author: FORET, Judge.

text:
    Norris D. JACKSON, Plaintiff-Appellant, v. TRI-STATE ELEVATOR COMPANY, INC., et al., Defendant-Appellee.
    No. 8113.
    Court of Appeal of Louisiana, Third Circuit.
    April 16, 1981.
    William Henry Sanders, Jena, and Mart-zell, Montero & Lamothe by Wilson M. Montero, Jr., New Orleans, for plaintiff-appellant.
    Leo Boothe, Jonesville, James D. Davis, Alexandria, John Sturgeon, Harrisonburg, for defendant-appellee.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   MOTION TO REMAND

FORET, Judge.

The plaintiff-appellant, Norris Dale Jackson, seeks an order remanding the case to the Clerk of Court for the Seventh Judicial District Court, Catahoula Parish for completion of the record.

The plaintiff filed suit to recover damages for personal injuries he claims to have suffered when he fell while stepping out of an elevator in the Catahoula Parish Courthouse. The plaintiff claims the elevator malfunctioned, stopping six to twelve inches above floor level. As a result of the fall, plaintiff claims he suffered a ruptured lumbar disc which herniated two years later resulting in his becoming a paraplegic. The jury returned a verdict in favor of the defendant and the trial court dismissed plaintiff’s claim with prejudice.

Upon appeal, the plaintiff assigns four errors to the trial court: (1) the refusal of the trial judge to recuse himself; (2) the trial judge committed reversible error on voir dire; (3) the failure of the trial judge to grant a continuance; and, (4) the jury’s verdict is inconsistent with the law and facts.

In the motion to remand, the plaintiff seeks to have the following proceedings transcribed and made a part of the record: (1) remarks made by counsel on voir- dire; (2) the motion for a continuance; and, (3) the motion for recusation.

LSA-C.C.P. Article 2128 provides in pertinent part: “The form and content of the record on appeal shall be in accordance with the rules of the appellate court, except as provided in the constitution”. Rule 1, Section 3 of the Uniform Rules of the Court of Appeal sets forth in detail the form and content of the record on appeal. The transcript of the voir dire examination and preliminary motions are not listed as required contents of the record. However, where issues are raised on appeal which require such portions of the transcript be made a part of the record the appellate court may, at its discretion, order that the record be supplemented to include such testimony. Fontenot v. Garland, 352 So.2d 251 (La.App. 3rd Cir. 1977), writ refused, 353 So.2d 1339 (La.1978); Augustine v. Washington Parish Police Jury, 383 So.2d 1271 (La.App. 1st Cir. 1980), writ denied, 386 So.2d 1379 (La.1980).

Four days before trial, plaintiff filed a motion to recuse the trial judge because the trial judge had been listed as a witness by the defendant and plaintiff desired to call the trial judge as a witness. The trial judge denied the motion for recusation on the day of the trial. In written reasons, the trial judge stated that at the hearing on the motion for recusation the defendant said that it would not call the trial judge to testify. The plaintiff indicated he might possibly call the trial judge to testify. Neither party sought to have the trial judge summoned as a witness. The trial judge concluded that the possibility of his being called to testify by the plaintiff did not satisfy the ground for recusation under LSA-C.C.P. Article lblil). At no time during the trial did the plaintiff attempt to call the trial judge to testify. Hence, that issue is now moot.

At the time the trial judge denied the plaintiff’s motion for recusation he also denied plaintiff’s motion for a continuance. The plaintiff sought a continuance because one of his three counsel was not present on the first day of trial. The plaintiff alleges the court minutes showing all three of plaintiff’s counsel to be present is in error. The record does show the missing counsel to be present on the second day of trial which began with the plaintiff’s opening statement. No reason is given by the plaintiff for the counsel’s absence other than plaintiff’s belief the trial judge would recuse himself and grant a continuance.

The plaintiff did not allege a peremptory ground for a continuance. LSA-C.C.P. Article 1602. Thus, the trial judge had wide discretion in acting upon the motion for continuance. LSA-C.C.P. Article 1601. For this court to reverse there must be a showing that the trial judge clearly abused his discretion. Sauce v. Bussell, 298 So.2d 832 (La.1974).

The plaintiff’s motion does not show how the addition to the record of the testimony taken at the hearing on the motion for continuance: (1) will prove the trial judge abused his discretion; or, (2) show the plaintiff was prejudiced by the trial judge’s refusal to grant a continuance. Absent such a showing, this court will not remand to have the transcript of the proceeding made a part of the record.

The plaintiff seeks to add the transcript of the proceedings at voir dire to the record alleging the trial judge committed reversible error at voir dire. However, the plaintiff’s motion does not state the nature of the trial judge’s error. Such an allegation, standing alone, is insufficient to warrant this court bringing about further delays by remanding the case for the transcription of the proceedings at voir dire.

For the above and foregoing reasons, the motion to remand is denied at plaintiff-appellant’s cost.

MOTION DENIED.

      . LSA C.C.P. Article 151(1) states:
      “A judge of any court, trial or appellate, may be recused when he: (1) Is a material witness in the cause;


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Bobby R. NALL, Plaintiff and Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants and Appellees.
    No. 8074
    Court of Appeal of Louisiana, Third Circuit.
    April 20, 1981.
    Writ Granted July 13,1981.

      Führer & Flournoy, Phillip G. Hunter, Alexandria, for plaintiff and appellant.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant and appellee, State Farm.
    Stafford, Stewart & Potter, Grove Stafford, Jr. and Walter E. May, Alexandria, for defendant and appellee, Government Employees.
    Before CULPEPPER, FORET and STOKER, JJ.
   CULPEPPER, Judge.

Bobby R. Nall seeks damages for personal injuries to his minor son, Ricky Lane Nall, sustained in a collision between two automobiles. Named as defendants are (1) Government Employees Insurance Company (GEICO), the liability insurer of the automobile in which Ricky was a guest passenger, and (2) State Farm Mutual Automobile Insurance Company (State Farm), which carried uninsured motorist coverages on two vehicles owned by plaintiff. The plaintiff has perfected this appeal from a judgment of the trial court rejecting his demands to stack uninsured motorist coverages.

The facts were stipulated by all parties: On September 15, 1979, Ricky Lane Nall was seriously injured while riding as a guest passenger in an automobile owned by James D. Ruby, Sr. and being operated by James D. Ruby, Jr. The injuries justify an award in excess of the amounts already paid and those claimed from the two insurers. The accident was caused by the negligence of James D. Ruby, Jr. At the time of the accident, GEICO had in effect an automobile liability policy issued to James D. Ruby, Sr. covering the automobile in which Ricky was a passenger. GEICO’s policy, issued on December 4, 1978, provided for medical payments coverage in the amount of $2,000, bodily injury liability coverage in the amount of $10,000 per person, and uninsured motorist coverage in the amount of $10,000 per person. State Farm had in effect two separate policies issued to Bobby R. Nall covering two different automobiles, one issued on January 5,1979, and the other on August 27, 1979. Each State Farm policy provides uninsured motorist coverage in the amount of $5,000 per person available to Ricky.

GEICO paid the plaintiff the amount of $2,000 under its medical payments coverage and $10,000 under its bodily injury liability coverage. State Farm paid the plaintiff $5,000 under the uninsured motorist coverage of one of its policies. The plaintiff filed this suit seeking an additional $10,000 under GEICO’s uninsured motorist coverage and an additional $5,000 under the uninsured motorist coverage of the other State Farm policy. The trial court rendered judgment in favor of State Farm and GEI-CO, rejecting the plaintiff’s demands. Plaintiff appealed.

The issues on appeal are: (1) Is GEICO liable under both the liability and the uninsured motorist coverages of its policy? (2) Can plaintiff “stack” the uninsured motorist coverages of the two State Farm policies?

Plaintiff contends he can recover under GEICO’s uninsured motorist coverage because GEICO’s liability coverage is insufficient to fully compensate the plaintiff, thus making James D. Ruby, Jr. an uninsured motorist. We disagree. This issue was confronted by the Supreme Court in Breaux v. Government Employees Insurance Company, 369 So.2d 1335 (La.1979), which involved the same policy provisions as the present case. The court in Breaux held that language in the GEICO policy prohibiting an injured party from recovering under both its liability coverage and its uninsured motorist coverage is not contrary to law and thus is enforceable.

The plaintiff has attempted to distinguish Breaux from the instant case. He contends that this Court’s decision in Guillot v. Travelers Indemnity Company, 338 So.2d 334 (La.App. 3rd Cir. 1976), writ refused, 341 So.2d 408 (La.1977) is controlling. However, in Coco v. Allstate Insurance Company, 391 So.2d 50 (La.App. 3rd Cir. 1980), this Court held that Breaux, supra, impliedly overruled Guillot. The plaintiff in Coco, supra, as in the instant case, attempted to recover against the host driver under both the liability and the uninsured motorist coverages of an automobile insurance policy. This Court, following Breaux, supra, held that an injured party cannot recover against his host driver under both the liability and the uninsured motorist coverages. In light of the Breaux and Coco cases, we find the trial court correctly held plaintiff’s recovery from GEICO is limited to the policy’s liability coverage, and that the plaintiff cannot recover from GEICO under its uninsured motorist coverage.

In a supplemental brief, plaintiff argues Breaux is also distinguished from the present case because in Breaux the sole cause of the accident was the negligence of the host driver, whereas here the stipulated facts do not state Ruby’s negligence was the “sole cause.” In our view the rationale of Breaux applies whether the negligence of the host driver was the sole cause or only a contributing cause of the accident.

Plaintiff also contends he is entitled to stack the uninsured motorist coverages of both State Farm policies. The most recent case on stacking is Courville v. State Farm Mutual Automobile Insurance Company, 386 So.2d 176 (La.App. 3rd Cir. 1980). In that case, the plaintiff, while driving his father’s truck, was injured in a collision with another vehicle caused solely by the negligence of the other driver. Plaintiff sought to “stack” the uninsured motorist coverages of two separate State Farm policies issued to his father, one covering the truck driven by plaintiff and the other covering another vehicle owned by the father. This Court held the intent of the legislature in enacting the provisions of LSA-R.S. 22:1406(D)(l)(e) was to limit those instances where “stacking” is available, and that the situation presented was one which the legislature sought to cover. Thus, our Court concluded the plaintiff was unable to “stack” the uninsured motorist coverages of the two State Farm policies. The Supreme Court granted writs and reversed, 393 So.2d 703, rendered January 26, 1981. The Court construed R.S. 22:1406(D)(l)(c) as follows:

“Nevertheless, turning to that amended Act and applying it to the present situation, we must disagree with the Third Circuit. In pertinent part, the Act is as follows:
“ ‘(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
“ ‘With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply: “ ‘(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
“ ‘(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.’ (Emphasis added).
“Both the trial judge and the Third Circuit recognized that a literal reading of R.S. 22:1406(D)(l)(c) would allow the plaintiffs to stack in this situation. Using the second paragraph of the Act: the injured party, Joseph A. Courville, Jr., was occupying an automobile not owned by him; the uninsured motorist policy on the GMC pickup truck in which Joseph A. Courville, Jr. was an occupant is primary; and, since the primary uninsured motorist coverage is exhausted due to the extent of the damages ($30,000), Joseph A. Cour-ville, Jr. may recover as excess from other uninsured motorist coverage available to him, namely, the policy on the 1968 Oldsmobile.
“While the first paragraph of the Act provides the general rule that an insured who has insurance available to him under more than one uninsured motorist policy may not stack, that paragraph is followed by the exception that this plaintiff finds himself within; for under the second paragraph of the Act, Joseph A. Cour-ville, Jr. may stack as he was an occupant of a vehicle which he did not own when he was injured.
“The Third Circuit Court of Appeal felt the Act was ambiguous as applied to these facts; therefore, they endeavor to ascertain the intent of the legislature. We do not deem such a journey necessary.”
“According to Louisiana Civil Code art. 13:
“ ‘When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.’
“The letter of the Act which allows Joseph A. Courville, Jr. to stack these two policies may not be disregarded simply because of some notion that the legislature’s spirit behind the above statute is to prevent stacking in situations such as this. Of course, if that is the true spirit, then the legislature should amend the Act by providing in the second paragraph that an insured may not stack even if he is an occupant and a non-owner of the vehicle in which he is injured. For the present, a strict reading of the entire Act allows this plaintiff to recover.”

Courville is distinguished from the present case on the facts. One of the two policies in Courville covered the vehicle in which the plaintiff was an occupant, and the other policy covered another vehicle. In the present case neither of the State Farm policies which provide uninsured motorist coverage to the plaintiff covers the vehicle in which the plaintiff was an occupant. Therefore, unlike Courville, there is no primary coverage as provided in R.S. 22:1406(D)(l)(c)(i), quoted above.

A reading of the above quoted portion of the Supreme Court opinion in Courville shows that the holding is limited strictly to the particular facts where (1) the injured party is occupying an automobile not owned by him, (2) there is uninsured motorist coverage on the vehicle in which the injured party was an occupant, and (3) there is also available to plaintiff uninsured motorist coverage on another vehicle. In the present case, the second of these requirements is missing. The result is that this case is controlled by the general rule stated in subparagraph (c) quoted above, that an insured who has uninsured motorist coverage available to him under more than one policy may not stack. The exception to this general rule, applied in Courville, does not apply to the present case.

Plaintiff also argues that State Farm waived the benefit of the anti-stacking statute by issuing to plaintiff two separate policies providing uninsured motorist coverages and by tacking to each policy an endorsement entitled “6273N Uninsured Motorist Insurance Amendment (Louisiana)”. This amendment reads as follows:

“It is agreed that, with respect to Uninsured Motorists Insurance:
“1. (a) The definition of ‘uninsured motor vehicle’ and ‘uninsured highway vehicle’ shall also include an automobile for which the owner or operator has a bodily injury liability bond or insurance policy applicable at the time of the accident but the limits of such bond or policy are insufficient to pay the full amount the insured is legally entitled to recover for damages because of bodily injury caused by the accident;
(b) in the event the owner or operator has such a bodily injury liability bond or insurance policy applicable to the accident, this insurance shall apply as excess insurance over such liability bond or insurance policy, up to the amount the insured is legally entitled to recover for damages because of bodily injury caused by the accident subject to the limits specified for this insurance.
“2. (a) Any amount payable under the terms of this insurance because of bodily injury sustained in an accident by a person who is an insured under this insurance shall not be reduced by any sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured motor vehicle or uninsured highway vehicle and (iii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under liability coverage;
(b) that part of the ‘Limits of Liability’ provision pertaining to such a reduction is amended accordingly.”

The trial judge correctly held this endorsement to the policy does nothing except amend the printed provisions of the policy so as to comply with the concept of “unde-rinsured motorist” introduced to Louisiana by Act 494 of 1975. In his written reasons, the trial judge correctly states:

“This endorsement merely nullifies paragraph (b) of the Limits of Liability under Part IV — Protection Against Uninsured Motorists. The policy as originally printed sought to receive credit for any sums paid by the uninsured motorists or other sources. Endorsement 6273N, sec. 2(a) is on its face inapplicable to the issue of stacking. It serves only to amend the ‘other liability’ provisions of the policies, while stacking is a matter that addresses itself to the ‘other insurance’ provisions, as modified by statute.”

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


author: CUTRER, Judge.

text:
    John Robert BROUSSARD and Patsy L. Broussard, Individually, Etc., Plaintiffs-Appellants, v. PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 8068.
    Court of Appeal Louisiana, Third Circuit.
    April 15, 1981.
    Writ Granted June 22, 1981.

      Lawrence 0. Guillory, Lafayette, and Cox & Cox, Terrell Fowler, Lake Charles, for plaintiffs-appellants.
    Plauché, Smith, Hebert & Nieset, Andrew L. Plauché, Jr., Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

John and Patsy Broussard brought suit to recover damages for injuries sustained by their minor son, Jeremy Shawn, when an aquarium toppled over and fell upon him. Named as defendants are Helman and Ellen Turner, the owners of the aquarium, and their homeowner’s insurer, Pennsylvania Millers Mutual Insurance Company. Plaintiffs have appealed from a judgment in favor of the defendants. We affirm.

The principle issue on appeal is whether the trial court erred in its instructions to the jury.

On June 20, 1975, Mrs. Patsy Broussard brought her two small children to the home of her neighbor, Mrs. Helman Turner. Mrs. Turner had agreed to babysit for the children while Mrs. Broussard went to the hospital to visit a friend. Mrs. Broussard’s children were Angelique, age 5, and Jeremy Shawn, age 2.

It was nothing unusual for Mrs. Turner to babysit for the Broussard children. On prior occasions, while Mrs. Broussard was working, Mrs. Turner would babysit with the children. She was paid for that service. On the day in question, however, she was babysitting as a favor to Mrs. Broussard without any charge.

Soon after Mrs. Broussard dropped the children off, Mrs. Turner fed the two-year-old Jeremy Shawn. She then placed the child on the floor in front of the television set in the Turner den. The child was seated with his sister, Angelique, and the two Turner children, Shelly, age 8 and Clint, age 4, watching a children’s show.

Mrs. Turner then walked to the kitchen door adjacent to the den to pick up some clothes to be washed. After picking up the clothes, she started back into the den on her way to the laundry room. She then saw Jeremy Shawn pull the aquarium over upon himself. The aquarium broke, causing facial lacerations. Mrs. Turner stated that she was away from the child approximately eight to ten seconds before the accident occurred.

The plaintiffs requested the trial court to instruct the jury on the Louisiana law of strict liability under LSA-C.C. art. 2317. Plaintiffs also requested that a charge be given on the law of contributory negligence as it pertains to young children. The trial court refused to give these instructions to the jury.

The trial judge instructed the jury, in detail, on the general law of tort according to LSA-C.C. art. 2315. Also, the court gave special charges on the duty óf a person who undertakes control and supervision of a child.

Plaintiffs first contend that the trial court erred in refusing to instruct the jury on the Louisiana law of strict liability under LSA-C.C. art. 2317 and Loescher v. Parr, 324 So.2d 441 (La.1975). In order to apply the principles of Civil Code art. 2317, the plaintiff must prove (a) that the thing which caused the injury was in the care (custody) of the defendant-owner; (b) the defect or vice in the thing; and (c) that the defect caused the injury.

The record reveals that the child simply pulled the aquarium over causing it to fall upon him. There was no evidence introduced to show the existence of a defect or vice in the aquarium or its stand. Since no defect was proven, the law of strict liability does not apply. A trial judge need not instruct a jury about theory of law which has no basis in the evidence. Therefore, the trial judge correctly refused to instruct the jury as to the Louisiana law of strict liability. See: Prejean v. Hanover Insurance Company, 233 So.2d 606 (La.App. 3rd Cir. 1970), writ den., 256 La. 256, 236 So.2d 32 (1970).

The plaintiffs next contend that the trial court erred in not instructing the jury that a very young child cannot be contributorily negligent. Contributory negligence is an affirmative defense which must be pleaded in the answer. The defendants have neither pleaded this defense in their answer nor have they asserted this defense at trial. Therefore, the question of the child’s contributory negligence was not. at issue. The trial court properly excluded such an instruction as being irrelevant. Smith v. Quality Transport, Inc., 346 So.2d 787 (La.App. 1st Cir. 1977), writ den., 349 So.2d 878 (La.1977); Darbonne v. Southern Farm Bureau Cas. Ins. Co., 300 So.2d 506 (La.App. 3rd Cir. 1974).

Plaintiffs also contend that the trial court erred in not instructing the jury on the doctrine of res ipsa loquitur. We note that the counsel for plaintiffs did not object to the trial judge’s failure to give such an instruction. Without such an objection, the plaintiffs waived their right to complain on appeal. Lea v. Baumann Surgical Supplies, Inc., 321 So.2d 844 (La.App. 1st Cir. 1975), writ den., 325 So.2d 279 (La. 1976); LSA-C.C.P. art. 1793. In any event, the doctrine of res ipsa loquitur only applies where there is doubt as to how an accident happened and the accident that did occur is the type that does not usually occur without the want of care on someone’s part. In this case, the cause of the accident is fully explained. The child simply pulled the aquarium over upon himself. The court correctly refused to give this instruction. Walker v. Union Mill, Inc., 369 So.2d 1043 (La.1979); King v. King, 253 La. 270, 217 So.2d 395 (1968).

We find no error by the trial court, thus, the judgment shall be affirmed.

For the above and foregoing reasons, the jury verdict in favor of the defendants-ap-pellees is affirmed. All costs are assessed against plaintiffs-appellants.

AFFIRMED.


author: LEE, Justice,

text:
    LIBERTY SAVINGS & LOAN ASSOCIATION v. Charles A. MITCHELL et al.
    No. 52281.
    Supreme Court of Mississippi.
    May 6, 1981.
    Richard D. Gamblin, Thomas G. Lilly, Richard B. Wilson, Jr., Wise, Carter, Child & Caraway, William E. Spell, Sullivan, Hunt, Spell, Shackelford & Henson, Jackson, for appellant.
    Hunter M. Gholson, Ralph E. Rood, Ghol-son, Hicks & Nichols, Columbus, Fred C. DeLong, Jr., Campbell & DeLong, J. Ro-bertshaw, Robertshaw & Merideth, Green-ville, for appellees.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the court:

Liberty Savings and Loan Association (Liberty) filed suit in the Circuit Court of Washington County, Honorable B. B. Wilkes, presiding, against Charles A. Mitchell (Mitchell) and others, for damages in the sum of twenty-six million dollars ($26,000,-000) based on an alleged breach of fiduciary duty by Mitchell in the management of the association. After an extended period of time, during which the suit was pending, the defendants filed motions to dismiss the suit. The motions were taken under advisement and eventually sustained. Liberty has appealed from the final lower court order dismissing the suit, and assigns such dismissal as error.

Did the lower court err in sustaining the motions of the appellees to dismiss under Mississippi Code Annotated Section 11-53-25 (1972) on the ground that Liberty had not shown good cause for its failure to bring the suit to trial?

Mitchell was active vice-president of Liberty from 1968 to about 1974. The other appellees were members of the board of directors at some time during the same period. Mitchell has asserted that those appellees had no operational authority during the time mentioned, and he assumes full responsibility for changes occurring while he was the active president or vice-president of the institution.

In early 1973, bank authorities discovered discrepancies in loans totalling some nineteen million dollars ($19,000,000) from 1968 to 1973, made by Mitchell to one Boyd L. Hobbs for construction and development projects. Subsequently, this suit was filed on February 18, 1975. On February 28, 1975, Liberty merged into Bankers Trust Savings and Loan Association (BTS&L), which went into receivership in 1976. Thereafter, it was succeeded by Depositors Savings Association (Depositors).

The chief counsel for Liberty and the individual having the responsibility for preparing Liberty’s case for trial, gathering together all information sought by the ap-pellees through depositions, and representing Liberty generally in the case, was Honorable Charles L. Sullivan. Appellee Mitchell answered the suit by filing a request for a bill of particulars on April 7, 1975, and was permitted until May 7, 1975, to file responsive pleadings to the complaint. Liberty supplied the bill of particulars on July 23, 1975, stating the Hobbs loans and their supporting collateral and appraisal. Liberty claims that it incurred seventeen thousand dollars ($17,000) accounting fees in the preparation of the bill of particulars.

From July 23, 1975 forward, until April 19, 1979, Mitchell and the other appellees filed numerous interrogatories and discovery material, and Mr. Sullivan was endeavoring as best he could to furnish the information and exhibits sought to be discovered. Without question, the case was complex, involved an enormous mass of documentary material, and required a tremendous amount of work and time to comply with discovery. Throughout the period mentioned, the attorneys on both sides were cooperative, courteous, and understanding in the matters, and continuances and extensions of time were agreed upon by opposing counsel. Mitchell’s attorney wrote to Mr. Sullivan on April 11, 1979, and requested a specific date for production of discovery materials. An earlier letter from Mr. Sullivan dated January 29, 1979, indicated that discovery was nearly complete and required only final difficult computations by the accounting firm. Suffice it to say, at no time did appellees’ attorneys seek from the court sanctions against Liberty or compulsion to require production of the requested discovery material.

On April 18,1979, Mr. Sullivan died in an airplane crash. A member of the Sullivan firm notified opposing counsel of the tragedy and Mitchell’s counsel agreed to “lay this case on the back burner” until such time as matters had been straightened out. Immediately, the Sullivan firm contacted Depositors about retaining additional counsel to replace Mr. Sullivan as chief counsel. Pursuant to that contact, on April 27, 1979, they conferred with members of the Edmund L. Brunini firm in Jackson with a view toward retaining that firm to proceed with the case. After spending approximately one hundred (100) hours in reviewing the case files, the firm decided that it would be unable to associate in the case. Immediately, members of the Sullivan firm contacted the Lake, Tindall firm in Green-ville for the same purpose, and, after a lengthy study of the files, that firm likewise was unable to associate in the case.

The appellees filed motions to dismiss the case on October 17, 1979. At the hearing on the motions, Liberty produced affidavits and evidence from Honorable William Spell of the Sullivan firm, Honorable Edmund L. Brunini and Honorable Lawrence E. Allison from the Brunini firm and Honorable Charles S. Tindall from the Lake, Tindall firm which set forth their work and review of the Liberty files subsequent to the death of Mr. Sullivan for a determination as to whether or not the Brunini and Tindall firms could associate in the case. The proof on behalf of Liberty showed without question that it was diligent in its efforts to seek trial counsel immediately following the death of Mr. Sullivan until the motions to dismiss were ruled upon. In fact, Liberty was finally successful in retaining the Wise, Carter, Childs and Caraway firm at or about the time the order was entered sustaining the motions to dismiss. The appel-lees declined to produce any evidence on the hearing of the motions and simply stated to the court that they would rely upon the record as made. No effort was made to show prejudice the appellees may have sustained over the period of time prior to the dismissal.

On November 8, 1979, the lower court rendered a letter opinion on the motions to dismiss Liberty’s action, and, in that opinion, stated that it would be dismissed as a stale case. [See Appendix]. The order followed the letter opinion. Mississippi Code Annotated Section 11-53-25 (1972), referred to therein, follows:

“The clerk of any court shall move the court to dismiss any cause pending therein in which no step has been taken for the two terms preceding; and the court shall, unless good cause be shown to the contrary, dismiss the same at the costs of the plaintiff or complainant.”

Osborne v. Vince, 240 Miss. 807, 129 So.2d 345 (1961), cited by the lower court, states:

“Miss.Code 1942, Recompiled, Section 1578, provides: ‘The clerk of any court shall move the court to dismiss any cause pending therein in which no step has been taken for the two terms preceding; and the court shall, unless good cause be shown to the contrary, dismiss the same at the costs of the plaintiff or complainant.’ In Mississippi Central Railroad Co. v. Brookhaven Lbr. and Mfg. Co., 1933, 165 Miss. 820, 147 So. 814, 815, it was held that the amendment of this statute in 1930 made it mandatory on the clerk and the court, ‘unless good cause be shown to the contrary.’ Since the file was not in the clerk’s office, he had no way of knowing about the case. Hence no motion was made by him under the statute, and for the same reason, the trial court did not dismiss the suit on his own motion. However, Section 1578 is a clear statement of legislative policy that stale cases should be dismissed for want of prosecution.” 240 Miss. at 809-810, 129 So.2d at 347.

It is not necessary for us to discuss the applicability of that statute here where no motion was made by the clerk to dismiss as a stale case. The trial court has the inherent right, independent of statute, to control its docket and is accorded reasonable latitude with respect to the setting, disposition and continuance of cases. 27 C.J.S. Dismissal and Nonsuit, § 65.1, at 430-431 (1959); Boydstun v. Perry, 249 So.2d 661 (Miss.1971). While courts have the responsibility to see that cases come on for trial as efficiently as may be practical, they will afford unto litigants, where at all possible, trial of those cases on the merits. As mentioned, this case is complex and has required tremendous preparatory work for trial. The record before us consists of six (6) volumes, which contain only matters pertaining to preparation for trial. A great deal of expense has been incurred by all parties in their attempts to get the case ready for trial. We are of the opinion that it was not a stale case, whether considered under the verbiage of the statute, supra, or in the light of the court’s inherent power to dismiss causes which are not prosecuted. It was a live, viable and vibrant ease for litigation. We are of the opinion that the lower court erred in sustaining the motions to dismiss, that the judgment should be reversed, and the case remanded for trial on its merits.

CROSS-APPEAL

Appellees filed pleas in bar of the suit sub judiee before the motions to dismiss were sustained. Those pleas in bar were denied and appellees have cross-appealed, contending that the said pleas should have been sustained. Although appellants argue that the cross-appeal is impermissible, we hold that, under the facts here, where there is a final order of dismissal, the cross-appeal is proper and may be considered by this Court.

Appellees/cross-appellants contend that Liberty’s suit was barred and ground their pleas on the following propositions:

(1) Liberty was acquired by a successor corporation with full knowledge of all facts alleged in the Amended Declaration.

(2) The consideration paid for Liberty’s stock was fully discounted for the effect of damages alleged to have been suffered as a result of any acts on the part of Mitchell.

(3) Liberty is a defunct savings and loan association.

(4) The action can only inure to the benefit of present stockholders of the successor corporation, who would be prohibited from bringing suit by virtue of Mississippi Code Annotated Section 79-3-93 (1972).

The record reflects that BTS&L fully complied with Mississippi Code Annotated Section 81-11-45 (1972) in purchasing all properties and assets of Liberty, a savings and loan association. In effecting that purchase, on February 27, 1975, an agreement was executed by Liberty and BTS&L and on February 28, 1975, a bill of sale and assignment was executed by Liberty and accepted by BTS&L. The bill of sale and assignment provided in part as follows:

“THIS BILL OF SALE AND ASSIGNMENT WITNESSETH that for such good and sufficient consideration, the receipt of which is hereby acknowledged, Liberty hereby assigns and transfers to Bankers Trust as of 12:00 midnight on the date hereof, all the properties and assets of Liberty, both real and personal, tangible and intangible, of every kind and nature, and wheresoever located.”

The effect of the above instruments was to transfer and assign unto BTS&L all properties, assets and choses in action of every kind and nature, including the action sub judiee.

19 Am.Jur.2d Corporations § 1337, at 744 (1965) sets out the general rule concerning assignments of choses in action:

“According to most of the authorities which have considered the point, causes of action against directors or officers of a corporation for misconduct for mismanagement of its affairs are assignable and may be enforced by the assignee. An assignee of all the assets of an insolvent corporation, after such assignment, has been held to represent the corporation as well as its creditors; and unless he refuses to do so, he alone is authorized to bring an action against the former directors of the corporation for their negligence and mismanagement of its affairs.”

Mississippi Code Annotated Section 11-7-3 (1972) authorizes an assignee of choses in action to sue for and recover on the same in his own name, if the assignment is in writing, and, in the event suit has commenced prior to the assignment, (as here), the assignee may continue suit in the name of the original party. This Court has held that assignments may include actions for recovery of personal property, enforcement of contract rights, recovery for breach of contract, and for injuries to person or property. See Farmer v. Humphreys County Memorial Hospital, 236 Miss. 35, 109 So.2d 356 (1959) (personal injury); Toler v. Ow ens, 231 Miss. 753, 97 So.2d 728 (1957) (negligent installation of floor furnace); Oxford Production Credit Assn. v. Bank of Oxford, 196 Miss. 50, 16 So.2d 384 (1944) (implied contract of bank to repay deposit); J. H. Leavenworth & Son, Inc. v. Hunter, 150 Miss. 245, 116 So. 593 (1928) (landowner’s right to recover for wrongful cutting of timber).

We are of the opinion that United Zinc Cos. v. Harwood, 216 Mass. 474, 103 N.E. 1037 (1914), cited in Knox Glass Bottling Co. v. Underwood, 228 Miss. 699, 89 So.2d 799 (1956) is not authority for the position of cross-appellants here. Further, we are of the opinion that the lower court correctly denied the pleas in bar, and we affirm on the cross-appeal.

REVERSED AND REMANDED ON DIRECT APPEAL; AFFIRMED ON CROSS-APPEAL.

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

APPENDIX

"November 8, 1979

Hon. J. Robertshaw Robertshaw & Merideth P. 0. Drawer 1498 Greenville, Miss. 38701

Hon. William E. Spell Sullivan, Hunt, Spell, Henson & Chapman Suite 1224, 200 E. Pascagoula Street Jackson, Miss. 39201

Hon. Fred C. DeLong Campbell & DeLong P. O. Box 1856 Greenville, Miss. 38701

Hon. Ralph Rood Gholson, Hicks & Nichols P. O. Box 1111 Columbus, Miss. 39701

Re: Liberty Savings & Loan Association v. Charles A. Mitchell, Et Al; Circuit Court, Washington County, No. 7705

Gentlemen:

With reference to the motions of the Defendants to dismiss the above cause under Sec. 11-53-25, Mississippi Code of 1972, and for failure of Plaintiff to adequately respond to discovery, I have heard your oral arguments and have considered the matter.

Sec. 11-53-25, Mississippi Code of 1972, is mandatory unless good cause be shown to the contrary. Miss. Cent. R. Co. v. Brookhaven Lumber & Mfg. Co., 147 So. 813 (1933). In instances where the Clerk fails to move the Court to dismiss or where the Court does not dismiss on its own motion, Defendant may file a motion to dismiss because of failure of Plaintiff to prosecute his suit. Osborne v. Vince, 129 So.2d 345 (1961).

The original Declaration in this cause was filed against the Defendant Mitchell on February 17, 1975. On August 10, 1977, an order was entered by this Court allowing Plaintiff to amend its Declaration by adding the Additional Defendants. On May 28, 1976, Defendant Mitchell filed interrogatories and requests for production of documents to Plaintiff, and on November 16, 1978, interrogatories of the Additional Defendants to the Plaintiff were filed. Various motions were heard and disposed of by the Court.

On February 10,1978, a motion was filed by Plaintiff to set a date for trial and to set motions and discovery deadlines. On April 21, 1978, after a conference with all attorneys involved and with their approval, said motion was considered by the Court and an order was entered:

(1) Setting the trial on March 5, 1979, in vacation, by agreement of all parties.
(2) Setting Defendants’ pleas in bar to be heard on August 9, 1978.
(3) Setting the deadline for completion of discovery in regard to Defendants’ pleas in bar on July 7, 1978.
(4) Setting the deadline for completion of discovery and filing pre-trial motions with regard to the case in chief on January 1, 1979.

Several days prior to March 5, 1979, the date set for trial, the Court was advised that Plaintiff had not fully complied with the discovery sought by Defendants and, although no formal order of continuance was entered, the cause was continued at Plaintiff’s instance with no objection from the Defendants. Discovery in fully responding to Defendants’ Interrogatories has still not been completed by Plaintiff. In fact, at the hearing on the motions to dismiss, Plaintiff’s attorney suggested that the Court set a new date in January, 1980, for the completion of discovery.

Subsequent to the above continuance, three terms of Circuit Court, to-wit, the April, July and September, 1979 terms were held in this county with no action being taken by Plaintiff to obtain a trial setting. Prior to the November, 1979 term of this Court the Defendants filed their motions to dismiss and the Plaintiff’s attorney appeared at the docket setting for said November, 1979 term to request a future setting of this cause.

I realize that this is a complicated case requiring extensive discovery, but there must be a time limit beyond which the rights of Defendants may be seriously prejudiced by the delay. In my opinion, good cause has not been shown by the Plaintiff for its failure to bring this cause to trial and I am dismissing the cause under Sec. 11-53-25, Mississippi Code of 1972.

Defendants’ attorneys will prepare the proper order, submit same to Plaintiff’s attorneys for approval as to form, and present to me for signature. It is my impression of the law that dismissals under the above Section should be without prejudice and the order should so provide.

Yours very truly,

/s/ B. B. WILKES CIRCUIT JUDGE

BBW:kn”

      . Appellees cross-appeal from an order denying pleas in bar.

      . In addition, the case was held in abeyance for approximately one (1) year due to a related matter pending in the United States District Court. The district court action was ultimately dismissed in May, ¡977.


author: HAWKINS, Justice,

text:
    Jarvis B. CHRISTIANSEN, a/k/a J. Christiansen v. Mrs. Clyo GRIFFIN.
    No. 52621.
    Supreme Court of Mississippi.
    May 6, 1981.

      Gary D. Thrash, Powell & Thrash, Jackson, for appellant.
    Michael R. Medley, Lee, Medley & Han-bury, Jackson, for appellee.
    Before SMITH, P. J., and WALKER and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

The Chancery Court of the First Judicial District of Hinds County rendered a decree granting specific performance for the conveyance of realty, vesting title in personalty in the appellee Mrs. Clyo Griffin, and $500.00 attorney’s fees, from which appellant Jarvis B. Christiansen has perfected this appeal, and the appellee has filed a cross-appeal for failure of the chancellor to award her monetary damages for alleged “injuries and indignities” suffered by her. We affirm on cross-appeal and except for the award to the appellee of attorney’s fees, we affirm on direct appeal.

In the summer of 1977 appellant Chris-tiansen was desirous of selling his entire floral business in Jackson, including the realty. The business, known as “Chris Florist and Greenhouse,” was located in an area of the city zoned residential, and Christiansen operated under a permit. The purchase price agreed upon between appellant and appellee for the entire business was $48,-300.00, of which $10,000.00 was to be a down payment, and the remainder paid in 96 monthly installments of $400.00 each, bearing interest at 5% simple interest. Both parties employed counsel to prepare the necessary legal instruments.

Appellant was of the opinion, with-which the attorneys agreed, that the permit was non-transferable. Two contracts were therefore prepared and executed August 1, 1977, an option to purchase the realty, and an “Employment Agreement” whereby appellant “employed” appellee to manage and supervise the business. Appellee was to pay all expenses and $400.00 a month plus 5% interest, and retain all over that sum. The employment agreement provided the $400.00 a month was to apply on the purchase price, and contained a covenant by appellant not to compete. The option gave appellee until August 19, 1978 to exercise her right of purchase which could be renewed for seven successive one year periods by “written notice of extension prior to the termination of the primary period or extension thereof,” and paying sellers $10.00 additional consideration. The wife of appellant executed the option, also.

Appellee paid appellant $10,000.00 which he accepted and deposited in a savings account, and appellee took possession of all the business, including personalty and realty. Thereafter, she made monthly payments until October 22, 1979, totaling $11,-730.00 when she notified appellant in writing she was exercising her right of purchase under the option.

While appellant at first was agreeable with consummating the sale, and his attorney began preparation of security instruments, he balked at some stage, resulting in this action for specific performance filed February 6, 1980. Along with his answer, appellant filed a cross-bill, which can only be described as spurious.

Following a hearing, the chancellor rendered his opinion and final decree June 19, 1980, which inter alia: directed the chancery clerk to execute a special warranty deed to appellee of the realty upon execution by her unto appellant of a promissory note and deed of trust as security in the amount of the balance due, payable in equal monthly installments and bearing 5% interest; adjudicated title to all personalty of the business, including a 1974 model Ford van, in appellee; and awarded appellee $500.00 attorney fees.

We address only those assignments of error we deem merit comment.

Appellant contends the failure of ap-pellee to give the required notice of intent to renew the option period cancelled the obligation. The written notice given by appellee of intent to purchase was October 22, 1979. Apparently she had neglected to give any previous written notice of her intent to extend the option period.

On October 22, 1979, appellee had paid appellant a $10,000.00 down payment, and monthly installments totaling $11,730.00. She was well along towards fulfilling her entire monetary obligation to appellant for purchase of all assets at that time. We hardly have a case here of a short term option to purchase realty, where only a nominal consideration is paid therefor, and where time is expressly or by implication the essence of the contract.

In McCorkle v. Brown, 9 Smedes and Marshall (17 Miss.) 167 (1847), this Court held that where a party has so far performed his part of a contract that he cannot be put in status quo, he is entitled to a specific performance by the other, even though there has not been a literal performance by the purchaser. In Burroughs v. Jones, 79 Miss. 214, 30 So. 605 (1901), we affirmed a chancery court decree ordering specific performance for the sale of realty after a much more serious default by the purchaser involving failure to make annual payments, and even though the contract expressly provided that in making installment payments time was of the essence. We stated therein:

“It is apparent that the character of the contract to be here adjudicated does not necessarily make time of its essence, and if it be so in this case, it is because of the stipulation in the contract to that effect. And where time is made the essence of a contract by agreement of the parties it must result that such an agreement merely imposes a penalty, which is not regarded in equity with a favorable eye, and will not be enforced under circumstances which make it inequitable to do so, but on the contrary, will decree a specific performance where the equities of the case justify it.”

We also held in Burroughs a forfeiture will not be upheld unless promptly invoked at the time specified.

We likewise held in Baker v. Hardy, 194 Miss. 662, 11 So.2d 803 (1943), that equity would still grant specific performance in spite of a default in time of making payments.

In Denkmann Lumber Co. v. Morgan, 219 Miss. 692, 69 So.2d 802, p. 810, we stated:

“The law looks with disfavor upon forfeitures of all kind, and when a default occurs in a case of this kind, the seller must act promptly or he will be deemed to have waived his right to declare the contract at an end. As stated by the Court in the case of Gannaway v. Toler, 122 Miss. 111, 84 So. 129, 131: ‘The rule seems to be well settled in all jurisdictions that the vendor, who has the whip-hand in the optional contract of forfeiture, must exercise his option promptly after default is made by the vendee; otherwise his failure to do so is taken to evidence his purpose of continuing the contract, which amounts to a waiver of his right to declare a forfeiture.’ ”

Moreover, in this case, the record reveals appellant in the summer of 1979 told an auditor for the state tax commission appel-lee had purchased the entire business, and also wrote the city planning board on July 12, 1979, requesting the permit be changed to the name of appellee, stating therein she had an option from him to purchase the business, which she was afraid to exercise because she was afraid of losing the permit. Such conduct by him clearly evidenced a waiver by appellant of any pretended notice requirement of the contract.

Appellant also complains of the chancellor’s adjudication of title to the personal property to be in appellee. Although the option only specifies realty, again an inventory prepared by appellant of the personalty used by the business to be sold to the purchaser, together with the statements and conduct of the parties presented substantial evidence from which the chancellor, considering both the option and employment agreement, was amply justified in decreeing title thereto in appellee as being part of the assets appellant had agreed to sell and convey to her. We certainly cannot say the chancellor was manifestly wrong. See Gilchrist Tractor Company v. Stribling, 192 So.2d 409 (Miss. 1967).

The decree also directed appellant to pay appellee $500.00 towards her attorney’s fee. The only provision in either contract relative to attorneys’ fees is in the employment agreement whereby each party agrees to pay all costs and expenses incurred or to be incurred by each of them “in closing and carrying out the transactions contemplated hereby.” Ordinarily, attorney’s fees are not allowed in a chancery court action unless specifically authorized by statute, or in the enforcement of a contract which specifically provides for the losing party to pay the successful litigant’s attorneys’ fees. Attorney’s fees, therefore, are disallowed.

The cross-appeal in this case is as frivolous as the cross bill of appellant in the chancery court.

AFFIRMED ON DIRECT APPEAL EXCEPT AS TO ALLOWANCE OF ATTORNEY’S FEES; REVERSED AND RENDERED INSOFAR AS ALLOWING ANY ATTORNEY’S FEES. AFFIRMED ON CROSS APPEAL.

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

BROOM and BOWLING, JJ., took no part.


text:
    FORD MOTOR COMPANY v. Gilbert FAIRLEY.
    No. 52355.
    Supreme Court of Mississippi.
    May 6, 1981.

      John Edgar Johnson, III, Eaton, Cottrell, Galloway & Lang, Gulfport, for appellant.
    Jack Parsons, Parsons & Matthews, Wiggins, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

Ford Motor Company brings this appeal from a judgment rendered in favor of the appellee Gilbert Fairley in the amount of $5,600 in the Circuit Court of Stone County for breach of warranty of a 1976 model Ford Mustang II automobile sold appellee by Langley-Patterson Ford, Inc., a Ford dealer in Wiggins.

The automobile was purchased by Fairley on either February 24, or at the latest March 1, 1976, for $4,391.99, of which $600 represented a down payment. The car had 5,000 miles on it. With the purchase he received an express warranty from appellant warranting the automobile against defects for a period of 12 months or 12,000 miles, whichever came earliest. His family at the time owned two vehicles, and this car was purchased for transportation by his daughter and his wife back and forth to school, where the former was a senior and the latter an employee.

The Fairleys experienced no problem in the operation of the car from the date of purchase until June 1978, when the car had been driven 26,649 miles. In January 1978 appellant circulated letters throughout the United States to numerous car owners of certain of its models (Fairley being one) that their automobiles might have the problem of “piston scuffing”, a condition caused by metal to metal contact between the pistons and cylinder walls within the engine, usually due to reduced lubrication during extremely cold weather or to poor maintenance practices. The letter went on to provide that if the owner experienced the problem, an authorized dealer would repair the problem at no charge for parts and labor for the first 36 months or 36,000 miles of operation, whichever first occurred. At the time of receipt of this letter, of course, Fairley’s initial express warranty had expired.

In June 1978, acting under this letter, Fairley returned the car to the dealer, where it was repaired by Walter Corbutt, mechanic for the dealer. Corbutt did a basic overhaul, putting in new pistons, rings, inserts, main bearings, a valve job and honing the engine head and engine block. Corbutt testified the repair was necessitated because of piston scuffing, and he found incorrect pistons had been installed in the block in the manufacture.

After repairs, when Fairley continued to use the car over the next several months, he experienced power problems, although the running of the engine sounded good to him. Loss of power was experienced especially in ascending hills. He took the car into the dealer’s approximately six times and was told the timing was causing the problem.

In December 1978 appellant circulated another letter similar in content to the letter of January 1978 but this time notifying owners their ears might experience premature camshaft rocker-arm wear, and if so, appellant through an authorized dealer would make repairs on the first of 36,000 miles or 36 months ownership. Around the first of February 1979, the motor quit, and Fairley again took the car to the dealer’s. On February 15 the dealer made repairs under this second letter from appellant, replacing the camshaft and rocker arms, and replacing the gasket. At this time the car had 35,242 miles on it. The repair order noted that a cylinder was misfiring.

After these repairs Fairley operated the car approximately two weeks, and on March 5,1979, the car “tore up again, it stopped on me again.” During this interim the car had not operated satisfactorily. This last time the car was towed into the successor Ford dealer at Wiggins, Larry Taylor Ford.

The dealership informed Fairley the trouble this time was caused by a burnt piston, not covered by warranty and refused to make repairs under any warranty. Fairley thereupon left the car with the dealer. Because of this refusal to make repairs under warranty of the appellant, Fairley brought suit.

Neither the initial dealer Langley-Patterson Ford, Inc., nor its successor Larry Taylor Ford, was named a defendant. Under his amended declaration, appellee claimed there was a breach of express warranty, as well as of the implied warranties of merchantability and fitness for a particular purpose under Sections 75-2-314 and 75-2-315, Mississippi Code 1972 Annotated. He further sought revocation of his acceptance under Section 75-2-711 and damages as provided in Section 75-2-714, and incidental and consequential damages as provided in Section 75-2-715.

Ford Motor Company denied any liability under any warranty, and alleged affirmatively the condition found in the car on March 5, 1979, was unrelated to any condition provided for in the two letters to car owners of January and December 1978, and further damages in this case would be limited in any event to those authorized under Section 75-2-719 and by the express warranty, namely: the cost of repair and replacement of parts.

At the trial the only expert witness tendered by Fairley as to the cause of the March 5, 1979, problem was the mechanic Corbutt, who had not examined the automobile subsequently to his repair in June 1978. He did, however, have the benefit of a description of the problem Fairley continued to have and pictures of the piston the dealer said was burnt on March 5,1979, and it was his opinion the problem for which repairs were made in June 1978, and the problem for which Fairley returned the car on March 5, 1979, were related.

Mike Black, a sales manager for a local automobile dealer, testified for Fairley that following examination of the car it had a salvage value of $600. Upon cross-examination he testified that assuming parts and labor to install the necessary repairs cost $550, and the car was in working order thereafter, then the value of the car would be the approximate top retail value of $3,250.

A motion for a directed verdict was overruled by the court. The expert tendered by Ford Motor Company was James Russell Lawson, a mechanic at Triple A Auto Parts in Wiggins. It was his opinion that “piston-scuffing” as provided in appellant’s letter of January 1978 and “camshaft/rocker-arm repairs” as provided in the letter of December 1978, were unrelated to the condition of the motor, namely: a burnt piston.

This Court is faced with a determination of the applicability of implied warranties to this case, which also involves the question of lack of privity between appellant and appellee. As to the question of privity, Mississippi Code 1972 Annotated, section 11-7-20 (Supp.1980), abolishes the necessity for privity.

As to the breach of any implied warranty of merchantability, the car had been driven over two years and 26,649 miles before Fairley experienced any difficulty with it. Such service as a matter of law negates a breach of an implied warranty of merchantability of this car. Neither was there any breach of an implied warranty of fitness for a particular purpose since the automobile was purchased for a very ordinary purpose. Garner v. S & S Livestock Dealers, Inc., 248 So.2d 783 (Miss.1971).

We do find there was sufficient evidence to make a jury issue in this case as to whether the problem for which Fairley took the ear to the dealer on March 5, 1979, was related to the problem of June 2, 1978, and on this issue the jury found in favor of Fairley.

Damages. Appellant states the damages here are limited to those provided in the warranty, namely: the cost of repairs and replacement of parts, that appellant limited its duty under the express warranty, all as authorized by Section 75-2-719. Such limitation presupposes, however, that the warrantor will fulfill his warranty. Had appellant done so in this case, this could have constituted the limit of exposure. Having failed, and wrongfully so, as found by the jury, to make repairs and replace damaged parts when it was obligated to do so, appellant cannot limit its damages to those specifically provided in its express warranty. Beal v. General Motors Corp., 354 F.Supp. 423 (D.C.Del.1973); Clark v. International Harvester Co., 99 Idaho 326, 581 P.2d 784 (1978); Murray v. Holiday Rambler, Inc., 83 Wis.2d 406, 265 N.W.2d 513 (1978); Miss.Code 1972 Ann., § 75-2-719(2).

In this case Fairley had no incidental or consequential damages as contemplated by Section 75-2-715. He bought another second-hand car. Furthermore, in this case when appellant refused to make repairs under the warranty on March 5, 1979, Fairley was under a duty to take some reasonable action to minimize the breach. He took none whatever, but simply abandoned the car at the dealer’s.

We think in this case special circumstances exist as provided under Section 75-2-714(2), or that damages should be determined “in any manner which is reasonable” as provided in sub-section (1) of this section. The reasonable measure of damages in this ease, we find, to be the fair market value the car would have had with that age and number of miles with no mechanical difficulty as experienced by Fairley, and the value it had in its defective condition, and for which appellant refused to make repairs.

The case will, therefore, be reversed and remanded for a new trial on damages alone under proper instruction to the jury on this issue.

REVERSED AND REMANDED.

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


text:
    GREGORY-SALISBURY & CO., INC. and Gregory-Salisbury Metal Products, Inc. v. RICHARD-BROKAW.
    No. 52642.
    Supreme Court of Mississippi.
    May 13, 1981.
    Robert H. Weaver and Betty A. Morgan, Watkins, Ludlam & Stennis, Jackson, for appellants.
    John C. Sullivan, Sr., Sullivan, Sullivan & Blount, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

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

AFFIRMED.


author: BROOM, Justice,

text:
    C. C. I. and N and Wife Mrs. N, Appellants, v. The NATURAL PARENTS, Appellees.
    No. 52708.
    Supreme Court of Mississippi.
    May 13, 1981.
    John H. Fox, III, Fox, Gowan & Biggers, Christopher A. Shapley, Brunini, Grantham, Grower & Hewes, Jackson, for appellants.
    Herman B. DeCell, Henry, Barbour & DeCell, Yazoo City, for appellees.
    Before SMITH, P. J., and WALKER and BROOM, JJ.
   BROOM, Justice,

for the Court:

Adoption of an infant child and revocability of written consent for adoption are featured in this ease appealed from the Chancery Court of Yazoo County. The natural parents (John and Jane Doe herein), then unmarried and minors, executed documents surrendering the infant child (baby herein) to C.C.I. for adoption. Subsequently, the young natural parents married each other and petitioned the court for legal custody and adoption of the baby. By that time C.C.I. had placed the child for adoption with N and his wife who filed a cross-petition for adoption against the natural parents. C.C.I. and the Ns appeal from the final decree which allowed the natural parents to adopt the child. We reverse.

The baby, who is the central figure in this cause, was born February 12, 1980, unto Jane Doe, a 20-year old with two years in college. On April 5, 1980, Jane married John. They were dating each other for some time before John, a 17-year old high school senior, learned in June of 1979 that she was pregnant. Although he offered several times to marry her and gave her a diamond ring in August 1979, she insisted on putting the baby up for adoption. There was much discussion from time to time among the two young people, Jane’s parents, and a representative of C.C.I. about surrendering the baby to C.C.I. On February 20, 1980, Jane executed documents surrendering the child to C.C.I. and consenting to its adoption. John executed an identical document on February 26, 1980. On April 5, 1980, however, they married each other and within a few days filed their petition to adopt said child and regain its custody, charging that they had signed the surrender-consent documents because of undue influence and duress. Defendants were C.C.I., to whom they had surrendered custody, and the Ns whom C.C.I. had given custody of the child by instrument labeled “Adoption Placement Agreement.” The Ns answered the Does’ adoption petition and filed their own petition for adoption of the child.

After signing the consent documents on February 26,1980, John told his parents the next day what he had done and contacted attorney D. By letter dated February 27, 1980, the attorney addressed a letter to C.C.I. stating that John was revoking and rescinding the surrender (consent) instrument. When the adoption matter was tried the Does were living in a two-bedroom apartment in Yazoo City. Testimony indicated that three days after the baby was born on February 12, 1980, while John was visiting Jane in the hospital, the two young parents decided they would get married and keep the baby, but the next day Jane told him that she did not want to get married. The Does’ amended adoption petition averred that they surrendered the baby as a result of undue influence. John testified that although there was a great deal of indirect pressure on him to resolve the situation concerning the baby, no one besides Jane and her mother had attempted to harass or force him to sign the surrender forms. Testimony established that when she became pregnant, Jane was 19 years old, had attended college for about two years, and was earning $600 a month doing secretarial and bookkeeping work. According to Jane, when she discussed with her mother the baby’s future in January 1980, her mother told her that if she decided to keep the baby she would have to get out on her own. Her mother contacted C.C.I., and in response to her inquiry one of C.C.I.’s maternity case workers talked with Jane concerning adoption and the problems she would face if she decided to keep the baby. After the baby’s birth, Jane’s mother (Mrs. Coe) discussed the situation with John who asked her for her opinion. According to Mrs. Coe, she told him “that under the circumstances that he and Jane were in that I thought it was the best thing for them to do to give the baby up for adoption.” The next day John came to the Coe home and told Mrs. Coe that he had discussed the matter with several attorneys and had decided to sign the papers. Ultimately the lower court decreed adoption of the child unto the natural parents, the Does.

C.C.I., a non-profit corporation, is a licensed maternity home and adoption agency providing foster care and related child services. By answer, C.C.I. denied that John executed his surrender of parental rights under undue influence and duress and denied that his adoption of the child would serve its best interest.

First argument is that the court erred in holding Mississippi Code Annotated § 93-17-9(c) (1972)' unconstitutional as to that portion which provides that, “In the case of a child born out of wedlock, the father shall not be deemed to be a parent .. . . ” Mississippi Code Annotated § 93-17-9 (1972) in effect states that a necessary party to an adoption under § 93-17-5 may execute the surrender of a child to a “home.” We do not reach the constitutional issue because other issues are dispositive. Our rule is that we do not hold statutes unconstitutional when the decision may rest on other grounds. Kron v. Van Cleave, 339 So.2d 559, 563 (Miss.1976).

DID JOHN AND JANE EXECUTE THE DOCUMENTS SURRENDERING THE CHILD TO C.C.I. AS A RESULT OF UNDUE INFLUENCE? In obtaining custody of the infant child who is subject to this suit, C.C.I., a licensed “home,” was acting pursuant to Mississippi Code Annotated § 93-17-9 (1972), which reads:

.Any person required to be a party to an adoption proceeding by section 93-17-5 may execute the surrender of a child to a home by sworn or acknowledged instrument which shall include the following: the name of the child and the home; that there is thereby vested in the home the exclusive custody, care and control of such child; that all parental rights to such child including the right of inheritance are relinquished by such person; provided, the rights of inheritance of the natural parents and the child shall not be affected until entry of a final decree of adoption; that the home is authorized to execute a consent to adoption as provided by this chapter and that process in any adoption proceeding is waived; that such surrender shall be irrevocable and that such person will not, in any manner, interfere with the custody of such child thus vested in the home. Said instrument shall not be executed until three (3) days after the birth of the child and shall effectually vest in the home all rights thus surrendered and all powers thus created, with the right and power to execute the consent to adoption as required in this chapter authorizing the court to vest in the child and the adopting parent or parents the rights herein provided. (Emphasis added).

The child’s date of birth was February 12, 1980, eight days after which Jane signed the surrender form to C.C.I. authorizing it “to execute the consent to adoption.” On February 26, John also signed an identical surrender form. Both forms were notarized. There is no dispute that the statutory requirements of § 93-17-9, supra, were complied with, but the Does’ position is that they signed the surrender forms as a result of pressure or undue influence.

No Mississippi case has been cited, and we have found none defining what constitutes undue influence in obtaining the biological parents’ consent to an adoption. Instructive are two rather recent annotations: 8 AmJur., Proof of Facts 2d 481 (1976)— Undue Influence in Obtaining Parents Consent to Adoption of Child; 50 A.L.R.3d 918 (1973) — What Constitutes Undue Influence in Obtaining a Parent’s Consent to Adoption of Child. The A.L.R.3d article notes that undue influence is one of several grounds demonstrating a lack of voluntary consent on the part of the parents. Several of the means which may constitute undue influence include over-persuasion, threat of economic detriment or promise of economic benefit, the invoking of extreme family hostility both to the child and mother, and undue moral persuasion. Because undue influence is such a broad concept, cases must be resolved upon their particular facts. General law is that the party asserting undue influence has the heavy burden to show that the consent was obtained by undue influence. Such a burden must be met by clear and convincing evidence, and there is no presumption that a party has exercised undue influence upon another. A mere preponderance of evidence on the issue of undue influence is not sufficient. 8 Am.Jur., Proof of Facts 2d 503-505 (1976).

The Does asserted below and here that C.C.I. through its maternity case worker exerted undue pressure upon Jane to surrender the baby for adoption, but this charge is not supported by the record. We find no logical means to interpret the testimony to establish that the ease worker exerted undue influence upon Jane although it is true (and commendable) that she pointed out to Jane problems she would face as an unwed mother. The record shows that the case worker told Jane that if she were unsure about signing the surrender forms after the baby’s birth, C.C.I. would keep the child in a foster home for two to three weeks until she (Jane) was certain of her decision. Also the Does contend that John was “over-pressurized” by Jane’s mother, Mrs. Coe, but the record does not bear this out. Although Mrs. Coe did contact John to discuss signing the surrender forms, she left the decision to him. It was the next day that John informed Jane and her mother that he was willing to sign the surrender document.

Appellees invite this Court to pay particular attention to Sorentino v. Family & Children’s Soc. of Elizabeth, 72 N.J. 127, 367 A.2d 1168, 1169 (1976). The facts in this New Jersey case, however, are readily distinguishable from those before this Court. In Sorentino, a 16-year old unwed mother gave birth. The 18-year old father was unwilling to marry her, and the girl’s mother was unwilling to allow her daughter to remain in her home with the child. Therefore the girl placed the baby in a foster home for thirty days through the Society of Elizabeth. When the young mother informed the agency that she wanted her child back at the end of the thirty-day period, the agency supervisor made “threats of harassment and litigation.” The Supreme Court of New Jersey concluded that “she was coerced within a half-hour or so into signing a surrender of the child for adoption.”

Unlike the 16-year old mother in Sorenti-no, Jane was 20 years old at the time the baby was born. She had attended college two years, was steadily employed, earned $600 a month, and had undergone several sessions of counselling with C.C.I. Clearly she was well aware of her options. Unlike the agency supervisor for the Society of Elizabeth, C.C.I. and its case worker exhibited good faith on their part by explaining to Jane that she could take several weeks to make up her mind about signing the surrender form after the baby’s birth.

Along with C.C.I., Jane was a respondent to John’s original adoption petition. Her sworn answer denied that John’s execution of the parental surrender resulted from undue influence, and she likewise denied that adoption by John would serve the child’s best interest. As part of her answer, she affirmatively charged that the child’s best interest would be served by permitting its adoption, not by John, but by “a qualified couple.... ” Subsequently and only after her marriage to John, did Jane contend, in direct contradiction of her original answer, that she executed the surrender document under undue influence. At the trial, Mrs. Doe, John’s mother, on cross examination testified negatively as to undue influence being exerted upon Jane and John in connection with their execution of the surrender forms. The following is excerpted from her testimony:

A. Well, I did not believe ... I don’t think anybody pressured Jane into giving the baby up for adoption. Maybe I should state it that way.
Q. Recalling your meeting with Mr. S. that you testified about, isn’t it a fact that you went to see Mr. S. to determine your son’s legal rights insofar as the adoption papers were concerned and whether or not he should sign them or had to sign them? That was why you went to see Mr. S., was it not?
A. No. We went to see Mr. S. as far as John’s legal rights, as far as the baby was concerned.
Q. This was before John signed the surrender, was it not?
A. Yes.

There is no doubt that John and Jane were not free from emotions, tensions and inescapable anxieties which resulted from her pregnancy during the time preceding their marriage. No doubt almost any person situated as they were would experience emotional trauma, but there is no law to the effect that surrender of a child is valid only if done without such distress. If such were the law almost any child surrender and subsequent adoption decree could be attacked. We held in Wherry v. Latimer, 103 Miss. 524, 60 So. 563, 565 (1918) as to what was required in order to establish undue influence. The Court quoted from Burnett v. Smith, 93 Miss. 566, 571, 47 So. 117 (1908):

. .. not every influence is undue, and undue influence cannot be predicated of any act unless free agency is destroyed, and that influence exerted by means of advice, arguments, persuasions, solicitation, suggestion, or entreaty is not undue, unless it be so importunate and persistent, or otherwise so operate, as to subdue and subordinate the will and take away its free agency. Nor is influence ordinarily considered undue which arises out of sympathy, kindness, attention, attachment, or affection, gratitude for past services, desire of gratifying the wishes of another, or of relieving distress, claims of kindred and family or other intimate personal relations, love, esteem, social relations, prejudices or flattery.

Duckworth v. Allis-Chalmers Manufacturing Co., 247 Miss. 198, 203, 150 So.2d 163 (1963) held:

Duress and compulsion go to the question of reality of consent to a contract. The ultimate fact for determination is whether the complaining party was deprived of free exercise of his own will. The conduct of the dominant party must have been such as to override the volition of the victim. (Emphasis added).

At trial, the chancellor did not find that John and Jane had their free will destroyed when they executed the surrender documents. In effect, he found that the advice of Mrs. Coe and C.C.I.’s case worker prevailed in bringing about the parental surrenders.

The assertion that John surrendered the baby due to undue influence seems to be related to two conversations he had with Mrs. Coe. He testified that approximately 13 days after the baby’s birth, Mrs. Coe told him that her husband was “mad as hell.” Further, he testified that Mrs. Coe told him “that Jane was in a bad state of mind and I needed to go on and sign those papers and get it all over with.” After his conversation with Mrs. Coe, during which it is said that she unduly influenced him, he testified that “I wasn’t going to sign them.” Thus it follows that her discussion with John did not unduly influence him to sign the surrender forms because at the conclusion of the conversation he stated that he would not sign the papers. John actually signed the surrender of the baby before a notary public in a finance company’s office in the presence of Jane’s mother and aunt after he had consulted with an attorney and trav-elled to the notary’s office in his (John’s) car.

During his cross examination John was asked if anybody (excluding Jane and her mother) had harassed him or tried to force him to make any particular decision as to what he should do with the baby, and his answer was, “No, sir.” He denied that anybody threatened him as to what he should do with the baby although he stated that Mrs. Coe said, “I would be dragged into court.” One of the striking things about John’s testimony is the following excerpted from what he said on cross examination:

Q. Haven’t you testified before that if that baby had been a boy, you wouldn’t have signed that Exhibit 1?
A. Yes, sir. If I had known it was a boy.

In her testimony, Jane testified that she and John were pressured, but she would not testify that she ever saw her mother harass-' ing or intimidating him in any way. Before Jane signed the surrender forms for adoption of the child, she talked with an attorney. The following colloquy developed during Jane’s testimony:

“What were your parents having to say about it at that time?” Answer: “They said it was my responsibility; that I had to make the decision; it was not theirs.” Do you recall that question and that response?
A. Yes, but they thought that. That it would be best.
Q. Is it your testimony that your mother told you that you should put the baby up for adoption?
A. No, she didn’t tell me that.

We think the record shows without doubt that during her pregnancy and surrender of the child, both Jane and John experienced heightened emotion and vacillation, along with much agony. Nevertheless, this does not show that their execution of the surrender documents was without the free exercise of their own volition untainted by domination, threats or coercion of another person. Alien v. Volunteers of America, 378 So.2d 1030 (La.1979).

DID THE CHANCELLOR ERR IN HOLDING THAT THE PARENTAL SURRENDER EXECUTED IN COMPLIANCE WITH MISSISSIPPI CODE ANNOTATED § 93-17-9 (1972) COULD BE REVOKED OR WITHDRAWN UPON A SHOWING OF GOOD CAUSE? The Does contend that § 93-17-9, supra, does not make a surrender to an agency irrevocable, but the plain language of the statute does not support them. The Does assert that the natural parents’ consent should be revocable prior to the entry of any adoption decree and cite Wright v. Fitzgibbons, 198 Miss. 471, 21 So.2d 709 (1945). The Wright decision was handed down prior to enactment of our present adoption statutes making voluntary surrender irrevocable. In addition, the facts in Wright are noticeably different from those in the case presently before this Court. At issue in Wright was whether the natural mother of the child had abandoned her three-week old infant.

The Supreme Court of Louisiana had to construe the Louisiana surrender statute which is markedly similar to ours. In Golz v. Childrens’ Bureau of New Orleans, Inc., 326 So.2d 865 (La.1976), both parents of a legitimate child executed surrender agreements to the Children’s Bureau of New Orleans, Inc. After several conversations with the Children’s Bureau, Mrs. Golz brought her child to the agency and asked the case worker to provide foster care for the child. After several days in foster care, the Golzes came and secured their infant. Approximately four months later the Golzes telephoned the Bureau and expressed a desire to place the child for adoption. In conversation with the Golzes at the Children’s Bureau, the case worker informed them that signing the surrender form was irrevocable. Nevertheless the Act of Surrender was executed by the parents and the case work supervisor for the Children’s Bureau according to the provisions of the statute. The following day the parents requested that their child be returned to them. A child court found that the Act of Surrender could not be revoked. On appeal the Golzes contended that consent could be revoked under the statute. The Louisiana statute (LSA-R.S. 9:402) reads:

Voluntary surrender of custody of child; procedure
Any parent of a child, whether the child was born in wedlock or out of wedlock and whether the parent is over or under twenty-one years of age, may surrender the permanent custody of his child to an agency for the purpose of having the child adopted by appearing before a notary and two witnesses and declaring that all of his rights, authority, and obligations, except those pertaining to property, are transferred to the agency. This authentic act shall be signed by the agency and shall constitute a transfer of custody to the agency after which the agency shall act in lieu of the parent in subsequent adoption proceedings. No surrender of the custody of a child shall be valid unless it be executed according to the provisions of this Part.

The statute provides that a parent surrenders “permanent custody of his child to an agency for the purpose of having the child adopted.” Writing for the Court, Chief Justice Sanders concluded:

.. .an act of surrender executed by both parents of a legitimate child to a licensed adoption agency in compliance with LSA-R.S. 9:402 is irrevocable.

Absent a showing by the parent(s) establishing either fraud, duress, or undue influence by clear and convincing evidence, surrenders executed in strict compliance with the safeguard provision of § 93-17-9, supra, are irrevocable. Strong policy reasons support such a holding. If a parent is allowed an unrestricted right to challenge his act of surrender, uncertainty and confusion among adoption agencies would undoubtedly result, making placement more difficult which would be detrimental to the children involved as well as to the public welfare. The statutory safeguards are themselves sufficient to guard against a hastily made decision.

Both Jane and John executed surrender forms in strict compliance with the statute, and their parental surrender forms were signed in the presence of a notary public who took their acknowledgment. This ease, therefore, may be resolved without considering the constitutionality of Mississippi Code Annotated § 93-17-5(c) (1972). Section 93-17-9, supra, gives the adoption agency “all rights thus surrendered and all powers thus created, with the right and power to execute the consent to adoption as required in this chapter. ...” Upon this record and under the statutes cited, we conclude that the decree granting adoption of the child unto the Does after their voluntary surrender of it according to the pertinent statutes should be set aside and the Ns allowed to present their proof in support of their petition for adoption. The Ns appealed with supersedeas and have the child in their custody.

Revocability of the surrender of a child and consent for another to adopt a child is not to be decided upon rigid or technical rules. Such a decision must be made upon sound judicial discretion. Here revocation was asserted by the natural parents upon the grounds of undue influence and duress, but the testimony in that regard was less than clear and convincing. The chancellor’s finding that John and Jane surrendered the child for adoption “as a result of undue influence exerted upon them” is contrary to the overwhelming weight of the testimony and manifestly in error.

Different lines of cases on the revocability issue are discussed in Chapter Eighteen, § 18.4, Clark’s Law of Domestic Relations (1968) Hornbook Series. Clark at page 626 states that “Whether consent may be revoked is to be determined initially by the applicable statute.” Here we think that under our statute § 93-17-9, supra, revocation can be allowed but only where sufficient legal grounds are established by clear and convincing testimony, and such evidence is lacking here. Consent is not to be arbitrarily withdrawn. Clark, supra, page 627.

Accordingly, we must reverse the decree granting the adoption unto the Does and remand the cause for hearing on the petition of the Ns according to facts and circumstances shown to exist after remand. The petition of the Does is dismissed, and the petition of the Ns will then be triable in the court having venue jurisdiction pursuant to Mississippi Code Annotated § 93-17-3 (Supp.1980), which fixes venue in the county where the petitioners reside or where the child resides, or “in which the home is located. . . . ” According to the proof in this regard, venue, if not to be vested in the Chancery Court of Yazoo County, shall be in the proper chancery court to which venue may be changed and the cause transferred upon proper application and proof. In closing we point out that this is not a case where C.C.I. was the aggressor or employed any questionable practice by accepting the child whom Jane and John surrendered. C.C.I., according to the proof, is a licensed and very reputable “home” which merely responded to the initiative of Mrs. Coe and Jane who set in motion the chain of events by which Jane and John forfeited any parental claim. To allow appellees upon this record to regain custody of the child would undermine the status and purpose of such homes and negate the meaning of the applicable statutes.

Under Mississippi Code Annotated §§ 93— 17-25; 93-17-29 and 93-17-31, supra, an order will be entered here by this Court to the effect that all original records and documents of this cause be kept confidential. Further, all docket entries, pleadings and decrees necessarily open to the general public shall refer to the parties by initials or fictitious names as set forth in the first paragraph of this opinion.

REVERSED AND RENDERED AS TO DECREE OF LOWER COURT GRANTING ADOPTION OF BABY TO APPEL-LEES, THE NATURAL.PARENTS. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS UPON THE CROSS PETITION OF N AND HIS WIFE, MRS. N, NOT INCONSISTENT WITH THIS OPINION.

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

      . Pursuant to Mississippi Code Annotated §§ 93 -17 25; 93-17-29 and 93-17-31 (1972), all the litigants are identified either by initials or fictitious names. C.C.I. is a foster home and adoption agency.


text:
    SAVCO PHARMACY, INC. v. M & M PLASTICS, INC.
    No. 52645.
    Supreme Court of Mississippi.
    May 20, 1981.
    George E. Gillespie, Jr., Francis T. Zachary, Zachary, Gillespie & Rogers, Hatties-burg, for appellant.
    William Robert Taylor, Jr., Hattiesburg, for appellee.
   Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

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

AFFIRMED.


text:
    Ada Tirelli STEPHENS, Ruth Ann Tirelli Thurman, Pauline Tirelli Bischoff, Evelyn Fay Magsig Bernhardt, Martha Ann Fairhead, Theodore Magsig, Sr., Theodore Magsig, Jr., Prince Albert Denson, III, Clarene Tirelli Denson, Paige Ann Denson, Prince Albert Denson, IV, Dana Ann Stephens, Deanna Lynn Stephens and William Tirelli Stephens v. Robert J. LaPRESTO, Mark LaPresto, Sally LaPresto Vetrano (A/K/A Marilyn L. Vetrano), Laura LaPresto Stapleton, Joe Vetrano, Jr., Robert LaPresto, Jr., Kathy LaPresto (Now Kathy LaPresto Pearman), Beverly Ann LaPresto (Now Beverly LaPresto Fioranelli), Laurie “Kattie” LaPresto (A/K/A Laura Kathy LaPresto), Loraine LaPresto Wilson, Kenneth Wilson, Jr., Rene Wilson, Karen Shappley, Laura L. Stapleton, Administratrix of the Estate of Frank LaPresto, Dec’d., Genevieve LaPresto Williams, Rosie LaPresto Hylton, Chester F. Griffin, and Betty Rose Griffin.
    No. 52458.
    Supreme Court of Mississippi.
    May 20, 1981.
    Semmes Luckett, Clarksdale, for appellants.
   Appeal from Chancery Court, Bolivar County; William H. Bizzell, Chancellor.

John W. Land, Levingston, Jacks, Leving-ston & Land, Rosedale, H. L. Merideth, Jr., Robertshaw & Merideth, Greenville, for ap-pellees.

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

REVERSED AND RENDERED.

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


text:
    Bruce MITCHELL v. STATE of Mississippi.
    No. 52598.
    Supreme Court of Mississippi.
    May 20, 1981.
    Roy Pitts, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

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

AFFIRMED.

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


text:
    In the Interest of D. C.
    No. 52646.
    Supreme Court of Mississippi.
    May 20, 1981.
    James W. Younger, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from County Youth Court, Hinds County; Carl E. Guernsey County Judge.

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

REVERSED AND RENDERED.

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


text:
    Warner HODGES et al. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 52602.
    Supreme Court of Mississippi.
    May 20, 1981.
    Joel P. Walker, Hernando, for appellant.
    Winn Davis Brown, Jr., Brown, Tillman & Rutherford, Southaven, for appellee.
   Appeal from Special Eminent Domain Court, DeSoto County; W. E. Wilroy, Sr., Special Judge.

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

AFFIRMED.

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


text:
    Jessie Junior CLARK v. STATE of Mississippi.
    No. 52627.
    Supreme Court of Mississippi.
    May 20, 1981.
    Roy Pitts, Franklin M. Coleman, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Jessie Junior Clark was indicted and tried in the Circuit Court of Lauderdale County for murder, Honorable Henry Palmer, presiding. The jury found Clark guilty of manslaughter, and he was sentenced by the trial judge to a term of eighteen (18) years in the Mississippi State Penitentiary. He has appealed from the judgment and assigns four (4) errors in the trial below.

On the 27th day of February, 1980, the appellant, Johnny C. Jackson, and other individuals were in Maggie’s Place, a cafe situated in Lauderdale County. Some words ensued between appellant and Jackson, who asked appellant to come outside the building. According to appellant, Jackson cursed him, threatened his life, and advanced toward him in an angry manner. Appellant testified that he drew a pistol from his pocket and pointed the pistol at Jackson, that his thumb slipped off the hammer and the pistol discharged, fatally wounding Jackson. No persons were present at the time of the shooting except appellant and Jackson. Appellant claims self-defense and, also, that the shooting was accidental. Immediately after the pistol discharged, Early B. Lard arrived upon the scene and asked Jackson what was the matter. He testified that Jackson said, “Jessie shot me for nothing.” Jackson expired within minutes.

I.

Did the trial court err in permitting introduction of the deceased’s statement as a dying declaration?

When Lard first arrived at the scene after the shooting, he saw no blood on or around Jackson and did not know what was wrong with him. Jackson did not say that he knew or thought he was mortally wounded or that he was about to die. The essentials for a statement to constitute a dying declaration are: (1) the wounded person is in extremis, and dies after making the statement, (2) the person realizes that he is mortally wounded, and (3) he has no hope of recovery. In Simmons v. State, 206 Miss. 535, 40 So.2d 289 (1949), the Court said:

“Deceased was lying in road at the scene of the tragedy, and two witnesses for the State testified he said to them, ‘They hit me with the binders, they pushed me off the truck.’ Neither witness claimed that deceased made any statement indicating on his part that he knew or believed death was then and there imminent and impending. One witness said that he, himself, knew it and that the dying man should have known it. That is not the test. The true test is that ‘at the time the declaration was made, the deceased believed that he was going to die and had no hope whatever of recovery, and must be made under the realization and solemn sense of impending death.’ Syllabus McNeal v. State, 115 Miss. 678, 76 So. 625.” 206 Miss. at 538, 40 So.2d at 291.

The Court discussed dying declarations in Houston v. State, 246 Miss. 77, 149 So.2d 331 (1963), and stated that the question as to whether a declaration is to be admitted as being a dying declaration is not what other people thought concerning whether or not the deceased would die but whether the deceased himself thought that he was going to die. Quoting from Lea v. State, 138 Miss. 761, 103 So. 368 (1925), the Court in Houston further stated:

“ ‘A dying declaration is made without the sanctity and without an opportunity to cross-examine the declarant. To take the place of that sanctity and that right there must be an undoubting belief in the mind of the declarant, at the time the declaration is made, that death is upon him. If it shall appear in any manner that there was hope of recovery, however faint it may have been, still lingering in his breast, the required sanctity is not afforded, and the statement cannot be received. The belief by the declarant that he may ultimately die as a result of this injury is not sufficient to authorize the admission of his statement as a dying declaration. The predicate must exclude all hope of life. It must reach the point of absolute certainty in the mind of the declarant. All hope must be gone. He must feel sure that the finger of death is upon him.’ ” 246 Miss. at 82, 149 So.2d 333.

The knowledge of impending death may be inferred from the nature and extent of the wound inflicted upon the victim. The Court reaffirmed the rule in Fulton v. State, 209 Miss. 565, 47 So.2d 883 (1950) with the following language:

“It is well settled that the sense of impending death which a dying person must have had in order to render a dying declaration made by him admissible in evidence may be inferred from the nature of the wound or the state of his illness, without any expressed declaration to show that he was sensible of impending death. It is clear, however, that this rule does not mean that the inference may be drawn from the mere fact that the wound, in the opinion of the man of science, was in point of fact mortal but means that the nature of the wound or the illness should have been such as to affect the knowledge and control the opinion of the dying person himself, as to the danger to which he stood exposed.” 209 Miss. at 569, 47 So.2d at 885-886.

In the present case, there is no indiction whatsoever that the deceased knew or thought he was mortally wounded and about to die. The bullet, according to Dr. Sergio Gonzales, the pathologist who performed the autopsy, severed the aorta, which caused bleeding into the chest cavity, resulting in death within “minutes.” There was no obvious wound at the time Lard saw Jackson and it is probable that Jackson did not know the seriousness of his condition.

The trial judge sustained the objection to the statement until Dr. Gonzales testified. He then admitted same on the basis of the doctor’s testimony that there was massive bleeding internally which resulted in death. The trial judge overlooked the essentials and requirements of establishing a dying declaration. The statement was highly prejudicial for the reason that the words “for nothing” indicate that Jackson was doing nothing which would justify appellant using force to protect himself. Jackson’s lips were sealed in death at the time of the trial and he could not be examined by the defendant concerning the statement. We are of the opinion that the statement did not constitute a dying declaration, was highly prejudicial, and constitutes reversible error.

II.

Did the trial court err in granting Instruction S-2 and in granting Instruction C-2a?

Appellant contends that Instruction S-2 is vague and confusing, and is an abstract instruction, which places the burden of proof upon the defendant rather than the State on the issue of self-defense. It is unnecessary to set forth the instruction here, but, suffice it to say, the instruction was approved by the Court in Bright v. State, 349 So.2d 503 (Miss.1977).

Appellant also contends that the Instruction C-2a is confusing and contradictory and does not properly state the elements of proof for manslaughter, fails to take into account accident, does not require negating of defenses, and omits the words “heat of passion for arguing.” This instruction follows practically word-for-word Instruction 114.12 of the Mississippi Model Jury Instructions (1975) for manslaughter. While the instruction is not a “model” as the word implies, and could have been more clearly drawn, it was not confusing and contradictory and submitted the elements of manslaughter to the jury in accord with evidence in the case.

Since the case is being reversed for a new trial on the improper admission of testimony, it is not necessary for us to discuss the assignment of error relating to juror misconduct which will not occur on retrial.

REVERSED AND REMANDED.

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