author: LEE, Justice,

text:
    W. E. AUSTIN et al., a partnership d/b/a Austin Farms v. J. M. MONTGOMERY and R. L. Maxwell, d/b/a V & M Cotton Company.
    No. 48722.
    Supreme Court of Mississippi.
    Aug. 10, 1976.
    Rehearings Denied Aug. 31, 1976.

      Townsend, McWilliams & Holladay, Drew, for appellants.
    Lyon, Crosthwait & Terney, Indianola, Wells, Gerald, Brand, Watters & Cox, Jackson, for appellees.
    Before INZER, SMITH and LEE, JJ.
   LEE, Justice,

for the Court.

Appellees, J. M. Montgomery, Jr. and R. L. Maxwell, d/b/a V & M Cotton Company, filed a bill of complaint in the Chancery Court of Sunflower County seeking temporary and permanent injunctions against appellants, W. E. Austin, Gary Lynn Austin, Janet Sue Austin, and Deborah J. Austin, d/b/a Austin Farms, to prohibit them from disposing of their 1973 cotton crop on certain lands and seeking specific performance of a contract involving same. From a decree making permanent the temporary injunction previously issued and ordering specific performance of the contract, appellants appeal here.

The bill of complaint charged that (1) on February 26, 1973, the parties executed a written contract for the sale by appellants of their 1973 cotton crop to appellees on Farms B-251, B-33, B-163, B-220, B-230 and the Adams place, as shown by the ASCS records on file in Indianola, Mississippi, which lands approximated twenty-five hundred (2,500) acres, for a top price of thirty cents (300) per pound; (2) appellants advised appellees in June, 1973, there would be an overplant of three hundred twenty-three (323) acres which appellees considered to be covered by the contract, and that appellees bought the overplant of 323 acres in June, 1973, for forty-four cents (44c) per pound; (3) on July 28,1973, appellants notified appellees that they refused to deliver the 1973 crop and considered there to be no contract because their February 26, 1973, offer of sale was not accepted; (4) appellees had previously sold the Austin cotton to Carolina Textile Mills, it was impossible to obtain cotton elsewhere, and appellees would be required to default on their contract to Carolina Textile Mills; (5) the price of cotton had increased to seventy cents (70$) or more per pound and as a result of the refusal to deliver the cotton, appellees would suffer irreparable damage.

Appellants answered that (1) negotiations were entered into for the sale and purchase of the cotton, (2) appellees prepared the written contract which appellants took to their attorneys for inspection, and on which they made certain changes; (3) appellant, W. E. Austin, executed the instrument for all appellants and left it with appellees; (4) the contract was never executed and accepted by appellees, and appellants withdrew the offer of sale on July 28, 1973; (5) no oral or written contract was made for the sale of the 323-acre overplant; (6) four hundred twenty (420) acres of cotton on Farm B-251 were sold by appellants to Dunavant Enterprises, Inc., Memphis, Tennessee; and (7) appellants offered to sell the cotton to complainants at the prevailing market price when the cotton was delivered to the compress.

I.

Appellants contend the trial court erred in holding that any contract to purchase and sell was made since appellees failed to overcome the required burden of proof.

The evidence for appellees showed that prior to February 23, 1973, appellees and appellant, W. E. Austin, acting for the partnership, negotiated a contract for the sale and purchase of all cotton on Farms B-251, B-33, B-163, B-220, B-230 and Adams place, being approximately 2,500 acres of land, for the top price of thirty cents per pound. On February 23, 1973, the contract was reduced to writing, Austin picked up the contract for the purpose of carrying it to his lawyer for examination, and after some suggested changes, the contract was returned to appellees on February 26, 1973. Austin signed the contract and took an executed copy with him. On June 11, Austin carried maps and certifications from the ASCS office on file in Indianola to appel-lees’ office and discussed the acreage, telling appellee Maxwell that he had planted three thousand two hundred and forty-three (3,243) acres, that four hundred twenty (420) acres of the Bradshaw land (acquired after February 26, 1973, and combined with Farm B-251) was included therein, and that there was an overplant of 323 acres. Detailed notes and figures of the conversation were made. Subsequently, Austin returned to appellees’ office and asked for a copy of the contract, saying that he had lost his copy. On July 12, Austin contacted appellees and told them he was going to sell the overplant to another buyer, unless appellees paid him 44$ per pound for the cotton by eight o’clock the next morning. There had been some discussion about a higher price for the over-plant, and appellees agreed to pay 44$ per pound for the overplant.

Austin admitted he signed the contract on February 26, 1973, and left it in appel-lees’ office, but he denied he took a copy with him. He admitted he went to appel-lees’ office on June 11 with his maps and ASCS certifications and again on June 17, when he asked for a copy of the contract, but denied he said he had lost his copy. He also denied there was any conversation or negotiations for the purchase and sale of the 323-acre overplant. There was a sharp issue as to whether or not the document was signed by appellees prior to July 28, 1973, the date appellants notified appellees they would not deliver the cotton for the reason that their offer of sale had not been accepted.

The contract in question is a sales transaction involving the forward contracting of cotton, whereby a farmer sells cotton to be produced by him either before it is harvested or before it is planted. Such contracts have become common in Mississippi and other cotton producing states.

Mississippi Code Annotated § 75-2-201 (1972) (UCC), provides as follows:

“(1) Except as otherwise provided in this section, a contract for the sale of goods for the price of five hundred dollars ($500.00) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.” (Emphasis added)

Mississippi Code Annotated § 75-2-204 (1972) (UCC), provides further:

“(1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of ' such a contract.
(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.
(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.”

The Supreme Court of Georgia had the identical, question before it in the case of Harris v. Hine, 232 Ga. 183, 205 S.E.2d 847 (1974). A similar contract to the one in question was executed March 9, 1973, and the price per pound of cotton increased from thirty cents (30$) in March to seventy cents (70$) in October of 1973. The Uniform Commercial Code, as adopted in Georgia, contains the same sections under consideration here. In affirming the judgment for an injunction, the Georgia Court said:

“Growing crops, including cotton, are ‘goods’ within the contemplation of the above section (see Ga.L.1962, pp. 156,173; Code Ann. § 109A-2-105(l)). It is undisputed that the defendant H. E. Harris signed the writing on behalf of H. E. Harris & Sons. A quantity was sufficiently shown for an ‘output’ contract for the sale of all the defendants’ cotton produced on their 825 acres (see Ga.L.1962, pp. 156, 185; Code Ann. § 109A-2-306(1)). The document indicated that an agreement to sell had been made.
Clearly this was more than the mere unaccepted offer the defendants contended it to be, and was sufficient to satisfy the requirements of the Uniform Commercial Code statute of frauds for an enforceable contract.” 232 Ga. at 186, 205 S.E.2d at 849-850.

After Austin signed the contract, appel-lees placed it in their vault and reviewed it at different times. From February 26 until July 28 appellants did nothing to indicate there was a non-acceptance of the contract by appellees, and, in fact, confirmed the contract and acceptance thereof by their words and actions. Likewise, the conduct of appellees indicated an acceptance of the contract.

In Fanning v. C. I. T. Corporation, 187 Miss. 45, 192 So. 41 (1939), the Court stated the rule as follows:

“The rule is that acceptance of a contract as binding upon a party may be shown by his actions, and any definite and unequivocal course of conduct disclosing that the party has acceded or assented to it, is as binding on him as had he endorsed his assent in formal writing. And although he may have stipulated that the contract shall not be binding on him until formally accepted by him in writing, that stipulation may be waived by him and is waived when he acts upon and under the contract by conduct of the nature aforementioned. 1 Restatement, Contracts, § 21 et seq. The conduct of appellee, as shown by the undisputed testimony, brings the contracts within the stated rule.” 187 Miss, at 52, 192 So. at 43.

Courts in other jurisdictions have held that contracts executed by one party alone and delivered to the second party are valid. Tow v. Miners Memorial Hospital Ass’n., Inc., 305 F.2d 73 (4th Cir. 1962); R. H. Lindsay Co. v. Greager, 204 F.2d 129 (10th Cir. 1953) cert. den. 346 U.S. 828, 74 S.Ct. 50, 98 L.Ed. 353 (1953); Means v. Dierks, 180 F.2d 306 (10th Cir. 1950); Moss v. Cogle, 267 Ala. 208, 101 So.2d 314 (1958); Sewell v. Dolby, 171 Kan. 640, 237 P.2d 366 (1951); Miller v. Herrmann, 230 Md. 590, 187 A.2d 847 (1963); Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855 (1958).

We are of the opinion that the evidence amply supports the chancellor’s finding that the instrument dated February 26, 1973, was accepted by appellees and that it is a valid and binding contract. Certainly we cannot say that he was manifestly wrong in so holding.

II.

Appellants contend that the forward contract for future delivery of cotton is void under Mississippi Code Annotated § 87-1-15 (1952) as a futures contract.

The February 26 contract provided that the cotton be delivered and stored in compresses at Greenwood and Indianola with all samples to be delivered to appel-lees. When the cotton sold is to be delivered by the seller, the sale does not constitute gambling in futures. In Hyman Mercantile Company v. Kiersky, 192 Miss. 195, 4 So.2d 881 (1941), the Court said:

“There is no merit in the charge that the sale of cotton on call is gambling in futures in violation of Section 959, Code of 1930. The evidence shows that cotton sold on call contemplated actual delivery and not a settlement alone on the market price quotations, and that was the character of transaction involved here. ‘When the real intent of the parties is simply to speculate on the rise and fall of prices, and the goods are really not to be delivered’ it is a gambling transaction.” 192 Miss. at 203-204, 4 So.2d at 883.

See Alamaris v. Clarke & Co., 166 Miss. 122, 145 So. 893 (1933).

In R. N. Kelly Cotton Merchant, Inc. v. York, 494 F.2d 41 (5th Cir. 1974), the Court had this question before it in considering a 1973 cotton contract similar to the one here. Appellants argued that the contracts for future delivery of cotton were void under the Georgia statute which invalidates commodity futures contracts where no actual future delivery is contemplated. The section is practically identical to Mississippi Code Annotated § 87-1-15 (1972). The Court held that the contracts did not violate the Georgia statute and that they constituted valid obligations.

We are of the opinion that the contract here is not void under the Mississippi statute and that there is no merit in this assignment of error.

III.

Appellants contend that there was no memorandum in writing of a contract for the overplant of 323 acres, that the alleged contract was within the Statute of Frauds, and that the court erred in decreeing delivery to appellee^ of all cotton produced on the overplanted acreage. ■

Appellees argue that the 323-acre over-plant was contained in and was a part of the February 26, 1973 contract since it called for the sale of “all and only the cotton produced” from the farms therein described. The question, therefore, is whether or not the 323-acre overplant was covered by the February 26 contract or whether it was the subject of a subsequent oral contract. It is admitted by appellees that no signed memorandum or agreement was executed by appellants subsequent to February 26. In determining this question, the following acts and conduct of appellees are material:

(1) Appellants charged in the bill of complaint that “Defendants then sold and Complainants purchased [June, 1973] the over-plant of 323 acres for 44 cents per pound. Complainants aver that the cotton from said additional acreage so purchased from the Defendants constituted overjjlant on the farms hereinabove described.”

(2) Appellee Montgomery testified:
(a) “Well, I told him [Austin] that if he planted an extra amount of acres that would amount to several hundred, in view of the fact that cotton had risen so dramatically In the last few weeks or month, that he was entitled to maybe to get a better price on what he planted over and above that. . . .”
(b) “He [Austin] said that afternoon that he wanted to know if I was going to give him 44<p for this cotton, or he was going to sell it when the market opened the next day. I called him before the market opened the next day and booked all of the overplant, which I considered the rest of that crop and I booked it at 44<p, I entered that extra acreage on a book that I keep and I did not see Mr. Austin after that.”
(c) “I bought 323 acres myself, [June, 1973] simply because I did not want any part of that crop getting out of our control. After I bought it I called Mr. Walter Montgomery, who is the boss over at Carolina Textile, and with whom I usually deal when I am selling them crops, and told him

(3) Appellee Montgomery wrote Spartan Mills on June 13, 1973:

“This will confirm our conversation on the telephone concerning the additional 323 acres on the Austin crop. I had earlier told Mr. Austin that should he plant an additional amount of acres that would be several hundred acres, I thought he was entitled to take advantage of the price increase on the additional acreage. Normally, when there is very little difference in the acreage figures, we accept it as a normal variation. However, since I did earlier make this promise to him, I feel obligated to figure these separately. In order to protect us and you and to make sure that the entire crop would be handled by us, I booked the additional 323 acres at 44.00 cents. I did not want you to think that you were obligated on these additional acres. I merely bought them to keep the entire crop coming to us.”

(4) On March 9,1973, appellees confirmed sale to Carolina Textile Company of cotton on 2,500 acres of Austin Farms.

In June, 1973, when Austin took his maps and ASCS acreage certifications to appel-lees, he told them that he had planted 3,243 acres. Of this acreage, 420 acres were sold on June 11 to Dunavant Enterprises, Inc. [Bradshaw land acquired after February 26, 1973], and 323 acres constituted overplant, leaving 2,500 acres. This was the acreage set forth in the written contract of February 26.

We are of the opinion that the 323-acre overplant was not included in the February 26 contract and that any agreement relating to sale and purchase of the cotton on the 323 acres constituted a separate contract. The chancellor was manifestly wrong in not so holding.

Mississippi Code Annotated § 75-2-201 (1972) (UCC) requires that a contract for the sale of goods for the price of five hundred dollars ($500.00) or more is not enforceable unless there is a memorandum which evidences a contract (1) for the sale of goods, (2) signed by the party against whom enforcement is sought, and (3) specifying a quantity. Derden v. Morris, 247 So.2d 838 (Miss.1971). The evidence discloses without dispute that no memorandum was made regarding the 323-acre overplant, and, thus, we conclude that the contract, if made, was an oral contract, was within the statute of frauds and was void.

IV.

Appellants contend that the trial court erred in admitting testimony of the general reputation of appellees for truth and veracity in the community in which they lived.

The trial court admitted over objection testimony of three witnesses that the general reputation of the appellees for truth and veracity in the community in which they lived was good. The admission of such testimony constituted error.

In Millers Mutual Fire Insurance Company of Texas v. King, 232 Miss. 260, 98 So.2d 662 (1957), the insured sued his insurer for fire losses sustained, and the insurer alleged that the insured burned or procured the burning of the insured property. The trial court admitted over objection testimony that the general reputation of the insured was good and that his reputation for honesty and integrity was good. In holding that such evidence was error, and in reversing the case, this Court said:

“It is a general rule of law, adhered to in all but a few jurisdictions, that a party to a civil action is not entitled to bolster his case by introducing evidence of his good character even if his adversary charges him in the pleadings with committing a legal wrong, or even an act for which he might be subjected to criminal prosecution, such as conspiracy, embezzlement, fraud, incendiarism.” 232 Miss. at 266, 98 So.2d at 663.

See also DeLaughter v. Womack, 250 Miss. 190, 164 So.2d 762 (1964); Leinkauf & Strauss v. Brinker, 62 Miss. 255 (1884).

There is nothing in the pleadings or the evidence that brings the present case from under the general rule stated in Graves v. Johnson, 179 Miss. 465, 176 So. 256 (1937):

“It is the general rule that, in an ordinary civil case, parties may not support their position by offering testimony as to their good character or reputation, and it is only when good character or reputation is the issue, such as in slander, false imprisonment, and like cases, that such evidence is admissible.” 179 Miss. at 484, 176 So. at 262.

However, we do not think that the error constitutes reversible error here, and we do not think its admission affected the result in this case.

In Illinois Central RR Co. v. Williams, 242 Miss. 586, 135 So.2d 831 (1961), the Court held:

“It was error to admit this opinion evidence, but it was not reversible error. The chancellor admitted it for whatever it might be worth, and apparently attached no particular importance to it. We do not think its admission affected the result in the case. Rule 11 of this > Court provides that a judgment shall not be reversed for the improper admission of evidence, ‘unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice.” 242 Miss. at 606, 135 So.2d at 839.

For the reasons stated, this case is affirmed, except that it is reversed and rendered as to the 323-acre overplant and remanded to the lower court for the purpose of fixing damages for the wrongful suing out of the injunction relating to the 323-acre overplant.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART; AND REMANDED TO THE LOWER COURT FOR FIXING DAMAGES.

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

SUGG and WALKER, JJ., took no part.

Appendix I to follow.

APPENDIX I

“SALE AND PURCHASE AGREEMENT FOR 1973 COTTON CROP

This contract, entered into between Austin Farms of Tndianola.. Miss. hereinafter referred to as Producer and Seller, and V & M Cotton Co., Inverness, Miss., covers cotton produced by the Producer and Seller for the 1973 crop year. The above named Producer and Seller agrees to sell all and only the cotton produced from approximately 2.500 acres planted in cotton for the 1973 crop year on B-251. B-33, B-163. B-220, B-230. & Adams. Place as shown at the ASCS records on file in Indianola, Miss.

The Producer and Seller agrees to practice normal good farming methods as to cultivation, harvesting, and handling said cotton and to harvest, gin and store the cotton in a bonded warehouse as rapidly as possible. Variety planted Coker 310 & Stoneville 213.

Cotton to be defoliated before picking, and all available cleaning equipment at gin to be used (no bypass).

Cotton to be ginned at_.

All samples to be delivered to V & M Cotton Company.

All Cotton harvested by hand or spindle picked — no ground machine or stripper cotton acceptable on this contract.

Official Government class card determines class of cotton and the Compress receiving date on receipt determines date.

V & M Cotton Co. agrees to pay the Producer and Seller prices as listed below, net weights, FOB Compress, for all and only cotton produced on the above mentioned farm or farms.

30.00(j; for all cotton with micronaire 3.3-5.2

29.00<l; for all cotton with micronaire 5.3 & up

28.00«l; for all cotton with micronaire 3.0-3.2

28.00(1; for all cotton 3.0 & up and reduced in grade a/c grass or bark

26.00(1; for all other cotton and any cotton harvested after 12/7/73

20.00$ for all Below Grades

(Note: 450 acres to be stored in Greenwood; about 2050 in Indianola)

Seller and producer agrees to pay transportation cost of the cotton to the compress and to pay the first’s month storage and Cotton Board Fees, and a commission of $1.25 per bale to be deducted.

/s/Austin Farms By Winfred E. Austin date 2/26/73 Witness Producer and Seller Partner

Personally appeared before me, the undersigned authority, in and for said County and State, the within named J. M. MONTGOMERY, JR., partner of V & M Cotton Company, who acknowledged that he signed and delivered the foregoing instrument as his voluntary act and deed.

WITNESS my hand and official seal this the 7th day of August, 1973.

/s/ Patricia K. Cox

“NOTARY PUBLIC

My Commission Expires:

May 3,1976”

      . See Appendix I.

      . Carolina Textile Company was purchasing agent for Spartan Mills.


source: Caselaw Access Project

license: Public Domain

text:
    Pamela EVANS, a minor, by and through her mother and next friend, Mrs. Marie Evans v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 48971.
    Supreme Court of Mississippi.
    Aug. 24, 1976.
    Norris & Phillips, Hattiesburg, for appellant.
    Dorrance Aultman, Hattiesburg, for ap-pellee.
    Before GILLESPIE, C. J., ROBERTSON and LEE, JJ., and IDOM, Commissioner.
   Appeal from Chancery Court, Forrest County; Howard L. Patterson, Jr., Chancellor.

AFFIRMED ON DIRECT AND CROSS-APPEALS.


author: SUGG, Justice, INZER, Presiding Justice

text:
    MISSISSIPPI POWER COMPANY v. Everett LUTER.
    No. 48703.
    Supreme Court of Mississippi.
    Aug. 17, 1976.
    Rehearing Denied Sept. 21, 1976.

      Eaton, Cottrell, Galloway & Lang, Ben H. Stone, L. Kenneth Krogstad, Eaton A. Lang, Jr., Gulfport, Deavours, Weems & Gilchrist, Laurel, for appellant.
    Estes & Blackwell, Gulfport, David Massey, Laurel, Pittman & Nobles, Jackson, for appellee.
    Before INZER, SUGG and BROOM, JJ.
   SUGG, Justice,

for the Court:

Everett Luter was awarded judgment for $162,500 against the defendant, Mississippi Power Company, for injuries received when a television antenna came into contact with an overhead electrical distribution line. We reverse and remand for a new trial.

The issues are: (1) Is Mississippi Code Annotated section 11-11-5 (1972) unconstitutional? (2) Did the Circuit Court err by selecting a jury after this case had been removed to Federal District Court and before it was remanded? (3) Was the defendant entitled to a peremptory instruction because plaintiff’s negligence was the sole proximate cause of his injuries and because plaintiff failed to meet the burden of proof on the question of foreseeability?

I

Plaintiff contends that Mississippi Code Annotated section 11-11-5 (1972) violates the provisions of Art. 3, § 14 Miss. Const.1890, and Section 1 of the Fourteenth Amendment to the United Statés Constitution. Section 11-11-5 is a venue statute and permits suits against power companies in any county in which a company may have a power line.

Defendant’s argument that it is denied equal protection under the law by the venue statute is predicated on the fact that all public utilities listed in the Public Utilities Act (Mississippi Code Annotated section 77-3-1 et seq. (1972)) are not included in the venue statute. This argument overlooks the fact that the statutes have different purposes. The venue statute was enacted for the purpose of fixing venue in certain cases, whereas, the public utilities act has for its -purpose the regulation of certain public utilities by the Public Service Commission. All electrical power companies receive the same treatment under this venue statute; therefore, the fact that all public utilities are not included in both the venue statute and the public utilities act does not deprive defendant of due process or deny it equal protection of the laws.

Art. 3, § 14 Miss.Const. of 1890 and section 1 of the Fourteenth Amendment to the United States Constitution safeguard fundamental rights and do not extend to the forum which the state may designate for the protection of such rights. Discretion under the venue statute, providing for trial of a case in any one of several counties, does not violate the guarantee of the equal protection of law. 77 Axn.Jur.2d Venue § 3 at 835 (1975).

We held the venue statute (Mississippi Code Annotated section 11-11-5) was constitutional in Mississippi Power & Light Co. v. Lowe, 179 Miss. 377, 175 So. 196 (1937) [appeal dismissed 302 U.S. 644, 58 S.Ct. 123, 82 L.Ed. 501 (1937)] and the argument by defendant in this case does not persuade us that our holding in Lowe should be changed.

II

The next argument of defendant is well taken and requires reversal of this case. On April 24, 1974 this case was removed to the U.S. District Court of the Southern District of Mississippi. On April 25, 1974 the case was called in the Circuit Court of Smith County and a jury was selected and impanelled over the objection of defendant. The jury was permitted to disperse and was reconvened to try the case after the case was remanded to the Circuit Court from Federal District Court. Defendant objected on the ground that the court had no jurisdiction to impanel the jury after the case was removed to Federal District Court.

This Court held in Bean v. Clark, 226 Miss. 892, 85 So.2d 588 (1956) that, when a case is removed to a Federal District Court under 28 U.S.C.A. § 1446, the state court shall not proceed after defendants give written notice of removal to all adverse parties and file a copy of the petition of removal with the clerk of such state court. We also held that any action taken in the state court thereafter before remand, had no force or effect. The jury in this case was impanelled without authority of law and any verdict rendered by it was a nullity.

III

Plaintiff has resided on Rhorer Avenue in Gulfport since 1946. Defendant erected its power line in 1946 and from the time of erection to the time of the accident on June 4, 1973, the only changes made in the high voltage transmission line were to increase the voltage from 2300 to 13,200 volts and install a new transformer. The high voltage line was located 24.3 feet above ground level at the point where the antenna came in contact with it.

In 1965' plaintiff’s outdoor television antenna was on a mast attached to his house at the end of the gable; the mast was 24.95 feet in length. The antenna portion was destroyed during Hurricane Betsy in 1965 and thereafter plaintiff utilized “rabbit ears” to receive his television signal. About one month prior to the accident, plaintiff requested his nephew, Matthew Walker, to install a new antenna which had been given to him by his daughter. Walker took down the old mast, and attached to it an additional five foot extension along with the new antenna. He did not erect the antenna on that day because he did not have either the guy wires or the lead-in wires necessary to complete the installation. Matthew left the antenna and mast in the yard propped on an old television cabinet adjacent to plaintiff’s home.

On the day of the accident plaintiff moved the antenna from the yard because he felt it was dangerous for his grandchildren to play in the yard with the antenna in that position. He propped it up in a medium size Magnolia tree located in front of his house between his house and the high voltage line. Plaintiff has no recollection of how the accident occurred but he was found seated in a metal lawn settee with burns on the back of his neck extending through his body to his foot. The antenna extended through the tree and was in contact with the 13,200 high voltage line overhead.

Defendant contends that the accident resulted solely from the negligence of plaintiff and it could not foresee the accident happening as it did.

In Mississippi Power & Light Company v. Shepard, 285 So.2d 725 (Miss.1973) this Court, in an opinion by Presiding Justice Rodgers reviewed the Mississippi cases dealing with accidents caused from persons coming in contact with high voltage lines and set forth clearly the duties of companies operating high voltage electric lines.

In Shepard, it was pointed out that since 1907 this Court has bound corporations handling the dangerous agency of electricity to the very highest measure of skill and care in dealing with this deadly agency. (285 So.2d at 730). Shepard also reaffirmed the rule that a public utility company must place its wires so they are not dangerous to persons and property. It is the continuing duty of the utility to maintain its wires over streets and highways in such a manner that they will not become dangerous to persons and property. The Court also recognized that the duty is not absolute. The utility is not an insurer against all injuries in any event, however, the rule is not satisfied so as to relieve the utility from liability unless and until it is shown that the company has exercised the highest degree of care to prevent the danger (285 So.2d at 732).

On the question of foreseeability, Shepard reaffirmed the proposition that:

It is not necessary that the particular injury should be anticipated, but that some injury would reasonably be anticipated, and, if the negligence of the defendant was a continuing and contributing cause of the injury, the defendant is liable. (285 So.2d at 734) (Emphasis supplied).

Furthermore, in Galloway v. Singing River Electric Power Association, Inc., 247 Miss. 308, 152 So.2d 710 (1963) we stated:

Appellee was required to exercise the highest degree of care in maintenance of the power lines. It is common knowledge that in most, if not all, parts of Mississippi not within the immediate area of a television station, practically all houses contain televisions, even the humblest. In these areas the antennas extend to considerable heights. The jury would be justified in finding that in the exercise of the proper degree of care appellee should have known of the proximity of String-fellow’s television antenna to its power lines. We hold that the question of notice was for determination of the jury. (247 Miss, at 313-14, 152 So.2d at 712).

Defendant contends that it had erected its lines in accordance with minimum requirements of the National Electric Safety Code and thereby had observed the care required of it. However, in Galloway we held that compliance with the National Electric Safety Code is not conclusive on the question of due care. Although compliance is a relevant fact on the question, compliance only relieves the utility of the charge of negligence per se. If defendant had failed to comply with the minimum requirements it would be guilty of negligence per se.

Defendant says this accident was nor foreseeable because the antenna would not have made contact with the high voltage line if it had fallen from the point of the original installation. The exhibit of the defendant shows however, that had the antenna been erected at the corner of the porch on the house it would have made contact with the high voltage line in the event it fell.

This action of the plaintiff constituted negligence and the jury was properly instructed that plaintiff was guilty of negligence as a matter of law. In Defendant's Instruction No. 14 the jury was told to find for the defendant if plaintiff’s negligence was the sole proximate cause of the accident. Defendant’s Instruction No. 15 was a contributory negligence instruction given under our comparative negligence statute. Mississippi Code Annotated section 11-7-15 (1972).

Plaintiff was not required to install the antenna at the gable of his house where it was originally installed, but had the right to use his property up to the boundary line. Henderson v. Kansas Power & Light Company, 184 Kan. 691, 339 P.2d 702 (1959), cited with approval in Shepard.

In Shepard the Court concluded its discussion of the question of foreseeability as follows:

After having reviewed the authorities, we have reached the conclusion that the question as to whether or not the defendant power company should have anticipated that persons using due regard for their own safety in constructing, erecting and using television antennas in the congested area of Hollandale would likely come into contact with its dangerous power lines so that it was the Power Company’s duty to isolate, insulate or guard its lines against the likelihood of such contact with its lines by the lawful use of the inhabitants, and the issue as to the necessity of a warning and whether or not the Power Company failed to perform its duty in this regard were questions of fact for the jury. We hold that the court properly submitted these issues to the jury for its determination. (285 So.2d at 739).

Although the facts in this case are different from the facts in Shepard, the rule of law in Shepard is controlling. A jury issue was made on the question of whether the defendant should have isolated, insulated or guarded its lines against the likelihood of contact by the plaintiff exercising his lawful rights. The necessity of a warning by the defendant was also a jury issue. These were issues of fact for determination by a jury. The court properly refused the peremptory instruction requested by the defendant.

This case was considered by a conference of the Judges en banc. All Justices concur on propositions I and II. Presiding Justice Inzer and Justices Smith and Robertson dissent on the issue discussed in proposition III, being of the opinion that the defendant was entitled to a peremptory instruction.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, P. J., and BROOM and LEE, JJ., concur.

INZER, P. J., and SMITH and ROBERTSON, JJ., concur in part and dissent in part.

GILLESPIE, C. J., and WALKER, J., took no part.

INZER, Presiding Justice

(dissenting):

While I agree that this case must be reversed, it is my opinion that it should be reversed and a judgment entered here in favor of the appellant. The sole cause of the accident and resulting injuries to Mr. Luter were his own negligence. The majority correctly holds that he was guilty of negligence as a matter of law and I dissent from the holding that his negligence was not the sole cause of the accident and that the accident was reasonably foreseeable by the power company.

The facts reveal that the transmission line in question was constructed at the edge of the street and not on private property. The line as constructed and maintained was safe for the ordinary use of the street and adjacent property. There were no antennae conflict in this area, and insofar as the record reveals, no other accident has occurred as a result of the manner in which the line was maintained. Mr. Luter admits that he was well aware that the transmission lines were adjacent to his property. Although Mr. Luter says he does not remember putting the antenna up into the tree, he does remember that he intended to do so. The photographs in evidence show that the tree is of medium size and no higher than the mast to which the antenna was attached. It is apparent that no one unassisted could put a 29 foot mast with an antenna attached thereto up into the tree without seeing the transmission lines. While Mr. Luter had a right to put the antenna up into the tree on his own property, he had no right to encroach upon the easement of the power company and place the antenna where it would come into contact with one of its transmission lines. When he chose to do so, he was negligent, and in my opinion this negligence was the sole cause of the accident and his resulting injuries.

Mr. Briggs, an expert who testified on behalf of Mr. Luter, said it was unreasonable and highly dangerous for Mr. Luter to put the antenna up into the tree so near the transmission lines, when he could have placed it a reasonable distance from the lines. In spite of this testimony the effect of the holding by the majority is that the power company should have anticipated that some person would be injured by the manner in which it maintained its transmission lines, although such person acted in a foolish and unreasonable manner. I do not believe that this could be the law of this state or any other jurisdiction. In Mississippi Power Co. v. Nail, 211 So.2d 815 (Miss.1968), we adopted the following statement from Le Vonas v. Acme Paperboard Co., 184 Md. 16, 40 A.2d 43 (1944):

In accordance with these basic principles, the law does not require that a person, who maintains even so deadly an instrumentality as a high voltage electric wire, shall anticipate at his peril every possible fortuitous circumstance under which some person might make a contact with the wire, resulting in injury or death. * * * Electricity is now used so universally in city and country, in home and in business, for illumination and motive power, and for communication and transportation, that it is a matter of common knowledge that any line carrying electric current is dangerous to a more or less degree. The fact that a wire is charged with electric current is notice of danger, and any person mindful of his safety should treat it with caution. (211 So.2d at 820).

The majority relies on Mississippi Power & Light Co. v. Shepard, 285 So.2d 725 (Miss.1973), and other cases cited therein in support of its holding that the power company should have anticipated and guarded against unusual, exceptional and unreasonable acts. While the case before us can be readily distinguished from Shepard, the opinion states, among other things:

“Conversely, the law is complied with when an electric or telephone company or others engaged in the transmission or use of electricity provide such a protection as will safely guard against any contingency that is reasonably to be anticipated. The extent of the duty or standard of care is measured in the terms of foreseeability of injury from the situation created. There is no duty to safeguard against occurrences that cannot be reasonably expected or contemplated. A failure to anticipate and guard against a happening which would not have arisen but for the exceptional or unusual circumstances is not negligence, nor does the law require those maintaining power transmission lines to anticipate every possible fortuitous circumstance that might cause injurious contacts with those lines.
The factor of foreseeability also enters into the question of proximate cause, which is subsequently discussed. Assuming that one engaged in the transmission or use of electricity has been negligent, such negligence cannot be said to be the proximate cause of the injury unless, under all the circumstances, the injury might have been reasonably foreseen.” 26 Am.Jur.2d Electricity, Gas and Steam § 43 at 252-253 (1966).

(Emphasis added). (285 So.2d at 733).

The events in this case were certainly not only unusual and exceptional, but they were also unreasonable and dangerous acts according to appellee’s own witness and his testimony in. this regard is uncontradicted. I am unable to see how it can be said that the actions of the power company were a proximate cause of the injury.

We have said many times in many cases, that a power company is not an insurer and is not required to guard against occurrences that cannot be reasonably expected or contemplated. However, in this case we only give lip service to the rule and the effect of the majority holding is to make the power company an insurer. It is difficult for one to imagine a state of facts where the power company cannot be held liable where a person is injured by contact with one of the lines carrying electricity.

It was my opinion that this Court went too far in Shepard and in effect made the power company an insurer. The decision in this case leaves little, if any, doubt of that fact. In my opinion the facts of this case and the law require that a judgment be entered here for the appellant and I would so hold.

SMITH and ROBERTSON, JJ., join in this dissent.

Rehearing denied; Gillespie, C. J., and Walker, J., took no part.

Inzer, P. J., Smith and Robertson, JJ., dissented.

      . Art. 3, § 14 Miss.Const.1890:
      No person shall be deprived of life, liberty, or property except by due process of law.

      . U.S.Const. amend. XIV, § 1:
      All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      . 28 U.S.C.A. § 1446(e):
      Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.


text:
    Dennis BLAIR v. STATE of Mississippi.
    No. 49194.
    Supreme Court of Mississippi.
    Aug. 24, 1976.
    John W. Land, Rosedale, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, J.

AFFIRMED.


text:
    Bobby Joe FABIAN v. Jack REED, Superintendent, Mississippi State Penitentiary.
    No. 49249.
    Supreme Court of Mississippi.
    Aug. 24, 1976.
    Thomas J. Tubb, West Point, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   Appeal from Circuit Court, Clay County; Joe 0. Sams, Sr., Judge.

AFFIRMED.


author: LEE, Justice:

text:
    ALCORN COUNTY WATER ASSOCIATION v. CITY OF CORINTH, Mississippi, et al.
    No. 48765.
    Supreme Court of Mississippi.
    Aug. 24, 1976.
    Rehearing Denied Sept. 21, 1976.

      Smith, Downs, Coleman & Ross, Wendell H. Trapp-, Jr., Corinth, for appellant.
    Sharp & Fisher, Corinth, for appellees.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice:

Alcorn County Water Association, Inc. filed suit against the City of Corinth in the Chancery Court of Alcorn County seeking temporary and permanent injunctions to prevent Corinth from providing water service to a certain area outside the corporate limits, but within one (1) mile, and for damages. From a decree denying the temporary injunction and dismissing the bill of complaint, Alcorn appeals here.

The issues are: (1) whether the trial court’s opinion is manifestly wrong since the court found that the disputed area was included within the area to which Corinth was granted a certificate of public convenience and necessity on September 11,1957; (2) whether the court erred in permitting a collateral attack upon the order, of the Mississippi Public Service Commission; and (3) whether the court erred in dismissing the bill of complaint finally when it was heard only on temporary injunction.

The first assignment of error necessarily includes these questions:

(a) Did appellant have a valid certificate of public convenience and necessity to the disputed area?

(b) Was the chancellor manifestly wrong in denying the temporary injunction?

Alcorn claims that it holds a certificate of public convenience and necessity authorizing it to extend water service to an area designated as Rolling Hills and North Rolling Hills, which lies within the one-mile corridor adjacent to the city limits of Corinth. It also contends that Corinth was proceeding to extend water facilities to that area without such a certificate, that Alcorn had the exclusive right to serve the area under its certificate, that it was entitled to temporary and permanent injunctions enjoining Corinth from serving the area, and that it was entitled to damages by reason of Corinth’s actions.

Corinth holds a certificate of public convenience and necessity to construct and operate a water system in the city and in an area adjacent thereto. On May 12, 1972, Alcorn filed an application with the Public Service Commission for a certificate of public convenience and necessity authorizing it to construct, operate and maintain a water system within a specified area, a part of which included territory previously certificated to Corinth and a part of which included territory adjacent to and within one (1) mile of the corporate limits of Corinth which had not been certificated to anyone.

On May 29, 1972, Corinth protested issuance of a certificate to Alcorn covering Corinth’s certificated area, but failed to include the other area within the one-mile corridor. On June 6, 1972, the return date on process issued for interested parties, Corinth’s attorney appeared before the Public Service Commission and was advised that the matter would not be heard at that time. On June 14, 1972 Alcorn’s attorney wrote the Mississippi Public Service Commission that it was the desire of Alcorn to go forward with an uncontested hearing and to delete from consideration those areas which were within one mile of the corporate limits of Corinth. On August 1,1972, he appeared before the Commission with witnesses and orally amended the application thereby deleting the area within the one-mile corridor, and Alcorn was permitted to proceed with the matter as an uncontested hearing.

The Public Service Commission file with respect to the application of Alcorn for the certificate together with a transcript of the proceedings before the Commission were introduced in evidence without objection and by agreement. Those documents reflect the following:

(1) The Public Service Commissioners were of the opinion they had no authority to grant a certificate of public convenience and necessity in the one-mile corridor to any applicant except Corinth.

(2) Alcorn was under the mistaken belief that Rolling Hills and North Rolling Hills were outside the one-mile corridor.

(3) On June 14, 1972, the attorney for Alcorn wrote the Public Service Commission that Alcorn desired to delete from consideration those areas which are within one mile of the corporate limits of Corinth in order to proceed with the matter as an uncontested hearing.

(4) The instruction sheet on Rules of Practice and Procedure before the Mississippi Public Service Commission provided that, if an applicant seeks service area within one mile of the corporate limits of a municipality, a resolution disclaiming any intention of the municipality to serve such area and relinquishing such area for inclusion within the-proposed certificated service area should be submitted.

(5) Alcorn’s attorney told Commissioner Dale at the hearing they [Alcorn] understood from Commissioner Snyder and Mr. Smith (attorney for the Public Service Commission) that the Commission had no jurisdiction within the one-mile area.

(6) He further told Commissioner Dale, “We’re excluding everything that’s in anybody’s certified area, or within the one-mile area.” He then orally moved the Commission to amend the application so as to delete the area described in Exhibit 11 and Exhibit 12 of the application, and for permission to file a written amendment at a later date.

Alcorn’s petition to the Public Service Commission for a certificate of public convenience and necessity, along with the order granting the certificate, were made exhibits to the bill of complaint. Paragraph XIV of the petition stated that a small portion of the property therein described was within one mile of the corporate boundary of Corinth, that a metes and bounds description of such area for which Alcorn sought the certificate was attached thereto, marked Exhibit 12 and made a part thereof by reference,, and that it covered all the property within the one-mile corridor for which Alcorn sought a certificate. Thus, when Alcorn moved to amend its application on August 1,1972, to delete Exhibits 11 and 12 from the petition, it effectively removed Rolling Hills and North Rolling Hills [the disputed area here] from consideration by the Commission. The hearing was con-eluded on that day, even though the order was not entered and the certificate was not granted until June 7, 1973.

Corinth received bids on May 9, 1973, for contracts to install water lines into the area [included were Rolling Hills and North Rolling Hills] and awarded the contracts on May 21, 1973, thereby obligating itself to serve the area which was tantamount to entering upon that service. At those times, no areas had been certificated to Alcorn, and the order of the Public Service Commission granting a certificate of public convenience and necessity to Alcorn had not been entered. [That order included Rolling Hills and North Rolling Hills.]

The law is settled in this state that a certificate of public convenience and necessity issued by the Public Service Commission to a public utility is an exclusive permit to serve the area designated and certificated to the utility so long as the utility is capable and willing to provide service to the people within the area. Capital Electric Power Ass’n v. City of Canton, 274 So.2d 665 (Miss.1973). Likewise, a municipality is unrestricted in its right to serve the people within the one-mile corridor adjacent to the municipality, if no certificate of public convenience and necessity has been issued to a utility. East Mississippi Central Power Association v. City of Louisville, 250 Miss. 777, 168 So.2d 287 (1964).

Since the undisputed record shows that neither the Public Service Commission nor Alcorn intended to maintain any part of the one-mile corridor in the application, since the petition was amended before hearing to delete the area within the one-mile corridor, since the Public Service Commission did not have that area before it and under its consideration, and since Corinth had awarded a contract to serve the area before issuance of the certificate of public convenience and necessity to Alcorn, we conclude that the Rolling Hills and North Rolling Hills area,.being within the one-mile corridor, was not within the jurisdiction of the Public Service Commission, and that the order and certificate insofar as they covered that area were a nullity and ineffective, and the chancellor was correct in denying the temporary injunction.

Alcorn contends in its second assignment of error that the trial court erred in permitting a collateral attack on the order of the Mississippi Public Service Commission. This assignment is without merit because, as stated supra, the order of the Public Service Commission covering the disputed area was a nullity and therefore subject to a collateral attack.

The appellant last contends that the trial court erred in dismissing the bill of complaint finally when it was being heard on temporary injunction, and it argues that the case should be reversed and remanded for assessment of damages. The cause was set for hearing by the chancellor on the temporary injunction, but the decree recited that it was heard on bill of complaint, answer and proof. The two-volume record reflects that there was a full hearing and that the appellant is not entitled to damages. The chancellor followed an erroneous procedure in dismissing the bill of complaint after the hearing on temporary injunction. However, all the issues of the case have been presented to and considered and determined by this Court, and we conclude that the judgment of the trial court has not resulted in a miscarriage of justice and that such procedure constitutes harmless error under Supreme Court Rule 11.

For the reasons stated, the case is affirmed.

AFFIRMED.

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


text:
    UNITED AMERICAN INSURANCE COMPANY v. Wilkins VANN, Sr. and Ina Mae Vann.
    No. 48757.
    Supreme Court of Mississippi.
    Aug. 24, 1976.
    Greaves, Terry & Hunter, Ben E. Sheely, Gulfport, for appellant.
    J. Elmo Lang, Pat H. Watts, Jr., Pasca-goula, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   REVERSED AND RENDERED.

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


author: WALKER, Justice,

text:
    In the Interest of Billy Thomas HOBSON.
    Misc. No. 693.
    Supreme Court of Mississippi.
    Aug. 31, 1976.
    Dennis L. Horn, Jackson, for appellant.
   ON PETITION FOR APPEARANCE BOND PENDING APPEAL

WALKER, Justice,

for the Court:

On June 24, 1976, the Youth Court of Rankin County found Billy Thomas Hobson to be a delinquent child, within the meaning of Mississippi Code Annotated section 43-21-5(g) (1972), and committed him to the Oakley Training School until further order of the court.

The Youth Court refused to allow Hob-son’s release under bond pending the outcome of an appeal, evidently relying on Mississippi Code Annotated section 43-21-51 (1972). Hobson has perfected his appeal to this Court and now petitions this Court to order his release under bond pending appeal.

The original Youth Court Act did not contain any special provisions concerning the release of a child pending appeal. Miss. Gen.Laws Ch. 300, § 23 (1940). In 1946 the law was amended to allow a release from custody at the discretion of the Youth Court or the Supreme Court:

The pendency of an appeal shall not suspend the order or decree of the youth court regarding a child, nor shall it discharge the child from the custody of that court or of the person, institution or agency to whose care such child shall have been committed, unless the youth court or supreme court shall so order. (Miss.Gen.Laws Ch. 207, § 24 (1946)).

This language currently appears in Mississippi Code Annotated section 43-21-51 (1972). However, this, language has been superseded by a later act of the Legislature, Miss.Gen.Laws Ch. 391, § 2 (1971), codified at Mississippi Code Annotated section 43-21-7 (1972) which provides:

Any youth subject to the youth court jurisdiction shall be entitled to be released on bond subject to appeal to the state supreme court, the amount of said bond to be determined by the presiding youth court judge. (Emphasis added).

Although the Legislature, in inserting this last section (43-21-7) into the Code, did not expressly amend the old language of section 43-21-51, their intent appears manifest as the two sections are in irreconcilable conflict. Therefore, whereas the release of a juvenile on bond pending his appeal was discretionary under the earlier enactment, the 1971 amendment allows him to be released on bond as a matter of right. The Youth Court therefore erred in not fixing the amount of bond required to be posted by the appellant in order to effectuate his release and to assure his appearance to abide by the mandate of this Court upon a final adjudication of this cause.

Hobson urges that this Court also fix the amount of his bond. However, the 1971 statute (43-21-51) quoted above provides that the amount of bond should be determined by the Youth Court.

It is therefore ordered that the Youth Court of Rankin County fix a reasonable appearance bond for Hobson’s release during the pendency of his appeal.

THIS PETITION WAS CONSIDERED BY A CONFERENCE OF THE JUDGES EN BANC.

All Justices concur.


text:
    Alfred THOMAS, Jr. v. STATE of Mississippi.
    No. 48860.
    Supreme Court of Mississippi.
    Aug. 24, 1976.
    William M. Frisbie, Bay St. Louis, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   Appeal from Circuit Court, Hancocl County; J. Ruble Griffin, Judge.

REVERSED AND REMANDED.

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


text:
    Catherine K. PARNELL v. FIRST SAVINGS AND LOAN ASSOCIATION OF LEAKESVILLE.
    No. 48769.
    Supreme Court of Mississippi.
    Aug. 31, 1976.

      Horton Hillman, Leakesville, for appellant.
    Curtis Breland, Leakesville, for appellee.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Catherine Parnell appeals from a decree of the Chancery Court of Greene County - dismissing her bill of complaint against First Savings and Loan Association of Leakesville. We reverse.

Appellant assigns as error:

(1) The judgment of the trial court is contrary to the law and the evidence, and

(2) The trial court erred in admitting certain evidence incompetent under Mississippi Code Annotated § 13-1-7 (1972) [Dead Man’s Statute].

On October 31, 1972, Catherine Parnell and Walter Parnell, her husband, obtained a loan from appellee in the sum of thirteen thousand dollars ($13,000.00) for the purpose of buying a home, and they secured the loan by deed of trust on the property. At the time of loan closing, appellee inquired whether they desired credit life insurance, and the Parnells answered in the affirmative. Accordingly, the sum of one hundred twenty-three dollars and three cents ($123.03) was paid to appellee by the Parnells (financed in the loan at the interest rate of 7y4%) for the first year’s premium, and the sum of ten dollars and twenty-six cents ($10.26) was added to the monthly loan installments for the purpose of paying the second year’s premium.

After closing the loan, appellee’s manager discovered that he had failed to secure Parnell’s signature on a credit life insurance application, and on November 6, 1972, he wrote Parnell:

“Today I received your loan file and it was determined that the life insurance application was not filled out.
I urge you to come to this office immediately after receiving this letter.”

He also testified he saw Parnell at the Lodge that night and:

“I mentioned in person to Hank Parnell, which was our way of referring to him in the lodge, I remembered the case and I was excited because it had not been done [application signed] and urged him to come to the office immediately.”

He later testified he explained to Parnell that no insurance would be issued until the application was completed and signed.

Suffice it to say, Parnell never signed the application and four (4) consecutive monthly installments, each including $10.26 for credit life insurance premiums, had been paid on the loan when Parnell died March 10, 1973. The sums collected by appellee for the credit life insurance premiums were deposited and retained by it in the Parnell loan escrow account, and the money was still in that account at the time of the trial.

After her husband’s death, appellant carried his death certificate to appellee’s manager, who received it and placed it in the Parnell file. Appellant denied she and her husband had received a letter from appellee that the application for insurance had not been signed, and she testified she and her husband thought the insurance was in effect. Appellee’s manager consulted its attorney and then advised appellant that no policy had been issued and that she had no credit life insurance.

The first step in applying for the loan was the execution of a disclosure statement pursuant to the Federal Truth in Lending Act, which instrument was signed by appellant and appellee, and set forth the terms of the loan, the amount, the due dates and the amount of the insurance, taxes and closing costs. The procedure for obtaining credit life insurance was for the borrower to sign an application for the insurance and the appellee forwarded that application to the representative of the insurance company. If the application were approved and the policy issued, it was sent to appellee, who retained the policy in its file, and notified the borrower that the insurance was in effect.

The appellant contends that appellee, through its manager, was an agent for an insurance company [appellee used Republic National Life Insurance Company], and that by accepting the premiums a contract of insurance was in effect. The cases, relied upon in support of that contention, relate to the powers of insurance agents to bind their principals in their dealing with others, are not in point with the real question here and offer little help. American Casualty Company v. Whitehead, 206 So.2d 838 (Miss.1968). The question is one of first impression in this state, and there is little authority in other jurisdictions that shed light upon it.

In Burgess v. Charlottesville Savings & Loan Association, 349 F.Supp. 133 (1972) rev’d on other grounds 477 F.2d 40 (4th Cir. 1973), Burgess obtained a loan from appel-lee and signed a Truth-in-Lending statement which contained a request for credit life insurance. No application for such insurance was ever signed by Burgess, and no premiums were collected or received by ap-pellee. The court held that it was impossible for appellee to form a contract of insurance, that there was no- evidence that a contract to procure insurance was formed, and that there was no merit in appellant’s claim under Virginia law.

The only question in Peer v. First Federal Savings & Loan Association of Cumberland, 273 Md. 610, 331 A.2d 299 (1975), was whether a contract to provide credit life insurance existed between the parties. The following occurred in connection with the fifteen thousand dollar ($15,000.00) loan:

(1) Peer signed a statement in the truth-in-lending notice that “I desire credit life insurance only.”

(2) A space provided therein for cost of life and/or health insurance premiums was left blank.

(3) In the payment coupon book and in the annual statement of Peer’s loan account listing payments on principal, interest, escrow and late charges, no charge was shown for life insurance.

(4) A letter was given to the Peers at the time of their loan commitment recommending credit life insurance and advising that a life insurance representative would call upon them to explain the program.

(5) No insurance representative ever appeared.

(6) No charge was ever made for credit life insurance.

(7) The Peers never paid any premiums for life insurance.

In emphasizing that no premiums for credit life insurance were ever charged or paid, the court said: “It is manifest on the record before us that First Federal did not contract to provide Mr. Peer with credit life insurance and pay the premiums out of the monthly mortgage payments.” 331 A.2d at 302.

In contrast:

(1) Parnell executed a disclosure statement setting out the escrow accqunt, including the first year’s premium ánd two monthly payments for credit life insurance, which were financed by appellee.

(2) A closing statement in the handwriting of appellee’s manager with the title “Walter Parnell and Catherine K. Parnell” itemized the closing costs and reflected therein the sum of one hundred twenty-three dollars and three cents ($123.03), first year’s credit life insurance premium, and ten dollars and twenty-six cents ($10.26) separate items for two months’ premiums on said insurance.

(3) Parnell’s loan account book reflected four monthly i payments on the credit life insurance premium for the second year.

(4) Appellee admitted that the Parnells paid the first year’s premium on credit life insurance, paid four monthly installments on the second year’s premium and that it received and retained those payments in the Parnell escrow account.

We adopt the view expressed in Watkins v. Valley Fidelity and Trust Company, 474 S.W.2d 915 (Tenn.1971). Morris Williams financed the purchase of an automobile for twenty-four hundred ninety-seven dollars and fifty cents ($2,497.50) balance, plus two hundred fifty-one dollars ($251.00) insurance, plus eighty-one dollars and thirty-seven cents ($81.37) credit life premiums, aggregating the sum of twenty-eight hundred twenty-nine dollars and eighty-seven cents ($2,829.87) to be financed. A finance charge of five hundred fourteen dollars and sixty-three cents ($514.63) was added, resulting in a loan contract of thirty-three hundred forty-four dollars and fifty cents ($3,344.50) signed by Williams. The amount of $81.37 was held by the bank, through error, in its fees account, whereas it should have been deposited in the account of the automobile dealer designated as credit life insurance for the purchase of the insurance. Upon the death of Williams, payment of the contract amount was declined since no credit life insurance had been purchased to secure the loan. The court said:

“The bank argues there was no contract between it and the decedent whereby the bank was to purchase credit life insurance, and if a contract be claimed it fails for lack of consideration to the bank. The bank argues it merely contracted to lend money. We hold this contention is not sound under the record.
The contract was proved as Exhibit 2 in the record, designated as Loan No. 0185 made by the bank to Morris Williams. This contract as herein noted included a charge of $81.37 for credit life insurance. That figure was included in the ‘Amount to be Financed’ upon which a finance charge of $514.63 was figured and added thereto with the resulting $3,344.50 shown as ‘The Amount of Contract.’ We hold this instrument was the contract, and the $514.63 finance charge was the consideration flowing to the Bank.
When a bank makes a charge against a borrower for credit life insurance premiums, includes that amount in the loan, and retains the money so charged, we hold that bank not only assumes the contractual obligation to properly apply the amount to credit life insurance, but also stands in a fiduciary capacity toward the' borrower to see that the amount so charged and withheld is actually applied to the purchase of such insurance.
The inclusion of credit life insurance in a lender-borrower transaction is not for the sole benefit of, nor at the option of the lender. Credit life insurance is also a very important and vital part of the transaction to the borrower because it offers absolute protection to his estate for the unpaid balance of the debt in the event of his death before payment in full.
The bank failed to apply the $81.37 to the purchase of credit life insurance on the life of Morris Williams, and offered no reason therefor except error on the part of an employee. We hold the bank thereby breached its contract with Morris Williams, and breached its fiduciary duty to purchase the insurance, with a resulting loss to the estate of Morris Williams in the sum of $2,262.99, that being the unpaid balance of the debt.” 474 S.W.2d at 918.

We hold that when the appellee, First Savings and Loan Association of Leakesville, financed, collected and retained the sum of $123.03 for one year’s premium on credit life insurance for Parnell, and collected and retained the sum of $10.26 monthly for a period of four months with, which to provide credit life insurance for the second year, it assumed a contractual obligation to obtain credit life insurance for Parnell and to apply the amounts so received to credit life insurance, and that it stood in a fiduciary capacity towards the Parnells to see that the amounts so charged, collected and withheld were actually applied to obtaining and purchasing such insurance.

There is no merit in appellant’s contention that appellee’s manager was incompetent to testify under the Dead Man’s Statute. He did not testify to defend his claim against the estate of the deceased, but that of his employer corporation. Rosetti v. Stein, 272 So.2d 633 (Miss.1973); Central Optical Merchandising Co. v. Lowe’s Estate, 249 Miss. 61, 160 So.2d 673 (1964).

The bill of complaint prayed for cancellation of the deed of trust and for general relief. We reverse and hold that appellant is entitled to such amount as may be equal to the sum now required to satisfy and discharge the obligation to appellee, and remand the case to the trial court for the purpose of making that determination.

REVERSED AND REMANDED.

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


text:
    Donald R. MALOY v. Curtis SUTTON, Jr.
    No. 48789.
    Supreme Court of Mississippi.
    Aug. 31, 1976.
    W. B. Meek, Eupora, Stone & Graham, Columbus, for appellant.
    Liston & Gibson, Eupora, William H. Liston, Winona, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   Appeal from Circuit Court, Webster County; Clarence E. Morgan, Jr., Judge.

AFFIRMED.


text:
    Billy Wayne ALEXANDER v. STATE of Mississippi.
    No. 49200.
    Supreme Court of Mississippi.
    Aug. 24, 1976.
    Rehearing Denied Sept. 14, 1976.
    Certiorari Denied Nov. 8, 1976.
    See 97 S.Ct. 364.
   Appeal from Circuit Court, Madison County; Rufus H. Broome, Judge.

Harry L. Kelley, Jackson, for appellant.

A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

AFFIRMED.

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


text:
    George SMITH, Jr. v. STATE of Mississippi.
    No. 49221.
    Supreme Court of Mississippi.
    Aug. 24, 1976.
    David Shoemake, Collins, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   Appeal from Circuit Court, Covington County; George B. Grubbs, Judge.

REVERSED AND RENDERED.

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


author: ROBERTSON, Justice:

text:
    MISSISSIPPI PUBLIC SERVICE COMMISSION v. MISSISSIPPI POWER & LIGHT COMPANY.
    No. 48783.
    Supreme Court of Mississippi.
    Aug. 17, 1976.

      A. F. Summer, Atty. Gen., by Bennett E. Smith, Asst. Atty. Gen., Perry, Phillips, Crockett, Morrison & Herring, Jackson, for appellant.
    Wise, Carter, Child, Steen & Caraway, Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice:

The Mississippi Public Service Commission has appealed from the decree of the Chancery Court of the First Judicial District of Hinds County, Mississippi, which decree reversed the order of the Commission denying any rate increase and approved the schedule of rate increases requested by the Mississippi Power & Light Company.

The Company filed with the Commission on January 17, 1974, its schedule of proposed rate changes, a statement of the necessity for the proposed changes, and detailed supporting data, as required by Mississippi Code Annotated section 77-3-37 (1972). As provided in Section 77-3-39, the Company posted a refunding bond and placed the new rates into effect on February 17, 1974.

As a part of its overall proposal to the Commission, the Company included a new fuel adjustment clause.

In its order of July 12, 1974, the Commission denied the Company any rate increase, but approved the use of the proposed new fuel adjustment clause, except insofar as it would roll into the base rate 4.5 mills per KWH of fuel cost.

In its written opinion, the chancery court found:

“[T]hat the order of the Commission denying the rate increase requested by the Company but approving the fuel adjustment clause which had been coupled to the rate schedule sought to be approved, was not supported by substantial evidence and in fact was against the overwhelming weight of the creditable evidence in the case. .
“ . . . the schedule of rates sought to be approved by the Company together with its proposed fuel adjustment clause is reasonable, taking into consideration all of the circumstances prevailing, and will provide the company with a fair return.”

In reasoning out its ultimate findings, the lower court said in part:

“It was proposed by Mississippi Power & Light Company (the Company) that the new schedule of rates proposed would yield additional income in the amount of some 9.7 million dollars, but that this would be offset by a reduction in income by virtue of the new fuel adjustment clause which would decrease revenues in the amount of 6.877 million dollars, leaving than a net increase of some 2.823 million dollars.
“This Court is of the opinion that the Commission failed to grasp the significance of the fact that the fuel adjustment clause proposed by the Company was coupled with and based on the proposed rate increase. The effect of the Commission’s ruling is to actually reduce the net utility operating income below what it has been in the past.”

On November 10,1975¡ the Company filed with the Commission a new notice of intention to change rates, pursuant to Mississippi Code Annotated section 77-3-37 (1972). The notice stated that the Company proposed to put the new rates into effect on December 11, 1975, and after posting a proper bond these new rates were put into effect.

On May 6,1976, the Commission issued its detailed order allowing the Company to collect additional revenue of approximately $19,550,000 each year. Because the Commission’s order found that the Company was entitled to rate increases to yield $19,-550,000 more than the rates of February 17, 1974, were yielding, the Company, on May 11,1976, filed in this Court a Plea in Bar in which it contended that the Commission in its May 6, 1976, Order reversed its previous position and in effect confirmed and approved the Chancellor’s decision from which the Commission was appealing. The Company argued in the Plea in Bar that the questions raised on this appeal were now moot.

While it could be argued by the Company with some validity that the Commission indirectly and impliedly approved the February 17, 1974, rates in its Order of May 6, 1976, the Commission could counter this argument by contending that the two cases (the one filed on January 17, 1974, and the other on November 10, 1975) were entirely different, based on different facts and circumstances and even filed almost two years apart, and that it had to start from the base of revenues then being produced by rates presently in effect in order to make clear what increase it was approving.

We prefer to decide this case on its merits, rather than on the premise that the Commission, in its order of May 6, 1976, impliedly approved the February 17, 1974,. rates. The Plea in Bar is, therefore, denied.

We agree with the lower court that the Commission failed to grasp the significance of the fact that the new fuel adjustment clause proposed by the Company was coupled with and based on the proposed rate increases, that the schedule of proposed rate increases and the new fuel adjustment clause were inseparable parts of a package deal, and were mutually dependent each on the other. The new fuel adjustment clause was designed to pass on to the Company’s customers the savings effected by purchasing some of its electrical requirements from its sister companies rather than generating-all of its electrical needs with more expensive energy fuel. The new fuel adjustment clause contained a roll-in of 4.5 mills per KWH into the base rate, so fuel adjustment costs to the customer would be adjusted upward or downward from a 7 mill per KWH energy fuel cost contained in the new base rate (2.5 mills per KWH in old base rate plus 4.5 mill roll-in). The 4.5 mill roll-in into the base rate, the savings to be effected by purchasing approximately 30% of its electrical requirements, and the need for increased operating revenue were all factors carefully considered by the Company in arriving at and setting up the new schedule of proposed electric rates.

Many of the salient facts were agreed to by the Company and the Commission. Both agreed that the test year would end January 31,1975; both agreed that the rate base (the value of the Company’s property used and useful in generating electricity) should be $329,533,000.

In its order of July 12,1974, the Commission, in approving the capital structure of the Company, said:

“Extensive evidence was presented in this case on the capital structure of the Company and its effect on the total cost of capital. The appropriateness of the Company’s capital structure was not seriously challenged in this case and in keeping with the decision of our Supreme court in Mississippi Power Company vs. Mississippi Public Service Commission, 291 So.2d 541 (1974), we find that the capital structure of the Company of approximately 58.5% debt, approximately 10% preferred stock, and approximately 31.5% equity to be both appropriate and reasonable.
“The Company’s witness suggested the Company should be afforded the opportunity to earn between 14.00% and 14.50% on common equity capital and determined that the composite cost of capital for the Company was over 8.70% at December 31, 1973. The staff witness used a cost of equity capital of between 11.6% and 12.6%, and determined that the composite cost of capital should range from 8.38% to 8.68%.”

The Commission’s staff witness, Loconto, did not use the capital structure approved by the Commission in arriving at his cost of equity capital of between 11.6% and 12.6%; the Company’s expert witness, Reis, used the capital structure approved by the Commission in arriving at his cost of equity capital of between 14.00% and 14.50%. The end result is that the Company’s figures are supported by substantial evidence and Commission witness Loconto’s figures are not.

In Mississippi Power Company v. Mississippi Public Service Commission, 291 So.2d 541 (Miss.1974), this Court vacated the Order of the Commission and approved the rate schedule filed by Mississippi Power Company, thus allowing Mississippi Power Company to earn a rate of return on common equity of 14.21%.

The Company’s bond interest coverage, although required to be at least twice the bond interest requirements, declined from 4.2 in 1972 to approximately 2.47 in May of 1974, and the Company’s preferred dividend coverage, although required to be at least 1.5 times interest and preferred dividend requirements, dropped from 2.43 in 1972 to 1.97 in 1973, and was estimated to drop to approximately 1.66 by May of 1974. These coverages have thus dropped to a critical level and without rate relief can only be expected to drop even further thereby seriously affecting Company’s ability to sell its securities in the open market.

The Company’s construction program for the immediate future (1974-1976) totals over $118,000,000 which, together with refunding of $12,000,000 of 3V8 first mortgage bonds due on September 1, 1974, will require the raising of substantial amounts of new capital. The evidence shows that current interest rates and dividends on preferred stock are approximately 10%, and that the embedded cost of debt capital to Company continues to rise.

All of these problems seem to have been recognized by the Commission because it said in its order of July 12, 1974:

“The Company’s witness on cost of capital and fair rate of return presented evidence on current interest rates on bonds and dividend yields on preferred stock which are the major sources of long term capital for public utilities. This evidence shows the current interest rates and dividends on preferred stock at 10%. Necessarily, the embedded cost of debt capital to the Company is rising.
“Further evidence presented in this case shows that investor confidence in common stock generally and utility common stocks, in particular, has decreased in recent years. The common stock of Middle South Utilities, Inc. is currently selling at below book value. The cost of common equity capital must be considered by the Commission in determining the cost of capital to the Company, and ultimately the rate of return for the Company. In view of current market conditions, the comparatively low common stock equity of the Company and the significance of this factor in arriving at overall cost of capital, the Commission regards common equity capital as an important element in allowing the rates as provided herein.
“This Commission cannot ignore considerable evidence presented in this case concerning current adverse circumstances peculiar to the electric utility industry. In addition to the effects of inflation on the cost of doing business previously mentioned, electric utilities face other problems. The Company is required to spend approximately $45 million dollars to modify existing plants to burn oil on a continuous basis. Of this amount, approximately $27 million is required for pollution control equipment. These and other factors mean the Company is paying approximately 70% more for capacity than in 1971. The Company’s investment in plant per customer was approximately $1,000 in 1964 and is approximately $2,000 in 1974.
“The Company can expect to experience the appeal of the United States government to the public to conserve all forms of energy. Accordingly it anticipates a material drop in KWH sales below projected trends, and such a decrease in utilization means that expenses will not be spread over as many KW hours. Yet, even though conservation will save fuel, it is anticipated that the Company’s peak loads during hot weather will continue to grow along past trends. The Company will need the capacity to continue to meet growth in its service area, but will not have the high sales usually attendant with area growth. This development could depress future earnings.
“These and other factors require this Commission to give very serious consideration to rate adjustments sought by electric utilities. The ratepayer must be protected from unreasonably high rates and charges, while at the same time the rates established by this Commission must be considered in light of the ability of the utility to meet the future needs of its service area.”
“The essential problem of determining a reasonable rate of return for any public utility involves the practical consideration of whether it will be able to go into the capital market and compete with others for necessary capital. As suggested by Professor Welch in his work, Public Utility Regulation, Public Utility Reports, Inc., 1961, others in this context means utilities, non-utilities, governments, agencies, and all who compete for money in the money market. Capital funds usually go to the highest bidder. Those with money to invest are going to get the best price they can. The Commission, therefore, must take into account the sound business reality that utilities subject to its jurisdiction should be permitted to go into the money market on a favorable competitive basis.”

The Commission then stated its conclusion:

“The Commission has considered all relevant evidence of record in this case and has considered and given weight to the judgments and opinions of record, including those which agree with and those which differ from its own.
“After considering and carefully weighing all evidence presented in this case by all parties, we find that the Company, utilizing rates in effect prior to February 17, 1974, will be afforded the opportunity to earn a rate of return of not less than 8.17%. .
“ . . .We are convinced, however, that with continued prudent and economical management, the rates in effect prior to February 17, 1974 will yield to the Company a fair rate of return upon the reasonable value of the utility property used and useful in rendering service to its utility customers. The Commission is convinced that these revenues will be sufficient for the payment of operating expenses, the capital cost of the business, and reasonable dividends on its common stock.
“IT IS, THEREFORE, ORDERED that
1. The schedule of rates and charges herein filed by the Company on January 17, 1974, are found to be unjust, unreasonable and otherwise in violation of law and except as provided in Paragraph 2, the same are hereby cancelled.
2. That the new proposed fuel adjustment formula may be made effective except insofar as it would roll into the base rate 4.5 mills per KWH.”

It is hard to reconcile the conclusion of the Commission that the Company was entitled to no increase in rates. Especially is this true when, in the first portion of its Order, of July 12, 1974, the Commission went to great pains to list in detail the ever-increasing problems of public utilities. The Commission listed energy fuel problems, problems caused by inflation, greatly increased expenses to meet environmental pollution problems, and the' loss of investor confidence “in common stock generally and utility common stocks, in particular.”

The Commission even made this observation in its Order:

“The Commission, therefore, must take into account the sound business reality that utilities subject to its jurisdiction should be permitted to go into the money market on a favorable competitive basis.”

Mississippi Code Annotated section 77-3-39 (1972) requires of the Commission:

“If, after such hearing, the commission shall find any such rate or rates to be unjust, unreasonable or unreasonably discriminatory, or in anywise in violation of the law, the same shall be set aside and the commission shall determine and fix by order such rate or rates as will yield a fair rate of return to the public utility for furnishing service to the public and shall make and file its conclusions and findings of fact supporting such order.” (Emphasis added).

The Commission made no findings of fact supporting its order, nor did it give any reasons for its conclusion, as specifically-required in Sec. 77-3-39. Indeed, after listing all of the problems confronting utilities, the conclusion of the Commission would seem to be a “non sequitur.”

In Mississippi Power Company v. Mississippi Public Service Commission, 291 So.2d 541 (Miss.1974), we said:

“Since the only major conflict in evidence was the difference of opinion of the two rate experts, and since the commission did not follow either rate expert and did not make a finding of fact to support its ultimate conclusion, we hold that the order of the commission was not supported by substantial evidence and was against the manifest weight of the undisputed evidence.” 291 So.2d at 558. (Emphasis added).

In Mississippi Public Service Commission v. Mississippi Valley Gas Company, 327 So.2d 296 (Miss.1976), this Court said:

“We find in this case as in Mississippi Power Co. v. Public Service Commission, supra, that except for the difference of opinion of the rate experts, the facts of this case are not in dispute. The commission did not accept the recommendation of either rate expert, and in fact fixed a rate of return lower than that recommended by its own expert witness, without sufficient finding of fact to support its ultimate conclusion.” 327 So.2d at 297-98. (Emphasis added).

We agree with the chancellor, who found:

“That the Commission’s Order of July 12, 1974, insofar as it cancels, modifies, disallows and disapproves the schedules of rates and charges, including the new fuel adjustment clause, as filed by Mississippi Power & Light Company on January 17, 1974, is contrary to the manifest weight of the evidence in this cause and is not supported by substantial evidence.
“That the schedules of rates and charges, including the new fuel adjustment clause, filed by Mississippi Power & Light Company on January 17, 1974, to be effective February 17, 1974, are reasonable, will provide the Company with a fair return and should be approved.”

The appellant contends that, even if this Court affirms the decree of the chancery court, the cause should be remanded to the Commission for the fixing of rates. Mississippi Code Annotated section 77-3-67 (1972) provides in part:

“(4) The court may hear and dispose of the appeal in term time or vacation and the court may sustain or dismiss the appeal, modify or vacate the order complained of in whole or in part, as the case may be. In case the order is wholly or partly vacated the court may also, in its discretion, remand the matter to the commission for such further proceedings, not inconsistent with the court’s order as, in the opinion of the court, justice may require.” (Emphasis added).

The statute clearly provides that it is discretionary with the chancery court whether it remands the matter to the Commission or not.

In the case at bar the chancellor did remand the matter to the Commission and we agree that this was proper and within his discretion.

The decree of the chancery court is, therefore, affirmed and this cause is remanded to the Commission for the fixing of rates and further action not inconsistent with this opinion.

AFFIRMED AND REMANDED TO THE COMMISSION.

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

GILLESPIE, C. J., took no part.


text:
    In re Expansion of the Boundaries of the CITY OF WATER VALLEY, Mississippi.
    No. 49189.
    Supreme Court of Mississippi.
    Aug. 17, 1976.
    William P. Dodson, Oxford, for appellant.
    Murray L. Williams, Water Valley, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   Appeal from Chancery Court, Yalobusha County; Herbert M. Fant and Leon E. Hannaford, Chancellors.

AFFIRMED.


text:
    WELLINGTON-PREWITT-MALKE & ASSOCIATES, INC., etc. v. Eddie DAIGLE, Jr.
    No. 48787.
    Supreme Court of Mississippi.
    Aug. 31, 1976.
    Young, Young & Scanlon, Robert B. Ses-sums, Jackson, for appellant.
    Watkins & Eager, George R. Fair, Jackson, for appellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Hinds County; George William Haynes, Chancellor.

AFFIRMED.


text:
    Thomas Avery WOMACK et al. v. Andy JOHNSON et al.
    No. 48827.
    Supreme Court of Mississippi.
    Aug. 24, 1976.
    Rehearing Denied Sept. 21, 1976.
    W. M. O’Barr, Okolona, Armis E. Hawkins, Houston, for appellant.
    Ben F. Hilbun, Jr., Starkville, for appel-lee.
    Before GILLESPIE, C. J., ROBERTSON and LEE, JJ., and IDOM, Commissioner.
   Appeal from Chancery Court, Oktibbeha County; W. W. Brand, Jr., Chancellor.

AFFIRMED.


text:
    Edgar Ray KILLEN v. STATE of Mississippi.
    No. 49134.
    Supreme Court of Mississippi.
    Aug. 17, 1976.
    Rehearing Denied Sept. 14, 1976.
    James R. Allen, Carthage, Merrida P. Coxwell, Jackson, for appellant.
    A. P. Summer, Atty. Gen., by Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Newton County; Roy Noble Lee, Judge.

AFFIRMED.

Rehearing denied Lee, J., took no part.


text:
    CONSOLIDATED UNDERWRITERS INSURANCE COMPANY v. Etta Kate PERKINS.
    No. 48806.
    Supreme Court of Mississippi.
    Aug. 31, 1976.
    Rogers, Morris, Fair, Schlottman & Si-gler, Hattiesburg, Watkins & Eager, P. N. Harkins, III, Jackson, for appellant.
    Swartzfager & Swartzfager, Laurel, for appellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

AFFIRMED ON DIRECT APPEAL. CROSS-APPEAL MOOT.


author: GILLESPIE, Chief Justice,

text:
    CITY OF JACKSON v. Edward LUCKETT et al.
    No. 49127.
    Supreme Court of Mississippi.
    May 25, 1976.
    Rehearing Denied Aug. 31, 1976.

      John E. Stone, Jackson, for appellant.
    Watkins & Eager, Jackson, for appellees.
    Before GILLESPIE, C. J., and SUGG and WALKER, JJ.
   GILLESPIE, Chief Justice,

for the Court:

Edward Luckett, David Polk (Managers), and Great Atlantic & Pacific Tea Company and Kroger Company, operators of food stores in the City of Jackson, obtained from the Chancery Court of Hinds County a permanent injunction enjoining the City of Jackson from enforcing a recently enacted city ordinance limiting the sale of food on Sunday. The City appealed.

The case was submitted on the pleadings.

Mississippi Code Annotated section 97-23-67 (1972) provides:

On the first day of the week, commonly known as Sunday, it shall be unlawful for any person to sell or to offer for sale, or to employ others to sell or to offer for sale, or to engage in the business of selling or offering for sale, any wares or merchandise, goods or chattels, except the following: . . . food . garden and lawn supplies.

Code section 97-23-75 provides:

The governing authorities of municipalities or the boards of supervisors of counties acting within areas outside of municipalities may by local ordinance duly adopted prohibit or limit in whole or in part the sale of the items hereinabove detailed, and the said authorities may likewise prescribe the hours within which such sales may be made, or within which said sales may be prohibited within their respective jurisdictions.

The ordinance in question was adopted September 3, 1975, and the pertinent portion of it reads as follows:

It shall be unlawful for any sales of food or food products or garden and lawn supplies to be made in the City of Jackson, Mississippi, on a Sunday, other than those items which shall be sold in an establishment with not more than 2400 sq. ft. of sales space and have not more than three employees at any one time, including the owner, operator or proprietor of such establishment, provided, however, that no sales of the aforesaid items may be made in the City of Jackson, Mississippi between the hours of one o’clock A.M. and twelve o’clock noon on a Sunday.

The disposition of the case requires the resolution of two basic issues.

1. Does the City have the authority to limit the Sunday sale of food and garden supplies by limiting the size of the establishments which sell these items?

Appellees argue that the statute does not grant municipalities authority to limit the size of an establishment that the City may only prohibit or limit in whole or in part the sale of food on Sunday and that the classification with respect to the size of the establishment to be operated on Sunday is not authorized by the statute.

The foregoing arguments are based on the established rule that municipalities have only such authority to adopt ordinances as is expressly or impliedly given by the state, as held in Knight v. Johns, 161 Miss. 519, 137 So. 509 (1931), and King v. City of Louisville, 207 Miss. 612, 42 So.2d 813 (1949).

This Court has upheld Sunday closing laws in numerous cases and as late as last year in Genesco, Inc. v. J. C. Penney Co., 313 So.2d 20 (Miss.1975). There is no doubt about the constitutionality of sections 97-23-67 and 97-23-75. The question is whether that part of the ordinance limiting the size of establishments selling food is authorized by the statutes.

Municipalities “may exercise all powers which are reasonably necessary to give effect to the powers granted, and in so doing they have the choice of the means adapted to the ends, and are not confined to one method of operation, — this in the absence of a method prescribed by the statute itself.” Hawkins v. City of West Point, 200 Miss. 616, 27 So.2d 549 (1946). See also City of Jackson v. McMurry, 288 So.2d 23 (Miss.1974).

A limitation on the size of stores selling food necessarily limits the sale of food, limits the number of people engaged in selling food, and limits the number of people engaged in handling traffic and performing police duty in general. As noted in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), enforcement problems would increase if large retail establishments were permitted to remain open on Sundays.

We hold that the limitation on the size of establishments is a reasonable method of accomplishing the limitation of the sale of food and is a proper means adopted by the City to give effect to powers expressly granted.

2. Does the ordinance violate the principle of equal protection?

Appellees argue that because they operate large stores they are prevented from following a lawful business while persons operating an establishment containing 2400 square feet or less are allowed to remain open. It is contended that this constitutes denial of equal protection of the law. Appellees’ argument is untenable for two reasons. First, the competition that the small stores can give to the large food stores, or supermarkets, is undoubtedly minimal. Secondly, the general rule is that municipal ordinances or regulations containing classifications will be upheld against the objection that they are discriminatory if any reason can be conceived to justify Jur.2d, Municipal Corporations, § 392 the classifications therein made. 56 Am. (1971). In section 390 of that text, it is said:

In order to declare a municipal ordinance invalid because it is unreasonable or unconstitutional, the invalidity must be clearly and satisfactorily shown, and must be palpable and manifest . and where the evidence leaves the court in doubt as to the reasonableness of an ordinance, it seems that the doubt must be resolved in favor of the validity of the ordinance. A court will not hold an ordinance void as unreasonable where there is room for a fair difference of opinion on the question, even though the correctness of the legislative judgment may be doubtful and the court may regard the ordinance as not the best which might be adopted for the purpose.

We find no reason to hold that the ordinance discriminates against the appellees.

The Legislature intended by the enactment of section 97-23-75 to grant municipalities and counties the authority to either prohibit the sale of food and garden supplies altogether or to limit such sales in such a way as to meet the needs of the particular community. We hold that the method chosen by the City is free from invidious discrimination and is a reasonable exercise of the power granted by the statute.

For the reasons stated, the chancery court erred in enjoining the enforcement of the ordinance and the decree is reversed and judgment entered here dismissing the bill of complaint.

REVERSED AND JUDGMENT HERE.

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

Rehearing denied; GILLESPIE, C. J., ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.

PATTERSON, INZER, P. JJ., SMITH and LEE, JJ., dissent.