text:
    COLONIAL BANK v. Shirley N. BAPTISTE.
    No. 10157.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearing Denied May 17, 1979.

      Bruce M. Danner, New Orleans, for defendant-appellant.
    Robert A. Mathis, Rantoul, and Richard J. Tomeny, Jr., Newman & Drolla, New Orleans, for plaintiff-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This is an appeal from a deficiency judgment rendered by default.

The procedural posture of the case is as follows: Colonial Bank, appellee, filed a petition for executory process to seize and sell an automobile naming Shirley Baptiste as defendant. Appellee submitted the original promissory note and the act of sale and chattel mortgage as evidence. These were signed by Shirley Baptiste and Earl Baptiste. Pursuant to the order signed by the trial judge, the automobile was seized and sold, after appraisal, for the sum of $500.

The bank then filed a supplemental petition praying for a deficiency judgment in the amount of $3,227.19 representing the unpaid balance due minus the amount obtained from the sale. Submitted as evidence were the documents named above plus the Sheriff’s return showing personal service of the notice of seizure and the request to appoint an appraiser on appellant. Appellee also introduced the order for the writ of seizure and sale, the judicial advertisement for the sale of the automobile, and the title sheet issued by the Louisiana Department of Public Safety showing the identification number of the vehicle. Appellant was personally served but did not respond. A default judgment was rendered against appellant for the alleged deficiency plus interest and costs. It is from this judgment that the appeal is taken.

Appellant contends that the deficiency judgment is null and void due to defects in the executory proceeding. Specifically, she argues that Earl Baptiste, her husband, should have been named as a party defendant since the automobile was community property and that there was an error in the serial number of the automobile as recited in the petition and chattel mortgage.

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. Code of Civil Procedure Article 1702. In order to obtain reversal of a deficiency judgment appellant must overcome the presumption that the judgment was rendered upon sufficient evidence and is correct. Ascension Builders v. Jumonville, 262 La. 519, 263 So.2d 875 (1972); Chaison v. LeBlanc, 363 So.2d 87 (La.App. 3rd Cir. 1978). In reviewing a default judgment, an appellate court is restricted to a determination of the sufficiency of the evidence offered in support of the judgment. Eddie’s Hardware, Inc. v. Rago, 320 So.2d 276 (La.App. 4th Cir. 1975).

Appellant asks that this court find that the debt was a community debt and that the husband should have been joined as a defendant. There is, however, no evidence in the record to show any limitations or restrictions on the liability of appellant as a maker and signer of the chattel mortgage and note. Even if we were to consider the community nature of the basic obligation, she may still obligate herself personally under authority of R.S. 9:103. Appellant is simply in the position of having co-signed a promissory note and accompanying mortgage and is solidarily bound under the terms of the agreement. Suit may be brought by the creditor against any debtor in solido for the entire amount, both under this agreement and under law. See Civil Code Article 2094. That is exactly what appellee has done here and we find that the default judgment was based on sufficient evidence and is correct.

Appellant’s other contention deals with the clerical error in the chattel mortgage. The last digit in the vehicle identification number was apparently typed as a 2 rather than an 8. A deficiency judgment is prohibited where there is any fundamental defect in the proceedings. Ford Motor Credit Company v. Soileau, 323 So.2d 221 (La.App. 3rd Cir. 1975). We do not feel, however, that a minor error of this type is a fundamental defect sufficient to render the executory process null and void, especially where there is no dispute as to the identity of the automobile. We therefore find that the deficiency judgment was properly rendered in favor of the plaintiffs.

For all of the above reasons, the judgment below is affirmed.

AFFIRMED.

REDMANN, Judge,

dissenting.

The record does not support the petition’s allegation that the car that was mortgaged sold for only $500. It shows only that a car with a different serial number was sold for that price. Accordingly the default judgment should be set aside.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Carolyn J. JORDAN v. HUGHES AIRCRAFT COMPANY and Employers Insurance of Wausau.
    No. 10333.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearing Denied May 17, 1979.
    Glenn L. Morgan, New Orleans for plaintiff-appellant.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   ON EX PROPRIO MOTU RULE TO DISMISS APPEAL

SAMUEL, Judge.

This suit for workmen’s compensation, the trial of which has not as yet been had, was filed in the Civil District Court for the Parish of Orleans. Plaintiff filed a motion to recuse the judge to whom the case was allotted. That judge ordered reallotment of the motion by the clerk of court for trial by another judge. In due course, after a hearing on the matter, the judge to whom the motion had been reallotted, another judge of the Civil District Court for the Parish of Orleans, rendered judgment dismissing the motion. Plaintiff appealed from that judgment.

Our examination of the record indicated an apparent lack of jurisdiction over the appeal. Accordingly, we issued a rule, ex proprio motu, ordering the appellant to show cause why the appeal should not be dismissed for lack of jurisdiction on the following ground:

“The refusal to recuse another judge may be an interlocutory judgment which is not appealable unless the plaintiff can demonstrate irreparable injury. See CCP 2083.”

The appellant has responded and the question of whether or not the appeal should be dismissed is the only matter before us at this time.

The motion alleges the judge sought to be recused is sitting “without legal right” and that he is biased against the attorney for the appellant, which bias “results from said attorney’s efforts to remove said judge” from office.

The following articles of the Code of Procedure are applicable:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.” LSA-C. C.P. Art. 2083.
“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.” LSA-C.C.P. Art. 1841.

Under the clear provisions of the above quoted article 1841 the judgment here appealed from is an interlocutory judgment as it determined only a preliminary matter and did not determine the merits of the case. And under the equally clear provisions of the above quoted article 2083, an appeal may be taken from this interlocutory judgment only if it causes irreparable injury. Appellant’s response fails to show any irreparable injury.

Accordingly, this appeal from the judgment dismissing the motion to recuse is dismissed.

APPEAL DISMISSED.

      . The hearing was on argument (by appellant’s attorney) only; no evidence was offered.

      . Small v. Levy, La.App., 355 So.2d 643 (writ refused La., 361 So.2d 450), which affirmed the trial court judgment dismissing the suit.


author: LEMMON, Judge.

text:
    Carol Ann SPENCER, wife of Felix Talabock, Jr. v. Felix TALABOCK, Jr.
    No. 9879.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1979.
    Rehearing Denied May 17, 1979.

      Thomas J. Toranto, Jr., New Orleans, for plaintiff-appellee.
    Arthur G. Kingsmill, Gretna, for defendant-appellant.
    Before REDMANN, LEMMON and GARRISON, JJ.
   LEMMON, Judge.

Felix Talabock has appealed from a judgment denying his rule for change of custody of the only child born of the marriage, complaining that the trial court in reasons for judgment relied on the outdated concept of maternal preference. We agree that the legislative amendment of C.C. art. 157 clearly rejected preference in custody determinations based on the sex of the parent, rather than on the best interest of the child, but we affirm the mother’s retaining of custody on another basis.

When the parties initially separated in December, 1974, a consent judgment was rendered, awarding the mother custody of the four-year-old boy. The April, 1976 default judgment of divorce confirmed the previous award. In October, 1976 the parties entered into a consent judgment granting the father temporary custody until the end of the 1976-77 school year, and the parties subsequently entered into another consent judgment continuing custody in he father through the 1977-78 school year. Just prior to the expiration of the latter judgment the father filed the rule at issue in this appeal.

At trial the parties disagreed as to the reason the mother had consented to change of custody. Mrs. Talabock testified that she was unable to cope emotionally with the doctor’s diagnosis of her multiple sclerosis and needed temporary help, while Mr. Tala-bock stated that he discovered his former wife was living with another man and that she agreed to a temporary change of custody in order to prevent his filing suit for custody based on the illicit relationship. Significantly, both parties agreed they intended that the change would be temporary and that the child would be returned to the mother in June, 1977.

When a judgment grants permanent custody to one parent, the other parent who subsequently seeks to change custody has the burden of establishing a significant basis for the court to grant the requested change. The only significant reason for granting custody to the father in this case is that he had actual physical custody for 20 or 21 months. Nevertheless, this arrangement was always intended to be temporary, and it would be grossly unfair to use Mrs. Talabock’s consent to this temporary arrangement (at least under the circumstances described by her) as the sole basis for depriving her of custody permanently. At best the fact of the father’s actual physical custody can be used to argue that the requested change of legal custody would not have the usual traumatic effect of upsetting the stability and security of an established relationship.

While the judgment under review is the first considered determination of custody, and while the asserted legal basis was incorrect, this record nevertheless fails to establish a compelling basis for changing the previous custody award granted by consent.

Mrs. Talabock is living with her parents, who can provide adequate supervision while she is working, and her father at time of trial had completed plans for an additional bedroom in anticipation of the boy’s return. Mrs. Talabock had long since ended the questioned relationship with the man to whom she was engaged at the time of transfer of custody, and her disease, while definitely diagnosed, had not progressed.

While the decision in this case could go either way on the evidence, custody is always an open issue, and under the overall circumstances we cannot say that the best interest of the child requires a change in the earlier award of custody by consent.

AFFIRMED.

      . Furthermore, because legal custody was continued in the mother by the June, 1978 judgment, she has also had physical custody since that time.


author: GARRISON, Judge.

text:
    Joan BROOKS v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 9954.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1979.
    Rehearing Denied May 17, 1979.
    Writ Refused June 15,1979.

      W. Monroe Stephenson, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Raymond J. Salassi, Jr., G. Bruce Kuehne, New Orleans, for defendant-appellee.
    Before SAMUEL, BEER and GARRISON, JJ.
   GARRISON, Judge.

Joan Brooks owns property on which, at some time prior to her purchase of the land in 1972, New Orleans Public Service, Inc. (NOPSI) placed a guy pole to support a powerline structure located on adjacent property. In 1977, Brooks filed suit against NOPSI to recover compensation for a continuous taking or servitude and to recover damages for mental anguish and harassment and for fear of potential harm to her children, occupants, and invitees. Defendant NOPSI filed exceptions on four separate grounds: prescription, no right of action, acquisitive prescription, and no cause of action. The trial judge divided plaintiff’s claim into two causes of action: one for compensation under expropriation law and one in tort for trespassing. He ruled that she had no cause of action under expropriation law and that her tort action had prescribed, and dismissed her suit. Plaintiff appeals from this ruling. We affirm, for the reasons set forth below.

This case is another skirmish in the continuing battle over expropriation powers of quasi-public corporations. For many years, such entities were allowed to acquire servi-tudes on private property through appropriation by unopposed use and occupancy. This theory, known as the St. Julien doctrine and set forth in the case of St. Julien v. Morgan La. and Tex. Ry. Co., 35 La.Ann. 942 (1883), provided that a public or quasi-public corporation having expropriatory powers could acquire a servitude where the landowner consented or acquiesced in its appropriation. The landowner had only a right to compensation for use of the servitude and for damages to his property if any. The St. Julien doctrine was reaffirmed in many later cases and remained the rule until 1976, when it was partly overruled by Lake, Inc. v. Louisiana Power and Light Co., 330 So.2d 914 (La.1976). The Lake case abolished the St. Julien doctrine with respect to discontinuous servitudes, on the ground that the doctrine conflicted with the specific mandate of La.Civ.Code Art. 766. (Art. 766 provides that discontinuous servitudes may be established only by title.) However, the Lake court made its ruling prospective only, “affecting conduct occurring after the finality of this judgment.” 330 So.2d at 918.

The state legislature reacted promptly to the Lake decision by enacting R.S. 19:14 (Act 504 of 1976), which provides in pertinent part as follows:

“In the case where any corporation referred to in Section 2 of this Title has actually, in good faith believing it had the authority to do so, taken possession of privately owned immovable property of another and constructed facilities upon, under or over such property with the consent or acquiescence of the owner of the property, it will be presumed that the owner of the property has waived his right to receive just compensation prior to the taking, and he shall be entitled only to bring an action for judicial determination of whether the taking was for a public and necessary purpose and for just compensation to be determined in accordance with Section 9 hereof, as of the time of the taking of the property, or right or interest therein, and such action shall proceed as nearly as may be as if the corporation had filed a petition for expropriation as provided for in Section 2.1 of this Title.”

In essence, this statute reinstated the St. Julien doctrine, with some limitations.

The Lake case also held that an electric transmission line is a discontinuous apparent servitude because it needs the act of man to be exercised. 330 So.2d at 917. The court followed the reasoning of Nash v. Whitten, 326 So.2d 856 (La.1976), which held a natural gas pipeline to be a discontinuous servitude because the act of man was required for its exercise and the term “act of man” included the operation of machinery necessary for the servitude’s exercise. The reasoning leading to such a designation has been questioned by several writers. Although the ruling in Lake regarding appropriation by use and occupancy was prospective as to conduct occurring after the judgment, logically its holding as to designation of the servitude must be considered to apply to any servitude existing at the time the Lake case was decided, and thus would be applicable to the electric power-line here. The servitude involved here, however, is not for the powerline itself, but simply for the placement of a pole on plaintiff’s land. As NOPSI states in its brief,

“The only thing which is located partially on petitioner’s land is a single guy pole. This guy pole is not energized, nor is it connected to an energized wire. Its only function is to maintain tension against structures on the adjacent land, which in turn support electrical transmission wires. It requires no ‘act of man’ to use the guy pole. It fulfilled its entire function (holding up the utility pole) before the electrical transmission lines were set in place and it would continue to fulfill its entire function regardless whether electrical energy flowed through the lines or not.”

Certainly, under the reasoning of either Nash v. Whitten or the Lake case, the guy pole of itself should not be considered a discontinuous servitude. Still, the guy pole is unquestionably an integral part of the transmission line structure and fulfills an indispensable function. As such, it must be considered an indivisible part of the power-line and so must be classified in the same way as the powerline — that is, as a discontinuous servitude. Thus, we must consider the substance of the St. Julien-Lake-R.S. 19:14 conflict, although the entire discussion could be avoided if we were to consider the guy pole as a continuous servitude and thus not subject to the Lake decision.

One of the effects of R.S. 19:14 is to make the St. Julien doctrine applicable to discontinuous servitudes, since R.S. 19:1 defines “property” for purposes of general expropriation law as including “servitudes and other rights in or to immovable property.” As noted in a recent decision by this court,

“The court in Lake did not overrule the St. Julien doctrine on constitutional grounds, but on the basis of its inconsistency with codal provisions. La.Acts 1976, No. 504, as a legislative enactment, now has equal status with the codal provisions.” Trustee Corp. v. Allen, 359 So.2d 715 at 718 (La.App. 4th Cir. 1978).

Another effect of R.S. 19:14 is to set a prescriptive period for an owner’s claim for compensation. Gases interpreting the St. Julien doctrine had set no specific time limitations; a brief period of unopposed occupancy was enough to give the taker the benefit of the doctrine. See Gumbel v. New Orleans Terminal Co., 173 So. 518 (La.1937). R.S. 19:2.1, to which R.S. 19:14 refers, provides as follows:

“A. The rights of expropriation granted in R.S. 19:2 shall be exercised in the following manner:
(1) A petition shall be filed by the plaintiff in the district court of the parish in which the property to be expropriated is situated. However, where the property to be expropriated extends into two or more parishes and the owner of the property resides in one of them, the petition shall be filed in the district court of the parish where the owner resides; but if the owner does not reside in any of the parishes into which the property extends, the petition may be filed in any of the parishes into which the property extends. In all such cases, the court wherein the petition is filed shall have jurisdiction to adjudicate as to all the property involved.
(2) The petition shall contain a statement of the purposes for which the property is to be expropriated, describing the property necessary therefor with a plan of the same, a description of the improvements thereon, if any, and the name of the owner if known and present in the state.
(3) The petition shall conclude with a prayer that the property be adjudicated to the plaintiff with just compensation paid to the owner, as provided in this part.
B. All claims for property by, or for damages to the owner caused by the expropriation of property pursuant to R.S. 19:2 shall be barred by the prescription of two years commencing on the date on which the property was actually occupied and used for the purposes of the expropriation.” (Emphasis added.)

Thus, the St. Julien doctrine, as reinstated by R.S. 19:14, now has added to it a prescriptive period of two years within which the property owner must make his claim for compensation.

In the case before us, the trial judge (citing Trustee Corp. v. Allen, supra) concluded that if the St. Julien doctrine did not apply, then R.S. 19:14 did, and accordingly plaintiff had no cause of action. As stated previously, plaintiff purchased the property in 1972 but did not file suit until 1977, a lapse of five years. The guy pole was on her property when she purchased it, a time when the St. Julien doctrine was, to use the words of the trial judge, “in full flower.” The Lake case could not be applicable because its ruling was intended to affect only conduct occurring after the judgment in it became final. Thus, plaintiff’s claim must be decided either under St. Julien or under R.S. 19:14.

Under the St. Julien doctrine, appellant’s acquiescence by delay clearly would have precluded her from suing for removal of the servitude structure, but she would not have lost her right to compensation. Nonetheless, an essential element of the St. Julien doctrine was that the right to compensation is a right personal to the owner of the property at the time the servitude is taken. Because the right does not attach to the land, it can be conveyed only by express subrogation from the vendor to the vendee. Without an express transfer, one who buys property subject to a St. Julien appropriation has no right of action. Gumbel v. New Orleans Terminal Co., supra, and cases cited therein.

At the same time, under R.S. 19:14 appellant would have no cause of action for compensation even if she had a right of action, because the prescriptive period of R.S. 19:2.1B would be applicable. Since the two years’ period begins running “on the date on which the property was actually occupied and used for the purposes of the expropriation,” appellant’s time to bring her claim has long since elapsed. Although Brooks contends that the two-year period is applicable only where proceedings are instigated by the expropriating entity, this theory is negated by the very words of R.S. 19:14:

“[S]uch action [by an owner for compensation] shall proceed as nearly as may be as if the corporation had filed a petition for expropriation as provided for in Section 2.1 of this Title.”

Brook’s alternate contention is that, because her action was filed within two years of the effective date of R.S. 19:14, she is not barred by the R.S. 19:2.1B prescriptive period. We cannot agree with this.

“It is well settled in Louisiana that statutes of prescription are remedial statutes. [Citations omitted.] Because of this classification, courts have normally held that these statutes are applicable to all actions instituted after they became effective even though the cause of action arose, or the facts giving rise to the cause arose, before the statute was enacted. [Citations omitted.]” Lott v. Haley, 363 So.2d 1270 at 1273 (La.App. 4th Cir. 1978).

Accordingly, we agree with the trial judge that, whether the St. Julien doctrine or R.S. 19:14 is applied, the result is the same: plaintiff’s claim for compensation must be dismissed.

Having concluded that appellant is not entitled to receive compensation for NOPSI’s taking of the servitude, we next consider her claims for other damages. It is clear that incidental or consequential damages such as discomfort, disturbance, inconvenience and mental distress are not compensable under expropriation law. Key v. La. Dept. of Highways, 357 So.2d 1230 (La.App. 2d Cir. 1978); Reymond v. State Through Dept. of Highways, 231 So.2d 375 (La.1970); Texas Pipe Line Co. v. Barbe, 85 So.2d 260 (La.1956); Nagle v. Police Jury of Caddo Parish, 144 So. 425 (La.1932). Appellant’s damage claim must therefore be considered to arise in tort as the result of an alleged trespass. In his Reasons for Judgment, the trial judge said,

“Furthermore, if an action of trespass did exist such cause of action would have begun when the property was purchased, i. e., May 23, 1972, hence it would have prescribed prior to the date the within suit was filed, i. e., November 28, 1977 (c. c. Article 3536. See Patin v. Stockstill, 315 So.2d 868).”

We agree with the trial judge. We question whether any trespass existed when Brooks purchased the property, because the circumstances indicate that NOPSI had already acquired a servitude under the St. Julien doctrine and thus was not a trespasser. Veillon v. Columbia Gulf Transmission Co., 192 So.2d 646 (La.App. 3rd Cir. 1966). Even if NOPSI were a trespasser, however, Brooks knew or should have known of the pole’s presence on her property at the time of purchase. Her five-year delay in claiming damages for the alleged trespass bars her from recovery.

Brooks further contends that the alleged trespass was a continuing one, and thus that she should recover damages at least for the year immediately preceding filing of her suit. This position would seem to have some support from the case of Joseph A. Neyrey, Gen. Cont. v. La. P. & L., 347 So.2d 266 (La.App. 4th Cir. 1977), writ denied 350 So.2d 897. In that case, an electric company’s trespass by maintaining a pole and transmission line on a plaintiff’s property continued until the pole was removed, and a damage suit filed within one year of the pole’s removal was timely as to all damages caused by the presence of the pole and line during the entire time the continuing trespass existed. The Neyrey case, however, can be distinguished from the one before us. An operative fact in the Neyrey case was that the electric company had illegally erected the structure on the property. The appellant here has made no showing that the guy pole was illegally placed on her property. It was already there when she purchased the land, and from all that can be discovered in the record the previous owner either consented or acquiesced in its placement on the land. Thus it cannot be considered a continuing trespass because it is not shown to be an illegal construction.

For the foregoing reasons, the decision of the district court is affirmed.

AFFIRMED.

      . See, e. g., Tate, J., dissenting, Nash v. Whitten, 326 So.2d at 862 (La.1976); Tate, J., dissenting, Lake, Inc. v. Louisiana Power and Light Co., 330 So.2d at 918 (La.1976); Lem-mon, J., concurring, Lake, Inc. v. Louisiana Power & Light Co., 318 So.2d 911 (La.App. 4th Cir. 1975).

      . NOPSI alleges in its brief that the guy pole was placed on the property “some time before 1961.” The precise date is unimportant here since it is not contested that the pole was there at the time of plaintiffs purchase in 1972, some five years before she filed suit.


text:
    Michael Aaron SEALS v. ALLSTATE INSURANCE COMPANY.
    No. 9984.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1979.
    Rehearing Denied May 17, 1979.
    Writ Refused July 2, 1979.

      Murphy & Simon, David T. Bowman, New Orleans, for defendant-appellee, Allstate Ins. Co.
    Marvin C. Grodsky, New Orleans, for plaintiff-appellant, Michael Aaron Seals.
    Before SAMUEL, BEER and GARRISON, JJ.
   GARRISON, Judge.

Michael Aaron Seals and Merts J. Hend-richson were the drivers of two cars involved in a rear-end collision on May 22, 1976. Seals filed suit against Hendrichson’s insurer, Allstate Insurance Company, under the Louisiana Direct Action Statute. After a jury trial, Seals was awarded damages in the amount of $2,000. Dissatisfied with the amount of the award, Seals filed a motion for additur or for new trial. When his motion was denied, Seals filed this appeal and defendant filed an answer to the appeal.

Plaintiff’s specifications of error on appeal, when reduced to their simplest form, are basically that the jury erred in their findings of fact and that they abused their discretion by awarding grossly inadequate damages. The defendant, on the other hand, contests the jury’s finding of liability and avers that the award was too high. The jury’s verdict was in the form of answers to three interrogatories, as follows:

“1. Was defendant, M. Jay Hendrickson [sic], guilty of negligence which imposes responsibility for the accident? YES
“2. Was plaintiff, Michael Aaron Seals, guilty of contributory negligence which imposes responsibility for his own damages? NO.
“3. What damages, general and special, did plaintiff sustain as a proximate result of the accident? $2.000.00”

The evidence shows that Hendrich-son collided with Seals when Hendrichson swerved left to avoid'a car which had pulled out in front of him from the Interstate-10 off-ramp. Seals’ car was in the left lane of the two-lane boulevard and had slowed to make a turn. Hendrichson testified that the “phantom car” was about two-and-a-half to three car lengths ahead of him. He testified that he saw plaintiff’s vehicle before he changed lanes, but thought that he had room to stop. After he was in the left lane, he realized plaintiff’s car was slowing to make a turn. Hendrichson said that he felt under normal conditions he would still have had enough room to stop before hitting plaintiff, but the streets were slightly wet due to the misty weather and so the traction was not good.

Defendant Allstate cites the sudden emergency doctrine as a basis to absolve its insured of liability. However, we do not think that doctrine applies here. Hendrich-son saw the phantom car about three or four car lengths before he noticed it pulling out in front of him, at which time he changed lanes because he felt he could not stop before hitting the phantom car. He testified there was no obstruction blocking his view of Seals’ car, but that he did not notice Seals’ brake lights because he was concentrating on the phantom car in the right lane. Under the circumstances, although we sympathize with his plight, we do not feel he exercised the degree of care required of a prudent motorist. Potts v. Hollier, 344 So.2d 70 (La.App. 4th Cir. 1977); Edwards v. Sims, 294 So.2d 611 La. App. 4th Cir. 1974). Accordingly, we affirm as to liability.

Although the verdict did not specify what injuries the jury found Seals to have suffered, plaintiff contends that (considering the amount of the damage award) they must have failed to find he suffered a vertebral compression fracture as a result of the accident. He contends that such failure to find was error because it was against the weight of the evidence. We do not agree.

Seals testified that the impact of the collision shoved him forward and back with sufficient force to displace the driver’s seat of his car. He blacked out momentarily, his neck and back were hurting, he was nauseated, and he started crying. After the police investigated the accident, one of the passengers in his car drove him back to Mobile, Alabama, where he lives (a three-to-four-hour drive from New Orleans). Seals’ brother than took him to the emergency room at the University of South Alabama Medical Center, where he was examined by an intern and his neck and back were X-rayed. He was told to take aspirin and get rest, and was sent home with instructions to return in a few days. Instead, on May 25th and 29th he went to his family physician, Dr. Milton Leigh. Dr. Leigh took more X-rays and prescribed antibiotics and rest. Plaintiff stayed home from work for a week-and-a-half. He returned to Dr. Leigh in August, 1976, because his back pain had returned. Subsequently, he was sent to Dr. Kenneth Vogel by his attorney. Seals testified at trial that he had been without pain for only two days since the accident, and that the pain was so severe in the mornings that he could hardly straighten up.

We note that neither the intern at the Medical Center nor Dr. Leigh found any compression fracture. No testimony, depositions or medical reports from these Alabama physicians were offered at trial. The only medical testimony at trial came from Dr. Kenneth Vogel, plaintiff’s witness, and Dr. Eugene Dabezies, defendant’s witness. Both doctors based their diagnoses of Seals on the X-rays taken in Alabama, although Dr. Vogel also conducted a physical examination of plaintiff. Based on the X-rays, Dr. Vogel concluded that Seals had suffered a compression fracture of the T-8 vertebra, while Dr. Dabezies concluded that the X-ray irregularity indicated pre-existing Scheurmann’s Disease. Seals contends that the jury must have placed greater weight on Dabezies’ testimony than on Vogel’s and that this was error.

Although it is true that the testimony of a treating physician should be accorded greater weight than that of a non-treating physician, that rule is not applicable here. Neither Dr. Vogel nor Dr. Dabezies was plaintiff’s treating physician. Neither doctor is a radiologist: Dr. Vogel’s speciality is neurology, while Dr. Dabezies’ speciality is orthopedics. Dr. Vogel admitted that Scheurmann’s Disease is an orthopedic problem which he does not treat, while Dr. Dabezies has extensive clinical experience treating the disease. Dr. Vogel also admitted that the X-rays showed the only evidence of compression fracture, and that his diagnosis was based solely on the X-rays although he did conduct a physical examination. He admitted that the X-rays could also be indicative of Scheurmann’s Disease or other problems. Plaintiff contends that because Dr. Dabezies is not a radiologist and did not conduct a physical examination of plaintiff, his testimony should not be given greater weight than Dr. Vogel’s. However, Dr. Vogel is not a radiologist either, and his diagnosis, like Dabezies’, was based solely on the X-rays. Considering the evidence in the record and what we must surmise to be the jury’s findings, we find no manifest error and we will not overturn the verdict. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Further, we find no abuse of discretion in the amount of the jury’s award, Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and must affirm. Nor did the trial judge err in his refusal to grant additur or a new trial.

For the foregoing reasons, the decision of the district court is affirmed.

Affirmed.


author: ROBERTSON, Presiding Justice,

text:
    BAY SPRINGS TELEPHONE COMPANY, INC. v. MISSISSIPPI PUBLIC SERVICE COMMISSION.
    No. 51129.
    Supreme Court of Mississippi.
    April 18, 1979.
    Charles R. Mayfield, Jr., Jackson, for appellant.
    Ingram & Matthews, Jolly W. Matthews, Hattiesburg, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Bay Springs Telephone Company, Inc., (BSTC), appeals from the final decree of the Chancery Court of the First Judicial District of Hinds County dated August 7, 1978, affirming the order of the Mississippi Public Service Commission (MPSC) rendered on September 15, 1977, in which Order the Commission denied any increase in rates to BSTC.

BSTC has assigned as error:

I. The Court erred in rendering a Decree that found BSTC was receiving a fair Rate of Return in the Test Year (1976), based on its Present Rates, inasmuch as the Court erroneously accepted an $87,840 over-statement by the MPSC as to the Toll Revenue portion of the Annual Gross Revenue of BSTC for the Test Year (1976).
II. The Court then erred in rendering a Decree that found BSTC would receive a fair Rate of Return and would make a fair and reasonable amount of profit, with no increase under Present Rates, in the Projected Year (1977), inasmuch as the Court included Error # 1 above, and additionally erroneously accepted the MPSC failure to amortize Federal Income Taxes by crediting BSTC its entire Investment Tax Credit of $99,-005 in the Projected Year (1977).
III. The Final Decree of the Court is erroneous as a matter of law, inasmuch as it deprives BSTC of its property without due process of law, and denies BSTC equal protection of the laws.

Although BSTC was granted rate increases on May 17, 1976, it gave notice on March 28, 1977, of its intention to further increase rates and charges and on the same day applied to MPSC for approval of the new rates and charges. BSTC proposed to increase the rate on a one-party business telephone from $18 to $30 per month (a 67% increase), and on a one-party residence telephone from $9.50 to $13.50 per month (a 42% increase). Other proposed increases in the monthly rates for business telephones and exchanges varied from 22% to 150%; and other proposed increases in the monthly rates for residence telephones were from 15% to 41%.

The Commission found:

“[T]hat the rate base on which a determination for rates which will yield a fair rate of return to the public utility for furnishing service to the public should include: 1. telephone plant in service, less accumulated depreciation, and 2. working capital.”

The Order of September 15, 1977, then stated:

“The Commission finds inconsistent figures used by the applicant’s accountant and rate consultant, when those figures are compared to its own certified audit statement by the applicant’s own certified public accountants, Curry and Wof-ford. The Commission finds that on a projected year under present rates (rates in force before the application) the computation of the rate base and rate of return should be as follows:
1. Telephone Plant in Service $7,932,9861)0
2. Less accumulated depreciation 1,640,325.00
3. Net Telephone Plant in Service 6,292,661.00
4. Working Capital 93,178.00
5. Total Rate Base 6,385,839.00
6. Net Operating Income 468,825.00
7. Rate of Return 7.34%

In its order, MPSC also found that the applicant is an independent telephone utility, and that its basic long term financing is provided by REA; that the stockholders’ return on equity for the actual year ending December 31, 1976, under present rates was 70.23%, and that such return on equity far exceeded industry averages. MPSC further found that the debt ratio of BSTC was 95.8%, while the industry average was 53.9%; that BSTC is a capital deficient company, and that “its capital structure is being basically financed by telephone subscribers by the payment of telephone rates;” that BSTC “is a closely held corporation with affiliated ownerships closely held within one major family;” and that J. D. Fail, a member of this family who is an officer of BSTC, is paid a substantial salary by BSTC, even though he operates a full time professional engineering firm on the side.

The Order recites:

“It is undisputed in the record that J. D. Fail contracts for engineering services with Bay Springs Telephone Company. The contractual arrangements are that the engineering firm would be paid for its costs which include salaries of its personnel, wages of its personnel, salaries and compensation of its partners and principals, expenses of insurance, medical insurance, reimbursement for fringe benefits, rental on its equipment and other reimbursement items plus 75% of all costs enumerated from the above items.”

The Commission also made note in its order that it had taken testimony from more than 45 customers of BSTC as to poor maintenance of its lines, poor repair service and poor customer service generally, even though under the proposed rates BSTC’s customers would be charged “the highest overall rates of any telephone company in the State of Mississippi.”

In answer to the first assignment of error, the record contains the actual audit of BSTC’s books by its own CPAs, Curry and Wofford, which show the toll service revenues for 1976 to be $775,135; whereas Larry W. Seab, also BSTC’s special CPA and rate expert, shows toll service revenues of $687,295 in his “Pro Forma Statement of Income Actual” for 1976.

Under cross-examination, Seab testified:

“Q But what I’m getting at, Mr. Seab, is that in 1976 you actually had $775,000 in toll income, didn’t you?
A Yes, sir.”

Thus the undisputed testimony from BSTC’s own accountants and witnesses answers the argument made by BSTC in its first assignment of error adversely to the contention of the appellant.

As to the second assignment of error that MPSC failed “to amortize Federal Income Taxes by crediting BSTC its entire Investment Tax Credit of $99,005 in the Projected Year (1977)”, John R. Benham, Jr., a CPA and a witness for the Commission, testified that his separate computation of Federal and State Income Taxes for BSTC alone is “an accepted method for computing the income tax for a subsidiary,” even though the parent corporation filed a consolidated tax return for all its subsidiaries. Benham went to some pains to explain that this was merely a calculation of federal and state income taxes for the projected year with present and proposed rates and was a statement and not an income tax return for BSTC. BSTC is the main subsidiary of Telephone Electronics Corporation, the holding company whose stock is also owned largely by the Fail family.

MPSC is not denying the holding company the right to amortize the investment tax credit on its consolidated tax return in any way that it can legitimately do so under federal law. It appears to this Court that, for rate-making purposes, the only way to get a true picture of the interaction of the investment tax credit on federal income taxes and, therefore, on the net income of BSTC for a projected year is to handle it as Benham did with a separate statement for BSTC. Benham merely calculated the federal income taxes at $173,010 (with the proposed new rates in effect) and deducted therefrom the $99,005 Investment Tax Credit due BSTC for property, equipment and materials purchased by BSTC. It cannot be stressed too strongly that Benham’s tax calculation was merely a financial statement for MPSC, not a U. S. Income Tax Return. Benham was not usurping the right of T.E.C., the parent corporation, to handle its consolidated income tax return in any way it saw fit and could legitimately do under federal law. T.E.C. could amortize or not amortize in its sound judgment and discretion alone.

The undisputed testimony was that a fair and reasonable rate of return for a telephone company would be between 6% and 8%. The Commission found that under the present rates BSTC was earning 7.34% on a total rate base of $6,385,839 and that its net operating income for 1977 (the projected year) would be $468,825.

This Court finds, as did the chancery court, that the order of the Commission is supported by substantial evidence, is not contrary to the manifest weight of the evidence, is not in excess of the statutory authority or jurisdiction of the Commission, does not violate any constitutional rights of BSTC and, therefore, that the final decree of the chancery court affirming the order of the Mississippi Public Service Commission should be affirmed.

AFFIRMED.

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


author: LEE, Justice,

text:
    Boutros JARJOURA v. FRED’S ONE & TWO DOLLAR STORE, INC.
    No. 50954.
    Supreme Court of Mississippi.
    May 2, 1979.

      Ronald W. Lewis, Catherine V. Kilgore, David G. Hill, Oxford, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Jack R. Reed, Jr., Tupelo, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Boutros Jarjoura filed suit in the Circuit Court of Lafayette County, Honorable W. W. Brown, presiding, against Fred’s One & Two Dollar Store, Inc., seeking damages for slander, false imprisonment, false arrest and assault. After both parties had presented evidence and rested, the trial judge sustained a motion in favor of Fred’s One & Two Dollar Store (Fred’s) for a directed verdict, and Jarjoura has appealed here.

The evidence for appellant indicates that on August 31, 1976, he arrived from United Arab Emirates, in Oxford, Mississippi, after having been picked up in Memphis by his brother, John Jarjoura. The brother had been in the United States for several years and was a student at the University of Mississippi, and he spoke and understood the English language. Appellant could not speak English, and planned to enter the University of Miami for one semester to take an intensive course in English before entering college at Ole Miss.

On September 4, 1976, the two brothers went to Fred’s in Oxford for the purpose of purchasing some personal items. While in the store, appellant decided to buy some blue jeans, but wanted to try them on in order to determine whether or not they fit. Fred’s store is comprised of a large open area with display aisles. In the rear of the open area, there is a door leading to a storage place and there is also a restroom and office in the area. Appellant’s brother had shopped in the store previously and had used the restroom for the purpose of trying on wearing apparel. He directed appellant to the area. As appellant approached the storeroom, he was met by the manager and was prohibited from going any farther. His brother inquired of the manager the reason and was informed that it was against the store policy to try on clothes in the restroom. Thereupon, the brothers returned to the display racks, put the blue jeans back in place, paid for articles they had purchased and started away from the store. After walking out the door, the brother became aware that appellant was not with him, and he returned to discover what had happened.

As appellant started to leave the checkout counter, he was stopped by the manager and was detained by him until police were called and arrived, in spite of the objections by appellant and his brother. When the police arrived, there was a short discussion, people were looking at them, appellant and his brother were embarrassed, knowing that the people thought they were accused of being thieves. The officer suggested they go into the back area, where appellant was asked to remove his blue jeans. He complied with the request, and an employee of the store took the jeans to the front to inquire whether or not the brand was the same as that carried by the store, and returned with the information that they were different brands and that the jeans did not come from Fred’s store.

The evidence for appellee reflects that a part-time employee was coming from an upstairs office and was proceeding down the stairs to the stockroom when he saw appellant and his brother enter the storage area. Appellant was carrying a pair of jeans over his arm. The employee claimed that he observed appellant enter the restroom marked “Employees Only” and that he then informed the manager about the incident. They went toward the rear of the store and met appellant coming out with a pair of blue jeans over his arm. Appellant went to the jean display area and in a few moments, turned and attempted to re-enter the storage area when he was told by the manager that only employees were allowed there. The manager claimed that he later noticed what appeared to be a “security pin” (tag which identified store merchandise) near the cuff of the pants appellant was wearing. They are placed toward the cuff of each pair of pants with the tag appearing on the inside and with only a small straight pin showing on the outside. The jeans appellant was wearing appeared to have a straight crease in them and were new. The manager said that when they went into the storage area after the officer had arrived, appellant voluntarily took off his jeans.

The sole question here is whether under all the facts there was a question of liability for the jury to pass on, and whether the trial judge erred in directing a verdict for appellee.

Appellee defends upon the qualified privilege and Mississippi Code Annotated Section 97-23-51 (1972), which sets forth:

“If any person shall commit or attempt to commit the offense of shoplifting, as defined herein, or if any person shall willfully conceal upon his person or otherwise any unpurchased goods, wares or merchandise held or owned by any store or mercantile establishment, the merchant or any employee thereof or any peace or police officer, acting in good faith and upon probable cause based upon reasonable grounds therefor, may question such person, in a reasonable manner for the purpose of ascertaining whether or not such person is guilty of shoplifting as defined herein. Such questioning of a person by a merchant, merchant’s employee or peace or police officer shall not render such merchant, merchant’s employee or peace or police officer civilly liable for slander, false arrest, false imprisonment, malicious prosecution, unlawful detention or otherwise in any case where such merchant, merchant’s employee or peace or police officer acts in good faith and upon reasonable grounds to believe that the person questioned is committing or attempting to commit the crime of shoplifting as defined in section 97 — 23—45, Mississippi Code of 1972.” (Emphasis added).

In J. C. Penney Co., Inc. v. Cox, 246 Miss. 1, 148 So.2d 679 (1963), there was no evidence that any person had seen the plaintiff take articles in the store, and the only testimony was to the effect that it was suspected that she had taken something. Under such suspicion, the manager stopped her and searched her purse. The Court held that probable cause, where there is no conflict, is for the determination of the court and that no probable cause existed, stating:

“From the evidence in this case, no one saw the defendant take anything. In this day and time, in our ways of commerce in our mercantile business, people go through the stores, pick up goods, put them in containers, and move them about. Probable cause cannot be based on mere belief of a third person that somebody did or did not do something. None of the employees even saw her so much as touch an article, and the only evidence here that would connect the defendant in any way is that some one in the store told one of the clerks that they believed that she had stolen something. In other words, a person must have reasonable grounds to believe that another is stealing his property, as distinguished from those where the offense has been completed, that he is justified in detaining the suspect for a reasonable length of time for the purpose of investigating in a reasonable manner. We do not believe that there is sufficient evidence here to raise this case to a probable cause that would justify the manager here to make the investigation in the manner in which he made it. The investigation should be based on more than mere conjecture or suspicion. It must be grounded on some definite information from some person that saw enough to justify the manager’s belief that a theft had been made, and that a person was guilty of shoplifting.” (Emphasis added). 246 Miss, at 10-11, 148 So.2d at 683-684.

In Butler v. W. E. Walker Stores, Inc., 222 So.2d 128 (Miss.1969), a store employee thought she saw the plaintiff pick up two tubes of lipstick, walk away, and later saw her in another part of the store without the lipstick. The manager was informed, he detained and searched her, and, in holding that under the conflicting facts, probable cause was a question for the jury, the Court said:

“As stated, probable cause cannot be based upon suspicion, and the manager must act upon probable cause, of which he is not the final judge, and thus act at his peril.
Where the facts are undisputed, as shown by the two cases hereinbefore cited, the question of probable cause is for the court. But, where the facts are disputed, the question of probable cause is for the jury.” 222 So.2d at 130.

The following are some conflicts in the evidence introduced by the parties:

(1) The manager testified that he saw the brothers leave the storeroom, while they testified the manager stopped them before they got to that area.

(2) The manager testified that use of the restroom for trying on clothes was against store policy and was prohibited; appellant’s brother testified he had used it a number of times for that purpose.

(3) Appellant made no attempt to conceal the article of clothing and it was over his arm at all times.

(4) Appellee claims that the jeans worn by appellant were new with a sharp crease in them; appellant testified he had owned them for approximately two (2) months, they had been washed at least three (3) times, they had not been ironed and had no stiff crease in them.

(5) The manager testified he saw what he thought was a “security pin” at the cuff of appellant’s blue jeans, which was a strong indication to him that they were the store’s jeans, when there was no security pin in the jeans and previously on a deposition by the manager, he made no mention of the “security pin.”

The above evidence goes to the question of whether Fred's manager acted in good faith and upon probable cause based upon reasonable grounds in ascertaining that appellant was guilty of shoplifting. Under the rule announced in Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652 (Miss.1975), on motion for directed verdict, all evidence, together with reasonable inferences flowing therefrom, must be considered most favorable for the person against whom the motion for directed verdict is sought, all evidence of the party seeking the motion in conflict with the opposite party’s evidence is to be disregarded and, if there is presented a question for the jury, the motion should be overruled. We are of the opinion that under all the facts of this case, questions of liability and damages were presented for the jury, and the trial judge should have submitted the issues to the jury under proper instructions. He committed error in not doing so. Consequently, the case must be reversed and remanded for a new trial on the merits. This is a case where, rather than grant a motion for directed verdict, had the jury verdict favored the appellant, it would have been better for the trial judge to consider and sustain a motion for judgment notwithstanding the verdict, in which instance the case would now be finally disposed of. Claiborne v. Greer, 354 So.2d 1109 (Miss.1978).

REVERSED AND REMANDED.

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

COFER, J., took no part.


text:
    THOMAS YATES & COMPANY v. The AMERICAN LEGION, DEPARTMENT OF MISSISSIPPI, ASSOCIATION GROUP INSURANCE ADMINISTRATORS, National Ben Franklin Life Insurance Company and George P. Delivorias.
    No. 50991.
    Supreme Court of Mississippi.
    May 2, 1979.
    Hobbs & Dorsey, Joe W. Hobbs, Jackson, for appellant.
    Wells, Wells, Marble & Hurst, Roland D. Marble, Stennett, Wilkinson & Ward, Erwin C. Ward, Upshaw, Schissel, Dorizas & Lad-ner, Angelo J. Dorizas, Jackson, for appel-lees.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Thomas Yates and Company, a domestic corporation, instituted suit in the Circuit Court of the First Judicial District of Hinds County, Honorable Dan M. Lee, presiding, against the American Legion, a non-profit corporation, Association Group Insurance Administrators, a foreign corporation (AGIA), National Ben Franklin Life Insurance Company, a foreign corporation (NBF), and George P. Delivorias, and sought damages for tortuous interference with a contract. The defendants filed answers and stated affirmative defenses. A separate hearing was held preliminarily on the affirmative defenses, the trial judge sustained said defenses and dismissed the declaration with thirty (30) days’ leave to amend. The plaintiff declined to amend, the judgment became final, and Yates has appealed here.

Prior to March 1, 1964, Thomas Yates & Company was a sole proprietorship owned and operated by Thomas Yates, Jr. On March 1, 1964, he contracted with the American Legion to provide group insurance policies for Legion membership and he became the exclusive agent of the American Legion for that purpose. The agreement [Appendix] was to remain in full force and effect unless cancelled by mutual consent or cancelled on any anniversary date with one year’s notice in writing prior to such anniversary date. On July 1, 1964, Thomas Yates and Company (Thomas Yates, Jr.) placed in force a master plan covering members of the American Legion.

Thomas Yates, Jr. died November 6,1965, and the management and control of Thomas Yates & Company became vested in Thomas Yates, III. He organized the corporation, Thomas Yates and Company, September 26, 1966, and that corporation purchased all the assets of Thomas Yates and Company, the sole proprietorship. The corporation continued to provide the same insurance services to the American Legion until July, 1973, that had been performed by the senior Yates, when appellee AGIA negotiated with the American Legion and became its agent of record to procure and place group insurance coverage for the Legion’s membership. Appellant charges that AGIA, acting through NBF and George Delivorias, induced the American Legion to breach its contract with appellant in violation of the notice requirement in the contract between Thomas Yates, Jr. and the American Legion, and claims damages as a result.

The appellees affirmatively state that appellant was not a party to the said contract, that the appellant corporation did not have a life insurance agent’s license as required by law, and that the contract was unenforceable. Further, appellees contend that the contract between Thomas Yates, Jr. and the American Legion called for personal services from Yates, Jr. and that the contract terminated upon his death. The trial judge sustained the affirmative defenses and dismissed the declaration on the ground that the plaintiff, being a corporation, had no standing to maintain the suit.

I.

Did the trial court err in ruling that appellant had no standing to bring the action?

The appellees contend that the contract between Thomas Yates, Jr. and the American Legion was one for personal services and that it automatically terminated upon the death of Mr. Yates approximately ten (10) months prior to the organization of the appellant corporation. Generally, the death of a party does not terminate a contract unless it is of a personal nature. 17 Am.Jur.2d Contracts § 413 (1964). In order to determine whether a contract is of such nature, consideration must be given to whether or not it can performed by the deceased’s personal representative. In Cox v. Martin, 75 Miss. 229, 21 So. 611 (1897), the Court said:

“Recurring now to the main question, it is clear that wherever the continued existence of the particular person contracted with — the contract being executo-ry — is essential to the completion of the contract, by reason of his peculiar skill or taste, death terminates the contract; as, for example, ‘contracts of authors to write books, of attorneys to render professional services, of physicians to cure particular diseases, of teachers to instruct pupils, and of masters to teach apprentices a trade or calling.’ So, also, when the continued existence of a particular thing is essential to the completion of the contract, the destruction of the existence of the thing (its death) terminates, the contract — as, in contracts for the sale of specific chattels, or for the use of a building, they ceasing to exist. 1 Beach on the Modern Law of Contracts, sec. 773, p. 946, note 3, with the authorities cited. ‘But where the contract with the deceased is executory, and the personal representative can fairly and fully execute it as well as the deceased himself would have done, he may do so and enforce the contract. And, on the other hand, the personal representative is bound to complete such a contract, and if he fails to do so, he may be compelled to pay damages out of the assets in his hands.’ Note supra, with authorities, 22 Am.St.Rep., p. 813.” 75 Miss, at 238, 21 So. at 612-613.

In Mills v. Union Central Life Ins. Co., 77 Miss. 327, 28 So. 954 (1899), suit was brought by Mills, Administrator of the Estate of W. H. Tegarden, Deceased, for an accounting of commissions on premiums collected by appellee after Tegarden’s demise for insurance policies written by him during his lifetime. A demurrer was filed and sustained and the Court, in deciding that death terminated the contract between the deceased and the insurance company, said:

“On the oral argument, the learned counsel for appellant candidly and properly declined to press the view that Te-garden’s administrator had any legal right to assume the performance of the duties of the agency imposed upon Tegar-den by the terms of the contract, and no further reference need be made by us to that portion of the complaint.
The duties assumed by Tegarden, under the contract, were important and multiplied, and unquestionably Tegarden was intrusted with the performance of these duties during the long term of twenty years because of his integrity, ability and skill in this branch of professional work. He was required to keep an office in the city of Jackson, and to keep, or have kept, books necessary and proper in such business; he was to canvass for applications for insurance, and to collect and pay over to his principal premiums on insurance effected by his procurement; he was to act exclusively for the company, and to devote his entire time to the business of his agency; he was to appoint subagents to canvass for applications for policies, and for the fidelity and honesty of such subagents he was to be held responsible.” 77 Miss. at 336-337, 28 So. at 954.

We are of the opinion that there was no privity of contract between appellant and the American Legion and that, although the Yates corporation continued to service the American Legion until 1973, neither the appellant nor the American Legion was bound under the agreement with Yates, Jr. Delta Construction Co. of Jackson v. City of Jackson, 198 So.2d 592 (Miss.1967). We are further of the opinion that the contract between Yates, Jr. and the American Legion terminated upon the death of Yates, Jr. and that the judgment of the trial court should be affirmed.

Since the case is decided on the above question, it is not necessary to discuss the other point presented.

AFFIRMED.

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

SUGG and COFER, JJ., took no part.

APPENDIX

“March 1, 1964

TO WHOM IT MAY CONCERN:

Gentlemen:

The undersigned organization, in the event it decides to undertake a group insurance plan with any Insurance Company, hereby designates Mr. Thomas Yates, as the Agent or Broker of Record to represent the American Legion Department of Mississippi, and each member hereof, in the procuring and placing of such insurance for its members.

This agreement shall remain in full force and effect unless cancelled by mutual consent, or cancelled on any anniversary date by one year’s notice in writing, prior to such anniversary date hereof.

Very truly yours,

/s/ FRANK W. CHAMBERS

Frank W. Chambers

Department Adjutant”


text:
    James H. NOBLES, Jr. v. Lenoir L. Owen SANDERS, Individually and Trustee of Estate of D. D. Low, Deceased.
    No. 51214.
    Supreme Court of Mississippi.
    May 2, 1979.
    Wells, Downey & Wicker, Calvin L. Wells, Rexford T. Brown, Jackson, for appellant.
    McClure, McClure & May, James McClure, Jr., Sardis, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

James H. Nobles, Jr., the 35-year-old grandson of D. D. Low, Deceased, appeals from the decree of the Chancery Court of Sharkey County, construing Items 9 and 11 of the Last Will and Testament of D. D. Low, deceased.

Low’s Last Will and Testament was probated shortly after his death on January 19, 1930, and the trust provisions of Item 9 of the will, as influenced and affected by the spendthrift trust provisions of Item 11, had been construed as providing for the establishment of one overall Testamentary Trust with one Testamentary Guardian and six separate and distinct divisions thereof (a trust estate for each of the six minor children). The Estate operated under this construction and interpretation without objection from 1930 until July 11, 1977, when Petition for Construction of the Will, to confirm this construction of 47 years, was filed and appellant Nobles for the first time voiced his objections on September 7, 1977.

Appellant Nobles had shared in the net income from the estate of his grandfather since March 13, 1966, the date of the death of his mother, Martha Lee Low Nobles, one of the six children of D. D. Low. Appellant and his sister, Lenoir Low Nobles, a thirty-one year old ward of the court who is under a legal conservatorship, were the only children of their deceased mother, Martha Lee Low Nobles.

We think the unusual and tragic circumstances existing in the D. D. Low family at the time the will was prepared and executed had a great deal to do with its provisions, the language of which was at times quite specific but at other times became vague and ambiguous.

D. D. Low’s wife, Sarah R. Low, died in childbirth in June of 1929, when William W. Low, their sixth child, was born. About three months after her death, in September, 1929, D. D. Low was seriously injured in an automobile accident. He was confined primarily in a Memphis, Tennessee, hospital from the date of the accident until his death on January 19, 1930. His will was prepared by W. H. Clements, an attorney of Rolling Fork, Sharkey County, Mississippi, and was executed by Low in the Memphis hospital on December 28, 1929, about three weeks before his death, with two medical doctors and a registered nurse as attesting witnesses.

At the time he signed his will, he was a widower and dying man, with six minor children ranging in age from 6 months to 16 years. His principal assets were two large plantations of about 1700 acres each in Sharkey County, Mississippi. Mississippi and the whole country were in the throes of the Great Depression of 1929.

Confronted with almost insurmountable and unsolvable problems, Low had to do the best he could to solve them in the short time he had to live. We believe that his paramount concern, overriding everything else, was to provide for his six minor children, already without a mother and soon to be without a father. He wanted to protect them and their children (if any they had in the future) from losing his and their estate, at least until the death of his last surviving child.

His Will consisted of 6 legal-size typed pages. Items 9 and 11 of the Will were construed by the court on the petition of the five surviving adult children of Low.

These two provisions provided and directed:

“ITEM 9. After the payment of all costs, expenses, taxes, upkeep and maintenance of my estate, I give, devise and bequeath all the rest and residue of my estate of which I may die seized and possessed unto The National City Savings Bank & Trust Company of Vicksburg, and its successor, as Trustee to be held under the terms, trust purposes and conditions set forth as follows, to-wit:
I nominate, constitute and appoint The National City Savings Bank & Trust Co. of Vicksburg, and its successor, as Testamentary Guardian for each of my six children, and I request that said Guardian, and its successor, as hereinabove provided, shall not be required to give bond for the faithful performance of its duties as such Guardian.
I further request that Mrs. Mattie Lee Kibler, aunt of my children, shall have their custody and control, and the allowance made for the maintenance, support, comfort and education of my children shall be paid over to her by said Guardian, taking her receipt therefor, and she shall not be required to account or report for her expenditures. In the event of her death I request her daughter, Ora Louise Kibler, to act in the same capacity and with like power and discretion. Upon the death or marriage of Ora Louise Kibler, I request my nephew, Rufus Hampton Low, to act in her place and in the same capacity, and with like power and discretion.
The Trustee shall set apart six separate and distinct trust estates, one for the sole benefit of each of my children, namely, Ollie Louise Low, Lenoir Dickson Low, Martha Lee Low, Sarah Ruffin Low, David D. Low, Junior, and William White Low. The net estate coming into the hands of the said bank as Executor and/or Trustee shall be set apart equally, as soon as possible in the trust estates herein created. The Trustee shall pay quarterly to the Guardian of any minor child, or to the person in whose custody any minor child is held any part or all of the net income from the respective child’s trust estate, as is necessary in the sole discretion of the Trustee for his or her proper support, comfort, maintenance and education. In addition to the quarterly income payments, the Trustee shall have power and authority to use any part of the principal of each child’s respective trust estate, if necessary, in the sole discretion of the Trustee, for his or her proper support, maintenance and education. As and when any daughter attains the age of twenty-one years, the Trustee shall then pay in equal quarterly installments to said daughter the net income from her respective trust estate as long as she shall live. As and when any son attains the age of twenty-one years, the Trustee shall then pay in equal quarterly installments to said son the net income from his respective trust estate as long as said son shall live. The Trustee shall, however, have power and authority to pay to any son all or any part of the principal of his trust estate should he need the same to invest in any business, provided the Trustee in its sole discretion concludes that such an investment is meritorious, and that said son has shown proper business judgment to operate said business.
The issue of any deceased child to immediately take such child’s trust estate, should he or she leave issue, or such deceased child’s trust estate to be divided equally and added to the surviving children’s trust estate, should he or she die without issue. Should my last surviving child die without issue, the amount of the trust estate shall be paid to my lawful heirs, according to the laws of descent and distribution in the State of Mississippi. A receipt from any Guardian, custodian or beneficiary thereof shall be a full discharge of the Trustee for what it represents.
ITEM 11. Neither the principal nor the income from the trust estate of any one of my children shall be liable for the debts of any beneficiary hereof, nor shall the same be subject to seizure by any creditor or any beneficiary under any writ or proceeding at law or in equity, and no beneficiary hereunder shall have any power to sell, assign, transfer, encumber or in any other manner anticipate or dispose of his or her interest in the trust estates or the income produced thereby.”

In its decree of February 27, 1978, the Court said:

“2. That the terms and provisions of the said last will and testament of the said D. D. Low be and the same are hereby construed as follows:
A. That said deceased testator created a spendthrift trust or trusts to exist and to remain in being under the terms thereof until the death of said deceased testator’s last surviving child, at which time the subject trust or trusts were to automatically terminate.
B. That in the interim period, at the death of any of said deceased testator’s children with issue, said issue was to take such child’s separate trust estate or part of the overall trust estate, the same being the right to receive the income due from such child’s separate trust estate or part of the overall trust estate until the death of said deceased testator’s last surviving child, and, further, the potential right to inherit a vested interest in the assets or corpus of such child’s separate trust estate or part of the overall trust estate should such issue survive all of said deceased testator’s children; that also in said interim period, should any of said deceased testator’s children die without issue, such child’s separate trust estate or part of the overall trust estate, the same being as above defined, was to be added to and become a part of the separate trust estate or part of the overall trust estate of each of said deceased testator’s surviving children and of the separate trust estate or part of the overall trust estate of each of said deceased testator’s predeceased children with issue in being at that time, in equal shares per stirpes; that, in addition, in said interim period, should any of the issue of a deceased child of the said deceased testator die without issue, such deceased issue’s interest in such deceased child’s separate trust estate or part of the overall trust estate was to be added to the interest of the surviving issue, if any, of such deceased child of the said deceased testator in equal shares per stirpes, or should there be no such surviving issue of such deceased child, such deceased child’s separate trust estate or part of the overall trust estate was to be added to and become a part of the separate trust estate or part of the overall trust estate of each of said deceased testator’s surviving children and of the separate trust estate or part of the overall trust estate of said testator’s predeceased children with issue in being at that time, in equal shares per stirpes; that at the death of the deceased testator’s last surviving child, said deceased testator’s trust estate or estates was or were to automatically terminate, and the assets or corpus of each child’s separate trust estate or part of the overall trust estate was to then immediately vest in such child’s issue, in equal shares per stirpes; that in the event of the death of said deceased testator’s last surviving child without issue, the assets or corpus of such child’s separate trust estate or part of the overall trust estate was to immediately vest in said deceased testator’s then lawful descendants, in equal shares per stirpes, which said descendants would be the same person or persons as the then issue of said deceased testator’s deceased children; and that as herein-above set out, the spendthrift trust provisions of said deceased testator’s said last will and testament were to exist and to remain in effect until the death of his last surviving child.”

The appellant’s contention, both in the lower court and in this Court, is that D. D. Low, upon his death, intended for the Testamentary Trustee in Item 9 of his Will to immediately set up six separate and distinct trust estates, one for each of his six minor children, and that each trust estate would own an undivided one-sixth interest in all of the property and assets of his estate. Appellant next argues that when a child of D. D. Low dies, leaving issue, that the trust estate of the deceased child would immediately go to his or her issue and the issue would take fee simple title to the undivided one-sixth interest of their deceased parent in the overall trust estate. If the chancellor had accepted Nobles’ argument and had set aside to him an undivided one-twelfth fee simple interest in his grandfather’s estate, then Nobles could have immediately demanded that the only real asset of the estate, 1768-acre Vickland Plantation, be partited in kind or sold.

Item 11, the spendthrift trust provision, would thereby be defeated, even though the language of Item 11 was that:

“[N]o beneficiary hereunder shall have any power to sell, assign, transfer, encumber or in any other manner anticipate or dispose of his or her interest in the trust estates or the income produced thereby.”

It was clearly Low’s intent that this should not happen until his last surviving child had died.

The construction contended for by appellant would also cut off any right of his sister (a ward of the court) to inherit more than a one-twelfth interest. This would definitely be to her disadvantage because her aunt, Lenoir Low Owen Sanders, 62 years old, and her uncle, William W. Low, 48 years old, are without issue.

In Yeates v. Box, 198 Miss. 602, 22 So.2d 411 (1945), this Court gave these guidelines:

“The basis of all constructions of wills is to seek the intention of the testator, and that this be ascertained from its language gathered from the whole will. It is necessary to consider the entire purpose of the testator from the language of the will, taking into consideration and giving due weight to every word therein. Then, ‘Once the actual intent of the testator at the time of the making of the will has been in this way ascertained, all minor, subordinate, and technical rules of construction must yield to this paramount intent thus ascertained.’ ” 198 Miss, at 610, 22 So.2d at 414.

In Cross v. O’Cavanagh, 198 Miss. 137, 21 So.2d 473 (1945), this Court offered these further instructions:

“The paramount duty of the court is to ascertain the intent of the testator, gathered from the language used, in the light of the circumstances surrounding the execution of the will, and give effect to such intent unless contrary to law or public policy. (Emphasis added).
“A construction of ambiguous provisions which results in a just and reasonable disposition of the property will be adopted in the absence of clear intent to the contrary.” 198 Miss, at 147, 21 So.2d at 474.

In the later case of Paine v. Sanders, 242 Miss. 392, 135 So.2d 188 (1961), it was said:

“Words omitted from a will may, in some circumstances, be supplied by the court whenever it is necessary to effectuate the testator’s intention as expressed in the will.” 242 Miss. at 399, 135 So.2d at 191.

The language of Item 1 of his Will sheds light on how Low intended for his overall intent and purpose to be carried out. The Will provides:

“ITEM 1. I nominate, constitute and appoint The National City Savings Bank & Trust Company of Vicksburg, and its successor, as Executor herein, and after the said National City Savings Bank & Trust Company of Vicksburg, and its successors, has performed and fulfilled its duty as such Executor, then the National City Savings Bank & Trust Company of Vicksburg, or its successor, is hereby appointed Trustee to fulfill the terms and conditions of the trust hereinafter set out. Having full faith and confidence in the said National City Savings Bank & Trust Company of Vicksburg as the Executor, I desire that no bond shall be required of it as Executor or Trustee in the performance of its duties as such. The appointment of the National City Savings Bank & Trust Company of Vicksburg as Executor and Trustee shall extend to and include the successor of the said National City Savings Bank & Trust Company of Vicksburg, and if it is consolidated or merged with another or other corporate fiduciary, or a national banking association with fiduciary powers granted by the United States of America unto the fiduciary formed by such consolidation or merger.” (Emphasis added).

We cannot help but note that throughout Item 1 he speaks of the “Trustee” and the “fiduciary” and “the trust” in the singular.

In our opinion, this means that when Low got to Item 9 and said:

“The Trustee shall set apart six separate and distinct trust estates, one for the sole benefit of each of my children, namely, Ollie Louise Low, Lenoir Dickson Low, Martha Lee Low, Sarah Ruffin Low, David D. Low, Junior, and William White Low.”

he intended, for bookkeeping purposes, to have the overall trust estate divided into six different portions, one for each child. This makes sense because each child’s “support, maintenance and education” would in all probability be in different amounts, and it would be fair, equitable and just that each child’s expenses should be charged to and posted on the books to that child’s separate estate, and not that the overall estate in hodge podge be charged with the varying expenses of each child.

After carefully studying the Will as a whole, taking into consideration and giving due weight to every word therein, and after carefully considering the language used in the light of the circumstances surrounding its execution, we are of the opinion that the chancellor has correctly construed the provisions of the Will and has reached a fair, just and equitable solution for all parties litigant.

For these reasons, the decree of the Chancery Court of Sharkey County construing the Last Will and Testament of D. D. Low, deceased, is affirmed.

AFFIRMED.

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