.

The objection based upon Section 13-1-7 was erroneously sustained, requiring the cause to be reversed. However, the lower court is affirmed in its finding there was no undue influence from the evidence then before it.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

SMITH and INZER, P. JJ., specially concur.

BOWLING, J., took no part.

SMITH, Presiding Justice,

specially concurring:

I concur in the foregoing opinion. Mrs. Smith was offered as a witness to testify in a suit against Mrs. Hinton, with the objective of defeating the personal claim of Mrs. Hinton to the proceeds of the policy. Under the circumstances of the case, Mrs. Hinton, in my view, did not have standing to object on the basis of Mississippi Code Annotated section 13-1-7 (1972).

INZER, P. J., joins in this opinion.


author:
LEE, Justice,
      SUGG, Justice,

text:
    NATIONAL OLD LINE INSURANCE COMPANY and Waynesboro Savings & Loan Association v. Albert Tucker BROWNLEE.
    No. 49438.
    Supreme Court of Mississippi.
    Aug. 24, 1977.

      William Vol Jones, Jr., Waynesboro, for appellants.
    Maxey, Clark & Casey, Lunsford Casey, Laurel, for appellee.
   LEE, Justice,

for the Court:

Albert Tucker Brownlee obtained judgment in the Chancery Court of Wayne County against National Old Line Insurance Company for monthly mortgage payments provided under a mortgage disability insurance policy and for specific performance requiring payment of said installments subsequent to February 1, 1976; he sought and was denied attorneys’ fees; National Old Line Insurance Company appeals; and Brownlee cross-appeals.

On December 12,1966, appellant issued to Brownlee an insurance policy providing for payments to Waynesboro Savings and Loan Association the sum of ninety dollars ($90.00) per month (mortgage payments) in the event of disability to him from sickness or injury as defined in the policy. The instrument also contained an elimination endorsement as follows: “With respect to ALBERT TUCKER BROWNLEE, the policy does not cover any loss caused by and resulting from: NEOPLASM AND/OR INGUINAL HERNIA.” Appellee became disabled March 17, 1972, from a cancerous growth in his bladder. The bladder was removed and a drainage tube was inserted in his side. Appellee claimed disability mortgage payments under the policy which was rejected by appellant as being within the definition of “neoplasm.” Brownlee then filed suit in the chancery court praying judgment for accrued monthly insurance payments and seeking specific performance of subsequent payments within the policy period [sixty (60) months].

Appellant contends (1) that the trial court erred in holding that the word “neoplasm” was so general it did not apply to appellee’s illness.

Appellant’s own medical expert testified that the term “neoplasm” covered a multitude of sins, that it could be a common wart or common mole, and that, if a person were sent to him to be treated for neoplasm, he would not know how or for what to treat him. None of the physicians’ reports during treatment and following discharge referred to appellee’s condition as neoplasm, and a second doctor testified that the word “neoplasm” by itself is “very vague.”

The Superior Court of Pennsylvania in Smith v. State Mutual Benefit Society, 161 Pa.Super. 476, 55 A.2d 590 (1947), stated, “Neoplasm, medically speaking, is a tumor, malignant or not.” 55 A.2d at 590. The Oxford Universal Dictionary, page 1320, defines the term as: “Neoplasm: (path.) A new formation of tissue in some part of the body; a tumour.”

This Court has often set forth the principle that exceptions and limitations of coverage contained in a policy of insurance that are not clearly expressed will be construed more strictly against the insurer as the framer and fashioner of such provisions. Home Owners’ Insurance Company v. Keith’s Breeder Farms, Inc., 227 So.2d 293 (Miss.1969).

In McLaurin v. Old South Life Insurance Co., 334 So.2d 361 (Miss.1976), a hospital surgical insurance policy excepted the insured from any loss resulting from alcoholism. The insured was injured in an automobile collision occurring on the wrong side of the highway. The hospital records indicated that he was on an alcoholic basis at that time, he suffered delirium tremens after his admission to the hospital and was given intravenous alcoholic injections. He took vodka and orange juice for twenty-five (25) days after the accident; blood tests subsequent to the accident indicated he was intoxicated to the extent that a charge of driving while under the influence of intoxicating liquor could be substantiated. The insurance company declined to make payment contending that his injuries resulted from alcoholism. In addressing that contention, this Court used the following reasoning and language pertinent to the present case:

“As to the particular insurance policy before us (if it were admitted that plaintiff was intoxicated when injured, which here is disputed), this Court declines to accept ‘alcoholism’ as a synonym for ‘intoxication.’ Ample precise language already subjected to judicial construction was available to the insurers in drafting their exception clause. Their decision to use the vague term ‘alcoholism’ without supplying any definition has rendered the clause ambiguous and precipitated them into the midst of a medico-legal controversy. The ambiguity and doubt created thereby is resolved in favor of the insured. Home Owners Ins. Co. v. Keith’s Breeder Farms, Inc., 227 So.2d 293 (Miss. 1969). The insurers’ argument that the evidence conclusively proves, as a matter of law, that plaintiff’s losses resulted from alcoholism is without merit on this record. Therefore, we cannot hold that the clause in the policy excepting losses resulting from undefined ‘alcoholism’ entitled the insurers to a directed verdict.” 334 So.2d at 363.

The chancellor in the present case found that the term “neoplasm” was general in nature and that the elimination endorsement was not effective to cover appel-lee’s condition. We agree that the term is vague, ambiguous and general, and we cannot say that the chancellor was manifestly wrong in his findings.

Appellant contends next that the trial court erred (2) in overruling its demurrer to the bill of complaint, and (3) in decreeing specific performance.

The bill of complaint simply averred that appellee was disabled while the policy was in force and that appellant refused to pay the monthly mortgage installments under the terms of the policy after receiving proper notice of appellee’s total disability resulting from sickness. The policy was made an exhibit to the bill of complaint. The bill prayed for damages in the amount of the mortgage payments made by appel-lee since his disability date, and that appellant be required to specifically perform the terms of the contract by paying monthly installments as they accrued in the future. The bill of complaint, with the insurance policy exhibited to it, failed to state a cause of action for specific performance. Also, subsequent to trial of the cause, the condition of appellee might have changed and he might not have been disabled from performing an occupation or employment for which he was reasonably qualified by education, training, or experience.

Atlantic Life Insurance Company v. Serio, 171 Miss. 726, 157 So. 474 (1934), involved an insurance policy similar to the one presented here. The insurance company declined to make payments. It was argued that this breach of contract entitled the insured to recover for future installments not due at the time of the suit. The Court stated:

“We cannot agree to this. There was no obligation on the appellant to make these monthly payments in advance, and the appellee could not sue therefor until the time for their payment passed without payment being made. The appellant’s contention seems to be supported by Federal Life Ins. Co. v. Rascoe (C.C.A.[6]) 12 F.2d 693, but we decline to follow it, and agree with the opinion of the dissenting judge therein.” 171 Miss. at 729-730,157 So. at 475.

The demurrer should have been sustained, but since the trial court took jurisdiction of the cause and rendered relief, part of which was correct, we will not reverse and render, or remand, as to that part of the relief properly granted. Miss.Const. § 147 (1890); Minter v. Hart, 208 So.2d 169 (Miss.1968); Matthews v. Thompson, 231 Miss. 258, 95 So.2d 438 (1957).

Appellant last argues (4) that the trial court erred in holding that appellee was disabled.

Part II of the policy provides that (1) if the insured is wholly and continuously disabled and prevented from performing each and every duty pertaining to his occupation, the company will pay periodically the monthly indemnity stated in the schedule ($90.00 per month) for the period the insured is so disabled not to exceed twelve (12) consecutive months, and (2) after the payment of monthly indemnity for twelve (12) months as so provided, the company will continue the monthly indemnity so long as the insured is wholly and continuously disabled and prevented by reason of said injury or sickness from engaging in each and every occupation or employment for wage or profit for which he is reasonably qualified by education, training or experience, not to exceed the period stated in the schedule (sixty months).

The chancellor found that appellee is “disabled and has been continuously disabled since March 17, 1972.”

Appellee was a heavy equipment worker employed by Masonite Corporation. After surgery, he was retired by physicians for Masonite Corporation, he was placed on total disability for Social Security payments and total disability for Veterans’ Administration benefits. He testified in response to a question as to whether he had attempted to follow any other public employment since March of 1972, that “No, sir, I ain’t able to do it.”

The policy provisions stated above are similar to those considered by this Court in Prudence Life Insurance Co. v. Wooley, 254 Miss. 500, 182 So.2d 393 (1966). Wooley held that this “double-barrel provision” should have been submitted to the jury under proper instructions.

We interpret the chancellor’s finding to mean that appellee was disabled from performing each and every duty pertaining to his occupation during the first twelvemonth period and that, thereafter, he was wholly and continuously disabled and prevented by his sickness from engaging in each and every occupation or employment for wage or profit for which he is reasonably qualified by education, training or experience, and we are unable to say that the chancellor was manifestly wrong in so finding.

However, the chancellor was manifestly wrong in ordering monthly installments to be paid subsequent to February 1, 1976. Atlantic Life Insurance Company v. Serio, supra. The evidence presented at the trial on February 3,1976, reflected, and the chancellor found, that the appellee was totally disabled within the terms of the policy from the time of his surgery up to the date of the trial. We hold, under the pleadings and facts of this case, the appellee is entitled to recover for forty-seven (47) monthly installments of ninety dollars ($90.00) each, extending over the period April 1, 1972, to February 1, 1976, together with interest at the rate of six percent (6%) per annum on said installments.

Appellee’s cross-bill sought damages in the form of attorneys’ fees and his evidence was to the effect that eighteen hundred dollars ($1,800.00) was a reasonable sum for such services. The trial court denied attorneys’ fees or damages and appel-lee cross-appeals from that judgment. It is sufficient to say that the chancellor was eminently correct in declining to award damages or attorneys’ fees to appellee.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART ON DIRECT APPEAL. AFFIRMED ON CROSS-APPEAL.

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

SUGG, WALKER and BOWLING, JJ., dissent.

SUGG, Justice,

concurring in part and dissenting in part:

I concur in part and dissent only to that portion of the opinion holding that specific performance will not lie in this case.

The opinion relies on Atlantic Life Insurance Company v. Serio, 171 Miss. 726, 157 So. 474 (1934). Serio is in conformity with a substantial number of cases which have adopted the view that upon breach of contract by an insurer to pay periodical indemnity or benefits, the right of action for damages is limited to the installments which have accrued prior to the judgment. Metropolitan Life Ins. Company v. Lambert, 157 Miss. 759, 128 So. 750 (1930); American National Insurance Company v. Briggs, 70 S.W .2d 491 (Tex.Civ.App.1934). Like Serio, these cases usually involve actions which seek judgment for installments before they mature, or, to accelerate the maturity of future installments. The view of these cases that the right of action is limited to accrued installments are based on certain factors and considerations not present or at issue in this case.

First, an insurance contract providing for indemnity through future installment payments is not susceptible to an acceleration of future benefits or a single lump sum judgment. New York Life Insurance Company v. Viglas, 297 U.S. 672, 56 S.Ct. 615, 80 L.Ed. 971 (1935). Such indemnity insurance contracts include, in addition to the principal promise to insure, separate and distinct promises to pay at specified times in the future upon proof of continued disability. Courts have denied lump sum installment judgments because there is no obligation on the insurer to pay in advance. Hines v. Fidelity Mutual Life Insurance Company, 6 F.Supp. 692 (1934); Allen v. National Life and Accident Insurance Company, 228 Mo. App. 450, 67 S.W.2d 534 (1934).

Serio was a suit in circuit court for payments then due and for those thereafter to become due. I agree that Serio is correct in that there was no obligation on the insurance company to make the monthly payments in advance, however, this is not the question in this case. Complainant has brought this action in chancery court to recover for future installments as they become due by way of specific performance. There is a vast difference in the two propositions. In the former, plaintiff seeks payment of benefits before they accrue and in the latter, the complainant seeks payment of subsequent installments as they accrue provided the disability continues and the insured survives.

This distinction was noted in Supreme Tent, K. M. v. Cox, 25 Tex.Civ.App. 366, 60 S.W. 971 (1901), where the court in holding that the trial court was in error in entering a judgment for an amount including installments not due at the date of the verdict, said:

This case is not in the nature of an action for specific performance of a contract nor one to enforce a lien either upon property or a specific fund, but to recover a debt some of which is not due. (25 Tex.Civ.App. at 371, 60 S.W. at 973).

Numerous courts have met the problem by requiring payment of benefits as they accrue. Olinski v. Milk Wagon Drivers’ Union Local 753 International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America et al., 320 Ill.App. 487, 51 N.E.2d 709 (1943); John Hancock Mutual Life Ins. Company v. Bobo, 230 Ala. 650, 162 So. 287 (1935); Equitable Life Assurance Soc. v. Goble, 254 Ky. 614, 72 S.W.2d 35 (1934); Equitable Life Assurance Soc. v. Preston, 253 Ky. 459, 70 S.W.2d 18 (1934); Prudential Ins. Co. v. Bridgman, 256 Ky. 575, 76 S.W.2d 639 (1934); Melancon v. Provident Life & Accident Ins. Co., 176 La. 1055, 147 So. 346 (1933); Prudential Ins. Co. v. Hampton, 252 Ky. 145, 65 S.W.2d 980 (1933).

In Equitable Life Assurance Soc. v. Goble, supra, where the insurer breached its contract to pay monthly indemnity in case of total and permanent disability, the court affirmed a judgment ordering payment of past due installments and to pay future installments as they became due until the whole sum named in the policy should have been paid or until the plaintiffs permanent and total disability ceased, or until plaintiff’s death. The court said:

The effect of the judgment is merely to direct the payment of those that had matured under the terms of the group policy, and it is not in fact a judgment for the present recovery of the future installments. It is equivalent only to a declaration that such installments will be due at the dates fixed, and that it is the duty of the company to pay them as they mature, if the insured continues to live long enough to collect all of them or unless his disability ceases before their payment. It preserves the rights of the company, as agreed on between it and the insured, as set out in the policy, to avail itself of the provisions of its policy, subject to the supervision and the right of the court, on the application of the company or the insured, showing a change of the condition of the insured, to compel either or both parties to comply with his or its obligation in accordance with the policy, or in the event the company in the future fails or refuses to pay the future installments, by proper orders, require it to pay, or if the facts authorize it, excuse it from paying, the future monthly installments or any one or more of them. (254 Ky. at 620, 72 S.W.2d at 38).

The chancellor in this case has not adjudged the. insurance company absolutely liable for future unaccrued installments, but has simply ordered that the insurance company comply with the contract by paying to the complainant disability payments monthly as they accrue upon proof of disability.

When the chancellor directed the insurance company to pay the future installments for disability as they accrue, he was exercising sound discretion. With an increase in the number of decisions favorably viewing specific performance in lieu of damages for breach of contract as a viable alternative to protect the rights and interests of policyholders as to future unaccrued installments without increasing the risk or liability of insurance companies it cannot be said that the chancellor committed manifest error.

There is no adequate remedy at law. If the complainant in this case has to sue as each monthly disability payment accrues and is not paid by the insurance company, he would be forced to file a suit every month for the remaining months covered by the policy. This would be the only remedy available and, in my opinion, is certainly not an adequate remedy at law. Complainant would be put to the expense of employing a lawyer and filing a suit each month which would, as a practical matter, deprive him of the benefits he is entitled to receive.

We are all aware that many insurance contracts are in force which provide for disability payments over a period of time. Such contracts are of fairly recent origin and the time has come for the equity courts to enforce such contracts by way of specific performance so as to obviate the necessity of an insured being required to file a separate suit on each disability payment as it accrues. By statute, decrees involving child custody, payment of alimony, child support and separate maintenance are subject to modification under changed conditions and circumstances. This is a statutory remedy, but the history of the development of equity jurisdiction convinces me that we should continue the development of equitable principles and fashion a rule whereby cases such as this could be disposed of at one hearing. If, in this particular case, the insured should regain his health or die before collecting all of the payments to which he is entitled we should permit modification on petition of the insurer when such changed circumstances or conditions arise. The time is now ripe for such a forward step because contracts of insurance for disability payments are common and equity demands that a swift and simple remedy be fashioned to determine controversies of such contracts.

I am aware of our cases which hold that equity will not decree specific performance of a contract where it would require the constant superintendence of the court from day to day for an indefinite term in order to enforce the decree. Security Builders, Inc. v. Southwest Drug Co., 244 Miss. 877, 147 So.2d 635, motion overruled 244 Miss. 877, 149 So.2d 319 (1962); Blue Ribbon Creamery v. Monk, 168 Miss. 130, 147 So. 329, suggestion of error overruled 168 Miss. 130, 147 So. 782 (1933); Jones v. Mississippi Farms Co., 116 Miss. 295, 76 So. 880 (1917); Sims v. Vanmeter Lumber Co., 96 Miss. 449, 51 So. 459 (1910).

A decree requiring specific performance in this case would not require constant supervision of the contract from day to day and month to month but would merely shift the burden of showing a change in circumstances from the insured to the insurer.

In my opinion, the Chancery Court of Wayne County had jurisdiction to render a decree for specific performance and exercised sound discretion by protecting the rights of both parties.

WALKER and BOWLING, JJ., join this dissent.


text:
    Leroy CHANEY and Jo Beth Chaney v. GENERAL MOTORS ACCEPTANCE CORPORATION et al.
    No. 49501.
    Supreme Court of Mississippi.
    Aug. 24, 1977.

      Laurel G. Weir, Philadelphia, for appellants.
    Snow, Covington, Temple & Watts, W. Arlo Temple, Eppes & Shannon, J. R. Shannon, Meridian, for appellees.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

Leroy Chaney and Jo Beth Chaney brought this action, arising from their purchase of an allegedly defective truck, against General Motors Acceptance Corporation, General Motors Corporation, Nelson Hall Chevrolet, Inc., and Flxible Southern Company in the Chancery Court of Neshoba County. The bill of complaint alleges that the Chaneys purchased a Chevrolet truck from Nelson Hall on or about July 18, 1974. The truck immediately developed a leak, and the Chaneys alleged that “all defendants promised to make such repairs and pay the costs of the damages.” In addition to this alleged breach of warranty, a complaint indicates that all the defendants were involved in a complex scheme to defraud the Chaneys, arising from the note they executed to G.M.A.C.:

General Motors Acceptance Corporation advised Leroy Chaney, Jr. that he would not have to pay same unless and until his damages were paid and the vehicle repaired and General Motors Corporation along with General Motors Insurance Corporation advised him not to pay same or make any payments on same because they wanted to make Flexible (sic) Southern Aluminum Corp. pay the damages and would do so before any action would be taken against him and he relied on said promises which were fraudulently made by them.

G.M.A.C. nevertheless filed suit in the Circuit Court of Neshoba County, Mississippi, to repossess the truck, since the Chaneys made no payments on the note. That action resulted in a judgment in favor of G.M.A.C. which was not appealed. The complaint seems to ask for $3,500 in damages, including the cost of repairs to the truck, and the value of certain merchandise allegedly ruined by water seeping in through the leak.

Demurrers by all the defendants were overruled, but a motion asking for a bill of particulars was sustained on July 24, 1975. However, the bill of particulars was not filed until September 2, 1975, the morning of the trial. In their separate answers Flxi-ble Southern, which manufactured the body of the truck, and Nelson Hall denied any breach of warranty to the Chaneys. In the answer by G.M.A.C., it is denied that General Motors had any responsibility for defects in the truck body. All defendants denied the allegations of fraud. Furthermore, Nelson Hall filed a cross-bill attempting to recover a portion of the down payment, consisting of a check for $320 on which the Chaneys had stopped payment. G.M.A.C., in its cross-bill sought to recover a deficiency judgment for the amount due and owing after the repossession and sale of the truck resulting from the proceedings in the circuit court.

After hearing all the evidence, the chancellor attempted to sort out the conflicting claims in his final decree. The court found no liability on the part of General Motors Corporation, and dismissed the Chaneys’ bill of complaint as to that defendant. The Chaneys have not appealed that decision. The court held that Nelson Hall was entitled to recover from the Chaneys the $320 remaining due on the down payment. The Chaneys have not assigned this decision as error. However, the court found that Nelson Hall and Flxible Southern had breached their warranty with regard to the truck, and assessed the Chaneys’ damages at $1,000. In their cross-appeals, Nelson Hall and Flxible Southern deny that the Cha-neys proved any damages at all. In their appeal, the Chaneys contend that the damages awarded by the court were inadequate. At the close of the Chaneys’ evidence, the court had dismissed the Chaneys’ bill against G.M.A.C., finding no liability. However, in the final decree, the court found the Chaneys liable to G.M.A.C. on its cross-bill in the amount of $2,656.60. In tbeir appeal, the Chaneys deny any liability whatsoever. In its cross-appeal, G.M.A.C. argues that it was entitled to damages in the amount of $4,228.48.

We deal first with the damages awarded against Nelson Hall and Flxible Southern. Those defendants contend that the court erred in overruling their motion to dismiss the Chaneys’ original bill of complaint for their failure to answer interrogatories and to supply an adequate bill of particulars. We need not rule on this question, since we have concluded that the evidence presented by the Chaneys fails to establish any damages due from these defendants.

The court found that Nelson Hall, which sold the truck, and Flxible Southern, which manufactured the truck body, had breached a warranty to the Chaneys. Presumably, the court had in mind the implied warranty of merchantability imposed upon all sales of goods by Mississippi Code Annotated section 75-2-314 (1972). There is no need to consider whether the trial court was correct in this ruling, since the evidence established no allowable damages. The measure of damages recoverable for breach of warranty is established by Mississippi Code Annotated section 75-2-714 and -715 (1972). The basic rule is stated in section 75-2-714(2):

The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

The trial court specifically found that the Chaneys presented no proof as to this difference in value, and we cannot say that he erred. In a proper case, incidental and consequential damages, as provided by Mississippi Code Annotated section 75-2-715 (1972), may be recovered by the buyer. The Chaneys claim consequential damages, as provided by Mississippi Code Annotated section 75-2-715(2)(b) (1972), for damage to cargo carried in the truck. However, the trial court excluded all proof of these damages for failure to specify these allegations in the bill of particulars. The Chaneys have failed to assign this ruling as error, but continue to argue their case as though this evidence were properly before us. It is not, and we cannot hold that the trial court erred in not allowing this item of consequential damages.

The trial court did award consequential damages in the amount of $1,000 because of the repossession of the truck. The opinion of the court states:

There is proof in the record that they suffered a substantial loss by having it repossessed due to the fact that they didn’t make the payments pending the repair and the repairs were not performed. This is the basis for which I find these damages.

The Chaneys have not cited to us a single case in which any court has ever awarded such consequential damages because of a breach of warranty. Our research has revealed only one such case, from a trial court in Connecticut, Acme Pump Co. v. National Cash Register Co., 32 Conn.Supp. 69, 337 A.2d 672 (C.P.1974). In that case, as here, the plaintiff failed to make its payments after discovering a breach of warranty by the seller. The secured party repossessed the goods, and the seller sued the buyer to recover the amount of the subsequent deficiency judgment. The court held:

In this case, the defendant’s breach of warranty was the proximate cause of the Granite lawsuit. ... It could not have been avoided by any reasonable or prudent effort on the part of the plaintiff. Obviously, it would have been completely unfair to compel the plaintiff to continue payments on a machine which was wholly defective. The plaintiff’s resulting default led to the repossession by Granite. (Id. at 76, 337 A.2d at 677).

On the facts presented here, we are not persuaded by the reasoning of the Connecticut court. Our statute allows consequential damages for “injury to . . . property proximately resulting from any breach of warranty.” Miss.Code Ann. § 75-2-715(2)(b) (1972). It cannot reasonably be said that the repossession proximately resulted from any breach of warranty. There is no evidence that Flxible Southern even knew that the Chaneys were obliged to make payments on the truck. Nelson Hall knew of the financing arrangement, but, although the complaint seems to allege that all defendants agreed that no payments would be made until the car was repaired, there was no evidence presented from which the court could conclude that Nelson Hall was a party to any such agreement. Furthermore, there is no evidence tending to prove that the Chaneys were unable to make the payments because of the alleged breach of warranty. The repossession, and the damage occasioned thereby, proximately resulted from the Chaneys’ failure to make payments. Their failure to make payments did not proximately result from the alleged breach of warranty. They could have made payments, but failed to do so. Therefore, the court’s award of $1,000 for this item of consequential damages was erroneous and must be reversed.

The second set of issues in this case is presented by the judgment awarded to G.M.A.C. G.M.A.C. contends that the trial court made several errors in ascertaining the amount of the damages. In his opinion, the chancellor began his computation by stating that the financed amount of the car was $4,680.00. An examination of the financing agreement shows that this was clearly error. That figure appears as the unpaid balance of the cash price. However, the amount due and owing on the contract was not the cash price but the deferred payment price, less the amount of the down payment. The deferred payment price was $6,631.72, and the down payment made to Nelson Hall was $520.00. Therefore, the amount due and owing under the financing agreement with G.M.A.C. was $6,111.72. All this is undisputed on the face of the record.

The court also allowed only $300.00 in attorney’s fees, instead of the fifteen percent fee called for by the contract. We have held that such a provision is enforceable. Powell v. Powell, 245 Miss. 53, 63, 145 So.2d 168, 172 (1962). It should have been enforced here. The proper attorney fee of $916.75 should have been awarded.

From this total indebtedness of $7,028.47, the amount of $2,800.00, which was the price received for the truck at the foreclosure sale, ordered by the circuit court, had to be deducted, leaving a total judgment $4,228.47. Eugene Dearman, an employee of G.M.A.C., testified on cross-examination that the truck was currently being offered for resale at a price of $3,600.00, but further testified that substantial amounts of work had been done on the truck since the foreclosure. We cannot conclude that the trial court erred in finding that the reasonable value of the truck at the time of the foreclosure was $2,800.00.

At trial, the Chaneys raised none of the considerations available to them under Mississippi Code Annotated section 75-9-507 (1972). On their appeal, they merely contend that G.M.A.C. was entitled to no judgment because it had been dismissed from the case. The Chaneys evidently misunderstand the effect of the trial court’s holding dismissing their bill of complaint as to G.M. A.C., but proceeding to consider G.M.A.C.’s cross-bill against them. G.M.A.C. was very much a party to the lawsuit, and we conclude that it was entitled to judgment in the amount of $4,228.47.

The case is therefore affirmed on direct appeal. On cross-appeal, the cause is reversed and rendered as to the defendants, Nelson Hall and Flxible Southern. As to G.M.A.C., the judgment is affirmed as modified to allow recovery of $4,228.47.

AFFIRMED ON DIRECT APPEAL; ON CROSS-APPEAL, REVERSED AND RENDERED AS TO NELSON HALL AND FLXIBLE SOUTHERN; AS TO G.M.A.C., THE JUDGMENT IS AFFIRMED AS MODIFIED.

PATTERSON, C. J., INZER and SMITH, P. 33., and ROBERTSON, SUGG, BROOM, LEE and BOWLING, JJ., concur.


text:
    LONGLEAF FOREST PRODUCTS, INC., and Argonaut Insurance Company v. C. M. HOPKINS, Deceased, Dependent of.
    No. 50025.
    Supreme Court of Mississippi.
    Aug. 24, 1977.
    Shell, Buford, Bufkin, Callicutt & Perry, Kenneth G. Perry, Jackson, for appellants.
    J. C. Martin, Jr., Waynesboro, for appel-lee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is a workmen’s compensation action based upon a claim by the appellees, Jenny B. Hopkins, sister of C. M. Hopkins, deceased, and two minors, Lutina Hopkins, age 5, granddaughter of the deceased, and Douglas Hall, age 14, grandson of the deceased, for benefits under the Mississippi Workmen’s Compensation Act on the basis that they were dependents and entitled to death benefits as a result of the death of C. M. Hopkins who died in the course and scope of his employment with Longleaf Forest Products, Inc. Argonaut Insurance Company was the workmen’s compensation carrier for Longleaf Forest Products, Inc. when C. M. Hopkins died.

Longleaf Forest Products, Inc. and Argonaut Insurance Company filed an answer to the motion to controvert admitting that the death of C. M. Hopkins was compensable under the Mississippi Workmen’s Compensation Act but denying Jenny B. Hopkins, Lutina Hopkins, and Douglas Hall were in any way dependent upon C. M. Hopkins and denying that the appellees were entitled to any benefits under the Mississippi Workmen’s Compensation law.

The record is clear that Jenny B. Hopkins was dependent upon the deceased and was physically and mentally disabled entitling her to benefits. Appellants now concede this and make no issue of her right to recover. The dispute in this appeal is over the rights of the two minor grandchildren.

The initial hearing was before an administrative law judge who ordered that appellants:

Pay to the legal guardian of Lutina Hopkins and Douglas Hall, minor grandchildren of the deceased, C. M. Hopkins, compensation for death benefits in the amount of 15 percent for each such child of the aforesaid weekly wages of the deceased, commencing on May 4, 1974, and continuing during dependency; however, the total amount payable for all dependents shall not exceed 66% percent of such wages, subject to the maximum limitations of the Act, all as provided for in Section 9(e) and 9(f) of the Act. [Section 71-3-25(e), Mississippi Code].

On appeal to the full Mississippi Workmen’s Compensation Commission, the order of the administrative law judge was amended. The full commission found that the decedent stood in loco parentis to his natural grandchildren, Lutina Hopkins and Douglas Hall for at least one year prior to the time of his injury and death. As a result, the commission found that each grandchild came within the definition of child as contained in Mississippi Code Annotated section 71-3-3(1) (1972). Pursuant to this finding the full commission’s order required that death benefits be paid to the two minors in the amount of twenty-five percent each of the wages of the deceased as provided by the Mississippi Workmen’s Compensation Act “beginning on May 4, 1974, and continuing thereafter without condition as to future dependency, but subject to the maximum limitations of the Act.” '

This order was affirmed by the Circuit Court of Wayne County, Mississippi, by an order dated October 21, 1976.

The appellants allege that the order of the Mississippi Workmen’s Compensation Commission as affirmed by the circuit court should be reversed for the following reason: (1) the order is in error as a matter of law and is contrary to the law in finding that Lutina Hopkins and Douglas Hall were “children” of the deceased, C. M. Hopkins for purposes of the Mississippi Workmen’s Compensation law when in truth and in fact they were his natural grandchildren; (2) the order is in error as a matter of law and is contrary to the law in respect to its treatment of Lutina Hopkins and Douglas Hall insofar as they were awarded benefits beginning on May 4, 1974, and continuing thereafter without condition as to future dependency.

Since the resolution of this case depends upon the proper interpretation of the Mississippi Workmen’s Compensation Act, it is logical to begin by setting forth the pertinent provisions. Mississippi Code Annotated section 71-3-3(7) (1972), provides as follows:

“Child” shall include a posthumous child, a child legally adopted prior to the injury of the employee, a child in relation to whom the deceased employee stood in the place of a parent for at least one (1) year prior to the time of injury, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on him. “Grandchild” means a child as above defined of a child as above defined. “Brother” and “sister” include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption, but does not include married brothers nor married sisters unless wholly dependent on the employee. “Child,” “grandchild,” “brother,” and “sister” include only persons who are under eighteen (18) years of age, and also persons who, though eighteen (18) years of age or over, are wholly dependent upon the deceased employee and incapable of self-support by reason of mental or physical disability. (Emphasis added).

Mississippi Code Annotated section 71-3-25 (1972), provides, in part, as follows:

If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following:
(d) If there be a surviving child or children of the deceased but no surviving wife or dependent husband, then for the support of each such child twenty-five percent (25%) of the wages of the deceased, provided that the aggregate shall in no case exceed sixty-six and two-thirds percent (66%%) of such wages, subject to the maximum limitations as to weekly benefits as set up in this chapter.
(e) If there be no surviving wife or dependent husband or child, or if the amount payable to a surviving wife or dependent husband and to children shall be less in the aggregate than sixty-six and two-thirds percent (66%%) of the average wages of the deceased, subject to the maximum limitations as to weekly benefits as set up in this chapter, then for the support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, fifteen percent (15%) of such wages for the support of each such person; and for the support of each parent or grandparent of the deceased, if dependent upon him at the time of injury, fifteen percent (15%) of such wages during such dependency. But in no case shall the aggregate amount payable under this subsection exceed the difference between sixty-six and two-thirds percent (66%%) of such wages and the amount payable as hereinbefore provided to surviving wife or dependent husband and for the support of surviving child or children, subject to the maximum limitations as to weekly benefits as set up in this chapter. (Emphasis added).

The record is clear that the two minors had lived with the deceased for more than a year and were dependent upon him at the time of his death. It was upon this basis that the commission found the two appel-lees to be children “in relation to whom the deceased employee stood in the place of a parent for at least one (1) year prior to the time of injury.” The appellants, however, contend that it is improper to boost grandchildren to the status of children given the compensation scheme mandated by section 71-3-25 under which the benefits for children are different from those provided for grandchildren. Appellants argue that if the Legislature did not intend to make a distinction between the two classifications, it would not have made the benefits payable to each class different — 25% for a child and 15% for a grandchild — and that if this Court holds that the minor claimants in this case are children of the deceased under the doctrine of loco parentis, then the classification of grandchildren as beneficiaries under the Mississippi Workmen’s Compensation Act is meaningless and would be repealed by judicial interpretation.

Under appellants’ interpretation of the law, a grandchild to whom its grandparent has stood in the place of a parent for one year prior to the time of the grandparent’s death would be entitled to less benefits, 15% of wages, than would a child who was not related to the deceased under the same circumstances — the child would receive 25% of wages. Such a distinction would be unthinkable and has no rational basis. There is a vast difference between a grandparent standing in the place of a parent to a grandchild under Mississippi Code Annotated section 71-3-3(1) (1972) and a grandchild simply being dependent upon the grandparent as envisioned by Mississippi Code Annotated section 71-3-25(e) (1972). The situations in which a grandparent might be the chief means of support and maintenance of a grandchild, yet not stand in the place of a parent to the grandchild are so numerous that no attempt will be made to enumerate them here and that dependent grandchild would only be entitled to 15% of wages as provided by section 71-3-25(e). We have not, by our holding, done away with the classification of grandchildren, but simply hold that grandchildren may, under the circumstances provided for in section 71-3-3(7), be elevated to the status of children for workmen compensation benefit purposes.

In view of our disposition of appellants’ first assignment of error, the remaining assignment of error is without merit. Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So.2d 735 (1954).

The judgment of the circuit court affirming the order of the Workmen’s Compensation Commission is affirmed.

AFFIRMED.

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


text:
    John "Johnny" Earl HALL v. STATE of Mississippi.
    No. 50052.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Henry E. Pope, Columbia, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Marion County; R. I. Prichard, III, Judge.

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

AFFIRMED.


text:
    Randolph HUDSON, Jr. v. STATE of Mississippi.
    No. 50073.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Kenneth D. Bridges, Louisville, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.


text:
    In the Matter of the ESTATE of Gladys ALFORD, Deceased. R. K. JAYNE, Individually and as Admr., et ux. v. Heirs of Gladys ALFORD.
    No. 50131.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Shell, Buford, Bufkin, Callicutt & Perry, Chris J. Walker, Jackson, for appellants.
    Jean D. Muirhead, John B. Little, Jr., Ray Parkman, Jackson, for appellees.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

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

AFFIRMED.


text:
    James W. ADCOCK et ux. v. James WINSTEAD, Contractor.
    No. 50079.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Eaves & Eaves, G. Jyles Eaves, Louisville, for appellants.
    Frank M. Deramus, Louisville, for appel-lee.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.


text:
    Charles D. JACKSON, Administrator of the Estate of Charles Ray Jackson, Deceased, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY and C. L. Womack.
    No. 49532.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    James E. Lever, Charles A. Ray, Jr., Haz-lehurst, for appellant.
    Richard E. Stratton, III, Brookhaven, for appellees.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

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

AFFIRMED.

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


text:
    Jesse C. ARMSTRONG v. STATE of Mississippi.
    No. 49660.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Theodore J. Lawyer, Lawyer, Hudson & Welch, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Stone County; J. Ruble Griffin, Judge.

Before INZER, P. J., and ROBERTSON and BOWLING, JJ.

AFFIRMED.

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