text:
    James Michael FORET, Plaintiff-Appellee, v. AETNA LIFE AND CASUALTY CO., Defendant-Appellant.
    No. 5646.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.

      B. J. Manuel, Mamou, for plaintiff-appel-lee.
    Fusilier, Pucheu & Soileau, by J. Wendel Fusilier, Ville Platte, for defendant-appellant.
    Before CULPEPPER, DOMENGEAÚX and GUIDRY, JJ.
   GUIDRY, Judge.

This is a suit for disability benefits under a group insurance policy issued to Reading & Bates Offshore Drilling Company (hereinafter referred to as “Reading & Bates”) by the defendant Aetna Life & Casualty Company (hereinafter referred to as “Aet-na”). Plaintiff, an insured employee of Reading & Bates, ruptured his spleen on October 16, 1971 when he fell into the water from an offshore drilling platform. The trial court awarded plaintiff disability benefits in the principal amount of $453.44 per month from the date of the accident to the date of its formal judgment, which judgment was signed on April 13, 1976, and thereafter for the period of disability. Plaintiff’s claim for' penalties and attorney’s fees was denied. Defendant appealed. Plaintiff neither appealed nor answered the defendant’s appeal.

We note from our review of the record that Mr. Donald Soileau on December 19, 1973, following the trial of this matter, filed a motion to withdraw as the plaintiff’s attorney of record. The trial court granted the motion and Mr. Soileau subsequently filed a petition for intervention on January 17, 1974, claiming a percentage interest in any recovery obtained by the plaintiff in this action. In addition, Mr. Soileau prayed for all costs and disbursements made by him in regards to plaintiff’s case. Attached to the petition for intervention was the contingency fee agreement executed between the plaintiff and the intervenor. An answer to Mr. Soileau’s petition was filed by the plaintiff on June 14, 1974, after which the intervenor moved for summary judgment. The trial court set a hearing on the motion for July 3, 1974. No further disposition of this matter appears in the record. We presume that the trial court, pursuant to the authority contained in LSA C.C.P. Art. 1038, proposes to separately try this incidental action, however there is no order to that effect in the record. In any event, this incidental matter not having been disposed of by the trial court is not before us on this appeal.

The instant matter raises no issue regarding the fact that the plaintiff’s accident of October 16,1971 occurred during the course and scope of his employment with Reading & Bates. The defendant insurer stipulated at the time of trial that the plaintiff had an accident that would be covered under its policy. However, although conceding the occurrence of the accident, defendant contends that the plaintiff’s resulting injuries do not constitute “total disability” within the meaning of its disability policy provisions and therefore the claim for benefits should be denied.

This matter was tried on November 5, 1973, it being agreed at that time that the record would be left open in order that the deposition of Dr. John Church be taken and introduced as additional evidence. Subsequent to the taking of Dr. Church’s deposition on February 27,1974, the plaintiff filed a motion requesting that the case be reopened to allow the deposing of Drs. John Patton and Frank P. Savoy, Jr. Dr. Savoy had previously testified at the trial. On October 30, 1975 the trial court granted the plaintiff’s motion and the depositions of these doctors were taken. Subsequent thereto the trial court took the matter under advisement and then rendered a decision in April of 1976.

Plaintiff was originally admitted to Our Lady of the Sea Hospital in Morgan City following his offshore accident. He was later transferred to Savoy Memorial Hospital in Mamou, Louisiana, on October 22, 1971 where X-rays were taken and he was examined by Dr. LaHaye relative to his complaints of pain around the left posterior lateral of the chest and the upper abdomen. Dr. LaHaye’s examination revealed that the plaintiff was suffering from a ruptured spleen. Shortly following this diagnosis plaintiff’s spleen was surgically removed by Dr. Frank P. Savoy. Following the splenec-tomy, Dr. LaHaye attended the plaintiff during his one month stay in the hospital.

Since his discharge from the hospital in late 1971 plaintiff has consistently maintained that he is unable to perform the duties of his former occupation or work of any reasonable character because of constant pain in the abdominal area. On the other hand defendant maintains that plaintiff is now and has been fully capable of returning to his former occupation since his discharge by Dr. Savoy on June 23, 1972.

During the period following his discharge from the hospital to the time of trial plaintiff continued to see his treating physicians, Drs. LaHaye and Savoy, as well as several other physicians. All of these doctors testified either at trial or by deposition. We briefly summarize the medical evidence in the record.

DR. LaHAYE

In October of 1972 Dr. LaHaye had occasion to re-examine the plaintiff finding at this time that he had recovered from the operation. The physician suggested that some type of physical work would not be disabling, although he still considered the plaintiff at the time of this examination to be totally incapacitated to perform work as a roughneck or roustabout. Dr. LaHaye next examined plaintiff on October 18, 1973. On the occasion of this examination plaintiff had complaints of pain in the upper left abdomen overlying the previous incision through which the splenectomy had been performed. Dr. LaHaye could not give a definitive diagnosis but he noted the weakness of the incision and felt that there was a possibility of an incisional hernia. According to Dr. LaHaye an incisional hernia develops after an operation and may be due to a complication of the operation or because of difficulty in healing following surgery. Being unaware of any post-operative difficulties Dr. LaHaye felt that if the plaintiff was suffering from an incisional hernia it must have developed following his October 1972 examination. The doctor admitted that it could have been possible for him to have overlooked the hernia at the earlier examination. Dr. LaHaye stated that the plaintiff’s incisional hernia could be corrected by surgery. Dr. LaHaye was of the opinion at the time of trial, i.e., November 5,1973, that plaintiff was unable to perform work as a roughneck or roustabout.

DR. SAVOY

Dr. Savoy’s testimony at the trial of November 5, 1973 and by deposition on October 30, 1975 shows that he first examined the plaintiff on October 26, 1971. After this initial examination the doctor diagnosed that the plaintiff had sustained a subcapsular hemorrhage of his spleen, which caused the spleen to rupture. Dr. Savoy performed a splenectomy on the plaintiff. Plaintiff remained in the hospital for one month. Dr. Savoy again saw plaintiff in February of 1972 because of plaintiff’s complaints of pain in the incisional area. This examination revealed no objective signs of defect in the incision. Plaintiff thereafter remained under Dr. Savoy’s care until June 23, 1972 on which latter date Dr. Savoy discharged plaintiff to return to work, having found after another examination no objective signs of defect in the incision. In spite of his discharge plaintiff still complained of soreness in the inci-sional area. Dr. Savoy stated in his October 1975 deposition that the plaintiff was probably developing an incisional hernia at the time of the June 23, 1972 examination, but that he was unable to detect it. In October of 1974 and again in October of 1975 Dr. Savoy re-examined the plaintiff. The doctor testified that these examinations revealed the presence of a defect in the incision approximately the size of a silver dollar an inch below the zyphoid process and another small defect just above the umbilicus in the incision. After the October, 1975 examination Dr. Savoy found that the plaintiff had developed an incisional hernia. He further concluded that the pain plaintiff was experiencing was additionally referable to the stainless steel sutures which X-rays showed to be fragmented. The two examinations were consistent except that the defect in the incision appeared to be worse in October of 1975. Dr. Savoy stated in his October 1975 deposition that the plaintiff was not in a position to return to work as a roughneck, but agreed with Dr. LaHaye that the incisional hernia could be corrected with a successful operation followed by 90 days of convalescence.

DR. JOSEPH PATTON

Dr. Joseph Patton examined the plaintiff on August 27, 1974. Dr. Patton’s report shows that the plaintiff had complaints of pain in the abdominal area. Positive physical findings by the doctor revealed that the plaintiff had a well-healed upper left rectus or upper abdominal scar. Another incision over the region of the umbilicus was well healed, the plaintiff relating that during October of 1973 he had undergone repair of an umbilical hernia at the Veteran’s Hospital in Alexandria. Dr. Patton stated that the umbilical hernia is a congenital hernia and is usually present from birth. He further stated that it was unlikely that trauma caused this umbilical hernia, although it is possible that trauma enlarged it. Not having seen the defect in the umbilical hernia at the time of surgery Dr. Patton was unable to definitely establish any connection between the plaintiff’s splenectomy and this congenital hernia although he said it was possible that plaintiff developed the herniation from the splenectomy. X-rays reviewed by Dr. Patton showed that the stainless steel sutures used in the splenecto-my were broken into fragments, evidencing that the incision was weak and no longer intact. Dr. Patton concluded that plaintiff was experiencing pain in the incisional area from the broken ends of the stainless steel sutures. In regards to the removal of the fragmented sutures the surgeon was of the opinion that this was a difficult operation and one he would not recommend. Dr. Patton saw the plaintiff again on August 12, 1975 his testimony indicating that the plaintiff did not have an incisional hernia at this time. Concerning his ability to return to work as a roughneck the .doctor felt that it would be painful and that the plaintiff would very likely develop an incisional hernia. Dr. Patton suggested that the plaintiff seek lighter duties.

DR. JOHN CHURCH

Dr. John Church of the Veteran’s Hospital in Alexandria testified by way of deposition regarding his examination of the plaintiff in the fall of 1973. His report was brief having only seen the plaintiff on his initial visit to the hospital. Dr. Church did not find any evidence of an incisional hernia and felt that the plaintiff was able to work. Plaintiff was directed to return for a follow-up evaluation, however Dr. Church stated he did not see the plaintiff on his return and no report of this second visit appears in the record. Except for the physical findings by Dr. Patton and the testimony of the plaintiff there is no evidence in the record regarding the plaintiff’s umbilical hernia operation at the Veteran’s Hospital which occurred in late 1973.

The lay evidence in the record shows that the plaintiff, who at the time of his accident was 23 years old, had an 11th grade education. He has had no special training and has only worked at manual labor of one type or another. The plaintiff’s job duties with Reading & Bates consisted of the type of general oilfield work performed by a roughneck and/or roustabout. Plaintiff estimated his salary with Reading & Bates to be about $700.00 per month. Plaintiff worked 12 hour shifts, 7 days on and 7 days off. Plaintiff occasionally worked overtime. Plaintiff thought his hourly wage rate to be about $3.51.

Plaintiff testified that due to the pain in his stomach he has' been unable to work since the date of his accident. He admitted that he has worked part time in a grocery store pricing and stacking food items and stated that he received food in payment for his services. Mrs. Foret, the plaintiff’s wife, corroborated her husband’s testimony. The defendant called no witnesses.

The trial court after reviewing all of the medical testimony, but without further specification, found the plaintiff to be totally and permanently disabled within the terms of the policy issued by the defendant, Aetna, and awarded plaintiff disability benefits for the period from October 16,1971 to the date of formal judgment and thereafter for so long as his disability persisted within the terms of the policy.

We pretermit a discussion of the plaintiff’s claim of “total disability” at this point to consider the decision of the trial court in awarding disability benefits to the plaintiff from the date of the accident, i. e., October 16, 1971.

The Aetna policy which was introduced into evidence as Defendant’s Exhibit “1” sets forth in Article II Section 2 that:

“The Insurance Company shall, subject to the terms of this policy pay a monthly benefit during the continuance of the period of disability while the employee is “totally disabled” as defined in Section 1 of this Article II, commencing with the first day following the completion of the qualifying period.” (Emphasis ours)

Article II Section 1(e) defines “Qualifying Period” as follows:

“as to any one period of total disability of an employee, the first six months of such period of total disability. Only one qualifying period is required with respect to those periods of total disability which are considered as one period of total disability under Section 2 of this Article II.”

Clearly under the provisions of the policy any award of disability benefits that may be due the plaintiff would first require his qualification by the passage of one six month period of total disability. Consequently any payments to plaintiff would commence on April 16, 1972 six months after the date of the accident.

We now turn to a consideration of the principal issue, i. e., is plaintiff totally disabled within the meaning of the policy issued by the defendant to plaintiff’s employer? The policy provisions pertinent to this issue read as follows:

Article II — Section 1(f):

“ ‘Reasonable occupation’ means any gainful activity for which the employee is, or may reasonably become, fitted by education, training, or experience, but shall not mean any such activity if it is in connection with an approved rehabilitation program.”

Article II — Section 1(g):

“ ‘Total disability’ or ‘totally disabled’ means, during the first twenty-four months of any one period of disability, that the employee is unable, solely because of disease or accidental bodily injury, to work at his own occupation; and, thereafter during the continuance of such period of disability, that the employee is unable, solely because of disease or accidental bodily injury, to work at any reasonable occupation.”

We first observe that the policy definition of total disability differs depending upon the period of disability. That is to say, during the first twenty-four months “total disability” means that the employee is unable solely because of disease or accidental bodily injury to work at his own occupation. Following such period, however, “total disability” arises or continues only in the event it is established that the employee, solely because of disease or accidental bodily injury, is unable to work at any reasonable occupation.

As aforestated the trial judge found the plaintiff “totally disabled” since the date of accident. In reaching this conclusion the trial judge did not, in his written reasons, allude to the different definitions of “total disability” as set forth in the policy. This is to say, the trial judge did not distinguish his finding of disability based upon the plaintiff’s ability to perform at his own occupation for the first twenty-four months and thereafter according to the standard of a “reasonable occupation.” Be this as it may we find no manifest error in the conclusion of the trial court that defendant has shown his “total disability” within the meaning of the policy for the first twenty-four months, as well as his “total disability” for an indeterminate period following such initial period, within the meaning of the policy provisions as such provisions have been construed by our courts.

There is no evidence in the record which would suggest that plaintiff’s continued pain and weakness in the abdominal area is caused by any circumstance other than plaintiff’s initial injury and the corrective surgery performed in October of 1971. Further we believe that the medical and lay testimony in the record reasonably supports the conclusion that such condition (pain and weakness in the abdominal area which finally developed into an incisional hernia and fragmented sutures) began shortly following plaintiff’s discharge from the hospital in November 1971; persisted through the date of trial; and, prevents plaintiff from performing the work of a roughneck or roustabout.

Dr. LaHaye who originally examined the plaintiff and attended him during his stay in the hospital and who thereafter saw the plaintiff in October of 1972 and 1973, continually maintained that the plaintiff was able to do some physical work, but he was not able to return to work as a roughneck. Dr. Savoy, the surgeon who performed the splenectomy and later discharged plaintiff to return to work in the oilfield on June 23, 1972 indicated in his testimony that his earlier conclusion that plaintiff was able to work was probably incorrect. Dr. Savoy stated that there was a good chance that the plaintiff was developing an incisional hernia on June 23, 1972. Dr. Savoy likewise found the plaintiff unsuitable for work as a roughneck as late as October 30, 1975.

The only other doctor who examined plaintiff during the first twenty-four month period was Dr. Church. Dr. Church found that plaintiff did not have an inci-sional hernia and was able to work. These findings were made as the result of one brief examination in the fall of 1973. The testimony of Dr. Church must be considered however, in light of the testimony of Drs. LaHaye and Savoy, plaintiff’s treating physicians, and particularly the latter who candidly testified as to the probability of his own earlier diagnosis being incorrect in view of the later positive diagnosis of an incisional hernia in October of 1975.

We next consider whether the plaintiff has exhibited his “total disability” within the policy provisions for any period beyond the initial twenty-four months.

The policy provides benefits beyond the initial twenty-four months upon a showing of inability to perform work at any reasonable occupation. Reasonable occupation is defined as any gainful activity for which the employee is, or may reasonably become, fitted by education, training, or experience.

Our courts have adopted a policy of liberal interpretation respecting accident insurance policies which provide benefits for total permanent disability, or the inability to engage in any occupation for compensation or profit. Crowe v. Equitable Life Assur. Soc. of United States, 179 La. 444, 154 So. 52 (La.1954). Policy provisions similar to those above referred to have consistently been construed to mean the insured will be denied benefits only when he can perform substantial and material duties of his occupation in the usual and customary manner. That the insured may engage in some other occupation does not disqualify him insofar as concerns policies of this character. Ayres v. New York Life Ins. Co., 219 La. 945, 54 So.2d 409 (1951); Patterson v. Metropolitan Life Ins. Co., 194 La. 106, 193 So. 478 (1940); Felker v. Aetna Life Ins. Co., 234 So.2d 758 (La.App.), writ refused 256 La. 377, 236 So.2d 503 (1970); McNeill v. Continental Casualty Company, 244 So.2d 693 (La.App. 4th Cir., 1971); Dupre v. Hartford Life Insurance Company, 291 So.2d 824 (La.App. 3rd Cir., 1974); Benoit v. Travelers Insurance Co., 251 So.2d 87 (La.App. 3rd Cir., 1971).

The plaintiff, who has only an 11th grade education with no special training or skills, is not fitted by training or experience for any type work except manual labor. As aforestated we find no manifest error in the trial court’s conclusion that by reason of plaintiff’s physical condition he has been, since October 16, 1971, unable to perform heavy manual labor such as that required by a roughneck or roustabout. Under these circumstances, when the policy provisions in question are construed in light of the jurisprudence we have no hesitancy in concluding that plaintiff has established his “total disability” within the meaning of the policy for an indeterminate period beyond the initial twenty-four month period.

We finally consider the correctness of the monetary amount of the monthly disability payments awarded by the trial court to the plaintiff.

Under the defendant’s policy plaintiff is entitled to recover a monthly disability benefit equal to 60% of his “monthly rate of basic earnings”. The term “monthly rate of basic earnings” is defined in the policy as follows:

Article II Section l-b(i-a):
“The employee’s monthly rate of earnings in effect for the last complete payroll period immediately preceding the commencement of the period of total disability, exclusive of bonuses, overtime pay, and other extra compensation.”

Our examination of the record reveals an almost total lack of competent evidence establishing this most important fact. The plaintiff testified that his monthly income was approximately $700.00. He stated that he thought his hourly wage rate was $3.51. The plaintiff’s testimony as to his income is not documented or otherwise corroborated.

The defendant introduced in evidence, without objection from the plaintiff, a schedule purporting to represent plaintiff’s compensation breakdown. (Defendant’s Exhibit “2”). It is obvious from an examination of this exhibit that it is not an official payroll record of Reading & Bates. There is no indication that the information set forth on this exhibit was even obtained from Reading & Bates. Admittedly some type of earnings information is set forth on the exhibit, but these figures are meaningless. The figures do not specifically indicate the payroll period covered by the payments nor do they show the plaintiff’s basic rate of pay. Further, there is nothing in the exhibit to indicate if the figures are net or gross earnings. The defendant introduced no testimony to either clarify or explain his exhibit. The plaintiff’s testimony and the defendant’s exhibit as discussed hereinabove is the only evidence in the record bearing upon the plaintiff’s monthly rate of basic earnings.

In his written reasons for judgment the trial judge determined that the plaintiff’s monthly rate of basic earnings amounted to the sum of $755.73. The trial court obviously made this determination from the figures set forth on Defendant’s exhibit 2. For the reasons previously given we do not consider this exhibit to be sufficient upon which to base a finding of plaintiff’s “monthly rate of basic earnings”. In any event, we note that the trial court apparently erred in calculating from this exhibit the plaintiff’s monthly earnings for the last complete payroll period prior to October 16, 1971. The figure, i. e., $755.73 purports to include the “straight time” earnings paid to plaintiff on September 18, October 2, and October 16, 1971, a period of presumably six weeks' not one month. Additionally, the trial court erroneously awarded plaintiff a monthly sum in excess of that prayed for. The trial judge awarded the plaintiff 60% of what he determined to be the plaintiff’s monthly income, i. e., $755.73, or $453.44 in monthly disability benefits. The trial court apparently overlooked the allegation in plaintiff’s petition which stated his monthly income to be $700.00, and plaintiff’s prayer which seeks a monthly disability payment in the amount of $420.00 (60% of $700.00). We think the rule restricting recovery to the amount prayed for is applicable here. In Friedman Iron & Supply Co. v. Beaird Co., Inc., 222 La. 627, 63 So.2d 144 (S.Ct.1953) the court stated:

“Taking up these points in the order just presented, regarding the first it is hardly necessary to have to state that a plaintiff cannot recover a greater amount than what he prays for. That is elementary . . .
Neither is there any merit to the contention that the pleadings have been enlarged by the admission of unobjected to testimony. The rule on this point, as stated in City of Shreveport v. Chatwin, 139 La. 531, 71 So. 791, 792, is that ‘evidence received without objection enlarges pleadings only when it would not have been admissable if objected to . . ."

Since in our opinion the record is inadequate due to a paucity of competent evidence on this most important point we conclude that remand for the introduction of additional evidence to establish the disability benefit to which plaintiff is entitled is in the interest of justice. LSA-C.C.P. Article 2164; Salley Grocer Co. v. Hartford Accident & Indem. Co., 223 So.2d 5 (La.App. 2nd Cir. 1971) writ refused 254 La. 134, 222 So.2d 883 (1969); Missouri Pacific R. Co. v. Louisiana Public Service Commission, 241 La. 242, 128 So.2d 644 (1961).

Upon remand the plaintiff and defendant may introduce all evidence bearing upon the calculation of the plaintiff’s monthly disability benefit, including any evidence relating to “other income benefits”, which are deductible from plaintiff’s monthly benefit, as defined in the policy. (Article II Section 2, (D) — other income benefits).

For the foregoing reasons the judgment appealed from is affirmed insofar as it determines that the plaintiff is “totally disabled” within the provisions of the policy. Insofar as the judgment decrees that plaintiff is due disability benefits from the date of his accident on October 16, 1971 said judgment is amended to order and decree that the plaintiff’s disability benefits are due from April 16, 1972 through his period of disability. Insofar as the judgment appealed from awards a money judgment against the defendant and in favor of the plaintiff the judgment is set aside and annulled and this matter is remanded for a redetermination of the monthly disability benefits to which plaintiff is entitled under the provisions of defendant’s policy, all consistent with the views hereinabove set forth. All costs of this appeal to be borne by defendant.'

AMENDED AND AFFIRMED IN PART; SET ASIDE AND REMANDED IN PART.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Kathie E. HEARD, Plaintiff and Appellee, v. AMERICAN HEALTH & LIFE INSURANCE COMPANY, Defendant and Appellant.
    No. 5647.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.

      Raggio, Farrar, Cappel & Chozen by Richard A. Chozen, Lake Charles, for defendant-appellant.
    Francis E. Mire, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

This is a suit to enforce the provisions of a group medical insurance policy, which allow a dependent of an insured, on reaching 19 years of age, to obtain an individual policy without a medical examination. From a judgment ordering it to issue a policy, the defendant-insurer appealed. Plaintiff answered the appeal, seeking penalties and attorney’s fees.

The trial judge has written the following well considered opinion which we adopt as our own:

“This is a suit by Kathie Heard wherein plaintiff seeks an order of this court to have American Health & Life Insurance Company issue a certain insurance policy according to the conversion provisions of a group policy issued to the Louisiana State Dental Association.
“The problem presented is whether the group policy conversion provisions are applicable and, if so, whether there has been compliance by American Health & Life Insurance Company.
“Kathie Heard is the daughter of Dr. James E. Heard, a dentist. He was a member of the Dental Association and was covered by the group policy. Kathie was carried as a dependent under the provisions of the policy. Kathie was born August 27, 1952, thus becoming 23 years of age August 27, 1975.
“The policy provisions with which we are concerned are as follows:
“B. Eligibility of Dependents of Members
“The Spouse of a Member and his unmarried dependent children who are living at home, or are new born, and who are under 19 years of age (or, if a full time student in an institution of learning, are under 23 years of age) are eligible in accordance with the same requirements as for Members.
“Dependents insurance is only available if the Member is insured. New Dependents will be eligible during a 60 day period after having been acquired, subject to written notification to be furnished the Company by the Assured before expiry (sic) or (sic) such 60 day period.
“PART XXI. CONVERSION PRIVILEGE
“A dependent child who is insured under the Policy and becomes ineligible because of attained age may, without evidence of insurability, convert to an individual Policy subject to the following:
“1. Written application and payment of the first premium for the individual Policy must be made to the Company within 31 days after becoming ineligible.
“2. The individual Policy shall be on the nearest comparable form then being issued by the Company at the rates then in effect for such Policy.
“Dr. Heard testified that Kathie finished High School in the Spring of 1971. Thereafter she enrolled at McNeese State University for one semester. After that semester she worked at various places, and in the latter part of 1974, and up until August 9, 1975 was hospitalized in Houston (Redeemer Community), Pine-ville (Central Louisiana Hospital) and St. Mary Hospital in Galveston, Texas. She returned to Lake Charles on the latter date and entered the fall semester at McNeese State University.
“The Kirby Agency administered the Dental Group Policy. Dr. Heard, in May of 1975, made application, on behalf of Kathie, for a conversion policy under the provisions quoted above. This was sent to Kirby Agency. A health history was included in their application. When no policy issued, a second application was filed with Kirby Agency, which did not include a health history. A policy was issued on October 1, 1975, which policy will be referred to as ‘Series 104’. The benefits under ‘104’ are considerably less than those under the group policy.
“Mr. Ken Kirby, with Kirby Insurance Agency, testified that when a conversion policy is issued under the provisions of the group policy, the ‘Catastrophe Plan 50-C’ is usually issued. This is the first instance when American has refused to issue a Catastrophe policy and issued, in lieu thereof, a Series 104 policy. This was admitted by John Revelle, manager of special accounts for American. The Catastrophe policy is much closer in benefits to the group policy than is the Series 104.
“American first contends that Kathie was not covered when she made application in 1975 since Dr. Heard did not make application for her as a dependent after she dropped out of McNeese State University, following the fall semester of 1971, according to the provisions of the policy quoted above. This position is without merit. The policy provides that dependents of a member are eligible if they are under 19 years of age, or, if a full time student in an institution of learning, are under 23 years of age. This provision doesn’t state that the dependent must be a continuous full time student. “Kathie was a full time student in 1971-72 and also beginning in August, 1975. She did not become 23 years of age until August 27, 1975. She was a dependent within the definition of the policy when she reached the age of 23 years and was entitled to the benefits of the conversion clause of the group policy.
“The next question is whether American fulfilled the policy provisions when it issued the ‘Series 104’ policy to Kathie Heard rather than Catastrophe Plan 50-C. Mr. Revelle testified that Kathie’s insurability was at question due to her medical history, thus the ‘Series 104’ was issued. The policy provision clearly states that an eligible dependent may convert ‘without evidence of insura-bility and when this is done the policy so issued ‘shall be the nearest comparable’ to the group policy. The nearest comparable is the Catastrophe Plan 50-C.
“It is interesting to note that on October 1, 1975 American issued a ‘Rider No. 8’, wherein American specifically sets out that the Conversion Privilege of the policy is amended and when a conversion is made by a dependent that a ‘Series 104’ policy would be issued. The policy ‘Series 104’ issued to Kathie was also dated October 1, 1975. This new conversion rider does not affect Kathie, however, since her application for conversion was properly made prior to the date of the rider, and she reached her 23rd birthday on August 27, 1975.
‘For these reasons, judgment shall be rendered in favor of Kathie Heard and against American Health & Life Insurance Company, ordering the issuance to Kathie Heard of an insurance policy known as ‘Catastrophe Plan 50-C’ upon payment of the proper premium by Kathie Heard.”

Defendant’s principal argument on appeal is that under the provisions of the policy quoted above, the plaintiff, after reaching the age of 19, remained an insured under the policy only so long as she remained a full-time student at McNeese. Defendant argues that when she left McNeese in 1972 she had 31 days within which to apply for an individual policy, and she did not do so. The insurer contends that having left McNeese, she lost her eligibility and could not again acquire eligibility by re-entering McNeese approximately three years later. As the trial judge states in his written opinion, this argument has no merit. The policy does not state that the dependent must be a continuous full-time student from age 19 to age 23. It states only that children who are under 23 years of age and are full-time students in an institution of learning are eligible. Plaintiff re-enrolled as a full-time student at McNeese in August of 1975 before she reached her 23rd birthday on August 27, 1975. Therefore, under the provisions of the policy she was an insured dependent on the date she became 23 years of age.

The record does not show the exact date on which the application at issue was mailed. Dr. Heard testified that he mailed it to defendant by registered mail and that the return receipt shows defendant received it on August 29, 1975. Therefore, defendant received the application within 31 days after plaintiff became ineligible by virtue of reaching her 23rd birthday on August 27, 1975. Under these facts, the application was “made to the company within 31 days” after plaintiff became ineligible, under the provisions of Part XXI, Paragraph 1 quoted above.

As regards plaintiff’s answer to the appeal seeking penalties and attorney’s fees, there is no statute which provides for penalties or attorney’s fees except on failure to pay a claim, LSA-R.S. 22:657. Counsel has not cited, nor have we found, any statutory or jurisprudential authority for awarding penalties and attorney’s fees for violation of a conversion provision.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


author: WATSON, Judge.

text:
    Curley Joseph VALLOT, Jr., Plaintiff-Appellee, v. Marie H. TOUCHET et al., Defendants-Appellants.
    No. 5498.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 23, 1976.

      Davidson, Meaux, Onebane & Donohoe by V. Farley Sonnier, Lafayette, for defendants-third-party plaintiffs-appellants.
    Domengeaux & Wright by Terry E. Ther-iot, John A. Jeansonne, Jr., Lafayette, for plaintiff-appellee.
    Before HOOD, CULPEPPER, MILLER, WATSON and PETERS, JJ.
   WATSON, Judge.

Plaintiff, Curley Joseph Vallot, Jr., filed this suit against defendant, Marie H. Tou-chet, and her insurer, Travelers Insurance Company, to recover damages for personal injuries and property damage sustained in an intersectional collision between Vallot’s truck and Ms. Touchet’s automobile. Defendants, Ms. Touchet and Travelers, filed a third party demand against the Lafayette Parish Police Jury and its liability insurer, Maryland Casualty Company, asking that the third party defendants be cast for all or, alternatively, one-half of any award because of the police jury’s alleged negligence in failing to maintain a stop sign at the intersection where the accident occurred. The trial court rendered judgment in favor of plaintiff Vallot against Ms. Touchet and Travelers but dismissed the third party demand, holding that the absence of a stop sign was not a cause in fact of the ensuing accident, since the accident would have occurred even if both of the stop signs ordinarily controlling the intersection had been in place.

Defendants have appealed, contending only that the trial court erred in denying their third party demand against the police jury and Maryland Casualty.

The issue presented requires a determination of whether the trial court erred in finding no negligence on the part of the police jury and dismissing the third party demand.

The police jury was negligent if: (1) the absence of the stop sign was a cause in fact of the accident; and (2) the police jury knew or should have known it was down.

The facts of the accident are relatively simple. Larry Foreman, the deputy sheriff who investigated the accident on behalf of the Lafayette Parish Sheriff’s Office, was notified of the incident early in the morning of May 8, 1974. Foreman said that the Touchet vehicle was headed north on Bonin Road and the Vallot vehicle was eastbound on LaNeuville Road. The stop sign at the intersection which would have faced northbound traffic on Bonin Road was missing, and, when Ms. Touchet failed to stop or yield the right-of-way, the collision occurred. The weather was clear and the sun was shining. There were no skidmarks; Ms. Touchet’s vehicle was damaged on the front left and the Vallot vehicle on the right rear. Since the stop sign and the pole were both missing, Foreman did not issue a traffic citation to Ms. Touchet.

Both Ms. Touchet and Vallot testified but they did not add significantly to the account given by the investigating officer. It is undisputed that Ms. Touchet did not stop or yield the right-of-way at the intersection as the stop sign would have required her to do. LSA-R.S. 32:123(B). The failure by Ms. Touchet to stop and to yield the right-of-way to the oncoming Val-lot vehicle was a cause in fact of the accident, and it follows logically that the absence of a stop sign requiring her to do so was also a cause in fact of the accident. Had the stop sign been in place to warn Ms. Touchet, we must assume she would have obeyed it. Ory v. Travelers Insurance Company, 235 So.2d 212 (La.App. 4 Cir. 1970); Funderburk v. Temple, 268 So.2d 689 (La.App. 1 Cir. 1972) writ refused, 270 So.2d 875 (La.1973). Therefore, the trial court erred in holding that the absence of the stop sign was not an additional cause in fact of the accident.

The other issue relative to liability of the police jury is whether there was actual or constructive knowledge of the absence of the sign.

There is no doubt that the sign was missing. James D. Andrus, a witness who lived in a trailer park two or three miles from the scene, testified that the sign had been down for two or three months.

The assistant chief of police in Youngs-ville, Willie Vernon, testified that the sign had been down two or two-and-a-half months (we recognize the fact that Vernon was related by marriage to Ms. Touchet but his testimony merely corroborates that of Andrus). Other witnesses employed by the police jury testified merely that they did not have knowledge of the sign being down and that they thought they would have known if it had been down for a considerable length of time.

Our factual conclusion is that the evidence preponderates to the effect that the sign had been missing for two or two- and-a-half months.

When a traffic sign has been missing for two months, the responsible agency is deemed to have constructive knowledge of its absence. If there is no showing of actual knowledge, constructive knowledge will be imputed to the responsible agency when it is shown that the sign has been down for a substantial period of time and the agency should have been aware of its absence. Cf. Vervik v. State, Department of Highways, 302 So.2d 895 (La.1974). There was testimony that the intersection here is located only a half mile from a police jury highway barn, that the employees of the highway unit pass the intersection often, and that there had been considerable difficulty with signs in the area. We conclude that the jury had constructive notice.

Since the absence of the sign was one cause of the accident and the police jury had constructive notice, there is liability on the part of the jury and its insurer. Cangiamilla v. Brindell-Bruno, Inc., 210 So.2d 534 (La.App. 4 Cir. 1968) writ refused, 252 La. 839, 214 So.2d 162 (1968); Funderburk v. Temple, supra.

While the appeal by Ms. Touchet and Travelers is couched in general terms, the record indicates that Ms. Touchet and Travelers have paid plaintiff’s judgment and have received a release, reserving only their rights to appeal from the dismissal of the third party demand. It is conceded by these parties that they seek only contribution from the Police Jury and its insurer.

We do not disturb the judgment as between plaintiff, Curley Joseph Vallot, Jr., and defendants, Marie H. Touchet and Travelers Insurance Company, but the defendants are entitled to contribution from the police jury and its insurer.

For the foregoing reasons, the judgment of the trial court dismissing the third party demand is reversed and the judgment is amended to read as follows:

It is further ordered, adjudged and decreed that there be judgment in favor of defendants and third party plaintiffs, Marie H. Touchet and Travelers Insurance Company, and against the third party defendants, Lafayette Parish Police Jury and Maryland Casualty Company, for contribution by Lafayette Parish Police Jury and Maryland Casualty Company to Marie H. Touchet and Travelers Insurance Company in the amount of one-half of all sums awarded to plaintiff, Curley Joseph Vallot, Jr., on the principal demand, together with one-half of all court costs in the trial court.

Costs of this appeal are taxed against the third party defendants, Lafayette Parish Police Jury and Maryland Casualty Company.

REVERSED IN PART, AMENDED, AND AFFIRMED IN PART.

MILLER, J., concurs in the result.

HOOD, J., dissents, being of the opinion that the judgment of the trial court is correct.


author: DOMENGEAUX, Judge.

text:
    Louis BABINEAUX, Plaintiff-Appellant, v. Michael J. LeBLANC et al., Defendants-Appellees.
    No. 5741.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 23, 1976.
    Davidson, Meaux, Onebane & Donohoe, by V. Farley Sonnier, Lafayette, for defendants-appellants.
    Lucius A. Hornsby, Jr., Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

MOTION TO REMAND

The defendants-appellees, Michael J. Le-Blane and Commercial Union Insurance Company, move to remand this suit to the district court to enable it to traverse the right of the plaintiff-appellant, Louis Babi-neaux, to continue to pursue this appeal in forma pauperis. The motion is unopposed. We remand.

The record of this appeal has not as yet been lodged with this court.

The pertinent facts are as follows: The plaintiff originally filed his suit in forma pauperis. The defendants filed a rule to traverse the plaintiff’s right to proceed in forma pauperis, and the rule was set for hearing on April 19, 1976. At the time of the hearing on the rule to traverse, the plaintiff’s attorney stipulated that his client was not a pauper and could post a bond for costs and did so. The case was subsequently tried before a jury and judgment was entered in favor of the defendants and against the plaintiff condemning the plaintiff to the payment of costs of court.

After judgment, the plaintiff filed a petition for an appeal, and a motion and order to be allowed to proceed in forma pauperis on appeal simultaneously.

In their motion to remand the defendants allege that they had no knowledge of the plaintiff’s motion and order to proceed as a pauper on appeal until they were served with the notice of the plaintiff’s appeal, and therefore, they never had an opportunity to traverse the plaintiff’s right to appeal in forma pauperis in the trial court, and request that the case be remanded so that the defendants might be given an opportunity to traverse the plaintiff’s right to proceed in forma pauperis.

Once an appeal is granted in forma pauperis, the proper remedy to traverse the affidavits of poverty or the applicant’s right to exercise the privilege is to timely apply to the appellate court to remand the case for that purpose. Affiliated Foods, Inc. v. Blanchard, 256 So.2d 363 (La.App. 3rd Cir., 1971); Lake Charles Tile & Carpet Company v. Foster, 251 So.2d 196 (La.App. 3rd Cir., 1971). This application was timely made.

The case is remanded to the trial court to allow the defendants-appellees to traverse the right of the plaintiff-appellant to proceed in forma pauperis, and for the trial court to rule on that issue.

REMANDED.


author: REDMANN, Judge. STOULIG, Judge

text:
    Clarence E. GEHR, Individually and as Administrator of the Estate of the minor, Nancy E. Gehr v. DEPARTMENT OF HIGHWAYS of the State of Louisiana et al.
    No. 7391.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1976.
    Rehearing Denied Oct. 13, 1976.

      Gerald P. Webre, Alonzo T. Stanga, III, Metairie, for defendants, intervenors, appellants.
    Robert Henry Sarpy, Jr. (Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans), for defendants, defendants in intervention, appellees.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   REDMANN, Judge.

Original personal injury defendants Sylve appeal only from the dismissal of their cross-claim for their own damages against a co-defendant and a third party they joined as an added defendant to their cross-claim.

Appellees move to dismiss the Sylves’ claim as not a “third party petition,” as titled, because for the Sylves’ own severe damages rather than for “all or part of the principal demand,” C.C.P. 1111. We agree that the cross-claim is not a third-party demand within C.C.P. 1111; but the added claim is allowable, as to co-defendant Department of Highways, as an intervention within C.C.P. 1091; Kennedy v. Joseph, La.App.1976, 325 So.2d 769. And, since by intervention the action can be brought against Highways for its vicarious liability for its employee’s delict, its employee can be joined as an added defendant, C.C.P. 463. That the intervention was incorrectly titled a third-party petition is immaterial; see Kennedy, supra.

The substance of the cross-claim is that Highways’ employee, while mowing grass around a highway sign, drove his large mower onto the roadway and thereby caused one automobile to apply its brakes, which caused cross-claimant wife, in order to avoid striking the first car, to run her own car off the roadway onto the shoulder, where the rough terrain caused loss of control of her car, which careened back onto the highway into the path of a third car. (The third car’s owner and driver brought the principal demand against Highways and its insurer and the Sylves and their insurer, and obtained judgment against the Sylves and their insurer. Only the Sylves appealed; their insurer is also the insurer of Highways.)

Mrs. Sylve says her speed was only 35 or 40 mph on an open highway (on which the speed limit was 35 mph). She was (and had been for “a few minutes”) following at “a normal distance,” “a few car lengths, . . . three or four cars” behind the first car when the mower entered the highway (probably very slightly and only for a brief time). The collision occurred at a point 145 feet before Mrs. Sylve would have reached the mower. Mrs. Sylve therefore either reacted unreasonably — with panic — to her timely observation of the preceding car’s brake lights, or she did not observe the lights when she should have and for that reason had to swerve off the road to avoid a collision that proper lookout would have avoided. In either case Mrs. Sylve’s own causative fault would prevent recovery by her (or her husband, since she was on a community mission returning from her work).

Affirmed.

STOULIG, Judge

(concurring).

I concur. I am of the opinion that appellant labored under the mistaken belief that she was confronted with a sudden emergency when none in fact existed. This error of judgment — a breach of her duty to properly evaluate the existing conditions and to react as a reasonable and prudent person under the circumstances — caused Mrs. Sylve to overreact and lose control of her vehicle which collided with the oncoming Gehr automobile.


author: ROBERTSON, Justice,

text:
    D. R. DIX v. TRIGGER CONTRACTORS, INC., a Mississippi Corporation.
    No. 48785.
    Supreme Court of Mississippi.
    Sept. 14, 1976.
    Rehearing Denied Oct. 12, 1976.
    Louie M. Bishop, Waynesboro, for appellant.
    Guy M. Walker, Laurel, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   ROBERTSON, Justice,

for the Court:

On a bill for attachment in chancery, Trigger Contractors, Inc., a Mississippi corporation, recovered a judgment for $3,246.56 against D. R. Dix, a non-resident of Mississippi, in the Chancery Court of Wayne County.

Dix employed Trigger Contractors, Inc., on Johnny May’s recommendation, to disassemble the equipment at one oil well and to reassemble and rebuild it at another drilling site. Trigger performed this work during May and June, 1974, and submitted to Dix a number of itemized invoices totalling $5,885.50.

B. P. Trigg, president of Trigger, asked Dix for a payment on account and Dix, on June 7, 1974, handed a $1500 check to Trigg. Trigg deposited this check to Trigger’s account in the First State Bank, Waynesboro, Mississippi.

Trigg testified that later on he talked to either Mr. Bill Flannigan or Mr. Dix about paying him the balance due, and either Flannigan or Dix advised him that they wanted to go over the invoices with him. Over the next two or three weeks, Trigg called them several times and “they informed me they had sent my check to Mr. Johnny May’s office.”

Trigg further testified:

“Well, I went by Mr. Johnny May’s office and I said, ‘Have I got a check here?’ and he handed it to me. And I said ‘$1,500.00’. I said ‘That’s not all they owe me’. Mr. May said he realized it was not all that they owed me, and they had ‘Final Payment’ marked at the bottom of the check, and I said, T can’t accept that’. I said T need my money’, and Mr. May first stated, he said, T don’t believe I would cash the check’. I said, ‘Well, I need some money now. I’m running low’, and there was a gentleman by the name of Mr. George Jett sitting there and Mr. May stated to me, he said, ‘Well, let Mr. Jett look at it. He’s been in this business a long time’, and he looked at the check and he said, ‘Well, I don’t know. You might be able to state on the back of it that it’s accepted as part payment only and show your balance owing’.”

This $1,500 check was drawn by D. R. Dix on Deposit Guaranty National Bank, Jackson, Mississippi, dated July 3, 1974, and made payable to Trigger Contractors, Inc. In the lower left corner was written in “Final Payment”. Trigg lined out the word “Final” on the face of the check and wrote above “Final” the word “Part”, making the notation read “Part Payment”. Typed on the back of the check was: “excepted (sic) by Trigger Contractors Inc. as part payment only. Balance due on account $2,885.50”. Trigg signed underneath: “B. P. Trigg, President”.

Trigg negotiated this check with the First State Bank of Waynesboro, Mississippi, on July 8, 1974, and that bank stamped on the back of the check: “Pay any bank P.E.G. First State Bank Waynesboro, Miss.”

Trigger then filed suit for $4,385.50 on July 12, 1974. The bill for attachment averred:

“That no part thereof has been paid except that shown as credits on the statement of account and being in the sum of $1,500.00 having been paid and leaving a balance due of $4,385.50, as of the date shown on itemized Statement attached hereto.”

No mention was made in the bill of the $1,500 payment made by check, dated July 3, 1974.

On July 29, 1974, Trigger amended its bill for attachment by adding another invoice in the sum of $361.02, thereby making the total due $4,746.52. No mention was made in the amendment of the $1,500 check cashed by Trigg on July 8, 1974.

Appellant assigns as error:

“II. That the Chancery Court erred in ruling that the check given by the Appellant, Dix, on July 3, 1974, which was marked at the time it was executed and delivered with the words, ‘Final Payment’, and which was altered by the Ap-pellee by striking out the word, Final, and the word, Part, put in its place, was not a full accord and satisfaction.”

Trigger contends that its claim was liquidated and undisputed and that its President Trigg had no idea that Dix was not satisfied with the amount of the bill.

Flannigan, an associate of Dix, testified:

“Q Now when you went through those checks [invoices]' did you contact Mr. Trigg or what did you do?
A No, I didn’t contact Mr. Trigg. Mr. Trigg contacted me.
Q When did he contact you?
A He contacted me about a week before he filed that, whatever it is that’s filed against the lease out there.
Q All right, did you and Mr. Trigg have a discussion?
A We discussed it.
Q What was the substance of that discussion?
A The substance of that conversation was that I thought he had charged us three times what he should have charged us and that if Mr. Dix waited for me to okay the bill it wouldn’t be paid, because it was outrageously high and unreasonable.
Q Did you tell Mr. Trigg that?
A I told Mr. Trigg that.
Q Who authorized the writing of the $1,500.00 check and when?
A We kind of get together on it. I discussed it with Johnny May and I discussed it with Mr. Dix . . . .”
Q All right, and then what did you do?
A Mr. Dix wrote him a check for $1,500.00 and I told him to put on there ‘Final Payment’.”

The general rule is stated in 1 Am.Jur.2d Accord and Satisfaction § 22 (1962):

“It is well established that if a check bearing a notation indicating that it is offered in full payment or settlement of a disputed or unliquidated claim is delivered by the debtor to the creditor, and this is made clear to the creditor, the latter cannot avoid the dilemma of returning the check or keeping it in full satisfaction of the claim by simply erasing, obliterating, or canceling the words which import such satisfaction. So when a creditor accepts a check inclosed in a letter stating that the check is in final settlement, and on the check is a printed receipt acknowledging receipt in full settlement as stated on a memorandum attached to the check, acts of the creditor in erasing the word ‘full’ before the word ‘acceptance’ and writing in the word ‘part’ does not change the effect of his acceptance of the check as an accord and satisfaction.” (Emphasis added).

While this is a case of first impression in Mississippi (where the check has been altered and the condition changed), there are Mississippi cases that treat of accord and satisfaction.

In Cooper v. Yazoo and Mississippi Valley Railroad, 82 Miss. 634, 35 So. 162 (1903), this Court said:

“ ‘Where ... a sum of money is tendered in satisfaction of the claim, and the tender is accompanied by such acts and declarations as amount to a condition that, if the money is accepted, it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such condition, an acceptance of the money offered constitutes an accord and satisfaction. This is true, although the creditor protests at the time that the amount paid is not all that is due, or that he does not accept it in full satisfaction of his claim. Where the tender or offer is thus made the party to whom it is made has no alternative but to refuse it or accept it upon such condition. If he accepts it he accepts the condition also, notwithstanding any protest he may make to the contrary.’ . . . The debtor making tender of a certain sum in full satisfaction has the right to attach to his tender such lawful conditions as he pleases, and the creditor accepting under such circumstances must accept the tender as conditioned.” 82 Miss. at 643-44, 35 So. at 163. (Emphasis added).

In May Bros. v. Doggett, 155 Miss. 849, 124 So. 476 (1929), this Court ruled:

“When the appellee received this statement and check, he knew that the disputed amount was not shown thereon or included in the check, and that the appellants were contending that the amount of this check covered all the balance due him on that date by reason of his logging operations. Under these circumstances, it was not permissible for the appellee to accept the check so tendered in full settlement, with the mental reservation that he would afterwards assert a claim for additional compensation; and, having done so, we think that under the doctrine of Greener & Sons v. Cain & Sons he is precluded from recovering for transactions antedating this settlement.” 155 Miss. at 857-58, 124 So. at 478. (Emphasis added).

While we think that it is clear from the record that the claim was very muchly disputed, and that President Trigg knew this, still there is a Mississippi case holding that it makes no difference whether a claim is liquidated or disputed.

In Metropolitan Life Insurance Company v. Perrin, 184 Miss. 249, 183 So. 917 (1938), this Court said:

“The question then presented is whether the acceptance by a creditor from his debtor of less than what the debtor actually owes him in full settlement of the debt constitutes an accord and satisfaction. Under all of the authorities if ‘A owes B a debt which is unliquidated, or of which either the existence or amount is honestly and reasonably disputed, a payment of any amount by A is sufficient consideration for B’s agreement to accept it in full satisfaction.’ (Citing authorities).
“This Court, however, goes further than the authorities generally and holds that it is immaterial whether the creditor’s claim is liquidated or disputed. Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189, 37 L.R.A. 771, 60 Am.St.Rep. 522, and the many cases following and approving it. May Bros. v. Doggett, 155 Miss. 849, 124 So. 476. As this appellee’s claim was disputed by the appellant, the same result would be here reached under all of the authorities. That a creditor protests against receiving less than the full amount of his claim, but, nevertheless, accepts it, is of no consequence under all of the authorities including Darrill v. Dodds, 78 Miss. 912, 30 So. 4; Cooper v. Yazoo & M.V.R. Co., both supra, and Greener v. Cain, 137 Miss. 33, 101 So. 859.” 184 Miss. at 258-59, 183 So. at 919-20. (Emphasis added).

The creditor, Trigger Contractors, Inc., was duty-bound to either accept the $1,500 check of July 3, 1974, as conditioned or refuse to accept it. Trigger had no right or authority to alter the check and change the condition on which it was tendered, that is, from “Final Payment” to “Part Payment”.

The cashing of the $1,500 check; conditioned by the debtor as “Final Payment”, constituted an accord and satisfaction. Therefore, the decree of the chancery court is reversed and judgment rendered here for appellant Dix.

REVERSED AND RENDERED.

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


text:
    Joseph DYSON v. STATE of Mississippi.
    No. 49173.
    Supreme Court of Mississippi.
    Sept. 21, 1976.
    Howard Q. Davis, Indianola, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Sunflower County; B. B. Wilkes, Judge.

Before INZER, P. J., and SMITH and BROOM, JJ.

REVERSED AND APPELLANT DISCHARGED.

GILLESPIE, C. J., PATTERSON, P. J., and ROBERTSON, SUGG, WALKER and LEE, JJ., concurring.


text:
    Lummie B. COLLINS v. STATE of Mississippi.
    No. 49328.
    Supreme Court of Mississippi.
    Sept. 21, 1976.
    Lee B. Agnew, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jasper County; George B. Grubbs, Judge.

Before INZER, P. J., and SMITH arid BROOM, JJ.

REVERSED AND APPELLANT DISCHARGED.

GILLESPIE, C. J., PATTERSON, P. J., and ROBERTSON, SUGG, WALKER and LEE, JJ., concurring.


text:
    Ivory Joe TOWNS v. STATE of Mississippi.
    No. 49289.
    Supreme Court of Mississippi.
    Sept. 21, 1976.
    Robert H. Broome, Batesville, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Panola County; Dick R. Thomas, Judge.

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

AFFIRMED.


text:
    COLLEGE INVESTMENT COMPANY v. Marie Holtzclaw LEE et al.
    No. 48873.
    Supreme Court of Mississippi.
    Sept. 21, 1976.
    Taylor, Covington, Smith, Matrick & Gibson, Jackson, for appellant.
    Armstrong & Hoffman, John T. Armstrong, Jr., Hazlehurst, for appellees.
   Appeal from Chancery Court, Copiah County; Mike Carr, Chancellor.

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

AFFIRMED.


text:
    Thomas Allen ABNEY v. Gwendolyn Hope KENT, by next friend, Esther Geneva Kent.
    No. 48813.
    Supreme Court of Mississippi.
    Sept. 21, 1976.
    Leon E. Provine, Grenada, for appellant.
    Fraiser & Burgoon, John P. Henson, Greenwood, for appellee.
   Appeal from Chancery Court, Leflore County; William H. Bizzell, Chancellor.

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

AFFIRMED.


author: MIKE CARR, Commissioner for the Court:

text:
    D. G. ROBINSON v. MARTEL ENTERPRISES, INC., et al.
    No. 48844.
    Supreme Court of Mississippi.
    Sept. 21, 1976.

      Stone & Graham, W. Welborn Johnson, Columbus, for appellant.
    Patterson & Patterson, Aberdeen, Tubb, Stevens & Morrison, West Point, James H. Mathis, Corinth, for appellee.
    Before GILLESPIE, C. J., ROBERTSON and LEE, JJ., and MIKE CARR, Commissioner.
   MIKE CARR, Commissioner for the Court:

On June 5, 1972, Martel Enterprises, Inc., grantor, entered into a contract with D. G. Robinson, grantee, for a “Lease & Option to Purchase” 926.83 acres of land in Clay County, Mississippi. The lease provided for annual rental payments plus interest and gave Robinson an option to purchase the property for a purchase price of $200 per acre.

On July 2,1974, a declaration was filed in the Circuit Court of Clay County, styled “Martel Enterprises, Inc. v. D. Glenn Robinson,” demanding judgment against Robinson for $12,758.66, alleging that the yearly rental payments plus interest under the lease were in default.

On October 3, 1974, D. G. Robinson filed this suit in the Chancery Court of Clay County, seeking specific performance of his option to purchase under the “Lease & Option to Purchase” contract, or, in the alternative, damages for a breach of the contract. Attached to and made a part of the bill of complaint filed herein was a copy of the “Lease & Option to Purchase,” as Exhibit A, and a copy of the “Acceptance of Option” as Exhibit B. The “Acceptance of Option” was dated December 6, 1973, and Paragraph 4 of the “Lease & Option to Purchase” provided as follows:

4. The grantee herein reserves unto himself an option to purchase said property from the grantor or its assigns or successors in office, the aforementioned described property for a purchase price of $200.00 per acre, said option to be exercised before December 31, 1973, by giving of notice to the grantee herein at its address aforementioned by U.S. postage prepaid mail, at least 30 days in advance of the exercising of said option.

By agreement of all the parties, the circuit court action was transferred to the Chancery Court of Clay County and consolidated with this suit in order that all the disputed issues might be adjudicated together.

Martel Enterprises, Inc., and W. R. Rhoades filed an answer to the Bill for Specific Performance, and all four defendants filed demurrers to said bill. Briefs and oral arguments were presented by counsel, and the Chancellor entered a decree finding that the option contract provided that the notice to exercise the option must be given by December 1, 1973, that the notice provision was not ambiguous, that the bill and exhibit “B”, being the notice of acceptance of the option, showed on its face that the notice was not timely given, and that time was of the essence of the option by the very nature of the contract. The Court further found that since said option was not properly exercised, the complainant was not entitled to specific performance and could not be entitled to damages or the other relief sought in the bill. Therefore, the court sustained the defendants’ demurrers in their entirety and dismissed the bill with prejudice, but provided that said dismissal would not affect the suit of Martel Enterprises, Inc., originally filed in the Circuit Court of Clay County, seeking recovery of rent due under the contract.

From the chancellor’s decree sustaining appellees’ demurrers, the appellant has prosecuted this appeal, assigning as error the chancellor’s action in sustaining appel-lees’ demurrers.

A demurrer to a complaint raises an issue of law as to the legal sufficiency of the facts in the complaint to state a cause of action. Therefore, for the purpose of a hearing on the demurrer, all well-pleaded facts must be taken as true. Griffith, Mississippi Chancery Practice, § 286 (2d ed. 1950).

Appellant alleged in his bill of complaint and contended in his brief that paragraph 4 of the “Lease & Option to Purchase” is vague, ambiguous and subject to several interpretations. A portion of paragraph 4 requires notice to be given “to the grantee herein.” Since appellant is the grantee, on its face, this paragraph required Robinson to give notice to himself of his intent to exercise the option. Appellees contend that the use of “grantee” was a mere typographical error and that the court should read the contract as saying “grantor.”

A written contract should be construed according to the obvious intention of the parties, notwithstanding clerical errors or inadvertent omissions therein, which can be corrected by perusing the whole instrument. If an improper word has been used or a word omitted, the court will strike out the improper word or supply the omitted word if from the context it can ascertain what word should have been used. 17 Am. Jur., Contracts, § 280.

The general rule in interpreting contracts is that the court will look only to the “four corners” of the instrument to ascertain and give effect to the intention of the parties. In Rubel v. Rubel, 221 Miss. 848, 75 So.2d 59 (1954), the Court said:

“The intention of the parties must be collected from the whole agreement, and every word therein must be given effect, if possible, and be made to operate according to the intention of the parties.” It is also well settled that the words of a contract should be given a reasonable construction, where that is possible, rather than an unreasonable one; and the court should likewise endeavor to give a construction most equitable to the parties, and one which will not give one of them an unfair or unreasonable advantage over the other. 75 So.2d at 65.

Paragraph 5 of the “Lease & Option to purchase” provides that “if the grantee herein decides to exercise his option, that upon the giving of his notice and the tendering of consideration, the grantor will waive the lease or rental fee. . . . ” The contract was between Martel Enterprises, Inc., lessor/grantor, and D. G. Robinson, lessee/grantee. Paragraph 4 provides “said option to be exercised before December 31, 1973, by giving of notice to the grantee herein at its address aforementioned by U.S. postage prepaid mail at least 30 days in advance of the exercising of said option.” (Emphasis added). We feel that a reasonable interpretation, rather than an unreasonable one, should be applied in interpreting this contract. The use of the pronoun “its” in paragraph 4 with reference to the address of the party to whom notice is to be given evidences the fact that notice was to be given to the corporation, Martel Enterprises, Inc., the grantor; and that the use of the word “grantee” was a clerical error. Also, we think that paragraphs 4 and 5 of the contract should be construed together, and when so done, it is apparent that the parties intended that the notice was to be given to the grantor. No apparent purpose would be served if Robinson gave notice to himself of his intent to exercise the option. With the word “grantee” in the clause, it has no meaning or purpose, but when the word “grantor” is substituted, the clause becomes clear and its meaning readily ascertainable.

Appellant also contends that paragraph 4 is ambiguous because it required Robinson to give 30 days notice prior to the formation of his “mental intent” to purchase the property. There is no reference to “mental intent” in paragraph 4 or anywhere else in the contract. The clear and unambiguous meaning of the contract was that the option was to be exercised before December 31, 1973, upon written notice at least thirty days in advance of that date. Robinson did not have until December 31, 1973, in which to form his intention to exercise the option; instead, he had to form such an intention and notify appellee of his decision at least thirty days before December 31, 1973.

The appellant further alleged in his bill of complaint that the defendants were aware that complainant was exercising his option to purchase the property as early as the summer of 1973; that the defendants understood and acquiesced in the fact that the complainant was to purchase the property; that the defendants had knowledge of this contemplated purchase and the exercising of the option by various other means; and that at no instance had the defendant Roy Rhoades, or Martel Enterprises, Inc., refused to honor the contract until such time as payment was tendered unto said defendants.

In Reynolds v. Maples, 214 F.2d 395 (5th Cir. 1954), the Court applied Mississippi law in a suit for specific performance of an option contract to purchase timber wherein the purchase money was to be deposited in the named bank on or before a certain date. The optionee conditionally tendered the money to the bank, but would not deposit it until the deed was first handed over to him. The optionee proved that he was able to deposit the money and urged that he had, therefore, exercised his option. The Court failed to agree, and held as follows:

An option, when supported by a valid consideration, constitutes a continuing offer to sell which is irrevocable during the period specified therein. Until it is exercised, it contains no elements of a sale. . When he accepts the offer in the prescribed manner and before expiration thereof, the contract for sale is complete and binding upon both parties. It is incumbent upon the optionee to exercise the option in the manner provided in the contract and, unless such requirements are waived, his failure to do so, or his attempt to exercise it in another manner, is inoperative to form a binding contract for sale. (Emphasis supplied) 214 F.2d at 398.

The allegations of Robinson here-inabove as to what appellees were aware of, what they understood and acquiesced in, what they had knowledge of, etc., are no more availing to appellant than the proof of ability to pay in the Reynolds case, supra. This Court is of the opinion that such allegations are not sufficient to raise the question of waiver but are mere conclusions of the pleader, and we have held in Ladner v. Deposit Guaranty National Bank, 290 So.2d 263 (Miss.1973), that a demurrer does not admit mere recitals of conclusions, either in fact or of law. Waiver is a conclusion of law, and the facts constituting such excuse must be pleaded. 28 Am.Jur.2d, Estoppel and Waiver § 172.

The findings of the chancellor that the contract provided that the notice to exercise the option had to be given by December 31, 1973, and that time was of the essence of the contract are well supported in the law. Both the requirement to exercise the option within a given period and to give notice of the intent to exercise such option are common provisions in options. The annotation in 72 A.L.R.2d 1127 (1960) discusses notice requirements contained in option contracts as follows:

As a general proposition, an option contract is of such a nature that time is generally regarded as of the essence thereof, even in equity. The rule applies to contracts for the purchase and sale of land and leases containing an option to purchase the land involved.
In accordance with these principles it has been held in a number of cases that the time prescribed in a real estate contract containing an option to purchase the land involved, for giving notice, prior to the expiration of the option, of the optionee’s intention to exercise the option, is of the essence, and that upon the optionee’s failure to give timely notice the option expires.

The case of Barham v. Davenport, 247 N.C. 575, 101 S.E.2d 367 (1958), is cited in the above annotation, and this case is in point with the case at bar. The Barham case was also a suit for specific performance of an option to purchase real estate and involved a lease which gave the lessee a right to purchase certain property on June 1, 1953, or at any time thereafter, if during a renewal period of the lease. The lessee had to give notice to the lessor of the lessee’s election to exercise the option to purchase at least ninety days prior to the first day of June, 1953. The lessee renewed his lease, and then gave notice of his election to exercise the option to purchase on May 16, 1957. The lessor refused to convey the property, and in lessee’s suit for specific performance, the trial court sustained the lessor’s demurrer, and this action was affirmed by the North Carolina Supreme Court on the ground that the complaint showed upon its face that the lessee failed to give notice of his election to exercise the option within the time limited. Plaintiff’s contention that the provisions relating to the option were ambiguous and contradictory and should be interpreted favorably to the tenant to mean that he had the right to purchase by giving notice of intention ninety days before expiration of any renewal period was rejected by the Court in view of the fact that while the lease conferred upon the tenant an option to purchase at any time during a renewal period, nevertheless, it stated in plain language that such election was to be made and notice thereof given at least ninety days before June 1, 1953.

In Lewis v. Woods, 4 Howard 86 (Miss.1839), in a suit for specific performance by the purchaser for the execution of a deed, it was held:

It is a universally acknowledged rule that a court of equity will not decree a specific performance of a contract, when the party applying for it has omitted to execute his part of the agreement by the time appointed for that purpose. ... 4 Howard at 87

The Court further stated in the same case that:

A party cannot be permitted to violate his contract and wait until he sees that his bargain will be profitable, and then invoke the aid of a Court of Chancery to have it executed. Both time and circumstances are to be taken into consideration, for time may be of the very essence of a contract, otherwise a party might select his own time for performance. 4 Howard at 88.

As a general rule, time is of the very essence of an option contract. Poole v. McCarty, 229 Miss. 170, 90 So.2d 190 (1956); 17 Am.Jur.2d, Contracts § 335 (1964). When the option contract calls for giving notice of the grantee’s intention to exercise the option, a great majority of courts have held that this provision is of the essence, and that upon failure to give timely notice, the option expires. 72 A.L.R.2d 1127 (1960); 71 Am.Jur.2d, Specific Performance § 145 (1973).

In Mason v. Payne, 47 Mo. 517 (1871), the Missouri Court dealt with a case involving a contract in which the lessee had the option to purchase certain premises any time within five years, but was required to give thirty days’ notice of his intention to so purchase. The lessee gave notice two days before expiration of the five years, and the lessor refused to convey. The lessee’s contention that the notice was seasonable since it was within the five years was dismissed by the Court in the following language:

But the notice must have reference to some future time or event or obligation. It cannot mean thirty days before he forms an intention or makes an election to purchase, for it is a notice of such intention or election already formed. It must mean thirty days before the plaintiff is entitled to purchase, or the requirement has no significance, and he is not entitled to purchase after the five years. But the plaintiff objects that we deduct thereby thirty days from the time within which he may make his election, and thereby so far defeat the contract. This objection would be reasonable if the contract gave the plaintiff five years within which to form his intention; but instead of that it gives him thirty days less than five years, by giving only five years to purchase and requiring thirty days’ notice of his intention to do so. 47 Mo. at 519.

Appellant has relied heavily upon the case of Albachten v. Miller, 216 Or. 379, 339 P.2d 427, 72 A.L.R.2d 1122 (1959). This case represents the minority holding in cases of this nature and is distinguished from the present case in several particulars. The contract therein provided that the grantee had the right to purchase certain property on October 1, 1955, but not prior thereto. The contract also required not less than thirty days’ notice in writing of the grantee’s intention to exercise the option. The grantee attempted literal compliance with the notice requirement by mailing written notice on August 25, 1955, but this letter was never received by the grantor.. Subsequently, a second letter was sent to grantor’s attorney on September 9, 1955, reciting that the notice provided for in the contract had been sent on August 25th. Tender of payment was made on October 1, 1955, and was refused by the grantor.

The option contract in Albachten was entered into at the same time the grantee had purchased adjoining lands from the grantor, and the two transactions were handled as one deal. The Court found that this property was part of a transaction which included another tract of land which had previously been purchased by the purchaser from this same seller. It was undisputed that the purchaser would never have purchased one tract without the other. The parties had considered the separate properties as all part of the same transaction throughout their dealings. The Court further found as a matter of fact that neither party intended for time to be of the essence of the contract, and that the notice provision was only a collateral matter and should be “weighed in connection with such factors as the nature of the particular provision, good faith, and prejudice.” 339 P.2d at 429. In arriving at its decision, the Oregon Court said: “The option before us is unique. Apt, controlling authority is hard to find. We feel general equitable principles must be resorted to . . .” 339 P.2d at 429. The Court then undertook to balance the equities of the case.

Even though this Court has not to this date dealt specifically with a notice requirement in an option to purchase, nevertheless, we have decreed strict compliance with the terms and provisions of option contracts. See Poole v. McCarty, 229 Miss. 170, 90 So.2d 190 (1956). To allow Robinson to ignore such a notice requirement or substitute his own date and manner for giving notice of his intention to exercise his option is tantamount to this Court’s making a different contract between the parties, which we cannot do. If the terms of options involving property rights are not strictly construed, Pandora’s Box is opened for serious property title problems to develop. It is for this compelling reason that this Court must align itself with the greater weight of legal authority holding that time is of the essence with regard to such notice provisions. 72 A.L.R.2d 1127 (1960): 71 Am. Jur.2d, Specific Performance § 145 (1973).

Appellant alleged in his bill of complaint that he had fully performed all the terms, conditions, duties, and obligations of the contract, and he attached as Exhibit “A” a copy of the “Lease & Option to Purchase,” paragraph 4 of which required that notice to exercise the option be given by December 1, 1973. Appellant also attached as Exhibit “B” his “Acceptance of Option” which was dated December 6, 1973. Finding that the exhibits were controlling over the allegations of the bill of complaint, the chancellor ruled that the notice was not timely given. We find no error in this ruling. When an exhibit is made the basis on which relief is sought, the contents of the exhibit control over allegations in the bill of complaint. Mississippi State Highway Com. v. Cohn, 217 So.2d 528 (Miss.1969); Roberts v. James Manufacturing Co., 197 So.2d 808 (Miss.1967); Griffith, Mississippi Chancery Practice § 192 (2d ed. 1950). See also Mississippi Code Annotated section 11-5-15 (1972), which provides: “Exhibits filed with a bill, as part of it, shall be considered, on demurrer, as if copied in the bill.”.

Appellant chose to stand on his pleading rather than amend his bill of complaint. He makes no claim that he mailed notice of his election to exercise the option by December 1, 1973. After a careful study of the pleadings and exhibits in this case, as well as the governing principles of law, we conclude that the “Lease & Option to Purchase” is clear and unambiguous as it is written; that it precisely demands written notice by December 1, 1973, of an intent to exercise the option; that in so doing, the option itself makes time of the essence of the contract; and that it expired on failure of compliance. No inferences, deductions, or interpretations are necessary. To hold otherwise would create a distinction without a difference.

The chancellor was correct in sustaining the demurrers.

AFFIRMED.

All Justices concur.

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


author: JOE N. PIGOTT, Commissioner,

text:
    INDIANOLA TRACTOR COMPANY, INC. v. M. A. TANKESLY et al. United States Aircraft Insurance Group, Garnishee-Defendant.
    No. 48956.
    Supreme Court of Mississippi.
    Sept. 21, 1976.
    Clark, Davis & Belk, Indianola, for appellant.
    Lyon, Crosthwait, Terney & Noble, Indi-anola, for appellee.
    Before PATTERSON, P. J., SUGG and WALKER, JJ., and PIGOTT, Commissioner.
   JOE N. PIGOTT, Commissioner,

for the Court.

The Indianola Tractor Company secured a default judgment for $6,411.25 against M. A. Tankesly and his wife, Peggy M. Tankesly, in the Circuit Court of Sunflower County, and had issued a writ of garnishment against Valley Air Applicators, Inc. and United States Aircraft Insurance Group. Group answered that it was indebted to Tankesly in the amount of $5600 as a compromise settlement of a tort claim.

Peoples Bank of Indianola filed a motion to intervene, alleging a first lien as to the proceeds to the extent of a debt due the bank by the defendants.

Buchanan and Haltom, attorneys, filed a motion to intervene, alleging a lien for attorneys’ fees on the proceeds due defendant by the garnishees.

Upon a hearing of both motions the only evidence offered was as to a lien for attorneys’ fees and no evidence was offered by Peoples Bank of Indianola. However, the trial court sustained both motions to intervene and entered an order to disburse the proceeds of the garnishment writ as follows:

(1) Buchanan & Haltom $1,100.00
(2) Peoples Bank of Indianola $4,384.64
(3) Indianola Tractor Company, Inc. $ 115.36.

We affirm the order of the court as to the disbursement of $1100 attorneys’ fees to Buchanan and Haltom, attorneys. See Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 450 (1929).

As to the claim of Peoples Bank of Indianola, the burden was upon the movant to offer evidence in support of its motion and in support of its claim. No evidence was offered by Peoples Bank in support of its motion or its claim. Burcham v. Est. of Burcham, 303 So.2d 476, 480 (Miss.1974).

We therefore reverse and set aside the order of the lower court ordering the disbursement of $4,384.64 to the Peoples Bank of Indianola. This $4,384.64 should be added to the $115.36 and a total of $4500 disbursed to the Indianola Tractor Company, Inc.

AFFIRMED IN PART AND IN PART REVERSED AND RENDERED.

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

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


author: BROOM, Justice,

text:
    Randolph MARTIN and Gerald Martin v. L. R. WADLINGTON, Administrator of Estate of Catherine C. Wadlington, Deceased, et al.
    No. 48821.
    Supreme Court of Mississippi.
    Sept. 21, 1976.
    Rehearing Denied Oct 12, 1976.

      Henry, Barbour & DeCell, William H. Barbour, Jr., Yazoo City, for appellants.
    James T. Bridges, Belzoni, for appellees.
    Before INZER, SMITH and BROOM, JJ.
   BROOM, Justice,

for the Court:

The Dead Man’s Statute, and sufficiency of proof as to quantum of damages in a controversy about rent due under a written agricultural lease for the years 1971-1973, are focal aspects of this case. Appellants (defendants), Randolph Martin and Gerald Martin, appeal from a decree of the Chancery Court of Humphreys County, Mississippi, awarding appellees (complainants), L. R. Wadlington, Administrator of the Estate of Catherine C. Wadlington, and three other heirs of the deceased, a $37,502.88 money judgment. We affirm as to liability.

Appellees sued appellants for 1973 crop rental pursuant to the lease contract entered into between appellants (lessees) and appellees’ decedent, Mrs. Catherine C. Wa-dlington (lessor), who died March 25, 1973. The action focuses on a portion of the contract which provided that the appellants would pay Mrs. Wadlington:

One-fourth (Vi) of all crops of every kind, character or description produced on said land for the years 1971, 1972 and 1973.

Appellees’ bill averred that the rental due for 1973 (one-fourth of the crops) had not been paid. Settlement was made of all issues except as to cotton rental so that at trial the sole issue related to appellees’ failure to pay one-fourth of the cotton crop produced on the land in 1973. Attached to the complaint were interrogatories seeking detailed information regarding the 1973 planting of crops and their present status.

Along with their answer, as part of their affirmative defense, appellants averred that on February 27, 1973, they entered into a contract with V. & M. Cotton Company for the sale of all cotton (at 30$ per pound — the going market price increased to 86$ in December) to be produced on the leased premises during 1973. Appellants averred that upon receiving notice from the appellees, V. & M. Cotton Company refused to except one-fourth of the 331 bales of cotton. They also averred that they had specific authority from the lessor to sell the cotton on a future contract and that the language in the lease, “one-fourth (Vi) of all crops of every kind, character or description produced on said land . . . ” normally meant one-fourth of all the proceeds based on both the course of dealing between the parties and the customary practice in the industry. At trial, the chancellor determined that the complainants were entitled to a judgment in the amount of one-fourth of the average value of all the cotton produced on the land during 1973. He determined value as of December 31, 1973, the last day of the term of the lease.

On appeal, appellants contend that the chancellor erred in sustaining objections to Wadlington’s testimony on the basis of the Dead Man’s Statute [Miss.Code Ann. § 13-1-7 (1972)]. Therefore, they were unable to prove that in previous years the deceased (lessor) had accepted one-fourth of the proceeds (rather than in kind) produced by the crops during the lease term. Appellants also contend that their incompetency to testify under the Dead Man’s Statute was waived by appellees, and that accordingly they should have been allowed to testify at hearing.

Regardless of whether there is merit in these contentions of appellants, the issue is not properly before the court. As stated in Manning v. Hammond, 234 Miss. 299, 307-08, 106 So.2d 51, 55 (1958), and quoted in Robinson v. Humble Oil & Refining Co., 253 Miss. 602, 176 So.2d 307 (1965):

[W]e cannot consider such error because it does not appear in the record what was proposed to be proved by these witnesses, and we are, therefore, not in a position to say whether the offered testimony would be material and relevant or whether its exclusion constituted prejudicial error.

Appellants argue that the record adequately preserved the question for appeal because the specific questions asked the Martins appear in the record. They also make the novel, if not ingenious, argument that “it is immaterial what his (Administrator Waddlington’s) answers would have been” because their purpose was to circumvent the effect of the Dead Man’s Statute by having Wadlington answer questions designed for such purpose. By so doing, as stated in their reply brief, they would have succeeded in “opening the door to the testimony of appellants themselves.” However, no true proferí of testimony was made nor was any statement dictated into the record as to what the testimony of these witnesses (whose testimony was disallowed pursuant to the statute) would have been. This Court cannot speculate on the basis of implication as to what the proof in this case might have been, and therefore appellants’ contention is without merit. Our rule is that in making proferí of testimony rejected by the trial court, counsel must cause the record to clearly reflect what he intended to prove by such testimony. 75 Am.Jur.2d Trial § 131 (1974); Kinney v. State, Miss., 336 So.2d 493, 1976; Daziet v. Bass, 254 So.2d 183 (Miss.1971); W. T. Rawleigh Co. v. Foxworth, 194 Miss. 205, 11 So.2d 919 (1943); Sylvania Ins. Co. v. Simmons, 158 Miss. 596, 131 So. 94 (1930); Bessler Movable Stairway Co. v. Bank of Leakesville, 140 Miss. 537, 106 So. 445 (1926). Moreover, when (based on the Dead Man’s Statute) the chancellor sustained appellees’ objection to questions propounded to the witnesses by appellants’ counsel, counsel made no point or argument that appellees waived the incompetency of any witness by failing to waive answer under oath in the original bill.

Other errors were argued by appellants but only one merits discussion; and it requires remand of the case as to proof of damages. Proof in the record shows the quantity of cotton produced on the leased land in 1973, but does not establish the value of the cotton with any reasonable certainty. Raw cotton even after ginning may be of several grades and it varies as to staple lengths and micronaire qualities. Scrutiny of the record shows that at trial there was a failure of proof to establish the grade, staple or micronaire of the bales of cotton at issue. It appears from the record that the proof failed to establish the value of the particular cotton produced on the lands which were leased unto the appellants. Accordingly, the cause will be remanded for a new trial on the issue of damages.

AFFIRMED AS TO LIABILITY, BUT REMANDED AS TO QUANTUM OF DAMAGES.

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


text:
    The TRAVELERS INDEMNITY COMPANY and Diamondhead Corporation v. FIRST NATIONAL BANK OF JACKSON.
    No. 48816.
    Supreme Court of Mississippi.
    Sept. 28, 1976.
    Rehearing Denied Oct. 12, 1976.
    Daniel, Coker, Horton, Bell & Dukes, John B. Clark, Jackson, for appellant.
    Cox & Dunn, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

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

AFFIRMED.

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

GILLESPIE, C. J., did not participate in this decision.


text:
    Wayne L. McCLURE v. Charles W. CRISLER, Jr., et al.
    No. 48808.
    Supreme Court of Mississippi.
    Sept. 28, 1976.
    Ginsberg, Schlesinger & Porter, Hattiesburg, for appellant.
    Aultman, Pope, Aultman, Van Slyke & Tyner, Larry 0. Norris, Jolly W. Matthews, III, Stone D. Barefield, Hattiesburg, for appellees.
   Appeal from Chancery Court, Forrest County; Howard L. Patterson, Jr., Chancellor.

Before INZER, P. J., and SMITH and BROOM, JJ.

Reversed and remanded.

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


text:
    CORINTH LEASING CORPORATION v. Bettye Mullins SHIPMAN.
    No. 48820.
    Supreme Court of Mississippi.
    Sept. 28, 1976.
    James H. Mathis, Corinth, for appellant.
    Charles R. Wilbanks, Corinth, for appel-lee.
   Appeal from Chancery Court, Alcorn County; Fred P. Wright, Chancellor.

Before INZER, P. J., and SMITH and BROOM, JJ.

Reversed and rendered.

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


text:
    Glynn BANNISTER v. Dixon Lee ASHMAN, d/b/a Mollere Realty, et al.
    No. 49113.
    Supreme Court of Mississippi.
    Sept. 28, 1976.
    William M. Frisbie, Bay St. Louis, for appellant.
    Favre & Genin, Gex, Gex & Phillips, Bay St. Louis, for appellee.
   Appeal from Chancery Court, Hancock County; John S. Morris, Chancellor.

Before INZER, P. J., and SMITH and BROOM, JJ.

Reversed and remanded.

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


text:
    Vernon Calvin MONROE v. STATE of Mississippi.
    No. 49260.
    Supreme Court of Mississippi.
    Sept. 28, 1976.
    S. E. Allen, Jr., Hazlehurst, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Copiah County; J. Gordon Roach, Judge.

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

Affirmed.

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


text:
    Mrs. Flora Bell WRIGHT v. MERCHANTS TRUCK LINE, INC.
    No. 48863.
    Supreme Court of Mississippi.
    Sept. 28, 1976.
    Maxey, Clark & Casey, Laurel, Clayton Lewis, Philadelphia, for appellant.
    Gibbes, Graves, Mullins, Bullock & Ferris, Robert L. Rogers, Jr., Laurel, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

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

AFFIRMED.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Mrs. Jean Barrow HARPER.
    No. 48866.
    Supreme Court of Mississippi.
    Sept. 28, 1976.
    S. E. Allen, Jr., Lamar Conerly, Jr., Hazlehurst, for appellant.
    Armstrong & Hoffman, Hazlehurst, for appellee.
   Appeal from Special Court of Eminent Domain, Copiah County; J. Gordon Roach, Judge.

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

Affirmed.