author: SMITH, Presiding Justice,

text:
    C. E. FRAZIER, C. E. Frazier Construction Company, Inc., & U. S. F. & G. Company v. NATIONAL ELECTRIC SUPPLY COMPANY, INC.
    No. 50576.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    Reynolds & Mockbee, David L. Reynolds, Jackson, for appellants.
    Keeton, Cofer & Embry, Edwin Tharp Cofer, Grenada, for appellee.
    Before SMITH, WALKER and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

C. E. Frazier Construction Company, Inc. was awarded the general contract for construction of the Student Union Center at Delta State University. His bond for the project was executed by the United States Fidelity and Guaranty Company. The electrical work was sublet to Edward M. Jones, d/b/a Jones Electric Company.

Following completion of the project Frazier retained $13,185.18 under the provisions of his subcontract with Jones. Frazier claimed that, in the course of the work, Frazier had experienced difficulty of various kinds with Jones which allegedly caused substantial delays and expense and that Jones also had left a number of items to be corrected according to the plans and specifications.

After Frazier had completed the Delta State job Jones made assignment of the $13,185.18 to National Electric Supply Company, Inc., a creditor to whom Jones was indebted. It was stipulated that National, at the time of the assignment, had not supplied money, goods or services to Jones in connection with the Delta State project and that the assignment had been given by Jones to National as security for preexisting debts. It was further stipulated that National had furnished no material, equipment or goods used in connection with the construction of the Delta State Student Union. It appears that the purpose of the assignment was to provide security for a job at Holly Springs in which Jones was involved and for which National advanced funds.

The subcontract executed by Jones to Frazier contained, among other things, this provision:

“That the subcontractor shall:
(8)(a) Not assign this subcontract or any amounts due or to become due thereunder without the written consent of the contractor.”

Shortly after Jones executed the assignment of his claim to the retainage to National, the latter brought the present suit against Frazier, his bonding company U. S. F. & G., and Jones. In addition to filing a counterclaim against Jones as an offset to the amount claimed, Frazier interposed a number of defenses, including the provision in Jones’ contract prohibiting assignment.

This defense was overruled by the trial court. A trial followed, at the conclusion of which the trial court entered judgment in favor of National against Frazier, U. S. F. & G. and Jones. Frazier and U. S. F. & G. have appealed. Jones has not appealed.

In Merchants and Farmers Bank v. McClendon, 220 So.2d 815, 820 (Miss.1969), this Court reaffirmed the rule of law handed down in Inter-Southern Life Insurance Co. v. Humphrey, 122 Miss. 579, 84 So. 625, 626 (1919), saying:

Prohibition in a contract against assignment is legal and valid. The right to make a personal contract or to agree for the performance of a contract by a certain party to the exclusion of all others is obviously legitimate. Such contracts are often made with a view of retaining the personal interest and action of the payee, which purpose might be defeated should the contract or the fruits of it be unconditionally assigned to some stranger. 122 Miss, at 592, 84 So. at 626.

The McClendon case has not been overruled and the conclusions reached in it appear to rest upon a sound basis. It is, however, the contention of National that McClendon was superseded by Mississippi Code Annotated section 75-2-201 of the chapter on sales of the Commercial Code. Section 75-2-102 of the chapter on sales is as follows:

75-2-102 Scope; certain security and other transactions excluded from this chapter.
Unless the context otherwise requires, this chapter applies to transactions in goods; it does not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction nor does this chapter impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers.

Section 75-2-106 defines “sale”, as contemplated in the chapter on sales of the Uniform Commercial Code, as follows:

(1) In this chapter unless the context otherwise requires “contract” and “agreement” are limited to those relating to the present or future sale of goods. .

Nor is the suggestion valid that the prohibition against assignment violates the chapter on secured transactions of the Commercial Code.

Section 75-9-104 of the chapter on secured transactions provides:

This chapter does not apply (f) to a sale of accounts, contract rights or chattel paper as part of a sale of the business out of which they arose, or an assignment of accounts, contract rights or chattel paper which is for the purpose of collection only, or a transfer of a contract right to an assignee who is also to do the performance under the contract; or

We hold that the transaction sought to be litigated between National on the one hand and Frazier, U. S. F. & G. and Jones on the other did not involve a sale within the scope and contemplation of the chapter on sales as contained in the Uniform Commercial Code. Such a prohibition against assignment is not invalid under the chapter on sales or under any other provision of the Commercial Code. Having reached that conclusion, we hold that the rule laid down in McClendon controls and that the attempt of Jones to assign the retainage to National was invalid and that the suit of National against Frazier and U. S. F. & G. Company should have been dismissed.

The judgment appealed from is, therefore, reversed and judgment is entered here for Frazier and U. S. F. & G. Company. The judgment against Jones, who did not appeal, is, of course, unaffected.

THE JUDGMENT APPEALED FROM IS REVERSED AND JUDGMENT ENTERED HERE FOR FRAZIER AND U. S. F. & G. COMPANY.

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

COFER, J., took no part.


source: Caselaw Access Project

author: ROBERTSON, Presiding Justice,

license: Public Domain

text:
    Kay McGarrh SEYMORE, Administratrix of the Estate of Augustus K. McGarrh v. GREATER MISSISSIPPI LIFE INSURANCE COMPANY.
    No. 50453.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    Rehearing Denied Sept. 20, 1978.

      Jacobs, Griffith, Pearson, Eddins & Po-vall, John Kirkham Povall, Cleveland, for appellant.
    Alexander & Johnston, Robert G. Johnston, Cleveland, for appellee.
    Before ROBERTSON, SUGG and COF-ER, JJ.
   ROBERTSON, Presiding Justice,

for the Court.

On March 2, 1976, Kay McGarrh Sey-more, Administratrix of the estate of Augustus K. McGarrh, deceased, filed suit against Greater Mississippi Life Insurance Company in the Circuit Court of the First Judicial District of Bolivar County, Mississippi, to recover the sum of $7,500, which plaintiff alleged to be the balance due on a $15,000 certificate of group credit life insurance issued to her father, A. K. McGarrh.

Plaintiff alleged that a $2,500 certificate of group credit life insurance was purchased by McGarrh on August 11, 1975, from defendant’s agent, First National Bank of Rosedale, when he borrowed an additional $2,500 from the Bank. McGarrh purchased $15,000 of group credit life insurance from the defendant on December 5, 1975. The certificate of insurance was issued by the Bank through its president, H. E. McCaslin, who had continuously acted as the agent of defendant since June 20, 1970, the date of the master policy contract between the Bank of Beulah (predecessor to the First National Bank) and defendant. The premium for this level term (12 months) non-reducing $15,000 certificate of insurance was $300, of which premium $150 was deposited to the account of defendant in the First National Bank of Rosedale on December 9, 1975, and the remaining $150 was retained by the Bank as its commission for selling the insurance.

McGarrh died on December 10, 1975, at the age of 49. Proofs of death on the two McGarrh certificates were executed by the Bank and sent to the defendant on December 17, 1975.

On February 6, 1976, defendant wrote H. E. McCaslin, president of First National Bank, Rosedale, as follows:

“On August 11, 1975, you insured Mr. A. K. McGarrh for $2,500 level coverage on Certificate # 95512. Mr. McGarrh died on December 10,1975, and we have determined that the insurance on this certificate is payable.
On December 15, 1975, we received Certificate # 107351 for $15,000 level coverage insurance to be effective December 5, 1975. This second certificate is, of course, $7,500 in excess of the maximum coverage provided in your Credit Life Insurance Master Policy. Since our investigation reveals that Mr. McGarrh was probably an acceptable Credit Life Insurance risk on the date of his loan, we have determined that $7,500 of this coverage may be accepted and liability assumed for that amount as a claim resulting from Mr. McGarrh’s death on December 10. The balance of the coverage on this second certificate may not be accepted and is, therefore, rejected according to the terms of the master policy.
Enclosed is our check in the amount of $10,075 representing payment of the claim under certificate # 95512, payment of the balance of our maximum liability under Certificate # 107351 and a refund of our portion of the premium on the excess insurance written on certificate # 107351.
Mr. McGarrh’s account should, of course, be credited for an additional $75.00 representing a refund by the bank of the commissions retained on the excess insurance.”

The plaintiff refused to accept this settlement and brought suit for $7500. Defendant answered that plaintiff stated no cause of action because the two certificates of insurance issued MeGarrh totaled $17,500, and the master policy contract between the defendant and the Bank provided:

“SCHEDULE
1. Ages 18 through 54, inclusive, the amount of insurance not to exceed $10,000, terms may be extended through 60 months.”

Defendant further answered that no provision of the master policy contract could be orally changed, modified or waived because the contract provided, under the heading “General Provisions”:

“MODIFICATION: This Policy may be modified or amended at any time, subject to the laws of the jurisdiction in which it is delivered, without the consent of the Debtors insured hereunder, by written agreement between the Creditor and the Company.
“AUTHORITY: Only the President, a Vice-President, the Secretary or an Assistant Secretary of the Company has the power to change, modify or waive the provisions of this Policy and then only in writing.”

After a full trial the court dismissed the jury, finding “that there are no issues or questions of fact for decision by the jury,” and took the matter under advisement for decision in vacation. On June 23, 1977, the court, in a letter opinion, said:

“Among other things, the terms of the policy provide: . . . ‘Provided, how-. ever, that such amount of insurance shall not exceed . . . the original principal amount of the borrower’s note covering the loan in connection with which insurance is effective,’ ”

and then proceeded to find that, inasmuch as the amount of McGarrh’s indebtedness to the Bank at the time of his death was $10,790, his estate was only entitled to recover $790 more from the defendant. The plaintiff thereupon perfected an appeal to this Court.

The appellant assigns as error:

The lower court committed reversible error in its findings when it limited Appellant’s recovery by reliance on an issue outside the scope of and unresponsive to the pleadings.

Appellant contends in her brief that the lower court could not base its decision on an affirmative defense not raised by the appel-lee, not within the framework of the pleadings, and mentioned for the first time by the court itself after the trial had been completed and both sides had rested.

The liability ledger (two sheets, single-spaced) of the First National Bank of Rose-dale, introduced without objection, listed a continuous series of loans to A. K. MeGarrh beginning September 21, 1973. Listed also were payments on these loans beginning October 8, 1973. The amount of his indebtedness to the bank varied from a high of $27,126 on August 29, 1974, to $10,790 on December 9,1975, the day before McGarrh’s death.

The appellee’s testimony was that it had authorized the Bank to issue two types of credit life insurance: one being the reducing type where as the loan was paid down the insurance decreased according to the diminishing balance of the loan; the other being the level type where the amount of the insurance remained constant for the entire term. The premium for the level type was double that for the reducing type. MeGarrh purchased and paid for the level type: $15,000 group credit life insurance for a $300 premium, purchased December 5, 1975, for a term of 12 months.

H. E. McCaslin, president of the First National Bank of Rosedale and the agent of the appellee who sold and issued certificates of insurance based on the master policy, testified that in July, 1975, he personally talked with Bob Wright, vice president of the defendant company and the officer in charge of the master policy issued McCas-lin’s Bank, and that Wright specifically authorized the issuance of certificates of insurance based on the master policy up to $20,000; that he issued for the appellee to Charles J. Wilson, on July 21,1975, a certificate of group credit life insurance in the amount of $17,000; that no premium was refunded on this insurance and that it ran its course; that the $15,000 certificate to McGarrh was the second of five other certificates issued in excess of $10,000.

The master policy, containing the $10,000 limitation, issued to the Bank of Beulah by the defendant on June 20, 1970, was a secret contract as far as the plaintiff was concerned. It was between the defendant and its agent. In the certificate of insurance for $15,000 issued to McGarrh on December 5, 1975, there was no mention of any limitation on the amount of insurance that could be issued by the defendant’s agent.

In finding against the insurer, this Court said, in Southern Insurance Co. v. Ryder Truck Rental, Inc., 240 So.2d 283 (Miss.1970):

“It did contain a provision which, by inference, authorized the said agent to bind the company for insurance. However, insofar as the public is concerned, a secret contract between the agent and the insurance company cannot affect the status of the authority of the agent. As to the public, it is what the laws of Mississippi say and what the public is led to believe by the actions of the insurance company and agency. There is no proof whatsoever that any act of Busching or any statement of any kind made to the public (either by Southern or Busching) advised them of any limitations upon Busching’s authority.” 240 So.2d at 285. (Emphasis added).

In the case at bar, there was no proof whatsoever that the defendant or its agent advised McGarrh in any shape, form or fashion of any limitation on the amount of insurance that the Bank, as agent, could issue. Neither McGarrh nor his heirs were bound by any secret limitation contained in the master policy. Neither could McGarrh be bound by any secret provision in the master policy that it could only be amended “by written agreement between the Creditor and the Company”.

We move on now to the only assignment of error, that the lower court committed reversible error in its findings when it limited Appellant’s recovery by reliance on an issue outside the scope of and unresponsive to the pleadings.

Although defendant asserted five grounds of defense in its answer, it never asserted the affirmative defense that the master policy limited the amount of insurance that could be sold by the Bank as agent to the actual amount of McGarrh’s indebtedness to the Bank. In fact, when plaintiff attempted to elicit testimony from Mr. McCaslin as to why he sold insurance to McGarrh, which at the time exceeded McGarrh’s indebtedness to the Bank, the court sustained defendant’s objection on the ground that such testimony would be irrelevant and immaterial.

The issues are framed, formed and bounded by the pleadings of the litigants. The Court is limited to the issues raised in the pleadings and the proof contained in the record. Judge Griffith, in his monumental work on Mississippi Chancery Practice, gave these sound reasons why it must be so:

“Courts do not instigate or initiate civil litigation. They act only when called on for aid, and only in respect to that which is within the call. The potentiality of a court to consider and determine a given class of cases over which it has jurisdiction is made actual, in a particular case within that class, only when a party entitled to relief with respect thereto has applied to the court by his written pleading and even then his written application must state the facts upon which it is based or else it will still be ineffectual to actuate the court to grant any relief. The power of the court, then, will be exerted only upon, and will not move beyond, the scope of the cause as presented by the pleadings, for the pleadings are the means that the law has provided by which the parties may state to the court what it is they ask of the court and the facts upon which they ask it; and proof is received and is considered only as to those matters of fact that are put in issue by the pleadings, and never beyond or outside of them. If the rule were otherwise courts could become the originators instead of the settlers of litigious disputes, and parties would never know definitely what they will be required to meet or how to meet it.” Griffith, Mississippi Chancery Practice (Second Edition 1950), § 564, pp. 586-87. (Emphasis added).

In 89 C.J.S. Trial, § 633b, at page 464 (1955), we find this language:

“The findings when compared with the pleadings must be within the issues and be responsive thereto, and must cover the material issues raised by the pleadings, and this is required whether or not evidence is introduced on such issues. It is improper to make findings outside the scope of the issues made by the pleadings; and where such findings are made, they are nugatory and cannot support conclusions of law or the judgment; they must be disregarded or treated as immaterial.”

76 Am.Jur.2d, TRIAL, § 1264, at page 215 (1975), says:

“The findings of fact made by the court should respond to and be within the issues, and a finding outside the issues cannot be considered in determining whether the judgment is supported by the findings.”

For the reasons stated, the judgment of the trial court is reversed, and judgment rendered here for the appellant in the sum of $7,500, plus interest as provided by law from February 9, 1976.

REVERSED AND RENDERED.

PATTERSON, C. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COF-ER, JJ., concur.

SMITH, P. J., took no part.


author: BILLY G. BRIDGES,

text:
    Alfred Clayton MOSLEY et al. v. Mary Flossie CLARK et al.
    No. 50475.
    Supreme Court of Mississippi.
    Aug. 30, 1978.

      Craig Castle, Jackson, Peter K. Smith, Quitman, for appellants.
    Riddell & Dabbs, G. F. Dabbs, Jr., Quit-man, for appellees.
    Before PATTERSON, C. J., WALKER and BOWLING, JJ., and BRIDGES, Commissioner.
   BILLY G. BRIDGES,

Commissioner for the Court:

The record reveals that H. H. Lafferty, during his lifetime, was the owner of approximately 177 acres of land in Clarke County. H. H. Lafferty was married twice, and appellants are descendants of said H. H. Lafferty and his first wife. After his second marriage, and sometime prior to 1939, and apparently during the year 1934, H. H. Lafferty and his second wife prom-

ised to convey the land which is the subject of this lawsuit to appellees, one of whom was Flossie Clark, a child of this marriage. Appellees immediately began occupying subject property, which was 74 acres of the above-mentioned 177 acres, under an oral agreement to pay for same over a five-year period. In January 1939 said H. H. Lafferty executed a warranty deed to Flossie Clark, but his second wife did not join therein.

The proof showed that appellees, Flossie Clark and Fate Clark, her husband, lived on said property, fenced, farmed and grazed it, repaired improvements thereon and made other improvements thereto, rented said property to others for residential purposes, leased the minerals thereunder, paid taxes thereon, sold timber therefrom, and claimed said land, all prior to and following the death of H. H. Lafferty in 1947, and his wife, Lottie Lafferty, mother of appellee Mary Flossie Clark, in 1960. The proof further showed that H. H. Lafferty and his second wife moved from Clarke County some years prior to their deaths and did not return.

The remaining children of H. H. Lafferty and his second wife claimed no interest in subject property, but appellees testified that in order to clarify the record as to their title they requested quitclaim deeds from such remaining children. In attempting to obtain a quitclaim from Alfred Clayton Mosley, one of the appellants, the suit in the lower court arose. Appellant claims that this act was an admission that appel-lees knew that they did not own said land. Appellants further claim, and alleged in their petition for partition in the Chancery Court of Clarke County, that the deed executed by H. H. Lafferty alone on homestead property was void and that as a result there was no adverse possession of said land by appellees because appellants are cotenants and from the evidence there was no ouster as against such cotenants.

The chancellor dismissed the petition filed by appellants and confirmed the title of appellees on their cross petition for confirmation finding that the appellees had ousted appellants after the death of H. H. Lafferty in 1947, and that the continuous possession of appellees thereafter was sufficient to acquire title to said land by adverse possession. The chancellor also found that the 74-acre tract of land in question was not a part of the homestead of H. H. Lafferty at the time of the execution of the deed covering same, and, therefore, it was not necessary that his wife sign the deed to the property as homestead property.

We believe the chancellor was correct in his findings except that portion relative to said tract not being homestead property. Subject property joined other property of H. H. Lafferty which was claimed as homestead and we think the 74 acres of said property were part and parcel of his homestead. To this extent the deed executed in 1939 by said deceased alone was then void. Appellants had taken possession of said land under an oral agreement to pay for same and for all intents and purposes thereafter claimed title to said land, including the time following acquisition of the deed in 1939 to Flossie Clark and following the death of H. H. Lafferty in 1947.

The Court is of the opinion that the appellees’ occupancy, possession and uninterrupted use of the property beginning in 1934 pursuant to the oral promise to convey, and certainly no later than 1939 when the deed was acquired, although it was void, amply established their claim to the land in its entirety. This claim in conjunction with open possession and use uninterrupted for more than ten years ripened title in them no later than January 11, 1949, ten years after the date of the void deed. In reaching this conclusion, we note that Alfred Mosley, the principal appellant, testified he knew that Flossie Clark and her husband were living on and claiming the land in 1937 and for years thereafter. He also testified the 74-acre tract was known in the community as the “Clark Place” and that his father had vacated the land and had died in Gulfport in 1947 and when he visited the old place thereafter, he knew the appellees were claiming the 74 acres as their own. His testimony establishes actual notice of appellees’ claim in the entirety and not partially as tenants in common.

Moreover, the adverse possession of the appellees began in 1939, several years prior to the deaths of H. H. Lafferty and his wife. The statute of limitations having begun to run, it was not interrupted or tolled by the deaths of Lafferty and his wife. Robinson v. Humble Oil & Refining Co., 253 Miss. 602, 176 So.2d 307 (1965), and Leggett v. Norman, 192 Miss. 494, 6 So.2d 578 (1942). Additionally, it need be said the appellees’ claim was open and exclusive to the entire property prior to the deaths of H. H. Lafferty and his wife, thereby refuting the presumption of a fiduciary relationship at the time the cotenancy came into existence by operation of law upon the death of H. H. Lafferty. See Bayless v. Alexander, 245 So.2d 17 (Miss.1971).

AFFIRMED.

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

SMITH, P. J., took no part.

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


text:
    In the Interest of Billy H. HUNNICUTT, Individually and as guardian and next friend of Alicia Dawn Hunnicutt.
    No. 50461.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    J. Terry Peeples, Coffeeville, for appellant.
   Appeal from Youth Court, Grenada County; Kermit R. Cofer, Chancellor.

A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

REVERSED AND REMANDED.

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

COFER, J., took no part.


text:
    James A. TURNER v. STATE of Mississippi.
    No. 50522.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    Leon E. Provine, Grenada, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., BROOM and LEE, JJ., and DAN M. LEE, Commissioner.

AFFIRMED.


text:
    MFA LIFE INSURANCE COMPANY v. Jessie Sheila McKENZIE.
    No. 50582.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    Aultman, Pope, Aultman & Tyner, Dor-rance Aultman, Lawrence C. Gunn, Jr., Hattiesburg, for appellant.
    Fledell Chain, Collins, for appellee.
    Before PATTERSON, C. J., BROOM and LEE, JJ., and DAN M. LEE, Commissioner.
   Appeal from Circuit Court, Covington County; George B. Grubbs, Judge.

AFFIRMED.


text:
    NATIONAL SECURITY FIRE & CASUALTY COMPANY v. James H. FARMER.
    No. 50586.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    Bryant & Stennis, Grier J. Gregory, Gulf-port, for appellant.
    Hurt & Dickerson, Gerald A. Dickerson, Lucedale, for appellee.
    Before PATTERSON, C. J., BROOM and LEE, JJ., and DAN M. LEE, Commissioner'.
   Appeal from Circuit Court, George County; Merle F. Palmer, Judge.

AFFIRMED.


text:
    Jimmy C. NOWELL v. STATE of Mississippi.
    No. 50775.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    Lamar A. Conerly, Jr., Hazlehurst, for appellant.
    A. F. Summer, Atty. Gen., by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

AFFIRMED.


text:
    Wesley C. HOLLEY v. VINTAGE HOMES, INC., and Employers Mutual Liability Insurance Company.
    No. 50577.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    Caldwell & Lewis, Ben M. Caldwell, Marks, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, B. Stevens Hazard, Jackson, for appellees.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   Appeal from Circuit Court, Coahoma County; J. C. Feduccia, Judge.

AFFIRMED.


text:
    John W. COX v. STATE of Mississippi.
    No. 50692.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    Charles R. Brett, Tupelo, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Lee County; L. T. Senter, Jr., Judge.

AFFIRMED.


text:
    W. K. JOURNEY et al. v. Robert Lee KYLE et al.
    No. 50562.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    Rehearing Denied Sept. 20, 1978.
   Appeal from Special Court of Eminent Domain, Leflore County; Seth Wheatly, Jr., Judge.

Schissel & Stuckey, Luke J. Schissel, W. S. Stuckey, Jr., Greenwood, for appellants.

Travis H. Clark, Jr., Greenwood, for ap-pellees.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


author: BOWLING, Justice,

text:
    Taylor Sumner SPRADLING v. Ivy Dean SPRADLING.
    No. 50564.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    Shed Hill Roberson, Leon L. Porter, Jr., Clarksdale, for appellant.

      Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Jane M. Wilbourn, Jack P. Dunbar, Clarksdale, for appellee.
    Before SMITH, WALKER and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Modification of a decree granting alimony is the subject of this appeal. The Chancery Court of Coahoma County reduced the alimony award previously granted appellant in the divorce decree. Appellant contends that this reduction was erroneous. We agree and reverse and render a decree here.

By decree of April 12, 1974, the special chancellor granted appellant a divorce from appellee. Incorporated in the decree was an agreement previously entered into between the parties, both of whom were represented by competent attorneys. The agreement and subsequent decree provided that beginning April 20, 1974, appellee would pay to appellant the sum of $900 per month as alimony so long as the parties shall live or appellant remains single. The decree, pursuant to the agreement, further provided that appellant would have the right to use and occupy the prior home of the parties through June 1, 1977, after which time either party would be at liberty to apply for a partition sale of said property in the event they could not otherwise agree on its disposition. The appellant was required to make the monthly payments on the outstanding mortgage on the property, including taxes and insurance payments. In the decree appellee received a 1971 Mercedes automobile but was required to pay, pursuant to his agreement, the sum of $4500 to appellant to purchase another vehicle. The other principal provision of the decree gave appellant the custody of the fifteen-year-old son of the parties, and required support payments in addition to the above mentioned alimony obligation.

On February 19, 1976, appellee filed a “Petition for Modification of Final Decree.” This petition set out that the son, whose custody previously was given appellant, had elected to move into the apartment occupied by appellee. The only request under the prayer of the petition was that the original divorce decree be modified to award appellee the use and occupancy of the dwelling house so that he could move therein with the son; that if this request should be granted, the alimony payments should be reduced in an amount equivalent to the monthly payment on the property including taxes and insurance.

Appellant filed an answer to the modification petition denying the essential allegations. In addition thereto, appellant filed a cross-petition requesting an increase in alimony payments due to inflation and increased expenses. We do not find an answer to this cross-bill in the record and no answer, or lack of it, is mentioned in the record — by the attorneys of either party or by the court.

By order of April 16, 1976, the chancellor “by agreement of the parties” passed the cause for hearing in vacation. After the passing of a subsequent term of court, the cause was then heard on August 12,1976, in vacation. The gist of the evidence at that hearing was that appellant was then enrolled at Delta State University and expected to receive her degree in December of that year. The proof was that the house was in a state of needed repairs and that appellant’s schooling would be seriously interrupted if she was forced to move prior to concluding the school session. On August 12,1976, the chancellor entered a temporary decree reserving further hearing and decision on appellee’s original petition, as well as cross-petition, until after January 1, 1977. The decree directed that appellant retain possession of the house and contents therein and in the meantime she was granted an additional sum of $100 per month for necessary repairs to the house.

Appellee attempted to appeal the temporary decree of the chancellor to this Court and the appeal was dismissed.

On January 3, 1977, appellee filed a motion for a hearing of the cause based on the chancellor’s temporary decree of August 12, 1976. Appellant filed her response to the motion, setting out that the parties had mutually agreed on the sale of the residence by July 1,1977, and an equal division of the proceeds of the sale. It was agreed that appellant would retain possession of the residence until July 1, 1977.

The cause was then heard again in vacation on February 26, 1977, with testimony being given by both appellant and appellee. After the hearing, the court rendered its final decree with the following provisions: (1) A general increase in the cost of living since the original divorce decree was to the extent of fifteen percent; (2) appellant had secured gainful employment as a teacher and was receiving a net salary of $522 per month, from which approximately $100 per month was necessary for travel expenses; (3) the agreed sale of the residence would yield appellant approximately $32,500; (4) the money received by appellant could be used to yield additional income of $139 per month; (5) the elimination of the house payments would reduce appellant’s housing expense in the amount of $85 per month; (6) appellant’s additional income should result in a decrease of appellee’s support ali-' mony requirements to the extent of $175 per month; (7) applying the above reasoning, the court held that the monthly alimony payments should be reduced to the amount of $576 per month. The court denied appellant’s request for attorney’s fees for her representation in the hearing on February 26th.

Appellant advances the following assignments of error: (1) Both the August, 1976, and the February, 1977, decrees were void for the reason that they were held in vacation contrary to the provisions of Mississippi Code Annotated section 93-5-17 (1972); (2) the chancellor erred in refusing to admit evidence of increased earnings of appellee subsequent to the divorce decree and particularly for the year 1976; (3) the chancellor erred in reducing the alimony from that ordered in the original divorce decree; and (4) the chancellor should have allowed appellant attorneys’ fees for the February 26, 1977, hearing.

There is no merit in the first assignment of error. By the clear language of the statute, section 93-5-17 applies only to divorce proceedings and reads in part:

The proceedings to obtain a divorce shall not be heard or considered nor a decree of divorce entered except in open court at a regular or special term of the court, . . (Emphasis ours).

The controlling statute is Mississippi Code Annotated section 9-5-91 (1972), which clearly authorizes the chancellor, in his discretion, to set cases for hearing in vacation. This, by its clear implication, includes any hearing for modification of an award of alimony in an original divorce proceeding. Section 93-5-17 clearly only applies to “proceedings to obtain a divorce.”

Assignments of error Nos. 2 and 3 may be considered together. The testimony at the hearing on February 26, 1977, was practically undisputed. In December, 1976, appellant had received her degree and beginning the first of 1977, she secured a teaching position in an adjoining county under the federally funded Title I program. This was to last for a period of five months after which appellant did not know when or where she would secure future employment. For this temporary position she was to receive a net salary of $522.68 per month, out of which she would pay her travel, car and other expenses. She owned and was driving a 1971 model car that needed repairs and was not in substantially good running condition.

Appellant’s testimony showed that she was forced to borrow $1,000 to complete her education and this sum is still owed. Pursuant to competent appraisals, appellant expected to receive approximately $32,500 in cash as her equity in the house. The undisputed testimony was that appellant had arranged to purchase an old residence and remodel it, with the cost being at least equal to the amount she would receive for her share of the sale of the residence. An additional sum of at least $5,000 would be required for appliances. She estimated that it would be necessary for her to borrow a sum of approximately $15,000 to finally move in the house, and that her payments would be approximately $200 per month. Appellant did not have and was not able to purchase any form of health or hospitalization insurance. She was married to appel-lee for twenty-three years and was forty-six years of age at the time of the hearing. The testimony also shows that she paid income tax on the monthly amounts received under the decree.

The record reveals that at the time of the divorce decree appellee’s gross income was $45,202. During the year 1976, this had increased to $53,664. He owned at least sixty percent of a business which in 1974 had retained earnings of $108,648, and in 1975, these earnings increased to $184,313. The taxable income had increased from approximately $40,000 in 1974 to approximately $100,000 in 1975. There was no contest on the part of appellee as to his ability to pay. The principal contention was that the alimony payments should be decreased because appellant was then gainfully employed and would not have to make the monthly house payments on the original residence. He contends that sufficient change in circumstances had occurred to authorize the chancellor to reduce the alimony payments.

Mississippi Code Annotated section 93-5-23 (1972) authorizing an alimony decrease provides: “The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require.” (Emphasis ours).

In the case of Clark v. Clark, 133 Miss. 744, 98 So. 157 (1923), the Court, in denying a change of alimony payments, said:

On the hearing of the petition by the chancellor, the proof showed conclusively there had been no substantial change in the circumstances of the parties since the rendition of the decree allowing the alimony of seventy-five dollars per month to the wife, which decree had been granted at a previous term of the court during the year before. The testimony does disclose some slight changes in the condition and circumstances of the parties, yet there is no such difference as would warrant the court in changing or abolishing the alimony upon that ground. (Emphasis supplied).

In Malone v. Malone, 159 Miss. 138, 131 So. 870 (1931), the Court said:

If it be conceded that the appellant is wrong in both of these contentions, which we do not now decide, still we think the decree of the court below must be reversed, for the reason that the testimony does not show any such substantial change in the condition and circumstances of the parties as would warrant the court in changing or altering the allowance made in the former decree. Whatever authority the court had to change, alter, or modify this former decree must find its foundation in some substantial change in the condition and circumstances of the parties. (Emphasis supplied).

In the recent case of Savell v. Savell, 290 So.2d 621 (Miss.1974), this Court reaffirmed the statements made in the Clark and Malone cases, stating:

. [T]here must be a material or substantial change in the circumstances of the parties to justify changing the original decree or making a new one.

We have seen in the above cases that the Court refers to both “parties.” This was recognized in Bunkley & Morse, Amis on Divorce and Separation in Mississippi, section 6.11 (1957), where it is said:

Courts of equity in determining whether an award of alimony in a divorce should be modified should consider the present status of the parties and inquire into their respective earning abilities and probable future prospects and all other circumstances which might bear on the subject, such as age, sex, health and station in life.

Therefore, we hold that it was error for the chancellor not to consider the substantial increase in earnings of appellee between the divorce decree of April, 1974, and the modification decree of February, 1977.

Did the evidence show a “substantial change in circumstances of the parties?” The principal changes admittedly were: (1) Appellant had received her degree and had entered into a five-month teaching agreement; (2) the residence would be sold on July 1, 1977, with appellant receiving her half of the net proceeds in the sum of approximately $32,500, and the payments of the mortgage on that house would be eliminated.

As hereinbefore stated, appellant’s testimony is in effect undisputed. The lower court, in its opinion, reasoned that appellant could derive an investment income from the proceeds of the sale of the house. This is contrary to the evidence to the effect that an old house already had been selected and that the repairs and remodeling would use all of the income from the prior residence. In addition, a loan would be necessary to be repaid in monthly installments of approximately $200 each and taxes, insurance and maintenance expenses would continue. Ap-pellee contended, and the lower court agreed, that the elimination of the monthly payments by appellant on the prior residence would materially change her circumstances. In the first place, we think it is unrealistic to conclude that appellant could provide her housing, even though inferior to that at the time of the divorce, including loan payments, repairs, utilities, and other various expenses for any less than the amount she had been paying on the prior residence. As we have seen, the fact that appellant would receive a considerable sum from the sale of the residence does not improve her position. In addition to that, appellee, at the time of his original agreement, knew of appellant’s one-half ownership of the house and this was set out in the decree. He knew that a disposition of the house would be made on or after July 1, 1977. The receipt of the sale proceeds was not a change of circumstances; it was present at the time of the original agreement as incorporated in the original decree.

The lower court did not discuss and did not seem to take into consideration the circumstances that appellant is not getting any younger, has no health or hospitalization insurance, and obviously has no savings or other means of future security. Certainly, she would have a right to the opportunity to prepare for old age, or even the possibility of appellee dying or becoming disabled. Appellant’s testimony is undisputed that she will incur expenses of upgrading her education, and at the time of the hearing she was in need of dental work costing $600.

The chancellor ordered a substantial reduction in the alimony payments because appellant had commuted from Clarksdale to Cleveland for a long period of time, had borrowed money, and had worked hard to obtain a degree to aid in her future support. The modified decree penalizes appellant for being industrious and endeavoring to accomplish something rather than depend on appellee regardless of future circumstances. We do not think the law of alimony contemplates such a penalty.

The parties do not cite any Mississippi cases regarding a change of alimony payments based solely on the wife later entering gainful employment. Several cases are cited from other jurisdictions but there is no necessity for this Court to consider or cite those cases in this opinion.

Nowhere in the pleadings was a request made to reduce the alimony payments due to employment of appellant. Regardless of this, the court and the parties litigated that issue and it should be settled by this Court. We agree with the learned chancellor that there has been a substantial increase in the cost of living since April, 1974. A reinstatement of the original monthly alimony payments does not take this into consideration. The temporary work done by appellant resolves that situation. Realizing that every case is different, we hold in this case that considering only the new employment by appellant, whether temporary or permanent, this does not rise to a substantial change of circumstances sufficient to modify the alimony payments.

From the foregoing discussion, we believe it clear that the evidence in this case does not show a substantial change in circumstances of the parties from those existing at the time of the original agreement and original decree. Therefore, we reverse the cause and render judgment here reinstating the monthly alimony payments of $900 per month.

We find that the chancellor should have allowed appellant a reasonable attorney’s fee for representing her in the hearing on February 12, 1977, and we think a reasonable fee would be the sum of $750. Harrison v. Harrison, 285 So.2d 752 (Miss.1973); Barber v. Barber, 234 Miss. 89, 105 So.2d 630 (1958); Gresham v. Gresham, 199 Miss. 778, 25 So.2d 760 (1946).

Appellant has filed a motion for an award of an attorney’s fee for representing her on this appeal. The usual award in a case such as this is one-half of the fee that was allowed, or should have been allowed, by the lower court. Therefore, appellant’s motion is sustained and judgment will be rendered here for appellant against appel-lee in the sum of $375 as attorney’s fee for representation in this Court.

The cause is therefore reversed and judgment entered reinstating the monthly alimony payments of $900 and judgment for attorney’s fees in the total sum of $1,125.

REVERSED AND RENDERED.

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


author: LEE, Justice,

text:
    Joe W. TAYLOR and Vivian Taylor v. F. & C. CONTRACTING COMPANY, INC.
    No. 50501.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    Johnson & Adams, David E. Adams, Sen-atobia, for appellants.
    Troutt & Moore, Nat G. Troutt, Senato-bia, for appellee.

      Before SMITH, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

This appeal is by Joe W. Taylor and Vivian Taylor, husband and wife, from a judgment of the Tate County Circuit Court in favor of F. & C. Contracting Company, Inc., setting aside a default judgment for the Taylors in the amount of fifty-four thousand four hundred thirteen dollars seventy cents ($54,413.70). They contend that the trial court erred in setting aside the default judgment.

On September 29, 1976, appellants filed suit against appellee seeking damages for personal injuries alleged to have been sustained by Taylor and loss of consortium alleged to have been incurred by his wife. The declaration charged that Sue Heard was appellee’s registered agent for service of process. The circuit clerk issued process directed to the Sheriff of DeSoto County commanding him to summon “Sue Heard, 1308 State Line Road, Southhaven, Mississippi, agent for service of process for F. & C. Contracting Company, Inc. to appear before the Circuit Court of Tate County on the fourth Monday of October, 1976, to answer the complaint filed against them in said court by Joe W. Taylor and Vivian Taylor, Plaintiffs, in Cause No. 3569, wherein the said F. & C. Contracting Company, Inc. is the defendant.” The summons was executed and the sheriff’s return follows:

“SHERIFF’S RETURN
I have this day executed the within writ personally by delivering to the within-named defendant Sue Heard a true copy of this writ', this the 4th day of October, A.D., 1976.
/s/ Harvey Hamilton Sheriff
By /s/ Leland Quarles Deputy”

The record reflects that Mrs. Heard placed the summons with other papers and failed to notify appellee about it. No answer or pleading was filed by appellee, and on the 28th day of October, 1976, the trial court sustained appellants’ motion for default judgment and entered an interlocutory judgment. On the same date, a writ of inquiry was issued to the trial judge to determine damages arising from the automobile accident. Final judgment was entered in favor of the appellants in the aggregate amount of $54,413.70 on November 3, 1976.

On November 6, 1976 (after court adjourned) Sue Heard informed appellee that she had received the summons. Thereafter, on November 30, 1976, appellee filed a motion to set aside the default judgment on the grounds that the judgment was void because (1) of defective process, (2) the declaration failed to state a cause of action, and (3) the declaration failed to charge and demand damages for permanent injury, pain and suffering, medical bills and loss of companionship.

At the hearing, appellants introduced Deputy Sheriff Leland Quarles, who executed the writ, to indicate the facts surrounding service of the summons on Sue Heard, and moved the court to permit an amendment of the return to show that it was served on Sue Heard, agent for process of F. & C. Contracting Company, Inc. The court entered judgment December 11, 1976, setting aside the interlocutory and final judgments on the ground that the judgments were void because the process (return) was defective. The court denied appellants’ request to amend the return and overruled all other grounds stated in the motion to set aside the default judgment.

Appellants argue that (1) the Circuit Court of Tate County acquired jurisdiction of the defendant, (2) the sheriff’s return was entitled to be amended, and (3) the lower court should have overruled the motion to vacate the default judgment.

In Watkins Machine & Foundry Co. v. Cincinnati Rubber Mfg. Co., 96 Miss. 610, 52 So. 629 (1910), it was held that the court is bound by what appears in the record to ascertain whether a person served with process is an agent of a corporation. In that case, the return was as follows:

“I have this day executed the within writ personally by delivering to the within named R. L. Bennett, for Watkins Machine and Foundry Co., a true copy of this writ. This 20th day of October, 1909. J. C. Magruder, Sheriff.” 96 Miss, at 610-611, 52 So. at 629.

The record in Watkins failed to show the relationship of R. L. Bennett to the defendant corporation and the default judgment entered was void.

In First Jackson Securities Corp. v. B. F. Goodrich Co., 253 Miss. 519, 176 So.2d 272 (1965), the deputy sheriff executed process by service upon Mrs. Judith Ferguson, Secretary. The record indicated that Mrs. Ferguson was not secretary of the corporation, but was a mere clerical employee who had no authority in the corporation. The Court held that such service did not sufficiently give notice of the pending suit and the judgment was void.

The declaration charges, and the record shows, in the present case that Sue Heard was the agent for service of process of F. & C. Contracting Company, Inc. The summons was directed to Sue Heard, agent for service of process of said company, and the return indicates that the process was delivered personally to her. Therefore, the Circuit Court of Tate County acquired jurisdiction of the cause.

The next question is whether or not the trial court should have permitted appellants to amend the return to show that it was executed personally on F. & C. Contracting Company, Inc. by delivering a true copy of same to Sue Heard, agent for service of process. Mississippi Code Annotated Section 13-3-87 (1972) provides:

“The return of the officer serving any process may, in the same action, be shown to be untrue by either of the parties, but the officer himself shall not be permitted to question its truth.”

In H. Lupkin & Sons v. Russell, 108 Miss. 742, 67 So. 185 (1914), a motion was filed to amend the return of process after an appeal to the Supreme Court had been perfected and the Court held:

“[T]he rule governing the matter here in question is this: That where the process was in fact legally served, and the court thereby acquired jurisdiction of the defendant, ‘but the return of the officer or other proof of service fails to show that fact, or is otherwise irregular or defective, it may be amended after judgment,’ . . .” 108 Miss, at 744-745, 67 So. at 186.

We conclude that the testimony of Deputy Sheriff Quarles was competent to amend his return for the purpose of showing that it was delivered to Sue Heard, agent for service of process of F. & C. Contracting Company, Inc., particularly so since the command of the summons was to serve her in that capacity. Such an amendment is a ministerial act and is not violative of the above section. It simply shows the fact of legal service and corrects an irregularity or defect.

There is no cross-appeal to the action of the trial judge in overruling the motion to set aside the default judgment on the ground that it was void because of inadequacies and insufficiencies in the declaration. However, since he held the default judgment to be void, we look to the record for the purpose of determining whether or not it is void. The declaration charged:

“6. That at the time of said accident, the Plaintiff, Joe W. Taylor, was fifty-eight (58) years of age and in general good health. That he was able and did carry on many vigorous activities required of him in his official capacity as Sheriff of Tate County, Mississippi, and also to carry on other vigorous activities both in work and recreation. That at the time of said accident, the Plaintiff, Joe W. Taylor, suffered from a mild arthritic condition and that said accident has caused this arthritic condition to become greatly inflamed and aggravated, and as a result thereof, the Plaintiff, Joe W. Taylor, has suffered great pain and inconvenience.
7. That the Plaintiff, Vivian Taylor, is and was on the date of said accident, the wife of said Plaintiff, Joe W. Taylor. That the Plaintiff, Vivian Taylor, was looking forward with her husband to January of 1976, when the Plaintiff, Joe W. Taylor’s term as Sheriff of Tate County, Mississippi, would expire and the Plaintiffs were looking forward with great expectation to the enjoyment of their retirement years. That the Plaintiffs often fished and camped together and after retirement were planning on fishing and camping together a great deal of the time. That as a result of the pain and loss of mobility incurred from said accident by the said Joe W. Taylor, the Plaintiffs have been unable to enjoy their retirement years and do the things that they had intended to do. That the Plaintiff, Vivian Taylor, as a direct and proximate result of said accident, has suffered great mental anguish and should be awarded damages for the loss of consortium of her husband, Joe W. Taylor.”

The declaration did not charge that Joe W. Taylor suffered permanent injuries, but only that he “has suffered great pain and inconvenience,” and there was no charge that he had incurred medical bills. As to Mrs. Taylor, the declaration simply stated that plaintiffs were unable to enjoy their retirement and could not fish and camp as a result of pain incurred by Taylor. The record reflects that Taylor was the only witness to testify in the case and his testimony was not taken by a court reporter. There is no record of medical evidence and no evidence as to damages sustained by Mrs. Taylor.

The final judgment awarded damages in the total sum of $54,413.70, divided in the following amounts: (1) $25,000 damages as a result of the immediate injuries received by the plaintiff, and the intense pain and suffering of the plaintiff for approximately the first three months after the accident; (2) $25,000 damages for the permanent injuries and lasting pain and suffering received by the plaintiff, Joe W. Taylor; (3) $3,000 damages for loss of consortium to the plaintiff Vivian Taylor; and (4) $1,413.70 damages incurred by the plaintiff for medical bills. The judgment then ordered that the plaintiffs recover of and from the defendant the sum of $54,413.70 as damages in the cause.

It is obvious from a review of the record that the judgment was void for the reason that it awarded damages that were not charged or demanded in the declaration and it is vague and speculative. The allegations and prayer of a bill of complaint must be sufficient to support the decree. Eastlawn Development Co. v. Wells, 311 So.2d 334 (Miss.1975).

In Smith v. Deas, 158 Miss. 111, 130 So. 105 (1930), the Court said: “Where, on the face of the bill, no cause of action is stated in favor of the plaintiff or complainant, a judgment in favor of the plaintiff or complainant may not be allowed to stand.” 156 Miss, at 115, 130 So. at 106.

The Court also stated the rule in Carrier Lumber & Mfg. Co. v. Quitman Co., 156 Miss. 396, 124 So. 437, 125 So. 416 (1929): “[T]he rule being that, where on the face of the pleadings no cause of action is stated in behalf of plaintiff, no judgment in favor of plaintiff can be allowed to stand, . . . ” 156 Miss. at 403, 124 So. at 438.

In Huffman v. Griffin, 337 So.2d 715 (Miss.1976) the Court said: “The rule in this state is that a trial court will be affirmed if it reaches the right conclusion although the wrong reason is assigned.” 337 So.2d at 723.

The Court said in Texas Gas Transmission Corp. v. City of Greenville, 242 So.2d 686 (Miss.1970): “In a case where it is apparent that the decree is supported by the record, this Court will affirm although our conclusions are based on other reasons than those considered by the trial court.” 242 So.2d at 689-690.

If the action of the trial judge can be upheld for any reason, we must affirm. Chatham v. Johnson, 195 So.2d 62 (Miss. 1967). Since the trial court reached the correct conclusion, though for the wrong reason, the judgment is affirmed.

AFFIRMED AND REMANDED.

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


text:
    Darryl BYRD v. STATE of Mississippi.
    No. 50604.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    Barnett, Montgomery, McClintock & Cunningham, Ross R. Barnett, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., SUGG and COFER, JJ., and DENNIS M. BAKER, Commissioner.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

AFFIRMED.

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


text:
    Kenneth HARMON v. STATE of Mississippi.
    No. 50673.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    Rehearing Denied Sept. 20, 1978.
    Laurel G. Weir, Thomas L. Booker, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

AFFIRMED.

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


text:
    IN RE WILL and Estate OF Bonnie Bishop ARNOLD, Deceased. MISSISSIPPI STATE HOSPITAL v. Willie Lois Bishop BENTON.
    No. 50608.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    A. F. Summer, Atty. Gen., by R. Hugo Newcomb, Sr., Asst. Atty. Gen., Jackson, for appellant.
    King & Spencer, Robert W. King, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

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

AFFIRMED.


author: PATTERSON, C. J.,

text:
    Willis E. TULLOS and Sharon J. Tullos v. BANK OF PHILADELPHIA.
    No. 50713.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    Edward A. Williamson, Philadelphia, for appellants.
    T. Kenneth Watts, Meridian, for appellee.
   PATTERSON, C. J.,

for the Court.

REVERSED AND REMANDED.

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


text:
    James O. NEWMAN et ux. v. Gordon L. SAUNDERS, Jr., Peoples Bank & Trust Company and C. R. Bolton, Trustee.
    No. 50603.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    Carr & Goodman, Dudley R. Carr, Tupelo, for appellants.
    Billy W. Shelton, Tupelo, for appellees.
    Before ROBERTSON, P. J., SUGG and COFER, JJ., and KENNETH B. ROBERTSON, Commissioner.
   Appeal from Chancery Court, Lee County; George F. Adams, Chancellor.

AFFIRMED.


text:
    Leo BOISSONNEAULT v. The BILOXI DEVELOPMENT COMMISSION-URBAN RENEWAL AGENCY OF the CITY OF BILOXI et al.
    No. 50601.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    Halat & Pisarich, Peter Halat, Biloxi, for appellant.
    Vlahos & Caranna, Kosta N. Vlahos, Biloxi, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   Appeal from Circuit Court, Harrison County; Lester B. Grant, Judge.

AFFIRMED.


text:
    ESTATE of True Love MONTGOMERY, Deceased. Ruth KELLY, Administratrix v. Mary AINSWORTH, Individually, and as Agent of Whispering Pines Nursing Home and Dr. Arthur E. Woods, d/b/a Whispering Pines Nursing Home.
    No. 50596.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Fred A. Ross, Glen W. Hall, Jackson, for appellant.

Wise Carter Child Steen & Caraway, George Q. Evans, Jimmie B. Reynolds, Jr., Jackson, for appellee.

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

REVERSED and REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BOWLING and COFER, JJ., concurring.


text:
    GARAN, INC. and Pacific Employers Insurance Company v. Dorothy VOWELL.
    No. 50869.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    B. L. Riddick, Jackson, for appellant.
    Crawley & Ford, Michael H. Steele, Kosciusko, for appellee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

AFFIRMED.


text:
    Shelly McCRANEY v. STATE of Mississippi.
    No. 50643.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    Louis Fondren, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

AFFIRMED.

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


text:
    Jacquelin LEWIS, etc. v. CHURCH’S FRIED CHICKEN, INC., et al.
    No. 50600.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    Melvin R. Jennings, Jackson, for appellant.
    Watkins & Eager, Velia Ann Mayer, Up-shaw, Schissel, Dorizas & Ladner, Heber A. Ladner, Jr., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

AFFIRMED.


text:
    CITY OF CANTON, Mississippi v. James W. HALL.
    No. 50610.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    R. L. Goza, Canton, for appellant.
    James H. Herring, Canton, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court,' Madison County; Rufus H. Broome, Judge.

AFFIRMED.


text:
    William L. LOWE v. Stuart DENMAN.
    No. 50611.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    Breland & Whitten, John W. Whitten, Jr., Sumner, for appellant.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Grady F. Tollison, Jr., Mary Ann Connell, Clarksdale, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Tallahatchie County; Dick R. Thomas, Judge.

AFFIRMED.


text:
    John MLADINICH et al. v. T. L. JAMES & COMPANY, INC.
    No. 50618.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    O’Barr, Hulbert & O’Barr, Clyde Hurl-bert, Biloxi, for appellants.
    Bryant & Stennis, Rae Bryant, Gulfport, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

AFFIRMED.


text:
    James CHATHAM v. STATE of Mississippi.
    No. 50614.
    Supreme Court of Mississippi.
    Sept. 13, 1978.
    George S. Monroe, II, Newton, James B. Everett, Decatur, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Newton County; Marcus D. Gordon, Judge.

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

REVERSED AND APPELLANT DISCHARGED.

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


text:
    Betty P. SAMUELS v. Harold G. BULLOCK and Robert E. Bullock.
    No. 50633.
    Supreme Court of Mississippi.
    Sept. 13, 1978.
    Mounger & Mounger, Breed 0. Mounger, Sr., Tylertown, for appellant.
    Watkins & Eager, Thomas M. Murphree, Jr., Jackson, for appellees.
    Before SMITH, P. J., WALKER and BOWLING, JJ., and JOHN M. DUNNAM, Commissioner.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

AFFIRMED.


text:
    Bertha C. FERGUSON v. STATE of Mississippi.
    No. 50737.
    Supreme Court of Mississippi.
    Sept. 13, 1978.
    Farese, Farese & Farese, John B. Farese, Ashland, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Marshall County; W. W. Brown, Judge.

AFFIRMED.

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


text:
    Alfred THOMAS, Jr. v. STATE of Mississippi.
    No. 50885.
    Supreme Court of Mississippi.
    Sept. 13, 1978.
    William M. Frisbie, Bay St. Louis, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   Appeal from Circuit Court, Hancock County; J. Ruble Griffin, Judge.

AFFIRMED.

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


text:
    Kurt F. PARR v. STATE of Mississippi.
    No. 50711.
    Supreme Court of Mississippi.
    Sept. 13, 1978.
    Ralph W. Pringle, T. Larry Wilson, Pas-cagoula, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Kurt F. Parr was indicted, tried and convicted in the Circuit Court of Jackson County for the murder of his wife, and sentenced to life in custody of the State Department of Corrections. He appeals to this Court and assigns the following errors in the trial below:

(1) The court erred in admitting into evidence prior threats which were too remote in time to the alleged incident.

(2) The court erred in improperly instructing the jury.

(3) The verdict was against the overwhelming weight of the evidence.

(4) The court erred in overruling a motion for new trial.

On the morning of February 20, 1977, the body of Eva Parr was found lying in a wooded area approximately one hundred (100) feet from a rural Jackson County road. Near the body was the deceased's automobile, which contained personal articles belonging to her. A tire on the automobile had been cut and the appearance at the scene was that someone had robbed and slain the deceased.

An autopsy on the body disclosed that there was a bruise on top of the head, another in the temporal area of the head and a third on the shoulder. The cause of death was determined to be a subdural he-matoma.

Appellant, after having been advised of his Miranda rights, made a statement to investigating officers about Mrs. Parr's death, and he testified at the trial of the case. He said that he came home about 6:30 p. m., Mrs. Parr was in the bed, an argument ensued between them, he choked her, and she fell off the bed, striking her head on the floor, which fall resulted in her death. Appellant was the only person present at the time. He called some friends and told them about the incident, then, after advising with them, he dressed the deceased in her nurse's uniform, put her in the car, and drove to the spot where her body was found later. Appellant removed the body from the car, cut a tire, disarranged articles in the car to leave the appearance of a robbery, and was taken back to his home by the friend, who had followed him. After leaving the place where he had deposited his wife's body, appellant threw his gloves and shoes from a bridge into a bayou. Prior to his arrest, he contacted the pathologist and ascertained that the cause of death was a subdural hematoma.

The record reflects that on several occasions prior to the death of Mrs. Parr, appellant had made threats to kill her.

I.

Did the trial court err in admitting into evidence prior threats which were too remote in time to the alleged incident?

The State introduced in evidence threats against deceased that were made by appel-Ilant four and one-half (4½) to six and one-half (6'/2) months and thirteen (19) months and six (6) months prior to her death.

Appellant contends that the threats were not competent because they were too remote and he relies on Myers v. State, 167 Miss. 76, 147 So. 308 (1933), which involved a threat by the accused made over eight (8) months prior to the victim's death and which held that the trial court did not err in excluding the threat on the ground of re-môteness. He also cites Stewart v. State, 226 So.2d 911 (Miss.1969), wherein the trial court was held not to have erred in excluding evidence of previous threats made by the prosecuting witness toward the defendant, which occurred six (6) mouths before the shooting.

In Carroll v. State, 196 So.2d 878 (Miss.1967), this Court held that evidence of statements made years before the incident were admissible where there had been a statement reviving the old threats at the time of the incident. The Court said:

"In the case now before this Court, it is conceded by appellant that it was he who introducedthe subject of the beating administered to his father by Drewery some ten years previously, and that this remark brought on the fatal quarrel. There is also testimony that immediately following the homicide, appellant stated that he had promised his father that he would `get' Drewery for that old affront and injury and that in killing Drewery he had done it. It is also clearly in evidence that Drewery's response to appellant was that he thought that the old incident was over and forgotten, and it was appellant who replied then that he hadn’t forgotten it.
Under the circumstances in evidence, the jury was warranted in finding, and apparently did find, that the bitter memory of this old quarrel, when Drewery had beaten his father, years ago, had continued to smoulder in the mind of appellant for the ten years intervening and that this threat, uttered against Drewery and testified to by Robertson, was an expression of his long entertained animosity toward Drewery and of his intention eventually to ‘settle the score’ and to ‘get’ him for it. These facts distinguish this case from Macmasters (McMasters) [v. State, 81 Miss. 374, 33 So. 2], supra, and Myers [v. State, 167 Miss. 76, 147 So. 308], supra. A threat may be too remote in the absence of proof of a connection between the threat and the underlying cause of the fatal quarrel. Here, by appellant’s own admission, he had not forgotten the old quarrel, although a long time had elapsed, and there was evidence that he said he had promised his father that he was going to get Drewery on account of it. The final difficulty, which led to the killing of Drew-ery by appellant, was brought on wilfully and directly by appellant in renewing the old quarrel. These circumstances warranted the jury in connecting the threat with the killing and in finding that the homicide was the result of appellant’s long-held grudge and of his intention eventually to ‘get’ Drewery.
The threat sheds light upon appellant’s motive in shooting Drewery; it discloses his state of mind toward him, and is a circumstance which the jury might properly have considered in determining whether there was premeditation and in deciding who the aggressor was.” 196 So.2d at 881.

The record indicates that for a period before the threats were made up until the date of the homicide, there was hostility, bitterness, and ill will between the appellant and his wife. Such a situation rendered the threats relevant and competent.

Grooms v. State, 357 So.2d 292 (Miss.1978), stated the rule for admissibility of threats as follows:

“We have held in several cases that threats made by an accused to kill the deceased uncommunicated to the deceased are admissible in evidence. These threats show malice, premeditation or criminal intent. Herron v. State, Miss., 287 So.2d 759, cert. denied 417 U.S. 972, 94 S.Ct. 3179, 41 L.Ed.2d 1144 (1974); Ladner v. State, 197 So.2d 257 (Miss.1967); Lambert v. State, 171 Miss. 474, 158 So. 139 (1934); Myers v. State, 167 Miss. 76, 147 So. 308 (1933). We further have held that should the alleged threat be so remote as to be of no evidentiary value it should not be admissible. Myers v. State, supra. In Sharplin v. State, 330 So.2d 591 (Miss.1976), we held that the trial judge did not abuse his discretion in allowing evidence of a conditional threat made by the accused two months before the killing of the deceased. Whether or not a threat is too remote to be admissible is a question addressed to the sound discretion of the trial judge. We hold that the lower court was completely within its discretion in holding that the alleged threat made in the presence of witness Crystal Smith was admissible.” 357 So.2d at 295-296.

We are of the opinion that the trial court did not abuse its discretion in admitting the threats in evidence.

II.

Did the trial court err in improperly instructing the jury and in declining to grant a manslaughter instruction?

After the jury had deliberated for three (3) hours without reaching a verdict, the trial judge gave the following instruction:

“I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case, then you should do so.
Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations.”

The above instruction was drawn by this Court and was intended as a model instruction to be given by the trial court when a jury is unable to arrive at a verdict. In Sharplin v. State, 330 So.2d 591 (Miss.1976), the Court said:

“We approve the foregoing instruction. It may be given in either criminal or civil cases when the trial judge is confronted by a hung jury. Following publication of this opinion the ‘Allen Charge’ in any of its various forms should not be given. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).” 330 So.2d at 596.

Appellant also complains that the court should have granted a manslaughter instruction and relies upon Wells v. State, 305 So.2d 333 (Miss.1974), which held that there was no evidence to support a murder charge. However, when the threats, the statement, the testimony of appellant, and others, and the conduct of appellant following the death of deceased are considered together, the evidence supports the charge of murder.

Moreover, appellant did not request a manslaughter instruction but urges the Court to hold that such instruction should have been granted without a request therefor. We held in Newell v. State, 308 So.2d 71, 78 (Miss.1975), that the trial judge shall not be put in error for his failure to instruct on any point of law unless specifically requested in writing to do so. Consequently, there is no merit in this assignment of error.

III.

Was the verdict against the overwhelming weight of the evidence?

IV.

Did the trial court err in overruling a motion for a new trial?

Although appellant did not assign as error refusal of the trial court to grant him a peremptory instruction, he argues that under the Weathersby rule he should be granted a new trial on the ground that the verdict was against the overwhelming weight of the evidence. Suffice it to say, the facts stated hereinabove and the discussion under Assignment of Error No. II sufficiently answer these assigned errors. The evidence, together with reasonable inferences, presented a question of appellant’s guilt for the jury to determine, and the guilty verdict is amply supported by the evidence.

There being no reversible error in the trial below, the judgment is affirmed.

AFFIRMED.

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

      . Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933).


author: BROOM, Justice,

text:
    Fay O. THOMPSON v. WELLS-LAMONT CORPORATION and Liberty Mutual Insurance Company.
    No. 50589.
    Supreme Court of Mississippi.
    Sept. 13, 1978.
    Rehearing Denied Oct. 4, 1978.

      Omar D. Craig, Oxford, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Forrest W. Stringfellow, Gulfport, for appel-lees.
    Before PATTERSON, C. J., and BROOM, and LEE, JJ.
   BROOM, Justice,

for the Court:

Workmen’s compensation disability benefits were denied Fay 0. Thompson, claimant, by the Circuit Court of Webster County in affirmance of the order of the Mississippi Workmen’s Compensation Commission (and administrative judge). Only medical expenses were awarded the claimant. We reverse the denial of disability compensation.

Claimant, age forty-seven, had worked for Wells-Lamont for over sixteen years in its factory at Eupora, where her job was to sew up fingers of gloves. She experienced no ill effects of her work until in December 1971 when her chest started hurting and she had difficulty breathing. Dr. Gifford, a general practitioner in Eupora, saw her and prescribed cortisone which gave relief. Claimant had no prior history of asthma, but testified that about the time her condition manifested itself the plant was not being kept as clean as before, and that lint accumulated on all the equipment. After several recurrences of claimant’s condition, Dr. Gifford (in June 1973) referred her to Dr. Moffitt, a specialist in allergic diseases, in Jackson, Mississippi. Dr. Moffitt tested her for allergy to the various fabrics and dyes with which she had come in contact in the factory, but all these tests were negative. Dr. Moffitt testified that, in his opinion, claimant had infectious asthma (an intrinsic rather than an extrinsic asthma). He could not pinpoint with certainty what caused her condition. Dr. Moffitt gave her aminophyllin, a bronchodialater; and then in the fall of 1974, after she developed an increased blood sugar, he gave her kenalog. Dr. Moffitt was of the opinion that her occupation could have had an effect on her condition, but was not able to put his finger on the exact relationship.

On July 11, 1974, Dr. Gifford finally recommended that claimant discontinue her factory employment. She quit as he advised, and after about six weeks she had no recurrences of the condition unless exposed to dust or lint. Claimant testified that in Webster County there are two furniture factories and a garment factory which employ women. She went to the garment factory and quickly experienced allergic reactions upon entering the factory. The furniture factories saw up wood to make the furniture and the implication is that these factories are dusty.

By job training claimant was qualified as a sewing machine operator. No factory in the county utilized her skills other than the garment factory, supra. She applied for a secretarial training program with the government, but was turned down because of too many applicants. She went to the Mississippi Employment Commission which referred her to two public school jobs, neither of which she got. One job was a teacher’s aide job and the other was a librarian assistant, but her training would not qualify her for either. Since claimant stopped work at Wells-Lamont, her condition does not recur unless she is exposed to lint or dust. Her husband works at a boiler factory in West Point some forty miles from Eupora. Twenty-eight miles from Eupora in Winona is a shirt factory, and another shirt factory is in Ackerman, about twenty miles distant from Eupora, but claimant has not applied for work at any of these other factories.

Dr. Gifford stated that the claimant, so far as her “job is concerned,” was thirty to fifty percent permanently disabled. The final medical report of Dr. Moffitt indicated that Mrs. Thompson’s condition was permanent in that her condition would have “exa-cerbations and remissions.”

The administrative judge awarded her only medical expenses for treatment she received while working for Wells-Lamont. He awarded no disability payments, holding that she had reached maximum medical improvement within five days after quitting the job and thereafter suffered no permanent disability to the body as a whole. He also held that she had not demonstrated any loss of wage earning capacity as a result of the aggravation of the asthma caused by her occupational environment at Wells-Lamont. The workmen’s compensation commission and the circuit court affirmed the order of the administrative judge, which order Wells-Lamont and its carrier argue was supported by substantial evidence.

WAS MRS. THOMPSON DISABLED WITHIN THE MEANING OF MISSISSIPPI CODE ANN. § 71 — 3—3(i) (1972), WHICH REQUIRES AN INABILITY TO EARN WAGES IN FORMER OR OTHER EMPLOYMENT? § 71 — 3—3(i) (1972) reads:

“Disability” means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.

It is conceded that Mrs. Thompson cannot return to her previous job because of her asthmatic reaction to the lint or some other substance in her prior work environment. The question here involves her ability to procure another job within the area after reasonable efforts.

Coulter v. Harvey, 190 So.2d 894, 897 (1966), held that a “claimant must seek, after the disability subsides, employment in another or different trade to earn his wages.” The rationale of Coulter is that a disability such as contact dermatitis, which made it impossible for the claimant there to continue employment as a cement finisher due to his sensitivity to the chromates contained in the cement, would not render him incapable of working in all jobs, but only those involving contact with cement.

Mrs. Thompson argues that, based upon substantial evidence: (1) She has a general reaction to all dust and lint which makes it impossible for her to work in any environment where these occur; (2) she entered a garment factory in Eupora and experienced such a reaction; (3) the other factories in Eupora saw wood and therefore, because of the sawdust, she would be unable to work there; (4) the factories in the surrounding areas all have a dust or lint problem which would make it impossible for her to work in these places; (5) she attempted to get work in other fields but was unable to find employment, probably because she was not qualified; (6) therefore, she is disabled under the statute.

Here we must decide, having in mind our decision in Coulter, supra, if claimant made reasonable efforts after her disability subsided to obtain employment in another or different trade. The evidence shows that after she was unable to continue her employment at Wells-Lamont, she made certain efforts toward obtaining other employment. In her efforts she:

1. Went into a garment factory and immediately experienced allergic reaction (burning of her eyes, nose, and throat.)
2. Sought training for a secretarial job under a government sponsored program but was turned down.
3. Sought assistance of the State Employment Commission office, which referred her to a school for a job as a teacher’s aide.
4. Applied for a job at the Webster County Library.
5. Sought aid of the State Employment Commission office in order to find a job, and her application there is still on file.

What constitutes a reasonable effort to obtain employment is a matter not of easy definition, and what might be a reasonable effort in one situation might not be so in another. In determining whether one made a reasonable effort to obtain employment in the same or other occupation, several factors may be relevant, including: the economic and industrial aspects of the local community, the jobs available in the community and surrounding area, the claimant’s general educational background, including work skills, and the particular nature of the disability for which compensation is sought. Considering the present record, we cannot say that either litigant introduced an abundance of meaningful evidence regarding these factors.

It is uncontradicted that Mrs. Thompson, upon the advice of her physician, had to terminate her employment with Wells-Lamont and did, in fact, seek other employment. As to the measure of proof required to establish that a claimant has made reasonable efforts to seek other employment, authority throughout the United States is divided. Likewise, there is great divergence of authority as to who has the burden of proof in showing the availability or unavailability of employment suitable to the claimant. Larson, Workmen’s Compensation § 57.61 (1974). Larson notes that many courts hold that once a disability is proven, the employer must show that there is adequate available employment for the claimant, while in other states the burden of showing unavailability of such employment rests upon the claimant. We reject any notion that the claimant must assume the burden of showing the absolute unavailability of suitable employment by contacting every possible employer in the area. As we have always held, our workmen’s compensation statutes must be liberally but fairly construed so as to carry out the beneficent purposes intended by the legislature. We cannot, and here do not attempt to, delineate any hard and fast rule as to how many or exactly what type efforts a claimant must make in every case in order to establish “disability” within the purview of § 71—3—3(i), supra.

The rule which we now adopt is: The claimant has the burden of proof to make out a prima facie case for disability, after which the burden of proof shifts to the employer to rebut or refute the claimant’s evidence. After the burden shifts, evidence indicating that suitable employment was available to claimant becomes relevant and admissible. In such a posture, the employer may present evidence (if any) showing that the claimant’s efforts to obtain other employment were a mere sham, or less than reasonable, or without proper diligence. Having proved her disability and established her training and experience, together with the fact that her efforts to obtain other employment failed, in the instant case Mrs. Thompson at least made out a prima facie case which Wells-Lamont failed to rebut or refute.

Whether the claimant has made out a prima facie case is a question to be decided by the trier of facts on the evidence presented. In Compere’s Nursing Home v. Biddy, 243 So.2d 412 (Miss.1971), the claimant made only one effort to obtain employment, and we held that this was not enough to make out a prima facie case. Our stated rule, that after the claimant makes out a prima facie case by showing reasonable efforts to find other employment, the burden shifts, is not only fair to the litigants, but has highly salutary aspects. The rule should encourage employers to assist their disabled employees in finding other employment, and at the same time require reasonable affirmative action by claimants to become gainfully employed.

We think the record before us demonstrates that upon substantial evidence the claimant made out a case of compensable disability, and that it was error not to award her any disability benefits. Medical proof in the record shows that claimant has a permanent disability rendering her functionally disabled from engaging in her employment. Therefore, the case will be reversed and remanded to the Commission to make determination of the extent of her disability and then award her benefits consistent with this opinion.

REVERSED AND REMANDED.

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


author: WALKER, Justice,

text:
    Rosie Lee DAVIS v. Mrs. Leslie LITTLE.
    No. 50638.
    Supreme Court of Mississippi.
    Sept. 13, 1978.

      Robert E. Sanders, Jackson, for appellant.
    Williamson & Smith, William H. Smith, III, George G. Williamson, Mendenhall, for appellee.
    Before ROBERTSON, WALKER and COFER, JJ.
   WALKER, Justice,

for the Court:

This is a personal injury negligence case. Suit was filed in the Circuit Court of Simpson County alleging that the defendant negligently struck plaintiff while driving a pickup truck. Defendant answered, denying negligence and pleading the defense of governmental immunity. A motion to dismiss was sustained and suit dismissed with prejudice.

The complaint alleges that Leslie Little negligently drove her pickup truck onto a walkway off of the street and caused personal injury to Rosie Lee Davis. In the answer, Little alleged she was a member of the Simpson County Board of Supervisors, was driving a county-owned vehicle, and was involved at the time of the occurrence in county business. She then invoked the “doctrine of governmental immunity.”

The trial judge granted a hearing on the motion to dismiss at which the parties stipulated that the defendant was engaged in county business at the time of the accident. The trial judge then held the doctrine of governmental immunity was applicable and dismissed the suit with prejudice.

The issue presented on appeal is whether the doctrine of governmental immunity was properly invoked on the facts and circumstances of this case.

It is clear that in spite of growing criticism the doctrine of governmental immunity is applicable in Mississippi. Jackson v. Smith, 309 So.2d 520 (Miss.1975); Twiner v. Jenkins, 257 So.2d 488 (Miss.1972); Anderson v. Vanderslice, 240 Miss. 55, 126 So.2d 522 (1961). However, a distinction must be drawn between the doctrine of governmental immunity and the legal principle by which public officers are granted limited immunity from liability under certain factual situations.

Governmental immunity is that doctrine under which the sovereign, be it country, state, county or municipality may not be sued without its consent. Osborn v. Bank of the United States, 9 Wheat. 738, 22 U.S. 738, 6 L.Ed. 204 (1824).

The immunity of public officials, on the other hand, is a more limited principle, since its purpose is not directly to protect the sovereign, but rather to do so only collaterally, by protecting the public official in performance of his governmental function. Given the more limited function, courts have generally extended less than absolute immunity. The most commonly recognized limitation is the distinction between discretionary acts as opposed to ministerial acts. Under this distinction the official is immune only where that which he does in the performance of his lawful duties requires “personal deliberation, decision and judgment.” See Prosser, Law of Torts § 132 (4th ed. 1971).

In the present case the defense was incorrectly characterized in the lower court as the defense of “governmental immunity.” Here suit was brought not against the government but a private party, Leslie Little, who happened to be acting in her role as a county supervisor when the injury occurred. In State Mineral Lease Comm. v. Lawrence, 171 Miss. 442, 157 So. 897 (1934), this Court pointed out that where suit was against governmental officials individually and the state was not a party, nor would the relief demanded require the state to take any affirmative action, the doctrine of governmental immunity was not applicable. The Lawrence case was an action to remove a cloud on title to lands. In State For Use of Russell v. McRae, 169 Miss. 169, 152 So. 826 (1934), the cause of action was in tort against a member of the board of supervisors for negligence. The Court pointedly stated:

This is not a suit against the sovereign, or against the board or a member thereof as a branch of the state sovereignty, but is one against a member of the board for an alleged tort committed in the performance of a purely ministerial act. (169 Miss, at 179, 152 So. at 828).

On the present facts, Davis brought suit against Little alone. The county is not a party to the suit nor will the relief requested cause the county to take any action or in any way become liable. Thus, the doctrine of governmental immunity is inapplicable on the present facts.

The issue actually presented by the pleadings was whether or not on the facts of the case, Little was entitled to the immunity of a public official in the discharge of her duties. Since the case comes before this Court on a motion to dismiss, the only fact we have going to such issue is the stipulation that “defendant was engaged in county business at the time of the accident.”

Little argues that a public official engaged in county business is per se immune from suit. This is not the rule in this jurisdiction. The immunity of a public official is a limited, not an absolute immunity. Since the purpose of the immunity is to protect the official in his decision-making role, we have held the immunity will not apply unless the action involves a discretionary decision-making process. Phrased otherwise, if the action is merely ministerial, there is no immunity. In Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1935), this Court said:

While no inflexible rule can be laid down for determining in every case whether or not an act of a public officer is ministerial or judicial, “The most important criterion, perhaps, is that (if) the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion. . . .” (171 Miss. at 864, 158 So. at 923).

In the present case, the act for which liability is sought to be imposed is the act of negligently driving a vehicle. Thus, even though engaged in county business, the act of driving a vehicle in a reasonable manner does not involve an official discretionary decision-making process. Therefore, Little is not immune from suit.

A similar but different theory urged by Little is that a supervisor may not be held individually liable for negligence on the part of the board as a whole.

Reliance is placed upon Wray v. McMahon, 182 Miss. 592, 182 So. 99 (1938). The Wray case involved suit against supervisors either for failure of the board to take action or for having negligently taken some action. In either event, suit was attempted against supervisors individually for some action or inaction on the part of the board as a whole. The precise holding of Wray was:

. that a governmental board or council, in the discharge of the duties imposed by law upon the board or council as such, acts in an official, and not in an individual capacity; and negligence or failure in the exercise of its powers or in the discharge of its duties is the default of the board and not of the individuals composing it, and they are not liable for such neglect or default unless expressly made so by statute. (182 Miss. at 603, 182 So. at 100).

In the case, as with all cases cited by appellee, the suit was an attempt to hold an individual board member liable for some action or inaction of the board as a whole. Such is not the case presented on the facts before this Court. No attempt is made to hold Little liable for some act of the board of supervisors as a whole, but rather for her alleged individual negligence in striking the plaintiff while driving a county-owned truck.

Where a cause of action has been stated based upon the personal fault of a governmental official in the nature of individual tortious conduct, this Court has allowed suit to proceed. State for the Use of McLaurin v. McDaniel, 78 Miss. 1 (1900) [False arrest by city mayor]; Brown v. Weaver, 76 Miss. 7 (1898) [Sheriff shooting an arrestee]; Taggart v. Peterson, 182 Miss. 82, 181 So. 137 (1938) [Assault by police chief]; Williams v. Walley, 295 So.2d 286 (Miss.1974); [Wrongful taking of property by sheriff and county board of supervisors]; Pierce v. Chapman, 165 Miss. 749, 143 So.2d 845 (1932) [Trespass by county supervisor]; D’Aquilla v. Anderson, 153 Miss. 549, 120 So. 434 (1929) [Trespass by Livestock Sanitary Board].

Moreover, we have allowed suit to proceed where the government official was charged with individual negligence. State for Use of Russell v. McRae, supra [Negligent failure of county supervisor to warn of bridge being repaired]; Farmer v. State for Use of Russell, 224 Miss. 96, 79 So.2d 528 (1955) [Negligent failure to furnish prisoner with medical care].

In three cases, we have allowed suits against public officials charged with negligence while driving official cars to proceed to trial»on the merits, though admittedly without discussion of the issue of the limited immunity of a public official. Jackson v. Smith, 309 So.2d 520 (Miss.1975) [Negligence of policeman in driving vehicle]; Pool v. Brunt, 338 So.2d 991 (Miss.1976) [Negligence of sheriff in driving vehicle]; City of Meridian v. Beeman, 175 Miss. 527, 166 So. 757 (1936) [Negligence of city policeman in driving vehicle].

Since the act with which Little was charged did not involve a discretionary decision-making process and was not an act of the board as a whole, the defense of immunity will not lie.

REVERSED AND REMANDED FOR A TRIAL ON THE MERITS.

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

      . But see Monell v. New York City Department of Social Services, - U.S. -, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) as to suit against local government bodies based on 42 U.S.C. § 1983.