author: REDMANN, Judge.

text:
    LAKE FOREST, INC. v. BON MARCHE HOMES, INC. BON MARCHE HOMES, INC. v. LAKE FOREST, INC.
    Nos. 8175, 8176.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 1978.
    Rehearing Denied April 11, 1978.

      Nathan T. Gisclair, Jr., Montgomery, Barnett, Brown & Read, New Orleans, for Lake Forest, Inc.
    Gerard H. Schreiber, New Orleans, for Bon Marche Homes, Inc.
    Before REDMANN, STOULIG and GAR-SAUD, JJ.
   REDMANN, Judge.

Defendant Bon Marche Homes, Inc. appeals from a judgment forfeiting its $39,-334.50 deposit (half cash, half promissory-note) because of its failure to perform its agreement to purchase 46 lots from plaintiff Lake Forest, Inc. The basic question is whether Lake Forest’s title to the lots was merchantable at the time of Bon Marche’s default. A second question is whether un-merchantability discovered after default prevents the forfeiture.

Defendant alleges three title defects as establishing unmerchantability (and unmer-chantability of any one lot’s title defeats the entire agreement; Succession of Fay, 1926, 161 La. 1022, 109 So. 824). Our conclusion as to one alleged defect makes discussion of the others unnecessary.

The day before trial of this lawsuit the heirs of an alleged squatter brought an action (Bonomo v. Lake Forest, La.App., 346 So.2d 358) claiming title to part of the property by acquisitive prescription. Because of plaintiff’s objection, the trial court, presumably for lack of “reasonable notice”, C.C.P. 1155, refused defendant’s amended answer filed the day of trial alleging the action by the squatter’s heirs. Yet the existence of circumstances justifying good-faith litigation claiming title in a squatter makes a record title unmerchanta-ble; Young v. Stevens, 1968, 252 La. 69, 209 So.2d 25. We conclude that the circumstance that the squatter’s action was not filed until the day before trial of this action would have justified the trial judge’s overruling of plaintiff’s objection to the amended answer. Reasonable notice within C.C.P. 1155 allows filing at the beginning of trial (although “upon such terms as are just”) when the matter alleged has just occurred or been discovered the day before trial and could be determinative of the outcome of the lawsuit.

We postulate that a vendor’s suit for specific performance of a buy-sell agreement would fail if the defaulting purchaser presented testimony at trial of a squatter’s having lived on part of the property and claiming it by the acquisitive prescription of 30 years as of the time of default, especially when that squatter or his heir have by trial time instituted litigation; and that it is immaterial that the purchaser did not know of the squatter at the time of the default. The vendor’s obligation to deliver merchantable title is a continuing one; the vendor could not obtain specific performance on the theory that merchantability as of the time of default is the only test, and that ignorance of fact made the title merchantable at that time.

We similarly reason that such a vendor’s demand to forfeit the purchaser’s deposit would fail because the title tendered at the act of sale is not shown to have been then merchantable, although the purchaser did not then know of the squatter and the squatter’s heirs’ lawsuit had not then been brought.

Our vendor was not obliged to keep title in itself to sue for the deposit. Having elected to sue for the deposit rather than for specific performance, it could dispose of the property prior to suit for the deposit. But it must show that it was able to deliver merchantable title when the agreement called for it. It now appears, from the disallowed supplemental answer, that the then existent (if then unknown) claim of a squatter made the vendor’s title subject then to,litigation (which has since been instituted). The vendor’s title was therefore not shown to have been merchantable at the time the contract required delivery of merchantable title.

The contractual provision for forfeiture of the deposit is a penal clause within C.C. 2117, “a secondary obligation, entered into for the purpose of enforcing the performance of a primary obligation.” Richmond v. Krushevski, 1962, 243 La. 777, 147 So.2d 212. The primary obligation of the purchaser was to purchase. But this primary obligation was conditioned upon the vendor’s title’s being merchantable and therefore it apparently falls, and the secondary obligation or penal clause falls with it. Richmond, supra. “The penalty being stipulated merely to enforce the performance of the principal obligation, it is not incurred, although the principal obligation be not performed, if there be a lawful excuse for its non-performance . . . C.C. 2120. “The nullity of the principal obligation involves that of the penal clause.” C.C. 2123.

Because the amended answer was excluded, the squatter’s heirs’ action was not introduced into evidence and there was no evidence by plaintiff questioning the good faith of that action (a question plaintiff hints at by noting defendant learned of the action and alleged it in a supplemental answer within a day of its filing). We remand for the purpose of determining whether the alleged previous presence of the squatter and his heirs’ subsequent action claiming title based on that presence made plaintiff’s title unmerchantable at the time set for the act of sale, in the light of the circumstances then existent as known at the time of trial. Unless plaintiff establishes that its title was merchantable, it is not entitled to forfeiture of the deposit.

Set aside; remanded; costs to await final outcome.

      . Bon Marche is plaintiff in the consolidated case, in which it demanded return of its deposit. The two cases are mirror images of each other; the allegations of petition or supplemental petition in one become those of an answer or supplemental answer in the other.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Harris CHAMPAGNE, Defendant-Appellee.
    No. 6379.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.

      Robert L. Ledoux, Edward A. Michel, Johnie E. Branch, Jr., by Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
    J. Burton Willis, St. Martinville, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

The State of Louisiana, through the Department of Highways (Department) expropriated a portion of defendant’s property for highway purposes in accordance with the provisions of LSA-R.S. 48:441-460, commonly referred to as the “quick taking” statute. A trial was held to determine the measure of compensation due defendant. The Department prosecutes this appeal from the judgment of the trial court, contending:

(1) The trial court committed manifest error in determining that the defendant was to be compensated for the value of an entire building when the only portion of the building affected by the taking was a porch affixed to the front of the building extending approximately one foot into the new right of way.

(2) The trial court committed manifest error in fixing the fee of one of defendant’s expert appraisers at $900.00.

Defendant answered the appeal, praying for an increase in the amount awarded.

The record establishes the following facts:

Prior to the expropriation, defendant was the owner of a parcel of land located in Breaux Bridge, Louisiana. The property was shaped in the form of a square, measuring 200 feet by 200 feet, with frontages on all four of its surrounding streets. The main improvement on the property is a wood frame building, having approximate dimensions of 100 feet by 56 feet, located in close proximity to Grand Point Avenue. Before the taking, the front of this building was situated approximately thirteen feet from the highway right of way. A rectangular-shaped porch some 40 feet wide, extends outwards from the front of the building a distance of approximately 10 feet. The porch is connected to the exterior wall of the structure at a point above its entrance and below its roof, the roof of the porch being lower and entirely separate from that of the building. Support for the porch is provided by five rods or cables extending downward from the front of the building, being attached to the outermost reaches of the porch. The building was originally constructed around 1945 for use as a warehouse. In 1953, it was converted into a night club, known as “Le Rendezvous”, and operated as such until 1973. It was then temporarily rented as a warehouse. The building has remained vacant for approximately two years.

On September 3, 1975, the Department, subject to a perpetual mineral reservation, expropriated a strip of defendant’s land approximately five feet in depth, along the Grand Point Avenue frontage and having a total area of 1,037 square feet. Improvements included in the part taken consisted of part of the gravel parking area and a portion of the building’s porch. After the taking, the new right of way is located eight feet from the exterior front wall of the building, with approximately two feet of the porch extending into the new right of way.

At the time of the taking, the Department deposited the sum of $728.00, estimated as the amount of just compensation for the property taken, into the registry of the court. Defendant did not contest the taking, but answered contending that the value of the property expropriated at the time of the taking was $22,900.00.

At trial, the Department’s expert appraisers, Mr. Chappuis and Mr. Cope, placed the value of the property taken at $1,105.00 and $1,300.00, respectively. These estimates include the value of the entire porch separate from the building, and exclude any valuation of the building proper. However, Mr. Chappuis’ report also reflects an “alternate method” which places the value of the part taken at $8,455.00 if the value of the entire building is to be included therein.

Jesse Guidry, defendant’s expert appraiser, opined that the value of the part taken was $22,900.00. His estimate included a valuation of the entire building. Lester Huval, a building contractor testifying on behalf of defendant, estimated that the front five feet could be torn off of the building and the building refaced for the sum of $3,782.04.

All of the experts who testified utilized comparable sales in arriving at an opinion regarding the value of defendant’s property. All experts agreed that the portion of defendant’s property remaining after the taking suffered no severance damages.

After trial on the merits, the trial judge, in written reasons, stated:

“It is obvious, however, that the constitution of 1974 clearly intended that the person whose property is taken for public use would be compensated in a greater extent under the new constitution than he was under the old constitution. It is because of this conclusion that I must reject the low appraisals of the State appraisers.”

The trial judge concluded that the alternate value of the property taken, as determined by Mr. Chappuis, was correct, and that the defendant should be awarded the sum of $8,455.00 for the property taken. The trial court’s written reasons reflect that the amount awarded for the part taken is broken down as follows:

Value of land __$ 705.00
Value of shell and parking area_ 200.00
Value of building_ 7550.00
Total part taken_$8,455.00

Accordingly, judgment was rendered awarding defendant the sum of $8,455.00, subject to a credit of $728.00 previously deposited by the Department in the registry of the court, with 7% interest from September 3, 1975, until full payment. The judgment specifically provided that defendant was to retain ownership of his building after the taking. The sum of $1,932.00 was awarded as attorney’s fees to defendant’s attorney in accordance with the provisions of R.S. 48:453(E). Defendant’s expert fees were fixed in the amount of $900.00 for Mr. Guidry and $50.00 for Mr. Huval and taxed as costs. The Department was condemned to pay all costs.

The Department’s contention that the trial court erred in condemning it to pay for defendant’s entire building is based on the rule recognized by this Court in State, Department of Highways v. Henderson, 138 So.2d 597 (La.App. 3rd Cir. 1962) that “ ‘an expropriating authority cannot take one inch or one item of property more than is actually needed if the owner of a building which is partially on land which is expropriated desires that the other unneeded portion be cut off and left to him’ ”. In brief, counsel for the Department urges this Court to disregard the “alternate method” presented in Mr. Chappuis’ report and utilized by the trial court in making its award. He argues that since the Department did not intend to acquire the entire building, it was error to condemn it to pay compensation for the total structure when the only portion which is affected is a two foot section of the porch. The Department additionally asserts that the judgment of the trial court is erroneous in that it allows defendant to retain ownership of his building, after decreeing that the Department must pay him for it.

Defendant, on the other hand, contends that by taking part of the porch, the Department should pay for the entire building. Able counsel for defendant asserts that the provisions of Article 1, Section 4 of the 1974 Constitution evidence an intent to increase the level of compensation in expropriation cases beyond that of the 1921 Constitution. He maintains that compensating defendant for “the full extent of his loss” requires compensating him for what he subjectively believes to be his loss.

LSA-Const. Article 1, § 4 provides in pertinent part as follows:

“Section 4. Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss. . . . ” (Emphasis ours)

Recently, this Court, in State Through Department of Highways v. Alexandria Volkswagen, Inc., 348 So.2d 176 (La.App. 3rd Cir. 1977), stated:

“A landowner whose property has been expropriated for public purpose is entitled to just and adequate compensation in an amount sufficient to place him in as good a position pecuniarily as he would have been had his property not been taken. Article 1, Section 4 La.Const. of 1974.”

At the outset, we determine that a proper interpretation of the provisions of LSA-Const. Art. 1, § 4 necessarily implies that the compensation due the defendant be in a monetary form. We consider the intent of the redactors of the 1974 Constitution to be that once the landowner has received compensation in an amount sufficient to place him in as good a position pecuniarily as he would have been, had his property not been taken, the landowner has received compensation “to the full extent of his loss”. Thus, we must reject the contention of counsel for defendant that under the new Constitution, a condemnee is entitled to whatever he subjectively believes to be his loss.

Before addressing the question of whether defendant in this case has received just compensation “to the full extent of his loss”, we must first determine whether defendant’s entire building should have been included in the part taken.

The original- petition filed by the Department in this matter contains a description of certain property owned by defendant which is required in full ownership. Article 8 of the petition alleges that a wood frame building owned by defendant is situated partially upon the property sought to be expropriated. Article 11 alleges the necessity for the expropriation in full ownership of the described property “together with all the buildings and improvements situated wholly or partially thereon ”. The petition concludes with a prayer requesting “an order issued herein . . . declaring that the full ownership of the above described property, together with all the buildings and improvements situated wholly or partially thereon . . . has been taken for highway purposes . . . ”

The order of expropriation, signed September 3, 1975, provides in pertinent part:

“AND IT IS HEREBY ORDERED that the full ownership of the property described below, together with all the buildings and improvements situated wholly or partially thereon ... is expropriated and taken for highway purposes as of the time of such deposit, according to law, said property being described as follows, . . .” (Emphasis ours)

The pleadings filed in the instant case indicate that the Department in effect expropriated not only a portion of defendant’s land, but also all of the buildings and improvements located either wholly or partially on the property taken. It is undisputed that the building’s porch (which must be considered as a part of the building itself) does extend approximately two feet into that portion of defendant’s property which was taken. Our conclusion is that defendant’s building was situated partially upon the property described in the petition and order of expropriation and thus was expropriated by virtue of the language referred to above.

The Department contends that it intended only to expropriate the porch attached to the front of the building and not any portion of the building itself. It is argued that the trial court erroneously held that the Department must pay for the entire building when the taking of the porch will not render the building useless as would be the case if a weight-bearing wall were affected. See State, Department of Highways v. Trippeer Realty Corporation, 276 So.2d 315 (La.1973).

We find no merit in this contention. Title to the property and property rights specified in the petition vested in the Department upon the deposit, on September 3, 1975, of the amount of estimated just compensation into the registry of the court. R.S. 48:445. Title to the building was vested in the Department as of that date. The Department’s title to the building (along with the rest of the described property) became incontestable when no motion to dismiss was filed by the defendant. R.S. 48:447. The Department cannot subsequently divest itself of title to the building by contending it was not its intention to expropriate it. R.S. 48:460; State, Department of Highways v. Henderson, supra; State, Department of Highways v. Trippeer Realty Corporation, supra. For the foregoing reasons, it necessarily follows that any determination of the amount of compensation due as a result of the expropriation must include a valuation of the entire building.

In computing the amount of its award, the trial court, utilizing the value placed on the building by the Department’s expert, Mr. Chappuis, assigned the building a value of $7,550.00. Although disclaimed by the Department, this estimate was properly before the court as it was contained in a report properly admitted into evidence. Our careful examination of the record, particularly the appraiser’s reports and photographs submitted therein, discloses no manifest error in the trial court’s award of this amount for the value of the building. Although in need of repairs, the record indicates that the building was structurally sound, and still could be used as a warehouse.

However, we do find manifest error in the trial court’s judgment insofar as it decreed that the defendant was to retain ownership of the building. We have already determined that title to the building was vested in the Department on September 3, 1975. The Department’s ownership of the building entitles it to dispose of the structure as it sees fit. Stewart v. Department of Highways, 240 La. 812, 125 So.2d 372 (1960). Thus, we will amend the judgment of the trial court to provide that the building has become the property of the Department.

We now consider the contention of the Department that the trial court committed manifest error in fixing the fee of defendant’s expert appraiser, Mr. Jesse Guidry, at $900.00.

We do not construe the constitutional requirement that a condemnee be compensated “to the full extent of his loss” as divesting courts of some control over the assessment of costs in expropriation matters, and specifically in the assessment of reasonable sums to compensate the landowner for the fees of experts retained on his behalf. Rather, we believe that the jurisprudence which declares that such fees must be reasonable and based upon appraisals which were necessary and useful in assisting the trial court in making its determination of the proper award is still viable. Even under the provisions of the 1974 Constitution, inflated claims for appraisal fees, made in bad faith and for the purpose of driving up the ultimate amount of court costs must be disallowed. We conclude that this Court retains the power to review and alter awards for appraiser’s fees as necessary.

In the instant case, we do not find that the trial court abused the much discretion afforded it in setting expert fees. Although the amounts submitted by Mr. Gui-dry in his report were not ultimately awarded to defendant, the record reflects that it was necessary for defendant to retain Mr. Guidry’s services in order to prosecute his claim for just compensation. Mr. Guidry testified that he spent four or five days, over a period of time, in the preparation of his report. His charge to defendant consists of $600.00 for the preparation of report and $150.00 per day for court appearances. Mr. Guidry appeared twice in court, making the total bill $900.00. The fact that the amount awarded as expert fees is the same as the amount charged by the expert is not standing alone, improper, so long as the fee is reasonable and in line with awards made by other courts in similar cases. State, Department of Highways v. Gordy, 322 So.2d 418 (La.App. 3rd Cir. 1975) writ refused.

In Gordy, supra, this Court stated:

“An expert appraiser who testifies in an expropriation suit is entitled to reasonable compensation for his appearance in court and for preparatory work done by him, but the fees allowed him and taxed as costs must be reasonable and they must be somewhat in line with the fees heretofore allowed by the courts of this state in other similar cases. State, Department of Highways v. Black, supra. The fees allowed expert witnesses also should be ‘based on the relative usefulness of their respective testimony.’ Melancon v. Oilfield Lubricant Services, Inc., 292 So.2d 908 (La.App. 1 Cir. 1974).
In determining whether the fee allowed an appraiser and taxed as costs in an expropriation suit is reasonable, we think consideration must be given to the question of whether the preparatory work done by the appraiser was reasonably necessary, whether it actually tended to show the value of the property taken or severance damages, and whether the conclusions he reached based on that preparatory work were of some usefulness in determining the award which should be made. We also believe that consideration must be given to the value of the property being taken and the amount of severance damages sustained by the landowner. An appraisal fee greatly in excess of all of the awards made is not reasonable and should be reduced.”

We find no manifest error in the trial court’s award of the sum of $900.00 as expert fees to Mr. Guidry.

For the above and foregoing reasons, the judgment of the district court insofar as it provides that the defendant is to retain ownership of the building in question, is reversed. It is hereby ordered, adjudged and decreed that the Department is the owner of said building. In all other respects, the judgment of the district court is affirmed.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Pursuant to a stipulation between the parties,'reports prepared by the expert witnesses were admitted into evidence.


text:
    Dr. Joseph D. DUVIGNEAUD v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al.
    No. 9383.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Joseph W. Nelkin, New Orleans, for plaintiff-appellant.
    Craig R. Nelson, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   REDMANN, Judge.

Mover to dismiss plaintiff’s appeal has the original record, but the duplicate contains as item 32 another motion by mover, to dismiss “plaintiff’s answer to appeal filed herein on or about October 10,1977.” Mover has, after filing this motion, obtained an extension of time for filing its brief and thus will continue to hold the original record. Rather than further await return of that record and further delay in ruling on the present motion, we deny the motion as moot on the assumption that mover is correct in his recital that plaintiff did answer the appeal. See C.C.P. 2133. If mover was mistaken and there is no answer to its appeal, mover may reurge its motion to dismiss (raising the obvious question whether plaintiff’s motion for appeal could be considered an answer to mover’s appeal) upon return of the original record.


text:
    John Earl HALL v. STATE of Mississippi.
    No. 50399.
    Supreme Court of Mississippi.
    March 29, 1978.
    Henry E. Pope, Columbia, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Marion County; R. I. Prichard, III, Judge.

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

AFFIRMED.


author: SUGG, Justice,

text:
    William E. SNOWDEN a/k/a “Bill” Snowden v. STATE of Mississippi.
    No. 50298.
    Supreme Court of Mississippi.
    March 8, 1978.
    Rehearing Denied April 12, 1978.
    A. Vincent Blackwell, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   SUGG, Justice,

for the Court:

William E. Snowden was convicted of murder and sentenced to life imprisonment by the Circuit Court of Jackson County. Snowden contends that his application for change of venue was improperly denied because his application, under section 99-15-35 Mississippi Code Annotated (1972), established a prima facie case for change of venue and the state did not resist the prima facie showing by the introduction of evidence to controvert the effect of the affidavit. He relies on McGee v. State, 200 Miss. 350, 26 So.2d 680 (1946); Wexler v. State, 167 Miss. 464, 142 So. 501 (1932) and Magness v. State, 103 Miss. 30, 60 So. 8 (1912) which hold that, when an application for change of venue is sufficient under the statute, it makes a prima facie showing therefor and must be met by the state by proof.

The statute requires that an application for change of venue be in writing, sworn to by the prisoner and supported by the affidavit of two or more credible persons. The state contends that the application for change of venue is defective because it was not sworn to by the prisoner as required by the statute.

The application for change of venue was signed and sworn to by one of the attorneys for the defendant and was not sworn to by the prisoner. McGee v. State, supra, involved an application for change of venue which was sworn to by the attorney for the prisoner. We stated in McGee :

It is true that the application was not sworn to by the prisoner, but it also shows that the prisoner was incapable of making the affidavit for himself, and such being the case, both the reason and the letter of Section 1661, Code 1942, comes into play, that statute being as follows: ‘In all cases where the oath or affirmation of the party is required, such oath or affirmation may be made by his agent or attorney, and shall be as effectual for all purposes as if made by the party.’
An application such as this is interlocutory, and we find no instance in the long history in this State of the quoted statute wherein its reasonable application to purely interlocutory steps has ever been refused in any case civil or criminal, although it has been denied, and sometimes under general language unduly restrictive, as to affidavits necessary to initiate a proceeding such as in the probate of a claim or the filing of a bill for divorce where the facts of the claim and its validity are peculiarly within the knowledge and conscience of the claimant. But there is no such case here; and if the statute were refused application in a case such as is now before us, it would mean that only sane prisoners would be allowed to obtain a change of venue, while an insane person or one otherwise incapable of making the affidavit would be denied the right, and we must deny that the Legislature ever had any such thought that such an indefensible difference should be made. In what we have said we do not decide that a prisoner must be insane or disabled in order that his attorney may make the requisite affidavit. We decide only as to the state of case before us. (200 Miss. at 358, 359, 26 So.2d at 683) (Emphasis supplied)

In our case there was no showing that the prisoner was incapable of making the affidavit. He was in jail and was available for the purpose of making the requisite affidavit to support his application for change of venue.

When we stated in McGee that, “we do not decide that a prisoner must be insane or disabled in order for his attorney to make the requisite affidavit,” the Court did not abrogate the requirement of section 99-15-35 that the prisoner must swear to his application for change of venue, but merely permitted the oath or affirmation to be made by the prisoner’s attorney under section 11-1-3 Mississippi Code Annotated (1972) in cases where the prisoner is incapable of making the oath or affirmation. In Purvis v. State, 71 Miss. 706, 14 So. 268 (1893) we held that an application for change of venue was properly refused, and rested our conclusion on the fact that the application did not meet the requirements of the statute because it was neither made in writing nor supported by the affidavit of two or more credible persons.

The application for change of venue in this case did not make a prima facie showing because it was not sworn to by the prisoner and no reasonable explanation was given for his inability to make the oath required by statute; therefore, it was properly refused without requiring the state to resist the application by introducing evidence to controvert it.

Snowden also contends that his motion for continuance should have been sustained because of pretrial publicity. After reviewing the record carefully, we are of the opinion that the trial judge did not abuse his discretion in denying the continuance. He also argues that the remarks of the district attorney in his closing argument were prejudicial. We have carefully examined this assignment of error and find that the district attorney was engaged in the field of legitimate argument by drawing an inference from the testimony of a witness in the case.

AFFIRMED.

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


author: ROBERTSON, Justice,

text:
    The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. Wanda Austin DOUGLAS.
    No. 50038.
    Supreme Court of Mississippi.
    March 8, 1978.
    Rehearing Denied April 12, 1978.
    Wise, Carter, Child, Steen & Caraway, Natie P. Caraway, Charles T. Ozier, Jackson, for appellant.
    John E. Gregg, Raymond, Abe A. Rot-wein, Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   ROBERTSON, Justice,

for the Court:

The Mutual Life Insurance Company of New York (MONY) appeals from the judgment of the Circuit Court of the First Judicial District of Hinds County, Mississippi, entered against it and in favor of Mrs. Wanda (Austin) Douglas, for $317,786.30. The judgment was based on a jury verdict for $50,000, the face amount of an insurance policy on the life of her late husband, James D. Austin, and $250,000 punitive damages, plus $17,786.30 interest adjudged by the court.

On March 4, 1976, Wanda M. (Austin) Douglas, the widow of James D. Austin who died on January 8, 1972, filed her declaration in the Circuit Court of the First Judicial District of Hinds County, Mississippi, against The Mutual Life Insurance Company of New York; Caleb Dortch, Jr., its Jackson agency manager; and James R. Dewease, a field underwriter in the Jackson office.

Mrs. (Austin) Douglas alleged that MONY wrongfully refused to pay her insurance claim on the life of her husband, James D. Austin. She alleged that Dew-ease bound MONY with an oral contract of insurance on December 17, 1969, when Austin signed an application for a $50,000 whole life policy with waiver of premium and accidential death benefits; that unbeknown to Austin and her, Dewease switched a $50,000 whole life policy to an inferior $50,000 keyman policy and fraudulently had it dated March 1,1970, instead of December 17,1969; that the defendants failed to notify Austin within a reasonable time of MONY’s rejection of coverage by a whole life policy; and that the defendants are estopped to deny payment of the whole life policy and estopped to assert death of Austin by suicide within two years of March 4, 1970, the date of issue of the policy. Mrs. (Austin) Douglas demanded $50,000 actual damages and $1,000,000 punitive damages.

Appellant has assigned seven errors which it contends were committed in the trial of this case. The first assignment of error is:

The verdict of the jury and the judgment .rendered thereon are against the overwhelming weight of the evidence and contrary to the law, and the lower court erred in overruling defendant-appellant’s motion for a directed verdict, request for peremptory instruction, motion for judgment notwithstanding the verdict and motion for a new trial.

Because of the decision we have reached on this first assignment of error, it will not be necessary to discuss and decide the other six.

Austin, on December 17, 1969, signed an application to MONY for a whole life insurance policy in the face amount of $50,000, together with accidental death benefits and waiver of premium. His wife, Wanda Moore Austin, was designated the sole beneficiary, and also the owner of the policy.

Just above Austin’s signature on the application form were these printed words:

“I agree that: (1) No one but the Company’s President, a Vice-President or Secretary has authority to accept information not contained in the application, to modify or enlarge any contract, or to waive any requirement. (2) Except as otherwise provided in any conditional receipt issued, any policy issued shall take effect upon its delivery and payment of the first premium during the lifetime of each person to be insured. Due dates of later premiums shall be as specified in the policy.” (Emphasis added).

No receipt (conditional or otherwise) was issued.

On the back of this application, under the heading “FIELD UNDERWRITER’S CERTIFICATION”, Dewease, the salesman and field underwriter, requested that MONY also issue a keyman policy with waiver of premium and double indemnity.

Dewease made an engagement with Dr. Howard C. Friday, MONY’s Jackson physician, for a medical examination of Austin on December 17, 1969. Dr. Friday found albumin in the urine and slightly elevated blood pressure. The albumin indicated that probably something was wrong with his urinary tract system, and Dr. Friday testified that you frequently see elevated blood pressure with kidney disease. Dr. Friday put him in the hospital as a private patient on December 21, 1969, for a renal biopsy and further tests. Austin was released from the hospital on December 24th with a final diagnosis of chronic glomerulonephri-tis.

Theodore Topaban, the chief underwriter for MONY in the home office in New York City, received Austin’s application and the Medical Examiner’s Report (a part of the application) on December 22,1969. Dr. Friday reported slightly elevated blood pressure and 3-plus albumin in urine. The urine specimen was sent to home office. On December 23,1969, MONY’s home office wrote Dr. Friday requesting additional blood pressure readings and an additional urine specimen.

On January 6th, 1970, MONY’s home office received a call from Dr. Friday informing them of Austin’s hospitalization from December 21 to 24,1969, for a renal biopsy, that the biopsy showed “probable chronic glomerulonephritis.” Dr. Friday agreed to send a hospital summary and another blood pressure reading when Austin comes back to his office in a week or two.

On February 2, 1970, Topaban requested MONY’s Jackson office to secure an additional blood pressure reading and urine specimen. On February 10, 1970, Topaban notified the Jackson office that he was suspending further action on Austin’s file because he had not yet received the additional blood pressure reading and urine specimen.

On February 12, 1970, MONY’s home office received the requested additional urine specimen and blood pressure reading, and this was turned over to Mr. Topaban on February 19, 1970.

On February 13, 1970, Dewease (after learning of the suspension of Austin’s file by the home office) delivered the $97.00 refund check to Austin.

On February 24, 1970, after consultation with the medical department, Topaban approved a special Class IV rating for Austin. This meant that a higher premium would be charged to cover the risk, and that neither waiver of premium nor accidental death benefits would be available. On February 26, 1970, the home office approved the issuance of a $50,000 whole life policy for a monthly premium of $140, and also approved the issuance of a $50,000 keyman policy for a monthly premium of $111.49. The only difference between the two policies would be a quicker buildup of cash surrender value in the whole life policy because of the higher premium charged.

On February 26, 1970, Dewease went to Austin’s office a few floors below the MONY office in the First National Bank building, and explained the two policies that could be issued. Austin selected the keyman policy because of the lower premium. He returned to Dewease for cancellation the $97 refund check and gave Dew-ease a $14.49 check to cover the March, 1970, premium of $111.49. The $14.49 check was signed by Mrs. Wanda M. Austin.

Dewease requested the home office to date the two policies March 1,1970, in order to save Austin a month’s premium of $111.49.

On March 8,1970, when he received these two policies, both with the policy date of March 1, 1970, and the issue date of March 4, 1970, Dewease went down to Austin’s office on the fifth floor and again asked Austin which policy he wanted. Again Austin selected the keyman policy because of the lower premium. As he went over the policy provisions with Austin, Dewease red-lined the face amount, the annual premium, the Beneficiary (Mrs. Austin) Rights, Assignment, Incontestability and Suicide provisions. Only Austin was present at the February 26 and March 8, 1970, conferences. Dewease left the keyman policy with Austin.

Attached to and made a part of the policy was a copy of Austin’s original application dated December 17, 1969, and a copy of “AMENDMENT TO APPLICATION FOR LIFE INSURANCE.” This AMENDMENT, under the heading “PLAN” had this typed in:

“KEYMAN instead of WHOLE LIFE”. Under the heading “ADDITIONAL BENEFITS”, the policy contained this language:

“The benefit checked has not been issued:
(x) Waiver of Premium
(x) Accidental Death”.

Under the heading “CLASSIFICATION” appears this language:

“Policy issued:
(x) on Special Class basis with higher than standard premiums”.

Under the heading “MISCELLANEOUS” appears this typed-in language:

“DIVIDENDS APPLIED UNDER PROTECTION OPTION 8.”

A card styled “AUTHORITY TO HONOR PREMIUM CHECKS IN FAVOR OF THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK” was dated “2-26-70”, and signed by “Wanda M. Austin”. MONY drew monthly bank drafts under this authorization for premiums from April, 1970, until Austin’s death on January 8, 1972.

The keyman policy with endorsements and attachments remained in Austin’s possession from March 8, 1970, until April 30, 1970, when Mrs. Wanda M. Austin on that date executed a written assignment of the policy on a MONY printed form to Fred A. Waites, Hattiesburg, Mississippi, to secure a loan made to them. Her signature was witnessed by James Dewease and the key-man policy, together with the assignment, was sent to Waites by Dewease at Mrs. Austin’s request.

Mrs. (Austin) Douglas testified that she received the policy back from Fred Waites and that she and her husband assigned the keyman policy on September 27, 1971, to the First National Bank, Jackson, Mississippi, to secure a rather large loan. She testified that she delivered the policy and the assignment to the bank. She did not see the policy again until after her husband’s death.

After Austin’s death on January 8, 1972, claim was made on MONY for $50,000, the face amount of the policy. MONY refused to pay on the ground that Austin committed suicide within two years after the date of issue of the policy, and that this provision of the policy applied:

“SUICIDE — In event of the suicide of the Insured, sane or insane, within 2 years after the date of issue, the amount payable by the Company shall be limited to the amount of the premiums paid.” (Emphasis added).

On April 14, 1972, MONY issued its check to “WANDA AUSTIN AND FIRST NATIONAL BANK OF JACKSON MISSISSIPPI” in the sum of $2452.78, “the amount of the premiums paid”. Mrs. Austin refused to cash this check and on March 4, 1976, brought suit against MONY, Caleb Dortch, Jr., and James R. Dewease.

At the trial in July, 1976, Mrs. (Austin) Douglas testified that they were dissatisfied with a John Hancock Life Insurance policy issued in November, 1969, on Austin’s life because it was a rated policy with a monthly premium of $129.33. On cross-examination, Mrs. (Austin) Douglas testified:

“No, only that after this one we were I think more aware because we had been rated, and we were, you know, shopping for insurance; where at this time it was like — it was more important, I felt like, for us to replace it with a cheaper policy since we had this extra rating of $29.33 a month.”

MONY’s defense was that the insured, James D. Austin, committed suicide on January 8, 1972, and, the suicide being within two years after March 4, 1970, the date of issue of the policy, all they owed the beneficiary was the amount of premiums paid, $2,452.78, for which amount MONY had issued its check to Mrs. Austin on April 14, 1972.

The testimony was that Austin’s health deteriorated rapidly during the fall of 1970 and spring of 1971. He was not able to do any work after March, 1971. Tremendous medical bills were incurred. In September of 1971, both of his kidneys were removed and he had to go on a kidney dialysis machine three times each week from 6 p. m. to 6 a. m. A plastic tube was inserted in his left wrist so that he could be easily connected to the dialysis machine.

Austin would become excited when there was a possibility of receiving a kidney from an accident victim, but when the tissue-testing revealed that his body would reject that particular kidney he would become very depressed.

Austin drove from Jackson to Birmingham, Alabama, on Thursday, January 6, 1972, to visit his mother who, although 70 years of age, wanted to give one of her kidneys if Austin’s body would receive it. He was depressed when he left Jackson, and Austin’s mother, when contacted by Chief of Police Cox of Winfield, Alabama, after his death, told Cox that when he had left her Saturday afternoon he seemed real depressed.

Chief Cox testified by deposition that he had found Austin on the night of January 8, 1972, lying on the front porch of a little Methodist church in Winfield, Alabama, in a puddle of blood. When he found Austin his left arm was under him and Cox asked him who had done this to him. Austin replied: “I did it myself; leave me alone and let me die.” Cox turned Austin over and noticed that the plastic tube in his left wrist had been cut and blood was squirting out of it. Cox testified that he attempted to stop the flow of blood by holding the plastic tube. This is the way Cox explained it:

“A. I had to put my hand — excuse me, I had to put my foot on that hand, and I used my other arm to hold the tube. He was trying to resist me; and he was saying ‘Let me die; let me die’.”

Chief Cox rode in the ambulance with Austin to the hospital. Cox was questioned as to what happened in the ambulance:

“Q Was he conscious when you all arrived at the hospital, if you recall?
A Yes, sir, he was.
Q Did he have any conversation with you in the ambulance on the way to the hospital?
A He said several times to ‘Let me die.’ He said, ‘Leave me alone. Let me die.’ ”

Chief Cox stated that he left policeman Billy Joe Perry at the scene, and that Perry later came to the hospital and gave him a bloody razorblade that he had found just outside Austin’s car, which was parked in the church driveway. Chief Cox stated that he found more razorblades on the dashboard of Austin’s car.

Patrolman Perry testified by deposition:

“A He was just more or less wiggling around and trying to hide — I believe it was his left arm. He rolled over, I believe on his right side, and tried to cover his arm.
Q His left arm?
A His left arm.
Q Did you see any blood?
A Right. There was plenty of blood. He was laying in a pool of blood.
“Q What did Mr. Austin do when Mr. Cox touched him?
A Well, he tried to keep him away from that tube, you know, where he was on the kidney machine. He tried to keep him away from that.”

Perry testified as to what took place at the hospital:

“Q What doctors were there?
A There was a man and wife team. Now Dr. Fuson and his wife, and they were at the hospital at the time.
Q Okay, was Mr. Austin conscious at the hospital?
A Right.
Q Did you hear him say anything at the hospital?
A Yes, sir.
Q What did you hear him say?
A He said, ‘Let me die; let me die.’ He made that statement I would say three or four times at the hospital.”

Dr. Edna P. Fuson was called as a rebuttal witness by the plaintiff. She remembers Austin being brought into the emergency room but she doesn’t remember the date. Austin needed blood and she left the emergency room to give blood for him. Dr. Fuson was asked if Austin talked while she was in the emergency room. She replied:

“A The man was in severe shock. His pulse was thready. He was quite pallid, covered with perspiration; his respira-tions were shallow. As far as mental outlook, I have no idea. The man to my knowledge did not speak a word.
Q To your knowledge—
A And I feel I would remember that, as much as I remember about that case. If the man had said anything, I honestly feel I would have remembered it.”
“A To my knowledge, he did not speak.
Q Was he in a state of shock when you first saw him?
A Yes, he was. And the shock deepened when I rushed out and when they started taking my blood.
Q Now when you rushed out and they started taking your blood, what was his condition at that time that you stepped out of the room?
A I see no way on earth the man could have talked.”

Patrolman Perry had testified that Austin said “Let me die” three or four times while in the hospital, so to that extent Dr. Fuson’s testimony could be said to contradict Perry’s testimony.

After Austin’s death, a coroner’s jury was empanelled and the official certificate of death signed by the coroner on January 10, 1972, on file in the Bureau of Vital Statistics of the State of Alabama shows that the death was “Probably suicide.”

There was introduced as an exhibit to Mrs. (Austin) Douglas’s cross-examination a Claimant’s Proof of Death on a John Hancock Mutual Life Insurance Company form, which was signed by her on January 22, 1974, which Proof of Death, in answer to the question:

4. “d. If death resulted (1) from suicide, or (2) from homicide, state which.” was filled in “Suicide”.

Mrs. (Austin) Douglas contended at the trial that somebody in MONY’s office had signed her husband’s name to the Amendment to Application for Life Insurance form, which enabled MONY to switch policies on them and to issue a keyman policy rather than a whole life policy, that the keyman policy was inferior to the whole life policy, and that they had been thus defrauded.

There is no merit to this contention because the whole life policy and the keyman policy bore the same policy date, March 1, 1970, bore the same date of issue, March 4, 1970, were for the same face amount of $50,000, and both contained the same suicide clause providing:

“SUICIDE — In event of the suicide of the Insured, sane or insane, within 2 years after the date of issue, the amount payable by the Company shall be limited to the amount of the premiums paid.”

In addition to this, a copy of the Amendment to Application for Life Insurance was attached to and made a part of the keyman policy which policy was in the admitted possession of Mr. and Mrs. Austin from March 8 until April 30, 1970, when it was assigned to Fred Waites, then back in her hands on September 27, 1970, when it was assigned to the First National Bank and personally delivered by Mrs. Austin to the First National Bank.

The uncontradicted testimony of James Dewease was that Austin himself selected the keyman policy because of the lower premium required, and that he, Dewease, delivered the keyman policy to Austin on March 8,1970, and very carefully went over all of its terms, underlining with a red pencil in Austin’s presence many of the policy’s provisions. Dewease testified that Mrs. Austin was not present when Mr. Austin selected the keyman policy; neither was she present when Dewease explained in detail the terms and provisions of the selected policy.

The evidence of Austin’s committing suicide is overwhelming. It is undisputed unless it could be said that Dr. Edna Fuson’s testimony, that Austin in her opinion was not able to talk in the emergency room, tended to contradict the testimony of Policeman Perry that Austin said three or four times “Let me die” while in the emergency room. Even setting aside this particular testimony of Policeman Perry, in our opinion death by suicide was proved by clear and convincing evidence.

Austin died January 8, 1972; the policy date was March 1, 1970; the date of issue was March 4,1970; and the date of delivery March 8, 1970. His death was within the limiting two-year period of the suicide clause and under the plain provisions of that clause the amount payable by MONY was “limited to the amount of the premiums paid,” which MONY tendered to Mrs. (Austin) Douglas and the First National Bank, by its check dated April 14, 1972, in the amount of $2,452.78.

The evidence being clear and convincing that MONY had fully complied with the exact terms and provisions of its written contract of insurance with James D. Austin, the trial court should have granted the peremptory instruction requested by the defendants at the close of the evidence.

The judgment of the trial court is, therefore, reversed and judgment entered here for the appellant.

REVERSED AND RENDERED.

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

BOWLING, J., took no part.


text:
    James Raymond Doss in the Interest of Audrey Fay DOSS, Connie Denise Doss, Shelia Doss and Allen Ray Doss.
    No. 50177.
    Supreme Court of Mississippi.
    March 15, 1978.
    Rehearing Denied April 12, 1978.
    Yancy & Easley, Cliff R. Easley, Jr., Bruce, for appellant.
    Mitchell M. Lundy, Grenada, for appellee.
   Appeal from Youth Court, Grenada County; Kermit R. Cofer, Chancellor and Youth Court Judge.

Before SMITH, P. J., and ROBERTSON and LEE, JJ.

AFFIRMED.