author: DOMENGEAUX, Judge.

text:
    Judy Dean VERNON, Plaintiff-Relator-Appellant, v. Dallas Joseph LEGER, Defendant-Respondent-Appellee.
    No. 6653.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Allain & Allain by John W. Porterfield, Jeanerette, for plaintiff-appellant.
    Alex L. Andrus, III, of Andrus & Doherty, Opelousas, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

On October 10, 1977, Judy Dean Vernon Leger, former spouse of the defendant, Dallas Joseph Leger, filed a rule for past due alimony for child support against her former husband. The petition alleges that no alimony had been paid since August 7,1975, the date a judgment of divorce was signed between the two parties. Pertinent portions of that judgment read as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff, JUDY DEAN VERNON, be and is hereby granted the permanent care, custody and control of the minor children born of this marriage, namely LUKE DANIEL LEGER, STEPHANIE KIM LEGER, DALLAS JOSEPH LEGER, JR., and TAMMY LYNN LEGER, subject to defendant’s rights of visitation with and by said minor children during the regular school term and alternating school holidays and any other reasonable visitation as the parties may agree upon.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant, DALLAS JOSEPH LEGER, be and is hereby condemned and ordered to pay the sum of ONE HUNDRED FIFTEEN AND NO/100 ($115.00) DOLLARS per month for the support and maintenance of the aforesaid minor children, commencing instanter and continuing until the further order of this Court.”

The accumulated amount of child support due at time of suit was $2,990.00. The evidence shows that during the period from the divorce judgment to the time of the filing of the rule for arrearages, the children had spent thirty-seven percent of the time with the mother and sixty-three percent of the time with the father. Utilizing a formula of 37% of $2,990.00, the trial court awarded Judy Dean Vernon $1,106.30 as child support arrearages. Plaintiff-wife has appealed, seeking the full amount of the arrearages.

The trial of the suit which resulted in the granting of the divorce in favor of the wife and which awarded her the permanent custody of the minor children and child support, was heard by a different Judge than the one who heard the rule for arrearages. In the latter instance, the Judge concluded that inasmuch as the custody award recognized that the father’s rights of visitation were during the children’s regular school term, and that they were with him much of that time, it would be inequitable and unjust to the former husband to cause him to pay child support during the time that he was supporting them at his separate residence. He lived in Washington, Louisiana, and she in Jeanerette, Louisiana.

The judgment of divorce specifically grants Judy Dean Vernon the permanent care, custody, and control of the minor children. Although the judgment granted the father extensive rights of visitation with and by the children during their regular school term, it nevertheless also definitively ordered him to pay the sum of $115.00 per month for the support and maintenance of the children. We find this judgment unambiguous. In Halcomb v. Halcomb, 352 So.2d 1013 (La.1977), a child support case, the Louisiana Supreme Court, in quoting Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954), stated:

“ ‘The jurisprudence is well settled that a judgment for alimony, as to the amount that has become past due, is the property of him in whose favor it has been given, and is protected against alteration or annulment except by the method and for the causes prescribed by law, Louisiana Code of Practice, Article 548; Snow v. Snow, 188 La. 660, 177 So. 793; Williams v. Williams, 211 La. 939, 31 So.2d 170; Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89; Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902; that the right to receive such alimony in a lump sum is not waived by plaintiff’s failure to make periodic demands on the defendant, Gehrkin v. Gehrkin, supra; and that liability cannot be avoided by simply claiming that the alimony was not due, since a reduction of alimony or a discharge from the obligation to pay may be granted only from and after the time when it is sought, by suit or in answer to a suit to enforce payment. Article 232, LSA—Civil Code; Snow v. Snow, supra, 188 La. at page 670, 177 So. 793, Gehrkin v. Gehrkin, supra: . . . ’”
The Court further stated:
“Until modified, therefore, the judgment awarding alimony is a determination of the rights of the parties and has acquired the authority of the thing adjudged.”

Judy Dean Vernon is the person in whose favor child support has been given. As to this past due alimony, the judgment awarding the alimony has acquired the authority of the thing adjudged.

The able trial judge bases the judgment for arrearage on equity in part. We believe this to be incorrect. In Simon v. Calvert, 289 So.2d 567 (La.App. 3rd Cir. 1974), writs denied, 293 So.2d 187 (La.1974), among other matters involved, the father contended that the mother was not entitled to previously awarded child support during the period that the father had physical custody of his children under a subsequent ex-parte order of the district court. In that ex-parte order, the previously awarded child support payments were not modified or terminated. In denying relief to the father, we stated:

“The only remedy available to a father to relieve himself of the obligation of paying child support imposed by a judgment is by proceeding to have the judgment amended, suspended or terminated. Sampognaro v. Sampognaro, 222 La. 597, 63 So.2d 11 (1953); Rodriguez v. Rodriguez, 245 So.2d 765 (La.App. 4th Cir. 1971); Hebert v. Hebert, 159 So.2d 537 (La.App. 3rd Cir. 1964). Courts cannot consider equity for the purpose of nullifying or reducing accumulated alimony, which is a vested property right, until the judgment is altered or amended by subsequent judgment or is terminated by operation of law.”

For the above reasons we must conclude that our trial brother erred in not awarding the full amount of the arrearages to the mother.

Accordingly, the judgment is amended, and it is now ORDERED, ADJUDGED, and DECREED that the rule to make the full amount of delinquent child support executo-ry be and the same is hereby made absolute. Further, the amount of the judgment in favor of JUDY DEAN VERNON and against DALLAS JOSEPH LEGER is increased to the sum of TWO THOUSAND, NINE HUNDRED NINETY AND NO/100 ($2,990.00) DOLLARS, with legal interest at the rate of seven (7%) percent per annum from October 10,1977, until paid. Costs, at trial and on appeal, are assessed against Dallas Joseph Leger.

AFFIRMED, AS AMENDED.


source: Caselaw Access Project

license: Public Domain

text:
    Diane Childs McKENZIE et al., Plaintiffs-Appellees, v. NATIONWIDE MUTUAL INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6664.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Brittain & Williams, Jack O. Brittain, Natchitoches, for defendants-appellants.
    Hall, Lestage & Lestage, David R. Les-tage, DeRidder, for plaintiff-appellant.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

Plaintiffs, Dianne Childs McKenzie and Shirley Childs Longlois, brought this action for the wrongful death of their parents, Melvie T. Childs and Mary Parker. Childs. Named defendants are Larry C. Spears, Valley Electric Membership Corporation (VEMCO), and Nationwide Mutual Insurance Company. Defendant Spears, acting in the course and scope of his employment with the defendant, VEMCO, was driving a 1977 Chevrolet pickup truck belonging to his employer, in a southerly direction on Louisiana Highway 175 in Sabine Parish, Louisiana, when it encountered a 1972 Ford pickup truck, towing a loaded boat trailer in a northerly direction on the same highway. As the two vehicles approached each other, a collision ensued. Mr. Childs, the driver of the Ford pickup truck, was killed, as was his wife, a passenger therein.

Defendant, Nationwide Mutual Insurance Company, is the liability insurance carrier for the VEMCO vehicle which was being driven by defendant Spears.

The trial judge found Larry Spears negligent in crossing the center line and colliding headon with the oncoming vehicle occupied by Melvie and Mary Childs; the trial judge found Mr. and Mrs. Childs free of negligence.

Damages were awarded as follows: $75,-000.00 each to Mrs. Longlois and Mrs. McKenzie for the wrongful death of their parents. This of course amounted to $37,-500.00 per daughter per parent. There were additional awards for funeral bills totaling $3,705.00, and a doctor bill totaling $30.00.

The Court correctly concluded that Mrs. Childs died instantly upon impact and that Mr. Childs was rendered unconscious and died apparently within a few minutes, without regaining consciousness. The denial of damages for pain and suffering before Mr. Childs’ death was therefore correct.

The following is a diagram of the accident, as determined by the trial court.

The appellants’ objections are, first, that the trial court erred in not applying the sudden emergency doctrine; second, that neither plaintiffs nor defendants have proven by a preponderance of the evidence the exact point of impact; and third, that the trial court has abused its “much discretion” in awarding $37,500.00 per child per parent.

The first objection is without merit. It is well established that the sudden emergency doctrine is inapplicable to an emergency precipitated by one’s own negligence. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972).

The second objection addresses the issue of whether the plaintiffs have proved by a preponderance of the evidence that the accident occurred in the Childs’ lane of travel. In that regard the defendants produced the testimony of Dr. Will T. Tonn, Jr., who was accepted by the Court as a specialist in accident reconstruction. He was of the opinion that the point of impact occurred in the lane occupied by the VEM-CO vehicle, the southbound lane. He based his conclusion on the assumption that the trailer hitch on the Childs’ vehicle broke before impact, causing the Childs’ vehicle to swerve across the line into the southbound lane. On the other hand, defendant Spears, the driver of the VEMCO vehicle, testified that he never saw the Childs’ vehicle cross the center line. He stated that he thought he was in his own lane of traffic, although he could not be sure. Spears further testified that before the impact, the Childs’ vehicle was in its proper lane and was not out of control. He stated further that before the impact, the trailer apparently hit a bump and “flounced” around, but at no time crossed the center line. Dr. Charles McKenzie, husband of one of the plaintiffs herein, was accepted by the Court as an expert in metallurgy, and it was his opinion that the trailer hitch was sheared upon impact, not before. O. B. Gregory, Jr., was the first motorist to arrive at the scene of the accident and, as to his observation of the VEMCO vehicle, stated:

“He had lost control of the vehicle coming from the North and the water marks were on the road as they crossed the center line up to the point that the vehicle had stopped.”

Considering the referred to testimony and the record as a whole, we feel that the evidence before the District Judge furnishes a reasonable factual basis for his finding.

We find no manifest error in his conclusions. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Finally, appellants argue that the trial court abused its “much discretion” in its award of quantum.

In order to reduce an award for damages, we must find that the trier of fact abused its discretion. We cannot place too much emphasis on other reported decisions. Changes in our society, such as economic conditions and lifestyles, must be taken into consideration. Coco v. Winston Industries, 341 So.2d 332 (La.1977).

At the time of the accident, Shirley Childs Longlois was 34 years of age, and her sister, Dianne Childs McKenzie, was 36 years of age. Their father was 56 years of age, and their mother was 58. Both daughters had an extremely close relationship with their parents and visited them very frequently. There was testimony in connection with Dianne that, since the tragic death of her parents, she often goes into deep depressions, sometimes for as much as three days without an outward sign of relief, and that this condition affected the normal intimacies of her marriage.

The trial judge, in his written reasons, extensively covered the evidence and correctly concluded that there was the closest possible bond of love, affection, and association between the two plaintiff daughters and their deceased parents. Among other things, he stated:

“The daughters were grief-stricken over the tragic loss of both parents, and their deep grief was still very evident at the time of trial. The Court observed that they would not even testify in each other’s presence. As each testified, in turn, the other left the courtroom for the duration of her sister’s testimony.”

We have reviewed some of the recent cases in the jurisprudence wherein awards were made to major children for the loss of a parent. This has been done only as an aid in determining whether there has been an abuse of discretion on the part of the trial court. We note the cases of Higgins v. Johnson, 349 So.2d 918 (La.App. 1st Cir. 1977), wherein $15,000.00 was awarded to a major daughter for the loss of her mother; Ardoin v. Hartford Accident & Indemnity Company, 350 So.2d 205 (La.App. 3rd Cir. 1977), wherein $18,000.00 was awarded to each major child for the loss of a parent; and Fowler v. Western Union Telegraph Company, et al., 357 So.2d 1305 (La.App. 3rd Cir. 1978), writ denied, 359 So.2d 196 (La.1978), wherein $25,000.00 was awarded to each of two major children for the loss of their mother.

Considering all aspects of the quantum awarded, including the fact that both of the parents of the plaintiffs in the present case died as a result of this tragic and unfortunate accident, as well as the guidelines set forth in Coco v. Winston Industries, supra, we find no abuse of discretion by the District Court in making an award of $37,500.00 per child per parent.

Appellants find error also in a statement made by the trial judge in his reasons for judgment concerning certain jurisprudential tendencies in making distinctions in parent vis-a-vis child death awards. We find that the statement referred to is nothing more than an observation on the part of the trial judge, is obitur dictum, and is not determinative of the awards made in this case.

For the foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed against appellants.

AFFIRMED.

      . Writs refused in part and granted in part, 352 So.2d 706, 707 (La.1977), partially reversed on grounds not related to quantum, 360 So.2d 1331 (La.1978).


author: CULPEPPER, Judge.

text:
    Louis E. BULLIARD and Charles P. Bulliard, Plaintiffs and Appellants, v. Marcel J. BULLIARD, Sr., Testamentary Executor of the Succession of Marie Angelle Thibodeaux, Defendant and Appellee.
    No. 6665.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Writ Refused Dec. 1, 1978.

      C. Cyril Broussard, New Orleans, for plaintiffs-appellants.
    Wiedmann & Fransen by John A. Stassi, II, New Orleans, Paul S. Daspit, Jr., St. Martinville, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CULPEPPER, Judge.

This suit involves the interpretation of a codicil to a will which provides: “The inheritance and estate taxes due by Mr. Garland Castex and Marcel J. Bulliard are to be paid by my estate.” The plaintiffs-appellants, Louis E. Bulliard and Charles P. Bulliard, are affected legatees who oppose the tableau of distribution which relieves the two legatees named in the codicil of payment of taxes. The defendant, Marcel J. Bulliard, is testamentary executor of the succession of Marie Angelle Thibodeaux. The trial court dismissed plaintiffs’ opposition and ordered that the tableau of distribution be homolo-gated. Prom this judgment, the plaintiffs appealed.

The plaintiffs have opposed the tableau of distribution, contending it proposes to distribute bequests to the two named special legatees, Marcel J. Bulliard and Garland Castex, free of the burden of either Federal estate or State inheritance taxes, and that it imposes the burden of those taxes on the other special legatees enumerated in the will. The plaintiffs are included among those burdened legatees. The defendant-executor maintains that his proposal for the distribution of the assets of the succession is mandated by the testator’s own words in the codicil to the will.

The issues are: (1) Although LSA-R.S. 9:2432(A) provides that each heir or legatee must pay federal estate taxes in an amount in the proportion that the value of his gift bears to the total value of the estate, can a testator direct against this apportionment and relieve a donation from the burden of this tax? (2) Can a testator, through a direction in the will, relieve a special legatee from the burden of Louisiana inheritance tax? (3) Does the language of this codicil direct against the apportionment of taxes among the legatees? (4) If the testator can relieve the two legatees from the burden of paying taxes on their legacies, who should bear the expense of those unpaid taxes? (5) Does St. Joseph Church, a legatee which is exempt from the payment of both Federal estate tax and Louisiana inheritance tax, share the burden of paying those taxes for the two preferred legatees?

On April 20, 1972, Marie Angelle Thibo-deaux executed a will, the form of which is not contested. In it she named thirteen special legatees. The largest of these donations, consisting of land valued at $128,300 and $4,000 in cash, was made to her grandnephew and godchild, Marcel J. Bulliard. Additionally, the testatrix named Marcel J. Bulliard as executor. The second largest donation, consisting of two tracts of land valued at a total of $43,100, was made to Garland Castex, a friend of the testatrix. One cash legacy of $1,000 was made to St. Joseph Church in Parks Station, Louisiana. Among the other ten special legacies, donations of $6,000 and $5,000 were made respectively to Louis C. Bulliard and Charles P. Bulliard, the nephews of the testatrix and the plaintiffs in this suit. The testatrix donated the residuary of her estate, after the payment of debts and expenses, to Louis C. Bulliard, Charles P. Bulliard, Marcel J. Bulliard, and another nephew of the testatrix who predeceased her.

On November 3, 1972, the testatrix executed the codicil to her will. The language in controversy provides: “The inheritance and estate taxes due by Mr. Garland Castex and Marcel J. Bulliard are to be paid by my estate.”

Shortly after the testatrix’s death on December 7, 1976, Marcel J. Bulliard qualified and was confirmed as executor of the testament. After a court-authorized inventory had been taken, the executor filed the proposed tableau of distribution, which is the subject matter of this suit. In calculating the shares of the donees, Marcel J. Bulliard subtracted from the value of the gross estate ($268,560.76), the debts and expenses of administration and then the gross value of the legacies to himself and Garland Castex, plus the amount necessary to pay Federal estate and Louisiana inheritance taxes on those bequests. These deductions from the gross estate left a net of $19,763 to be distributed among eleven legacies totaling $32,500. The tableau of distribution proposes to divide this remaining $19,763 among the legatees in the proportion that their original legacy bore to the value of the total of the original “non-preferred” legacies. Thus, each legacy would be divided by .6080. Of course, there would be no residuary estate, and that portion of the testament bequeathing the residuum would fall.

On the other hand, if the amount of Federal estate taxes and State inheritance taxes deemed to be owed on the legacies to Castex and Marcel J. Bulliard (a total of $53,670) was not subtracted from the gross estate, there would be enough funds in the estate to fulfill completely all of the legacies in the testament. Additionally, there would be left over a residuum of $21,700. As these figures illustrate, the plaintiffs' basis for complaint is that the subtraction of the taxes on the “preferred” legacies from the gross estate deprives them of a portion of their special legacies, as well as their interests in the residuum.

I.

The first issue is whether a testator can direct against the apportionment of Federal estate taxes on each donee and thereby relieve a preferred legatee from the payment of these taxes. The Federal estate tax is a charge upon the transfer of the entire estate of the deceased. It is assessed against the total net value of the estate. The Federal law makes no provision applicable here as to the apportionment of the tax (26 U.S.C.A. 2205 and 2206), and thus state law can determine where the burden of this tax shall fall.

Prior to the enactment of the Louisiana Estate Tax Apportionment Law (LSA-R.S. 9:2431, et seq.), Federal estate taxes were paid by a reduction in the residuary estate. Succession of Henderson, 211 La. 707, 30 So.2d 809 (1947). LSA-R.S. 9:2432 overrules this aspect of the Henderson case and provides the general rule that Federal estate taxes are shared by all the donees in the proportion that the value of their donation bears to the value of the net estate. However, this rule operates only to the extent that the testator has not made a contrary direction. LSA-R.S. 9:2432(A) and (C) provide:

“A. If the deceased has made no provision in his testament for the apportionment of the tax among the persons interested in the estate, the tax shall be apportioned among them by the court in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax shall be used for this purpose.
# * * * * *
“C. If the deceased has provided in his testament for the apportionment of the tax of some, but not of all the persons interested in the estate, the amount of the tax which has not been apportioned shall be apportioned by the court among those as to whom no provision has been made, in the same manner as is provided in Sub-section A of this Section. Added Acts 1960, No. 362, Sec. 1.” (Emphasis added)

The word “tax” in the above statute includes Federal estate tax, LSA-R.S. 9:2431(7).

The freedom of the testator to direct against the apportionment of Federal estate taxes and to provide for the distribution of those taxes among the heirs and legatees as he sees fit was recognized by this Court in Succession of Jarreau, 184 So.2d 762 (La. App. 3rd Cir. 1966). In that case the Court upheld the testator’s direction that the burden of Federal estate and State inheritance taxes would be borne by the residuary legatee and that the special legatees take their donations unreduced by taxes, stated: The court

“A testator may circumvent the rule of apportionment as provided by LSA-R.S. 9:2432, et seq. by a clear and unequivocal order directing the apportionment of federal and state inheritance taxes to be paid in the particular manner that he so desires.”

Upon appeal of Jarreau, the Supreme Court refused writs, stating that it found no error of law in the judgment of the Court of Appeal.

This principle has also been recognized by other courts of this State and by numerous courts of other states which have similar apportionment statutes. Succession of Jones, 172 So.2d 312 (La.App. 4th Cir. 1965); Succession of Bright, 300 So.2d 614 (La. App. 4th Cir. 1974); Starr v. Watrous, 116 Conn. 448, 165 A. 459 (1933); In re Johnson’s Estate, 220 Iowa 424, 262 N.W. 811 (1935); In re Brown’s Estate, 208 Pa. 161, 57 A. 360 (1904). See also 71 A.L.R.3d 308 (subsection 17).

II.

The second issue before the Court is whether a testator, by a direction in the will, can relieve a special legatee from the burden of Louisiana inheritance tax. The Louisiana Estate Tax Apportionment Law, quoted above, specifically excludes from its purview state inheritance tax (LSA-R.S. 9:2431(7)). Instead, the law defines inheritance tax, not as a tax on the whole estate, but as a tax on each inheritance, legacy, or gift in anticipation of death (LSA-R.S. 47:2401, et seq). The amount of the tax due on each bequest is fixed by a judge in a court proceeding in which each legatee or heir is joined as a defendant. By its very nature and method of calculation, the state inheritance tax is apportioned among the donees and its inclusion in the Louisiana Estate Apportionment Law was not necessary.

In the Succession of Jarreau, supra, this Court recognized the testator’s power to relieve a specific legatee from the payment of State inheritance taxes and to place that burden on other donees. In both Succession of Jones and Succession of Bright, supra, the wills in question included directions that inheritance taxes, as well as the estate taxes, be paid out of the residuum and not imposed on each donee. The courts in both cases gave effect to the testator’s directions. Thus, it is well settled in this State that the testator is free to reapportion the payment of State inheritance taxes, as well as Federal estate taxes by a specific direction in the testament.

III.

Having established that as a matter of law a testator may direct against the apportionment of both Federal estate and State inheritance taxes, we turn our attention to the question of whether the language in the codicil in question expresses with sufficient clarity such a direction. The codicil provides: “The inheritance and estate taxes due by Mr. Garland Castex and Marcel J. Bulliard are to be paid by my estate.”

The testator’s intent to free a legacy from apportionment must be clear and unambiguous, since the practical effect of such intent is to increase the particular gift and shift the burden of taxation elsewhere. Succession of Jones, supra, and Succession of Bright, supra. However, there is no set formula or combination of words for the testator to use. Instead, a few simple words will suffice to indicate the intent and to effectuate the testator’s purpose. Succession of Jones, supra; Star v. Watrous, 116 Conn. 448, 165 A. 459 (1933); In re Johnson's Estate, 220 Iowa 424, 262 N.W. 811 (1935). In determining the testator’s intent, the central question is not what did the testator mean to say, but what did he mean by what he said. Succession of Jones, supra.

In Succession of Watrous, supra, the testator provided: “I direct that all my just debts, funeral expenses, succession and other taxes be paid by my executors hereinafter named. . . . ” The Supreme Court of Connecticut found the language to indicate that all Federal and state inheritance and estate taxes were to be payable out of the general estate and all particular legacies were to be left intact.

If there is any doubt respecting the testator’s directions as to who is to bear the estate or inheritance taxes, a construction will be accorded the testator’s language which benefits persons who are the object of his concern. Succession of Jarreau, supra. In the instant case, the testator clearly intended to favor Garland Castex and Marcel J. Bulliard. Their bequests far surpass in value those to the other legatees. Castex is referred to in the will as “my dear friend.” Marcel J. Bulliard was the testator’s godchild and also is the named executor.

Plaintiffs contend the words “by my estate” only serve to confirm the statutory scheme of apportionment of the taxes. Under familiar principles of interpretation, courts seek to give meaning to all of the testamentary language and to avoid interpretations that render the language meaningless or reduce it to surplusage. Additionally, the will as a whole must be considered in order to derive the testator’s intent. Succession of Waterman, 298 So.2d 731 (La.1974). The testatrix’s primary reason for troubling with a codicil seems to be the alleviation of the tax burden on Castex and Marcel J. Bulliard. The only other substantive language in the codicil is the naming of a new attorney.

Both inheritance and estate taxes are mentioned specifically by the testatrix. There seems to be no other plausible explanation for the language in the codicil except to clearly favor Castex and Marcel J. Bulli-ard by giving to them their legacies intact, free of the burden of taxation and by placing that burden elsewhere.

IV.

Having resolved that the language of the testament includes a direction by the testator to relieve the legacies to Castex and Marcel J. Bulliard from taxation, we must face the question of who will bear the additional tax burden.

In determining which part of the succession will be debited, the primary question is what is the intent of the testatrix as evidenced in the codicil. The words “by my estate” are generally interpreted by courts to mean “by the general estate.” This language indicates the testator’s desire that the taxes owed by the favored legacies be subtracted from the gross estate before the distribution of any other legacies or inheritances. Additionally, the testatrix has directed that Castex and Marcel J. Bul-liard receive their legacies intact and, therefore, the amount of these two unreduced legacies must also be subtracted from the gross estate. In other words, it was the testatrix’s intent, by her direction in the codicil, that the legacies of Castex and Marcel J. Bulliard, as well as the taxes due on them, and the expenses and debts of the succession, be subtracted from the gross estate before the other particular legacies are distributed. In Succession of Bright, supra, the court followed this same method of calculation where the testator directed all taxes on a particular legacy to be paid by “the assets constituting my Estate.”

The practical effect of this method of calculation is that the particular legacies are reduced and the residuum is eliminated. It is not correct, however, to say that the estate and inheritance taxes are paid out of the residuary estate. If the testatrix had directed that the taxes on the preferred legacies come out of the residuum, the legacies would only be released from the burden of taxation to the extent that a residuum existed. To the extent that the residuum was not sufficient to cover the taxes, the direction of the testator would fall. See annotation at 37 ALR 7. See also 71 A.L.R.3d 274. This is not the situation in the instant case.

Here we have a testatrix who clearly intended that her general estate pay the taxes on the preferred legacies. The method of calculation used by the executor is correct.

V.

The last question before the Court is whether the tax-exempt legacy to St. Joseph Church should be reduced in order to pay the estate and inheritance taxes on the gifts to Castex and Marcel J. Bulliard.

In Succession of Bright, supra, the testator made several particular legacies and willed the remainder of her succession to two conjoint legatees. One of these was a tax-exempt charity, as in the instant case. The court in Bright held the burden of tax charges on the preferred legacies was to be deducted before the residuum was distributed to the residuary legatees. The practical effect of this method of calculation was that the tax-exempt legatee bore one-half of the burden of the estate and inheritance taxes due on the particular legacies.

A tax-exempt status means that a sovereign, for certain policy reasons, has chosen not to tax that entity. The church in questions enjoys a tax-exempt status as to both state inheritance taxes and Federal estate taxes. This means that the church is not assessed by either the state or Federal Government for those taxes on the gifts it receives in the testament. Indeed, no such taxes are charged against the church in the proposed tableau of distribution. However, a tax-exempt status does not mean that a legatee is freed from any charges that a testator may impose by the terms of his will. In the instant case, the payment of the taxes due on the legacies to Castex and Marcel J. Bulliard are not additional taxes imposed by a sovereign, but are charges on the legacies made by the testatrix herself.

The concept of a donation subject to a charge is familiar in Louisiana law. LSA-C.C. Article 1527 provides:

“The donor may impose on the donee any charges or conditions he pleases, provided they contain nothing contrary to law or good morals.”

See also Succession of Ruxton, 226 La. 1088, 78 So.2d 183 (1955). This court can find nothing contrary to public policy or to good morals in the donation in the instant case. We hold that the donation to the church, despite its tax-exempt status, must be reduced along with the other non-preferred legacies in order to pay the estate and inheritance taxes on the legacies to Castex and Marcel J. Bulliard.

For the reasons assigned, the judgment appealed is affirmed. The costs of appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

      . LSA-R.S. 9:2432(A) also provides for the apportionment among heirs or legatees of the Louisiana estate transfer tax. In this case, however, no such tax was levied against the estate. The payment of this tax is therefore not an issue in this case.

      . An exception to this rule occurs in the case of life insurance passing directly to the beneficiaries and certain property subject to powers of appointment.


text:
    H. J. RITYAK v. CITY OF OCEAN SPRINGS.
    No. 50555.
    Supreme Court of Mississippi.
    Aug. 16, 1978.
    Albert Sidney Johnston, Jr., Biloxi, for appellant.
    Bailey & Sadler, E. Foley Ranson, Ocean Springs, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

AFFIRMED.


text:
    Ralph HUGHES v. MISSISSIPPI STATE BOARD OF HEALTH and A. F. Summer, Attorney General.
    No. 50625.
    Supreme Court of Mississippi.
    Sept. 27, 1978.
    Rehearing Denied Nov. 29, 1978.
    Leonard McClellan, Oxford, for appellant.
    A. F. Summer, Atty. Gen. by R. Hugo Newcomb, Sr., Asst. Atty. Gen., Sanford R. Horton, Jr., Jackson, for appellees.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Chancery Court, Lee County; James E. Bost, Chancellor.

AFFIRMED.


author: ROBERTSON, Presiding Justice,

text:
    SHARPSBURG FARMS, INC. v. Melvin WILLIAMS et al.
    No. 50404.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Rehearing Denied Nov. 29, 1978.

      Case, Montgomery & Smith-Vaniz, S. F. Stater, III, C. R. Montgomery, William Larry Smith-Vaniz, Canton, for appellant.
    James H. Herring, Canton, for appellees.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

On April 8, 1977, the Circuit Court of Madison County entered a judgment in favor of plaintiffs, Melvin Williams and Van Stewart, doing business as S & W Farms, a partnership, against defendant, Sharpsburg Farms, Inc., a Mississippi corporation, for $35,200 ($32,000 actual damages and $3,200 attorneys’ fees). On April 14, 1977, the trial court entered a remittitur of $3,000, which remittitur was accepted by the plaintiffs, thus reducing the judgment to $32,-200. Defendant appeals.

In their Declaration, plaintiffs claimed that on February 23, 1976, they had advanced $400 on the annual rental of $10,000 due November 1,1976, under the terms of a written lease contract, and that this advance extended for one more year the lease of 532 acres of land, that the defendant “breached the covenants” of the written lease when it sold 428 acres of the leased land in late October, 1976. Defendant answered that the $400 was a personal loan to James and Marjorie Duncan, that the sale was made under the express authority of the written lease, and that due and timely oral and written notice of the sale was given plaintiffs.

The written lease of November 1, 1973, was entered into

“[B]y and between Sharpsburg Farms, Inc., a Mississippi corporation, hereinafter referred to as the Lessor and Melvin Williams and Van Stewart, doing business as S & W Farms a partnership, hereinafter referred to as the Lessee, . . .”

It provided in pertinent part:

“1. That the Lessor, subject to the considerations and conditions contained herein, does hereby let and lease unto the Lessee and the Lessee, subject to the considerations and conditions contained herein, does hereby agree to lease .
2. That the terms of this lease shall be from November 1, 1973, until December 31, 1978, for the annual rental of $10,090 with the payments being due and payable as follows, to-wit:
November 1, 1973 - $10,000.00
November 1, 1974 - $10,000.00
November 1, 1975 - $10,000.00
November 1, 1976 - $10,000.00
November 1, 1977 - $10,000.00
3. That the Lessor and Lessee agree that the above described property shall be used for the raising of cotton, soybeans, milo or other crops commonly grown in Madison County .
6. That the Lessor reserves the right to sell the above described property at the end of each of the annual payment periods above described and that said sale shall serve to terminate the terms and conditions of this lease. (Emphasis added).
7. That should either of the parties be required to retain an attorney and resort to any court for the enforcement of this lease or seek damages thereunder the party in default shall pay the party damaged a reasonable attorney’s fee.”

A written amendment entered into some time in 1976 by the lessor and lessee provided that the leased lands could also be used for the raising of cattle.

The court sustained a motion to dismiss James H. Duncan as a party defendant because the allegations of the declaration were against the corporation alone.

On February 23,1976, Duncan asked Melvin Williams to lend him $400. Duncan and his wife, Majorie, being friends of long standing with Williams and his wife, Charlotte, the loan was closed informally on a fishing trip. At Williams’ instance, his wife filled out the blank check form, as follows:

Canton, Miss., 2 - 23 1976
Pay To The
Order of .Tames & Margie Duncan $400.00_
Four Hundred & no/100_DOLLARS
631-107-0
CANTON
EXCHANGE BANK S & W Farm
Canton, Mississippi Melvin Williams
Portion of Rent for 1977
Only “S & W Farm Melvin Williams” was written by Williams. According to Mrs. Williams, the additional words “Portion of Rent for 1977” were added in the lower lefthand corner of the check because of this colloquy:
“A. ... he asked when we got to the feed pond, he asked Jimmy if he wanted the loan to apply to rent for next year.
Q. Mr. Duncan asked—
A. No,—
Q. —Melvin asked Mr. Duncan—
A. —if he wanted the loan to apply on the rent for next year and Jimmy said yes, said that would be great and it helped us it would make it, you know, better for him cause he wouldn’t have to pay it back and that suited him fine and so that’s when I made the check out.
Q. Okay, now Mrs. Williams are you sure that you didn’t add that language, portion of rent for 1977 after the check was cashed.
A. No, I didn’t.
Q. Did you write that on there before the check was given to Mr. Duncan?
A. Yes I did, before I gave it to him.”

Williams testified that it happened in this way:

“A. She asked me what did I want to put on the check and I asked Mr. Duncan about just be part of the rent and then he wouldn’t have to pay it back and he said that was fine with him. Just put portion of the rent.
Q. Just put portion of the rent?
A. Part of the rent for ’77 and that way he wouldn’t have to pay it back.”

Duncan testified that rent wasn’t mentioned when the loan was closed and that he didn’t see the notation “Portion of rent for 1977” on the check when it was handed him. The check was to pay personal debts.

Mrs. Marjorie Duncan testified:
“A. Well nothing was said about the rent. He told his wife to write out a check and give it to Jimmy for four hundred dollars and she in turn made it out and gave it to Melvin and Melvin gave it to Jimmy and Jimmy gave it to me.”

The proceeds of the loan were to pay personal debts, according to Mrs. Duncan.

This $400 check was not mentioned again by the Duncans or Williams until Sharps-burg Farms, Inc., on October 4, 1976, entered into a written contract to sell approximately 428 acres of the 532 acres leased, to W. B. Patterson. A day or so later, Duncan told Williams that the lands were being sold. When Mrs. Williams phoned Mrs. Duncan, Mrs. Duncan verified the proposed sale.

On October 12, 1976, C. R. Montgomery, attorney for Sharpsburg Farms, Inc., wrote James H. Herring, attorney for S & W Farms, Van Stewart and Melvin Williams:

“Pursuant to our conversation last week I would like for you to receive this notice for and on behalf of your client. That Sharpsburg Farms, Inc. has contracted to sell the subject property which your client rents and intends to accomplish this fact on or before November the first, 1976.”

On October 28,1976, a check filled out, as follows, was tendered Sharpsburg Farms, Inc.:

Canton, Miss., Oct. 28 1976
Pay To The
Order Of Sharpsburg Farms. Inc._$9600.00
Nine Thousand Six Hundred & 00/100 DOLLARS
C Canton E Exchange Bank
B Canton, Mississippi S & W Farm
631-107-0 Melvin Williams
Rent Payment for 1977 less 400.00 Partial Advance Payment

On October 29, 1976, Montgomery wrote Herring:

“For and on behalf of my clients, Sharpsburg Farms, Inc., I am herewith returning your client’s check in the amount of $9,600.00 for rent payment of 1977. Additionally, I am returning a check signed by Mrs. James H. Duncan for a personal loan in the amount of $400.00 which was made to Mr. Duncan some time ago.”

On October 29,1976, a warranty deed was executed by Sharpsburg Farms, Inc. to W. B. Patterson conveying approximately 428.3 acres of the 532 acres leased.

On December 30, 1976, Melvin Williams and Van Stewart, doing business as S & W Farms, a partnership, filed their declaration against Sharpsburg Farms, Inc., a Mississippi corporation, and James H. Duncan, stating among other things:

“[T]hat the aforesaid $400.00 payment was an advance rental payment on the $10,000.00 rental payment that was due to defendants from plaintiffs on November 1,1976; that defendant Duncan in his capacity as agent and within his authority as President of defendant corporation accepted the aforesaid $400.00 advance payment, thereby altering the terms and conditions of the lease aforesaid.
5. That plaintiffs, in reliance on the assurance of defendant Duncan, acting in his capacity as agent and within the scope of his authority as President of Sharps-burg Farms, Inc., that plaintiffs would be granted use of the aforesaid premises for at least one more year after November 1, 1976, planted rye grass on said premises in order that they might graze their herd of cattle on said premises; . . . ”

Plaintiffs closed Count I of their Declaration with this statement as to damages suffered:

“8. That as a direct and proximate result of the actions of defendants, plaintiffs have been severely damaged and will be further severely damaged in the future in that they will effectively be deprived of their rye grass crop during that period of the year 1977 when it is most needed and will be forced to sell approximately 300 calves much earlier than anticipated because their rye grass crop will not be available to graze them on during the winter and spring months of 1977, thereby limiting the weight of said calves at the time of sale; that plaintiff will additionally lose the expenses incurred by them in planting the aforesaid rye grass; that as a result of the aforesaid, plaintiffs seek actual damages in the amount of $50,000.00.”

Although there are seven assignments of error, in view of our decision on assignment of error number 5, it will be unnecessary to discuss the other assignments of error. Number 5 is:

“5. The Court erred by denying the motion of the Defendant for a peremptory instruction at the close of the Defendants’ case as the evidence did not show any modification or alteration of the terms of the lease contract and further, the Plaintiffs did not show a violation of the terms of the lease contract and therefore the Defendants acted properly in their sale of the property and the Plaintiffs did not establish an actionable wrong which was perpetuated [sic] against them.”

In Stuart v. McCoy, 163 Miss. 551, 141 So. 899 (1932), this Court said:

[I]n the construction of a written lease, the intention of the parties must be ascertained from the language of the instrument itself, where that is not ambiguous. Where the language of a deed or lease is unambiguous, “the object is to ascertain the intention of the grantor as expressed by the language used, and not the unexpressed purpose which may at the time have existed in his mind, the question being not what the parties meant to say, but the meaning of what they did say, the actual intention contrary to the legal effect of the deed being immaterial, even though apparent from that instrument itself.” 8 R.C.L., p. 1039, section 95.
The description of the land covered by the written lease being clear and unambiguous, it was error to permit it to be varied by oral testimony tending to show that by the exception therein it was intended to except lands in section 32 instead of section 29. 163 Miss, at 555, 141 So. at 899. (Emphasis added).

There is no ambiguity in section 6 of the written lease; it is couched in clear, positive and express language:

“6. That the Lessor reserves the right to sell the above described property at the end of each of the annual payment periods above described and that said sale shall serve to terminate the terms and conditions of this lease.”

The contracting parties recognized that the written lease represented their intentions because even when the only change was to allow the use of the land for cattle farming, a written amendment was executed in 1976 to express this rather insignificant change.

In 51C C.J.S. Landlord and Tenant § 232(2) (1968), we find this language:

“The language of a lease, or of a clause thereof, which is clear ordinarily cannot be extended by implication or intendment. It is not the province of the court, by construction, to change the contract or make a new contract for the parties to a lease, or to supply material stipulations or conditions, or to create terms or conditions which contravene the agreements of the parties.”

The principal purpose of the Statute of Frauds [Miss.Code Ann. § 15-3-1 (1972)] is to require the contracting parties to reduce to writing the specific terms of their contract, especially an agreement affecting lands for more than one year, and thus to avoid dependence on the imperfect memory of the contracting parties, after the passage of time, as to what they actually agreed to some time in the past. Section 15-3-1, in pertinent part, provides:

“An action shall not be brought whereby to charge a defendant or other party:
“(c) upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one year; (Emphasis added).
(d) upon any agreement which is not to be performed within the space of fifteen months from the making thereof;
unless, in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or signed by some person by him or her thereunto lawfully authorized in writing.”

This case is a classic example of the great need for such a law. The plaintiffs’ case depends on the memories of four people as to what was said and done as they traveled to a fish pond. As could be expected, Mr. and Mrs. Williams remembered the transaction one way, and Mr. and Mrs. Duncan the diametrically opposed way. The plaintiffs’ contention, and the heart of their case, is that the specific terms of their written lease contract, can be and were varied by a casual conversation on their way to the fish pond. The gist of their argument is that by the payment of $400.00 on February 23, 1976, to “James & Margie Duncan” on an annual rental of $10,000 due to Sharpsburg Farms, Inc., that thereby the written lease was extended from November 1, 1976, to November 1, 1977, and the specific written provision that the Lessor, Sharpsburg Farms, Inc., could sell by November 1st, 1976, was somehow stricken from the lease. According to the plaintiffs, this would all come about because in the lower lefthand corner of the $400 check Mrs. Williams had written, at her husband’s instance, the words “Portion of rent for 1977.” The plaintiffs’ argument in the lower court was that the court should infer that this notation had reference to the rental of lands by Sharpsburg Farms, Inc. to S & W Farms by a written lease entered into on November 1, 1973, and that because Duncan was the president and Mrs. Duncan the secretary, and the sole stockholders in Sharpsburg Farms, Inc., that the trial court should also infer that Duncan was acting for and by authority of the corporation when he accepted the $400 check. This was the plaintiffs’ argument, in spite of the fact that the uncontradicted testimony was that this was a personal loan to the Duncans to pay off personal debts. It all boils down to the fallacious argument that one of the contracting parties can unilaterally vary the terms of a written contract by parol evidence.

The plaintiffs did not charge fraud or mistake. This case would thus appear to fit under the parol evidence rule that:

“[I]f the writing is complete on its face and unambiguous, parol evidence is not admissible to contradict, vary, alter, add to, or detract from, the instrument. . ‘in the absence of fraud or mistake.’ ” Allen et al. v. Allen et al., 175 Miss. 735, 741, 168 So. 658, 659 (1936).

In Fuqua v. Mills, 221 Miss. 436, 73 So.2d 113 (1954), this Court, in again defining the parol evidence rule, quoted with approval from Kendrick v. Robertson, 145 Miss. 585, 111 So. 99 (1927):

“[T]he rule that the terms of a written contract or conveyance cannot be varied or added to by parol evidence is not merely a rule of evidence, but is one of substantive law, and, in measuring the rights of the parties to a written contract or conveyance, which, on its face, is unambiguous and expresses an agreement complete in all of its essential terms, the writing will control. Jones, Commentaries on Evidence, Vol. 3, par. 434; Wigmore on Evidence, Vol. 4, pars. 2400 and 2425.” 221 Miss. at 450, 73 So.2d at 119.

There was no evidence of agency or authority from the corporation, Sharpsburg Farms, Inc., to Duncan to negotiate a loan for it. The allegation in the declaration “that defendant Duncan in his capacity as agent and within his authority as President of defendant corporation accepted the aforesaid $400 advance payment, thereby altering the terms and conditions of the lease aforesaid,” is thus a conclusion of the pleader and nothing more. Yet this conclusion is refuted by the undisputed testimony of the Duncans that it was a personal loan to pay off personal debts and not debts of the corporation.

In some respects, Stilley v. Illinois Central R. R. Co., 209 Miss. 414, 47 So.2d 840 (1950), is similar to the case at bar. In Stilley the Court said:

“Mr. Stilley’s case is based upon various verbal assurances which he claims he received at several different times in 1943 and 1944 to the effect that the lease would be renewed for such time as would enable him to ‘amortize’ his investment in buildings on the property. .
“Omitting all discussion of the applicability of the Statute of Frauds to the validity or enforceability of the alleged oral contract, the rule is well settled in this state that in suits involving alleged oral agreements assertedly made by agents for the renewal or extension of written leases, the burden of proof is on the person asserting such an agreement not only to establish agency, but he must establish the agent’s authority as well. Pan American Petroleum Corp. et al. v. Bardwell, 203 Miss. 833, 33 So.2d 451.
We are compelled to agree that the chancellor could not have spelled out a contract for the parties from the testimony of Mr. Stilley as to any definite term for which the renewal was to hold. Fully realizing the likely great hardship and financial loss that may be occasioned to Mr. Stilley, the law and evidence in this case compels us to hold that he failed to sustain the burden of proof, both as to the authority of the agent and as to any definite verbal assurances' the agent might have given him.” 209 Miss, at 418-21, 47 So.2d at 842-43.

For the reasons stated, we are compelled to hold that the trial court erred in not sustaining the motion of the appellant for a peremptory instruction at the close of the case.

The judgment of the lower court is, therefore, reversed and judgment rendered here for the appellant.

REVERSED AND RENDERED.

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


author: LEE, Justice,

text:
    Linnie Mae BOSTIC v. Richard T. MITCHELL.
    No. 50699.
    Supreme Court of Mississippi.
    Oct. 25, 1978.

      Parsons & Matthews, Jack Parsons, Wiggins, Bobby J. Garraway, Lumberton, for appellant.
    Bryan, Nelson, Allen & Schroeder, Thomas E. Vaughn, Gulfport, for appellee.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   LEE, Justice,

for the Court:

Linnie Mae Bostic filed suit in the Circuit Court of Stone County against Richard T. Mitchell for personal injuries alleged to have been sustained by her. From a jury verdict and judgment in favor of the defendant she appeals here and assigns the following errors in the trial below:

(1) The court erred in allowing introduction of pictures which did not depict the general layout of the scene of the accident, but only an isolated part thereof.

(2) The court erred in modifying the peremptory instruction of appellant.

(3) The court erred in allowing Instruction D-6 and giving Instruction D-10, which instructions were confusing in that they were not based on evidence in the case.

(4) The court erred in overruling appellant’s motion for a new trial when two jurors went to the scene of the accident against the instructions of the court.

About 9:00 p. m. October 30, 1975, appellant was sitting with three friends in a booth at the Pinewood Truck Stop Restaurant near Wiggins. Appellant’s back was against the booth and west wall of the restaurant, one friend was sitting beside her and the other two were facing her across the table. Appellee drove up to the restaurant in a Volkswagen automobile, started to apply the brakes in order to stop, his foot slipped off the brake pedal (it was slick) hit the accelerator and the automobile went over a walk and struck the side of the building approximately five (5) feet from where appellant was sitting inside. Appel-lee testified that the vehicle was traveling approximately five (5) miles per hour when it hit the building, that there was no damage to the vehicle or the building except that a plate glass window was knocked loose.

Appellant testified that the impact knocked the booth in which she was sitting approximately six (6) or seven (7) inches away from the wall, that she was thrown forward onto the table, that she experienced a sharp pain in her back, and that she went to the emergency room of the hospital and was seen by a Dr. Hughes, who gave her a shot and a pill for the pain. The next day she went to the office of Dr. Campbell, a partner of Dr. Hughes, who examined her and found that she had a condition called “kyposis,” a wedging of the vertebra anteri-orly. This condition was not related to the accident. Dr. Campbell’s examination was subjective except that he did find appellant had a muscle spasm. She was admitted to the Stone County Hospital and remained there for seven (7) days. Appellant stated that her back and neck were hurting during that time. She returned home and later went back to the hospital for a period of eight (8) days. Dr. McCarthy, a Hatties-burg orthopedist, subsequently examined her and found nothing wrong from the skeletal standpoint but advised that she continue wearing a brace, which Dr. McCarthy had prescribed for her. Appellant is 5' 5" tall and weighs 223 pounds. Neither Dr. Hughes nor Dr. McCarthy testified in the case.

Margie Miles, a waitress in the restaurant at the time of the collision, testified that she did not know appellant had been injured, that she waited on the table after the accident and that there was no apparent damage to the building except that the wall was pushed in a little.

I.

Did the court err in allowing introduction of pictures which did not depict the general layout of the scene of the accident?

Over objection, the trial judge admitted in evidence one photograph of the Volkswagen automobile and three photographs of the outside of the restaurant at the place where the vehicle struck it. Appellant contends that the pictures showed only a part of the automobile and restaurant and were not competent because there was no general showing of the scene.

The assignment is without merit. The photographs were properly identified as being fair and accurate representations of the objects they depicted. Their purpose was to show the point of impact and damage, or lack of damage, to the building and the vehicle. The court did not abuse its discretion in admitting same.

“A photograph may be received even though it does not show the entire premises or object to which the controversy relates, especially where evidence concerning the omitted portion is introduced by both sides.” 32 C.J.S. Evidence § 713, at 1004 (1964).

“If a photograph correctly shows the situation and surroundings as far as it purports to show them, it should not be excluded because it does not show all of the detailed facts and circumstances.” 29 Am.Jur.2d Evidence § 785, at 858 (1967).

Louisville & Nashville Railroad Co. v. Daniels, 252 Miss. 1, 172 So.2d 394 (1965), cited by appellant, is distinguished from the present case. There, the Court stated that the photographs of appellee did not fairly represent the general layout and were not shown to represent fairly the condition at the time of the appellee’s alleged injury.

In Nelson v. Phoenix of Hartford Ins. Co., 318 So.2d 839 (Miss.1975), the Court held that the mere fact that photographs were taken at a time when conditions were somewhat changed does not render such photographs inadmissible so long as the changes are carefully pointed out to the jury and that the trial court has wide latitude and discretion in admitting such evidence.

II.

Did the court err in modifying the peremptory instruction of appellant (C-10)?

III.

Did the court err in allowing Instruction D-6 and giving Instruction D—10, which instructions were confusing in that they were not based on evidence in the case?

Appellant argues that the trial court erred in declining to peremptorily instruct the jury that it find damages for appellant as a result of the negligence of appellee. The court granted a peremptory instruction that appellee was guilty of negligence, but submitted to the jury the question of causal connection between the negligence and appellant’s injuries, and the question of damages, if there was causal connection.

The physical evidence indicated a very slight impact with no damage to the vehicle and little damage to the building. Appellee and Margie Miles had no knowledge of any injury or complaint by appellant, no other person sitting in the booth was injured, nor was any other person in the building injured. The medical evidence was largely subjective and appellant suffered from kyposis, a congenital illness. Under those facts, the trial court properly instructed the jury that appellee was guilty of negligence in running into the building and properly submitted for the jury’s determination whether appellant sustained injuries as a result of the collision. See American Creosote Works of Louisiana v. Harp, 215 Miss. 5, 60 So.2d 514 (1952).

The peremptory instruction on negligence granted by the court is numbered C-10. The Instruction D-6 granted to ap-pellee told the jury that the plaintiff was required to prove by a preponderance of the evidence that her physical complaint and condition and medical expenses were the proximate result of the collision. Since C-10 was given properly, it follows that the trial court correctly gave Instruction D-6.

IV.

Did the trial court err in overruling appellant’s motion for a new trial when two jurors went to the scene of the accident against the instructions of the court?

During a long recess, two jurors went to a cafe for lunch. The cafe was full and they drove to the Pinewood Truck Stop where the accident occurred. After verdict, and on motion for a new trial, witnesses testified that they saw the two jurors in the Pinewood Truck Stop and that they were pointing toward the place where the accident occurred. The jurors testified that they went to the place by chance and that it did not occur to them the accident had happened there. Under such circumstances, there is no merit in this contention. Crawley v. Illinois Central R. R. Co., 248 So.2d 774 (Miss.1971). In Crawley, the Court stated:

“We are of the firm opinion that the verdict of a jury should not be subject to impeachment by testimony of the jurors; nevertheless, where jurors disobey the orders of the court to the extent of visiting the scene involved in a case, when the scene is a material factor in issue, as in this case, for the purpose of obtaining additional evidence, such conduct of jurors must be considered to be improper. This was incompetent evidence thrown into the deliberations of the jury obtained by two jurors, probably innocently, though not lawfully.
If the testimony divulges that the inspection was casual, or of such a nature as not to be calculated to influence the verdict of the jury, a new trial should not be granted.” (Emphasis added). 248 So.2d at 777.

There being no reversible errors in the trial below, the judgment of the trial court is affirmed.

AFFIRMED.

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

SUGG, J., took no part.


text:
    Emmanuel ADDISON v. STATE of Mississippi.
    No. 50836.
    Supreme Court of Mississippi.
    Nov. 1, 1978.
    John C. Webb, Sidney J. Martin, Green-ville, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and LEE and BOWLING, JJ.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Ju<ige.

AFFIRMED.


text:
    Willie CLAY v. STATE of Mississippi.
    No. 50875.
    Supreme Court of Mississippi.
    Nov. 1, 1978.
    Richard W. Wise, Starkville, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and LEE and BOWLING, JJ.
   Appeal from Circuit Court, Oktibbeha County; Joe 0. Sams, Sr., Judge.

AFFIRMED.


author: PATTERSON, Chief Justice,

text:
    Vail PASCHAL, Plaintiff-Appellant, v. Billy HAMILTON and Geneva Hamilton, Defendants-Appellees.
    No. 50955.
    Supreme Court of Mississippi.
    Nov. 8, 1978.
    James E. Brown, Starkville, for plaintiff-appellant.
    Ben F. Hilbun, Jr., Charles T. Yoste, Starkville, for defendants-appellees.
    Before PATTERSON, ROBERTSON and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Paschal filed suit in the Circuit Court of Oktibbeha County for replevin of an automobile. The trial court directed a verdict for defendants Billy and Geneva Hamilton.

The sole issue presented, one of first impression, in this Court is:

May a bona fide purchaser of an automobile for value take good title from one who procured the automobile by fraudulent purchase?

Paschal was the owner of an automobile and advertised it for sale. A prospective buyer made an offer which was accepted. The following day the buyer appeared at Paschal’s home and gave a check to Paschal’s wife in exchange for the car and title. Subsequently the check was dishonored as a forgery.

After the car had been resold several times, it was purchased by the Hamiltons from a used car dealer in Starkville, Mississippi. Paschal later located the car through law enforcement officials and brought this action for replevin.

The Mississippi Uniform Commercial Code, Mississippi Code Annotated section 75-2-403 (1972) provides:

§ 75-2-403. Power to transfer; good faith purchaser of goods; “entrusting.”
(1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though
(a) the transferor was deceived as to the identity of the purchaser, or
(b) the delivery was in exchange for a check which is later dishonored, or
(c) it was agreed that the transaction was to be a “cash sale,” or
(d) the delivery was procured through fraud punishable as larcenous under the criminal law.
(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.
(3) “Entrusting” includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor’s disposition of the goods have been such as to be larcenous under the criminal law.
(4) The rights of other purchasers of goods and of lien creditors are governed by the chapters on Secured Transactions (Chapter 9), Bulk Transfers (Chapter 6) and Documents of Title (Chapter 7). (Emphasis added).

It is clear on the facts that the original sale involved “goods [which] have been delivered under a transaction of purchase . .” Therefore, 1(d) is controlling and good faith purchasers (here the Hamil-tons) take a good title. While the Commercial Code rule may seem harsh, it is in line with the purposes of the Code, to promote commerce and business by simplifying and making uniform the law dealing with commercial transactions. Miss.Code Ann. § 75-1 —102 (1972). See Matter of Samuels & Co., Inc., 526 F.2d 1238 (5th Cir. 1976); Hudiburg Chevrolet Co., Inc. v. Ponce, 17 Wis.2d 281, 116 N.W.2d 252 (1962).

We also note that this rule is not inconsistent with prior cases holding that the purchaser of a stolen vehicle does not obtain good title, since there the transferor did not obtain the vehicle by “delivery under a transaction of purchase.” Gurley v. Phoenix Ins. Co., 233 Miss. 58, 101 So.2d 101 (1958) [stolen auto]; Allstate Ins. Co. v. Estes, 345 So.2d 265 (Miss.1977) [stolen auto and forged bill of sale].

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    L. C. LEACH and Walter Maberry v. FIRST NATIONAL BANK OF JACKSON.
    No. 50381.
    Supreme Court of Mississippi.
    Nov. 8, 1978.
    John L. Walker, Jackson, for appellants.
    Caldwell, Lee, Richardson & Medley, Thomas J. Richardson, Jackson, for appel-lee.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
    PATTERSON, C. J., SMITH, P. J., and SUGG, LEE, BOWLING and COFER, JJ., concur.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Special Judge.

AFFIRMED.


text:
    STATE of Mississippi v. Jack LINN.
    No. 50706.
    Supreme Court of Mississippi.
    Nov. 8, 1978.
    Gerald W. Chatham, Dist. Atty., Hernan-do, for appellant.
    Walker, Franks, Rone, Bridgforth & Woods, Dudley B. Bridgforth, Jr., Hernan-do, for appellee.
   Appeal from Circuit Court, DeSoto County; Dick R. Thomas, Judge.

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

AFFIRMED.

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


text:
    Herbert McNEER and Lonnie Blalock, Sr. v. The CITY OF WINONA.
    No. 50751.
    Supreme Court of Mississippi.
    Nov. 8, 1978.
    Gibson & Newlin, Donald F. Newlin, Bruce, for appellants.
    Liston, Crull & Gibson, Luther P. Crull, Jr., Winona, for appellee.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

Before ROBERTSON, P. J., WALKER and BROOM, JJ., and NEAL B. BIGGERS, Commissioner.

REVERSED AND REMANDED.

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


text:
    In re Jack Dempsey ROBERTSON, Deceased, Dependents of Virginia Robertson v. MID-SOUTH PACKERS, INC. and Liberty Mutual Insurance Company.
    No. 50720.
    Supreme Court of Mississippi.
    Nov. 8, 1978.
    James W. Bingham, Tupelo, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Wade H. Lagrone, Tupelo, for appellees.
   Appeal from Circuit Court, Lee County; L. T. Senter, Jr., Judge.

Before PATTERSON, C. J., SUGG and BOWLING, JJ., and DARWIN M. MAPLES, Commissioner.

AFFIRMED.


text:
    James HERRINGTON v. Norman B. GILLIS, Sr.
    No. 50984.
    Supreme Court of Mississippi.
    Nov. 8, 1978.
    Nobles & Ferguson, James W. Nobles, Jr., Barnett, Montgomery, MeClintock & Cunningham, Ross R. Barnett, Sr., Jackson, for appellant.
    Statham, Watkins, Starrett & Mitchell, William F. Watkins, Magnolia, for appellee.
   Appeal from Chancery Court, Pike County; Bert H. Jones, Chancellor.

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

AFFIRMED.


text:
    Eddie James HAMMOND, a/k/a Eddie James Childs v. STATE of Mississippi.
    No. 50940.
    Supreme Court of Mississippi.
    Nov. 8, 1978.
    Kenny C. O’Neal, Grenada, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.


text:
    Scott BASSETT v. GEORGIA-PACIFIC CORPORATION et al.
    No. 50675.
    Supreme Court of Mississippi.
    Nov. 8, 1978.
    Rehearing Denied Nov. 29, 1978.
    William C. Thompson, Forest, for appellant.
    Charles E. Gibson, III, Jackson, O. B. Triplett, Jr., Forest, for appellees.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

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

AFFIRMED.

LEE, J., took no part in this decision.