author: MARVIN, Judge.

text:
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF SHREVEPORT, Plaintiff-Appellant, v. Charles Albert BECHTOL, Defendant-Appellee, Bob Gerald Smith & Elizabeth Smith, Intervenors-Appellees. Bob Gerald SMITH, et ux, Plaintiffs-Appellees, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF SHREVEPORT, Defendant-Appellant.
    Nos. 14906-14907.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.
    Rehearing Denied July 23, 1982.
    Cook, Yancey, King & Galloway by James Robert Jeter, Shreveport, for First Federal Sav. and Loan.
    George H. Mills, Jr., Shreveport, Curator ad hoc for Charles Albert Bechtol.
    Weinstein & Hiller by Lewis Weinstein, Shreveport, for Bob Gerald Smith and Elizabeth Smith.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In these consolidated actions, the association appeals a judgment which preliminarily enjoined its foreclosure by executory process of a mortgage it held on residential property that was originally owned by Bech-tol and is now owned by Smith.

The mortgage held by the association did not contain a “due on sale” provision accelerating maturity of the mortgage obligation in the event of a sale of the secured property without the written consent of the association. See Louisiana Savings Association v. Trahan, 415 So.2d 592 (La.App. 3d Cir. 1982). Taliancich v. Union Savings and Loan Association, 142 So.2d 626 (La.App. 4th Cir. 1962).

In nine contentions of error in this appeal, the association instead relies on LRS 6:837 which is sometimes referred to as a statutory due on sale provision. This statute was enacted as a part of Act 95 of 1940. This act generally clothed federal savings and loan associations with similar powers and authority as was given state savings and loan associations by Act 140 of 1932. Compare former § 837 and § 770 of Title 6 before Act 234 of 1970.

The 1970 act amended § 837 by essentially reenacting its original provision as Part A and by adding additional provisions as Part B. LRS 6:837 now reads as follows:

“A. Whenever property is subject to a vendor’s privilege or mortgage in favor of an association and, without the written consent of the latter, the property is sold or transferred, by contract, either with or without the assumption of the association loan, the loan and obligation held by the association shall at the option of the association immediately mature and become at once subject to enforcement according to law and to the terms of the loan contract. In all such cases where the loan was assumed by the purchaser even without the consent of the association, the purchaser will be and remain liable in solido with the original borrower on the loan.
“B. In the event the ownership of the real estate security or any part thereof becomes vested in a person other than the party or parties originally executing the security instrument, and provided that there is not an agreement in writing to the contrary, an association may, without notice to such party or parties, deal with such successor or successors in interest with reference to said mortgage and vendor’s privilege, and the debt hereby secured in the same manner as with such party or parties, and may forbear to sue and may extend time for payment of or otherwise modify the terms of the debt secured thereby, without discharging or any way effecting the original liability of such party or parties thereunder or upon the debt thereby secured.”

Executory process, as opposed to ordinary process, is defined in CCP 2631 as an execu-tory proceeding to effect the seizure and sale of property, without previous citation and judgment, which may be used to enforce a mortgage or privilege evidenced by an authentic act importing a confession of judgment, and in other cases allowed by law.

CCP 2632 states “when” and “if” the act imports a confession of judgment.

“An act evidencing a mortgage or privilege imports a confession of judgment when the obligor therein acknowledges the obligation secured thereby, whether then existing or to arise thereafter, and confesses judgment thereon if the obligation is not paid at maturity.”

In the vendor’s lien-mortgage in question, Bechtol, the purchaser-mortgagor, generally obligated himself “to secure the payment of said promissory note, or obligation, according to its tenor and the provisions herein contained ... hereby confessing judgment . . . for the full amount of said promissory note or obligation ...” The conventional pact de non alienando in the instrument also contains the phrase “confession of judgment”.

“The vendor retains his vendor’s lien and privilege as security for all of the Purchaser’s obligations hereinunder, and the said Purchaser hereby binds and obligates himself not to sell, alienate, or encumber the said property to the prejudice of this mortgage, which imports confession of judgment and waives benefit of appraisement.”

The instrument then recites in numbered paragraphs 10 specific areas of obligations accepted by the purchaser, Bechtol. These refer to obligations (1) to keep the property insured, (2) to make the mortgage subject to additional advances of money that might be made by the association for several things, including taxes and insurance premiums, (3) to allow the association as his agent and attorney in fact to adjust and settle any loss by fire, windstorm or other cause covered by insurance,

“(4) That the recording of this deed and (until the payment in full of the mortgage indebtedness) the recordation of any subsequent deed to the mortgaged property shall make each such subsequent purchaser a member of the Association with the privileges and subject to the obligations incident thereto (such recor-dation of any subsequent deed also conveying to each such subsequent purchaser all escrow funds for taxes and insurance held by the Association), provided that each subsequent purchaser shall pay such transfer or assumption fee as may at the time be charged by the Association, and provided that nothing herein stipulated or which may be done by the Association hereafter shall in any manner affect or abridge the rights of the Association under the pact de non alienando herein-above stipulated.”

(5) to notify the association of an eminent domain action against the property, (6) to keep the property in good condition,

“(7) That the balance due by the Purchaser at any time hereunder shall be the face of the note together with the interest thereon, plus any amounts which may have been advanced by the holder of the note for taxes, insurance premiums, paving assessments, repairs, or for any other charge or expense whatsoever, minus such payments as shall have been made by the Purchaser.”

(8) to pay specified late charges if any of the monthly payments are not paid when due, (9) to allow the association to collect rent on the property in the event the purchaser defaults in any obligation hereunder and (10) to pay attorney fees if legal claim or proceedings are instituted for the recovery of any amount due.

These paragraphs follow the obligatory numbered paragraphs we have above summarized or quoted:

“The Association at its option may declare the entire indebtedness of the Purchaser to it to be due and exigible and may without notice or demand proceed to foreclose the mortgage hereinabove stipulated in its favor by executory process or otherwise upon the happening of any one of the following events:
“(a) . . . the Purchaser becoming three (3) months cumulatively in arrears . . .
“(b) . . . the recordation of any lien . . . against the property ... or ... a proceeding in bankruptcy affecting .. . the property . . .
“(c) . . . cancellation of any insurance covering the property ...
“(d) . . . the passage of a law . .. which will . .. cause the Association . .. to become liable for the payment of taxes

Other general provisions which we deem pertinent are those which follow the above provisions:

“[Njothing in this act shall be construed so as to limit any right or remedy granted to the Association under any provision of the law, either Federal or state.” “The word ‘Purchaser’ as used in this instrument includes ... any subsequent owner of the mortgaged property.”

As we view the entirety of the instrument and the note, there is no obligation on the purchaser not to sell the property without the written consent of the association, the confession of judgment (quoted above) is for the faithful performance of the obligations contained in the instrument and not elsewhere, maturity of the obligation may be declared by the association and the association may proceed to foreclose by executo-ry process upon the happening of the four conditions (a) through (d). In this sense, and construing the instrument fairly but strictly when weighed against the pronouncements of the law governing executo-ry process, we must find that this instrument confesses judgment for the full amount of the note (its balance at any given time) if the obligor fails to perforin any of the obligations contained in the instrument.

While the instrument declares that it shall not “limit” any right or remedy granted the association by law, there is simply nothing in the instrument itself that confesses judgment if the obligation is not paid when the note matures for any reason other than the failure of an obligation contained in the instrument. The instrument does not say that the obligor confesses judgment if the obligation is not paid when it matures for any reason imposed by law and we are not referred to any language in the instrument from which this can be otherwise reasonably inferred.

The remaining language in the instrument (this mortgage ... imports confession of judgment and waives benefit of ap-praisement) adds nothing to the language that precedes it (to secure the faithful performance of all the obligations contained herein . .. the Purchaser hereby confessing judgment . . . for the full amount of said promissory note or obligation ...). The remaining language does not confess judgment “if”, as the statute requires for a confession of judgment (I confess judgment if, I confess judgment in the event that, I confess judgment upon the occurrence of these conditions . . .)

CCP 2634 requires the petition for execu-tory process to comply with CCP 891 which in turn requires allegations of the material facts upon which, in this case, would be the facts that caused the obligation to mature. When the confession of judgment is couched in terms of “if I fail in any of my obligations hereunder, I confess judgment” and the petition or the evidence on the injunction shows that the obligor has not failed in any obligation expressed or reasonably contemplated by the instrument, the instrument does not meet the requirements of CCP 2632.

Executory process is authorized additionally “in other cases allowed by law.” CCP 2631. The association’s claimed authority under LRS 6:837 to declare maturity of the obligation, if the property is sold without written consent of the association, does not of itself authorize executory process. Former section 838, the only section of Act 95 of 1940 we find that mentioned executory process, mentions it only in the context of “foreclosure by executory process . . . and maturity [of the mortgage] by reason of the failure of the mortgagor ... to comply with the obligations imposed on him by the act of mortgage.” By analogy, this former section of the law lends some support to the conclusion that the confession of judgment is effective if the obligation, the failure of which matures the note, “is imposed on him by the act of mortgage.”

Even should we agree arguendo with the association’s contention that the statutory due on sale provision “matures” the note (which issue we do not reach), the maturity of the note by reason of the statute is not an obligation, the failure of which, by the terms of the act of mortgage, would effectuate the confession of judgment so as to allow executory process.

The note that is paraphed for identification with the mortgage provides that

“If default be made in the payment of any installment . . . the entire principal .. . and ... interest shall at once become ... payable without notice ...”

Yet the mortgage declares that the association may proceed to foreclose by executory process when the purchaser becomes three months cumulatively in arrears in the payment of the monthly installments provided in the note.

The judgment appealed is a judgment which preliminarily enjoins executory process by the association. At the cost of appellant, that judgment is AFFIRMED.

      . Section 7 of Act 95 of 1940 which became LRS 6:837 read as follows:
      “The sale or conveyance of property subject to a mortgage executed subsequent to twelve o’clock from August 1, 1948 in favor of a federal savings and loan association without its written consent at its option immediately matures the indebtedness of the mortgagor to it, and in all cases where the payment of the mortgage is assumed by the purchaser or transferee with or without the consent of the association, the purchaser is liable in solido with the original mortgagor for the full payment of the mortgage indebtedness.”

      . “In the event of foreclosure by executory process of a mortgage in favor of a federal savings and loan association, the certificate of the secretary or assistant secretary or treasurer or assistant treasurer of the association as to the amount due on the mortgage and as to the maturity thereof by reason of the failure of the mortgagor or his assigns or successors to comply with the obligations imposed on him by the act of mortgage is authentic evidence of the facts recited in the certificate.”


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Mary Lucy WILLIAMS, Plaintiff-Appellant, v. DELTA HAVEN, INC., Defendant-Appellee.
    No. 14917.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.
    Rehearing Denied July 23, 1982.
    Raymond L. Cannon, Tallulah, for plaintiff-appellant.
    Leroy Smith, Jr., Tallulah, for defendant-appellee.
    Before PRICE, HALL, and JASPER E. JONES, JJ.
   HALL, Judge.

Plaintiff appeals from the judgment of the trial court sustaining defendant’s exception of no cause of action and dismissing with prejudice plaintiff’s suit seeking damages for wrongful termination of employment. We affirm.

In assessing the validity of an exception of no cause of action, the well-pleaded allegations of the plaintiff’s petition are accepted as true and the issue is whether plaintiff is afforded any remedy at law under the facts as stated in the petition. Pence v. Ketchum, 326 So.2d 831 (La.1976); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975).

The following facts as alleged in plaintiff’s petition form the basis for her claim for damages. Plaintiff began working for defendant as a nurse’s aid in October 1979. On May 6, 1980 plaintiff was discharged on the grounds that she failed to turn the patients as required by policy of the nursing home and refused and failed to change the residents as often as required by the nursing home. Plaintiff is not guilty of the acts for which she was fired. Defendant’s personnel policy requires that three warnings be given an employee prior to his discharge and that these warnings be acknowledged by the employee in writing; plaintiff never received any warnings prior to her discharge. Plaintiff sustained damages for loss of wages and for humiliation. The alleged grounds for plaintiff’s discharge have disparaged and blackened plaintiff’s work reputation.

Where an employee’s employment is for an indefinite term, the employment is terminable at the will of either the employer or the employee. Pechon v. National Corporation Service, 234 La. 397, 100 So.2d 213 (1958). Absent a specific contract or agreement establishing a fixed term of employment, an employer is at liberty to dismiss an employee at any time for any reason without incurring liability for the discharge. Jackson v. East Baton Rouge Parish School Board, 393 So.2d 243 (La.App. 1st Cir. 1980); Jackson v. East Baton Rouge Parish Indigent Defender’s Board, 353 So.2d 344 (La.App. 1st Cir. 1977), writ denied 354 So.2d 1385 (La.1978); Copeland v. Gordon Jewelry Corporation, 288 So.2d 404 (La.App. 4th Cir. 1974), writ denied 290 So.2d 911 (La.1974). The right to terminate indefinite employment at will can, however, be altered by specific contract or agreement. See Morgan v. Avondale Shipyards, 376 So.2d 516 (La.App. 4th Cir. 1979).

Plaintiff did not allege that she was employed for a specific period of time. Plaintiff’s allegation that the defendant failed to comply with its own personnel policy requiring three warnings to an employee prior to discharge does not amount to an allegation that defendant was contractually obligated to her as part of an employment contract to give her the warnings prior to discharge. The petition fails to state a cause of action for wrongful discharge because there is no wrongful discharge when an employee hired without a fixed term or other contractual prerequisite to termination is fired.

Plaintiff argues in the alternative that her petition states a cause of action for defamation. In order to maintain an action in defamation, the following elements must be proven: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196 (La.1980).

Plaintiff did not allege that any defamatory statements were uttered with malice; nor did she allege publication of defamatory remarks. Consequently, plaintiff’s petition does not state a cause of action for defamation.

The trial court was correct in sustaining defendant’s exception of no cause of action. Because plaintiff’s counsel rejected the trial court’s offer to allow him to amend the petition, the court properly rendered judgment dismissing plaintiff’s action.

For the reasons assigned, the judgment of the trial court sustaining defendant’s exception of no cause of action is affirmed at the cost of plaintiff.

Affirmed.


author: PRICE, Judge.

text:
    John Charles HUST, Plaintiff-Appellant, v. Dale L. WHITEHEAD, Defendant-Appellee.
    No. 14919.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.
    Johnston, Thornton, Dawson, Hunter & Feinberg by James R. Dawson, Shreveport, for plaintiff-appellant.
    Smith & Bowers by Glen H. Smith, Shreveport, for defendant-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, John Charles Hust, appeals a judgment in favor of his ex-wife, Dale L. Whitehead, for expenses and attorney fees incurred in litigation of a child custody matter pursuant to the Uniform Child Custody Jurisdiction Act (La.R.S. 13:1700 et seq.). We affirm.

Plaintiff and defendant were granted a divorce in Lubbock County, Texas on September 20, 1979. The agreed judgment granted custody of their two sons, Christopher and Tony, who were respectively seven and five years old at the institution of this suit, to defendant and allowed plaintiff visitation privileges. Plaintiff moved to Caddo Parish where he later remarried, and defendant, who also remarried, remained in Texas.

Sometime in early June 1981, plaintiff learned that defendant and her husband had left the children in the care of the maternal grandmother while they traveled across Texas seeking employment. Fearing the children had been abandoned, and that defendant and her husband could not provide them with a stable home, plaintiff went to Lubbock, Texas and took the children with him to Louisiana on June 20, 1981. On June 23, 1981, he filed a petition for custody in the First Judicial District Court of Caddo Parish.

On July 21, 1981, defendant filed a motion to stay, motion to dismiss, and motion for attorney fees and expenses as it related to the custody of the children. She alleged the Lubbock County, Texas court retained jurisdiction over the children’s custody, and that plaintiffs actions constituted kidnapping, which is expressly proscribed by the Uniform Child Custody Jurisdiction Act. She requested a dismissal and/or stay of the proceedings and reasonable expenses and attorney fees. In a consent judgment the trial court dismissed plaintiff’s suit with prejudice and ordered the return of the children to defendant. It was stipulated that defendant’s expenses incurred in defending this suit were $3,495.09; however, the trial court reserved its ruling on her entitlement to reimbursement of these expenses until a later date. On November 17, 1981, a hearing was held and the trial court rendered judgment in favor of defendant for the stipulated amount.

Defendant did not appear at the November 17 hearing. Her only witness, Rebecca Russom, a Shreveport resident and close friend, testified as to the authenticity of the expenses. All the pleadings in the case, including her motion to dismiss and her accompanying affidavit, were filed into evidence. The motion contained allegations that plaintiff, prior to his taking the children, had informed the grandmother that he always carried a gun, and the grandmother had heard he would use it if she did not allow him to take the children. In her affidavit, defendant stated that plaintiff had used threats to coerce the grandmother to give up the children. She further stated the children had lived with her before and since her divorce until the plaintiff took them.

Plaintiff testified that on June 17, 1981, three days prior to his taking the children, defendant and her husband went to Shreveport to visit him and his wife. The purpose of the visit was to solicit plaintiff’s help in finding employment near the Shreveport area so that it would be more convenient for plaintiff to visit the children. Plaintiff alleged that during this visit it was agreed that he would pick up the children from the maternal grandmother in Lubbock and keep them while defendant and her husband traveled.

Plaintiff’s version of his taking the children was different from defendant’s. He testified the grandmother was cordial and compliant, and he denied threatening her with a gun.

In its reasons for judgment, the trial court concluded that the children were improperly taken from Texas and that it was a “most inconvenient forum” for a hearing on the custody issue. The court awarded defendant expenses and attorney fees as provided for in the act.

Plaintiff contends there was no basis in law for awarding expenses and attorney fees because the trial court was divested of its jurisdiction over this issue once it dismissed his suit for a change of custody. He contends the trial court’s finding of an inappropriate forum without an evidentiary hearing, including its decision that it would be an unnecessary expense for both defendant and the grandmother to travel to Shreveport to testify at the hearing, prevented him from litigating this issue. He further contends the trial court erred in finding Shreveport a clearly inappropriate forum, and that he had wrongfully taken the children from Texas or had engaged in similar reprehensible conduct.

We find no merit in plaintiffs contention the trial court lost jurisdiction to award expenses and attorney fees after dismissing his suit for a change of custody. The award was made under express provisions of the Uniform Child Custody Jurisdiction Act and such right to expenses and attorney fees is not dependent upon the court having jurisdiction to grant or modify a custody award.

The trial judge granted the award for two reasons: (1) plaintiff having improperly taken the children from Texas, and (2) Caddo Parish being an inappropriate forum. We agree with the second reason and find that the relevant statute to be applied under these circumstances is La.R.S. 13:1706(G).

The statute allows a trial court to make a finding of inconvenient forum on its own motion. The statute also lists several factors to be considered in determining which state is a more appropriate forum, among them, the home state of the child, the state with which the child has a close connection, and the state where evidence of the child’s protection, training, and care is more readily available. We agree with the finding that the trial court was a clearly inappropriate forum. The record shows that the children lived in Texas virtually their entire lives and had been living in Lubbock since the 1979 custody award. Plaintiff’s petition for custody was filed only three days subsequent to his taking the children. Clearly, Caddo Parish was an inappropriate forum in which to litigate this child custody suit. Therefore, expenses and attorney fees were properly awarded under La.R.S. 13:1706(G).

For the reasons assigned, the judgment is affirmed. All costs are assessed to plaintiff.

      . La.R.S. 13:1707 Jurisdiction declined by reason of conduct
      A. If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
      B. Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.
      C.In appropriate cases a court dismissing a petition under this Section may charge the petitioner with necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses.

      . La.R.S. 13:1706(G)
      If it appears to the court that it is clearly an inappropriate forum it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this state, necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.


text:
    Billy Wayne AULTMAN, Plaintiff-Appellee, v. Dale RINICKER d/b/a Rinicker Flying Service, et al., Defendant-Appellant, Defendant-Appellee and Defendant-Third Party Defendant-Appellee.
    No. 14927.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.

      Rankin, Yeldell, Herring & Katz by Charles E. Herring, Jr., Bastrop, for defendant-appellant, Dale Rinicker d/b/a Rin-icker Flying Service.
    Glen W. Strong, Oak Grove, for plaintiff-appellee, Billy Wayne Aultman.
    Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley, Shreveport, for defendant-appellee, Lensing & Lensing, Inc.
    Davenport, Files & Kelly by William G. Kelly, Jr. and Mike C. Sanders, Monroe, for defendant-third party defendant-appellee, U. S. Fire Ins. Co.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Issues of mitigation of damages, cancellation of an insurance policy, and liability of an insurance agent are presented by this appeal by one of the two defendants cast in judgment for damages to plaintiff’s tomato crop resulting from an airplane crop-dusting operation. Finding that the issues were correctly resolved by the district court, we affirm the judgment.

Context Facts

Defendant William Wily Gilfoil contracted with defendant Dale Rinicker, d/b/a Rinicker Flying Service, to spray his cotton crop with a phenoxy chemical known as 2-4-D. When Rinicker performed the spraying operation on March 27, 1979, some of the chemical drifted onto the property of plaintiff, Billy Aultman, severely damaging 5,000 tomato plants which plaintiff had planted in two fields during the previous day or so and 7,000 plants which were in plaintiff’s hothouse preparatory to planting.

Conceding responsibility from the outset, defendants undertook to settle the claims of plaintiff and other farmers in the area who had suffered damage. The plants were inspected by Mike Kovacs, an employee of the Louisiana Department of Agriculture, who determined that about 10 percent of the 7,000 plants in the hothouse had been damaged but that they should be planted and that the 5,000 plants in the fields were a total loss and should be plowed up. Kovacs recommended replanting in the fields where the 5,000 plants were located but plaintiff did not believe 5,000 plants were available in the area. Defendant Gilfoil called nurseries in the area and arranged for the purchase of 5,000 plants of generally the same varieties and close in age and size to the plants which had been damaged. Defendants offered to settle plaintiff’s claim by furnishing him with 5,000 plants and paying the cost of the labor to replant. Plaintiff declined the offer, stating at the time that it was too late to plant and testifying later at the trial that it was also too wet. Defendants renewed their offer and as an alternative proposed to settle the claim by paying plaintiff $.50 each for the 5,000 damaged plants. Plaintiff also refused this offer. These negotiations took place in the next few days following the damage and, although there is some conflict in the evidence as to the exact date on which the offers were made and as to prevailing weather conditions, it appears that the new plants could have been furnished and the fields replanted within a week or 10 days after the damage occurred.

Plaintiff planted the 7,000 plants from his hothouse within a day or two after the damage occurred. The tomatoes produced from this planting were harvested and marketed, with the first tomatoes being sold about June 15. The fields which contained the 5,000 destroyed plants were not replanted. The plaintiff sold about 72 percent of his tomato crop from his home and about 28 percent at the market. It was established that timing is critical to marketing, with the price at the market being highest during the first two or three weeks of June and then declining substantially.

Proceedings in Trial Court

Plaintiff filed suit for damages against defendants Gilfoil and Rinicker. Rinicker filed a third party demand against United States Fire Insurance Company and Aviation Office of America alleging liability insurance coverage under a policy issued to him by that company. United States Fire denied coverage alleging that the policy had been canceled effective February 19, 1979. Defendant Rinicker also filed a third party demand against Lensing & Lensing, Inc., the insurance agency which had procured the insurance policy, alleging its negligence in failing to notify defendant of the cancellation of the policy and in failing to provide defendant with adequate coverage. Defendants Gilfoil and Rinicker also plead as an affirmative defense the plaintiff’s failure to mitigate his damages.

After trial the district court in written reasons for judgment held: (1) defendants Gilfoil and Rinicker were liable in solido for plaintiff’s damages which the trial court fixed at $819 for the partial damage to the 7,000 plants and $5,911.30 for the loss of the 5,000 plants or a total of $6,730.30; (2) the insurance policy was validly canceled prior to the occurrence of the loss pursuant to written notice properly mailed; and (3) there was no negligence on the part of the defendant insurance agency. From a judgment in favor of plaintiff against defendants Gilfoil and Rinicker and rejecting defendant Rinieker’s third party demands against the insurance company and the insurance agency, only Rinicker appealed. Neither the plaintiff nor the third party defendants appealed or answered the appeal.

Specifications of Error

On appeal defendant Rinicker makes the following specifications of error:

(1)the district court erred in failing to apply the doctrine of mitigation of damages to reduce or deny damages to plaintiff for the 5,000 tomato plants which were destroyed since plaintiff refused to replant after being advised to do so;
(2) the district court erred in holding that the insurance company gave valid written notice as required by LSA-R.S. 22:636 and in holding that the policy was validly canceled;
(3) the district court erred in holding that the insurance agency did not breach its fiduciary duty to the defendant by failing to advise him of the cancellation of the policy, by failing to notify the insurer of defendant’s correct address, and in failing to advise the insurer that defendant had not received the notice of cancellation.

Mitigation of Damages

Defendant Rinicker contends that plaintiff could have mitigated his loss and damages by accepting the offer of 5,000 plants and labor cost and by replanting the fields as advised by the Department of Agriculture specialist, and that plaintiff’s recovery should be denied or reduced. Defendant suggests that if any recovery is allowed it should be limited to the cost of replacing the 5,000 plants at $.15 per plant and the cost of labor to replant.

The measure of damages where a growing crop is destroyed through the tort of another person is the value of the crop at the time it is destroyed, the prospective or potential value of the crop being an element in the estimate of the value thereof and being the accepted method of measuring damages for a total destruction of a growing crop. Louisiana Farms Co. v. Yazoo & M.V.R. Co., 179 La. 539, 154 So. 445 (1934). Generally, the amount of damages which should be awarded for the loss of a growing crop is the average yield and market value of crops of the same kind, planted and cared for in the same manner and in the same area, less the cost of cultivating, harvesting, and marketing the crop. The market value of such a crop is the price which the crop would have brought in a matured state at a sale in that community. Bryant v. McCann, 297 So.2d 262 (La.App. 3d Cir. 1974).

The trial court’s award for destruction of the 5,000 plants growing in the fields was calculated in accordance with these rules and represented the profits lost by plaintiff as a result of the total destruction of this part of his tomato crop.

The doctrine of mitigation of damages applies in this state. Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So.2d 823 (1968). This doctrine imposes on the injured person a duty to exercise reasonable diligence and ordinary care in attempting to minimize his damages after the injury has been inflicted. The care and diligence required of him is the same as that which would be used by a man of ordinary prudence under like circumstances. He need not make extraordinary efforts or do what is unreasonable or impractical in his efforts to minimize the damages, but his efforts to minimize them must be reasonable and in accordance with the rules of common sense, good faith and fair dealing. Darnell v. Taylor, 236 So.2d 57 (La.App. 3d Cir. 1970), writ denied 256 La. 821, 239 So.2d 346 (1970). While an injured person must use reasonable diligence and ordinary care under the circumstances to minimize his damages, this principle will not be applied to restrict an injured person’s recovery when the injured person is required to make substantial expenditures of his own funds and to incur substantial risk in order to avoid the consequences of the tort. Unverzagt v. Young Builders, Inc., supra; Pelloquin v. Missouri Pacific Railroad Company, 216 So.2d 686 (La.App. 3d Cir. 1968).

According to these rules it is readily apparent that plaintiff, given the circumstances as they existed at the time of the loss, was not required to go through the substantial expense of purchasing new plants and replanting at a date later than his normal planting schedule, with the risk attendant to cultivating plants of unknown quality and the fluctuations in market prices due to a late harvest.

At first blush, however, it would appear that appellant’s argument has merit since defendants had offered to pay the cost of the new plants and the labor for replanting and, had plaintiff replanted, he probably could have made some profit from the new crop, thereby reducing the amount of his loss. On closer examination, it becomes apparent that appellant’s argument is without merit because his offer to furnish the plants and pay the cost of replanting was made as an offer in settlement of plaintiff’s claim and not in the context of mitigating damages. It does not appear that defendants agreed to compensate plaintiff for his loss, less what he made from the new crop. It does not appear that the offer was made in order to allow plaintiff to mitigate his damages, but rather was made in an effort to settle the claim in full.

Plaintiff was not required to accept defendants’ offer in full settlement of his claim. He was not required to plant a new crop, late insofar as the market was concerned, using plants of various varieties, ages, and maturities which had not been inspected. The replanted crop could not be expected to yield what the first crop, timely planted with plaintiff’s own cultivated plants, would yield. Plaintiff could not be expected to replant at his own cost and risk, nor could he be expected to bear the risk of a probable lesser profit by accepting defendants’ offer and replanting.

Plaintiff acted reasonably in rejecting defendants’ settlement offer under the circumstances as they existed at the time the offer was made. Accordingly, his recovery of the profits he lost by reason of the defendants’ tort should not be reduced.

Cancellation of Insurance Policy

In answer to defendant Rinicker’s third party demand the insurance company alleged that the liability insurance policy issued to defendant for the period of April 30, 1978 to April 30, 1979 was canceled effective February 19, 1979, prior to the occurrence of the loss, by the mailing to defendant of a notice of cancellation, all in accordance with the provisions of LSA-R.S. 22:636. The trial court held that the policy was validly canceled.

Defendant testified at trial that he never received the notice of cancellation. Defendant’s argument on appeal can be outlined as follows: (a) in order for a cancellation to be effective the provisions of LSA-R.S. 22:636 must be strictly complied with; (b) if the provisions of LSA-R.S. 22:636 are strictly complied with then a prima facie presumption of delivery of the notice of cancellation exists in favor of the insurer; (c) the presumption of delivery upon strict compliance with LSA-R.S. 22:636 is a re-buttable presumption and can be overcome by positive evidence of lack of delivery; (d) if the provisions of the statute are not strictly complied with then the notice is not effective and the burden of proof shifts to the insurer to prove actual receipt of written notice by the insured; (e) Lensing & Lensing, Inc. was the agent for the insurance company concerning the issuance of the policy and the later endorsement to the policy in question; (f) Lensing & Lensing, Inc., had knowledge of the correct address of defendant as early as June 5, 1978; (g) the knowledge of Lensing & Lensing, Inc. as to the correct address of defendant is imputed to the insurance company and is binding on the company; (h) the knowledge of Lensing & Lensing, Inc. that Rinicker was denying receipt of any notice of cancellation is imputed to the insurance company; (i) where the insurer has knowledge that the insured’s address has been changed from that given in the policy, notice of cancellation made to an address in the company’s records is ineffectual; and (j) the insurance company failed to prove delivery of the notice and defendant proved nondelivery.

In order to effect cancellation of an insurance policy under LSA-R.S. 22:636 written notice of cancellation must be actually delivered or mailed to the insured not less than five days prior to the effective date of cancellation. The term “mailed to the insured” connotes a completed process, that is, the transmission of the notice through the United States mail. Nondelivery renders the notice ineffectual. Broadway v. All-Star Insurance Corporation, 285 So.2d 536 (La.1973); Skipper v. Federal Insurance Company, 238 La. 779, 116 So.2d 520 (La.1959). The affidavit of the individual making or supervising the mailing of the notice of cancellation, directed to the addressee at his last address as known to the insurer or as shown by the insurer’s records, constitutes prima facie evidence of delivery of the notice of cancellation. Only a rebuttable presumption is established, not an absolute one, and the presumption can be rebutted by proof of nondelivery. Broadway v. All-Star Insurance Corporation, supra; Skipper v. Federal Insurance Company, supra; Guccia v. Allstate Insurance Company, 262 La. 545, 263 So.2d 884 (1972).

At the time of the issuance of the policy in April 1978 defendant’s correct mailing address was Route 2, Box 528, Lake Providence, Louisiana. This was the address written on the policy. In September 1978 the Post Office Department changed the number of defendant’s box on Route 2 from 528 to 550. During the policy period some correspondence was sent by the insurance agency to the defendant addressed to Box 550. The notice of cancellation from the insurance company was directed to the defendant at Route 2, Box 528. An affidavit of the insurance company’s employee establishes that the notice was mailed on February 5,1979. A copy of the notice was received by the insurance agency several days prior to the effective date of the cancellation, February 19, 1979, and prior to the occurrence of the loss.

Although defendant’s box number was changed by the post office for reasons of its own, defendant continued at all times to live at the same residence on Route 2. The person responsible for delivering defendant’s mail delivered all of his mail to his mailbox, regardless of the box number shown on any piece of mail. There was no Box 528 on the route.

About four days prior to the occurrence of the loss, Mark Haber of Lensing & Lensing, who handled defendant’s account, told defendant in a telephone conversation that the policy had been canceled. In the telephone conversation defendant told Haber he had not received notice of cancellation. Haber obtained a partial refund of the premium from the insurance company and either credited defendant’s account at the insurance agency or deposited the amount in defendant’s bank account.

The address to which the notice of cancellation was mailed was sufficiently certain and correct to comply with the statute and to establish a prima facie presumption of delivery and receipt of the notice. The burden was on the defendant to rebut the presumption by proof of nondelivery.

Defendant testified he never saw the notice of cancellation. His wife testified she did not remember receiving any mail from the insurance company prior to the occurrence of the loss. Her testimony also established a loose arrangement for handling incoming mail which was sometimes picked up by her at the box and sometimes by their teenage children. Her testimony also established that after the loss a letter from the insurance company addressed in the same manner was received.

While the written reasons for judgment of the trial court do not reflect a specific factual finding by that court that defendant failed to prove nondelivery of the notice, such a finding seems inherent in the court’s conclusion that “the evidence is abundantly clear that a valid cancellation was effected ... . ” Defendant’s evidence was insufficient to rebut the presumption of delivery. The decision by the trial court on this issue was not clearly wrong.

Liability of Insurance Agency

Defendant contends that the insurance agency was at fault in not providing the insurance company with his correct address and in not more clearly informing him in the telephone conversation that the entire policy had been canceled.

As noted above, the change in the box number of defendant’s address was insignificant and would not have affected delivery to the defendant in the normal course of the mail.

The insurance agency employee testified that he told defendant in the telephone conversation that he had received notice that the insurance policy was canceled. Defendant testified he thought the agent meant that only the “hull” insurance had been canceled and not the chemical liability endorsement. Defendant demonstrated no reasonable basis for his interpretation of the agent’s statement. Defendant did not establish any failure on the part of the insurance agency to perform its duties to him and the trial court correctly found there is no liability on the part of the insurance agency.

Decree

For the reasons assigned, the judgment of the district court is affirmed at defendant-appellant’s costs.

Affirmed.

      . LSA-R.S. 22:636:
      “A. Cancellation by the insurer of any policy which by its terms is cancellable at the option of the insurer, or of any binder based on such policy, may be effected as to any interest only upon compliance with either or both of the following:
      “(1) Written notice of such cancellation must be actually delivered or mailed to the insured or to his representative in charge of the subject of the insurance not less than five days prior to the effective date of the cancellation.
      “(2) Like notice must also be so delivered or mailed to each mortgagee, pledgee, or other known person shown by the policy to have an interest in any loss which may occur thereunder.
      “B. The mailing of any such notice shall be effected by depositing it in a sealed envelope, directed to the addressee at his last address as known to the insurer or as shown by the insurer’s records, with proper prepaid postage affixed, in a letter depository of the United States Post Office. The insurer shall retain in its records any such item so mailed, together with its envelope, which was returned by the Post Office upon failure to find, or deliver the mailing to the addressee.
      “C. The affidavit of the individual making or supervising such a mailing, shall constitute prima facie evidence of such facts of the mailing as are therein affirmed.
      “D. The portion of any premium paid to the insurer on account of the policy, unearned because of the cancellation and in amount as computed on the pro rata basis, must be actually paid to the insured or other person entitled thereto as shown by the policy or by any endorsement thereon, or be mailed to the insured or such person as soon as practicable following such cancellation. Any such payment may be made by cash, or by check, bank draft, or money order....”


author: GUIDRY, Judge.

text:
    Lorris Ann ARDOIN, Plaintiff-Appellee, v. Kennith Rayburn DUPREE, Defendant-Appellant.
    No. 82-223.
    Court of Appeal of Louisiana, Third Circuit.
    June 24, 1982.
    Nathan A. Cormie, Lake Charles, for plaintiff-appellee.
    Norman L. Williams, Lake Charles, for defendant-appellant.
    Before GUIDRY, FORET and STOKER, JJ.
   GUIDRY, Judge.

Reference is made to the judgment of this court dated February 24, 1982, rendered in proceeding number 82-67, wherein we dismissed defendant-appellant’s appeal from a judgment of the trial court rendered in the captioned matter on August 13, 1981, as untimely. 410 So.2d 1297.

Subsequent to the rendition of our aforesaid judgment, and specifically on March 24, 1982, the district court, presumably on its own motion, granted the parties a new trial from its previous judgment dated August 13, 1981. The new trial was held instanter, the parties simply offering in evidence all testimony taken in connection with the previous hearing in August, 1981, and on that day, the trial court judgment as follows:

“All right, and the court’s judgment will be the same as was rendered in the previous proceedings, formal decree to that effect to (sic) signed upon presentation.”

On March 29, 1982, the district judge read and signed a formal judgment identical in substance with that previously rendered on August 13, 1981. On April 14,1982 the trial court, on motion of defendant-appellant, signed an order of devolutive appeal made returnable to our court on May 1,1982. We dismiss defendant-appellant’s appeal ex pro-prio motu.

The proceedings conducted in the trial court in March of 1982 were totally without authority and obviously conducted in an attempt to avoid the effect of our previous judgment which dismissed defendant-appellant’s appeal from the August, 1981 judgment as untimely. A trial court may grant a new trial on its own motion within the delay provided by LSA-C.C.P. Article 1974 but cannot do so later. Langston v. Willis, 177 So.2d 620 (La.App. 4th Cir. 1965) and cases therein cited. The trial court’s order in March, 1982 granting a new trial and its subsequent judgment rendered and signed on March 29, 1982 are absolutely null and void. We strongly disapprove of these further proceedings which, as aforestated, were obviously conducted so as to afford the defendant-appellant the opportunity to untimely appeal from the judgment of August 13,1981 in derogation of our judgment rendered in proceeding number 82-67. The actions of the trial court and the attorneys involved have caused a wasteful expenditure of judicial time and efficiency.

APPEAL DISMISSED.


text:
    Lee R. HUBBARD v. Anna Marie WILLIAMS.
    No. 53379.
    Supreme Court of Mississippi.
    March 24, 1982.
    Rehearing Denied July 28, 1982.
    Sekul, Hornsby, Wallace & Teel, Tom Wright Teel, Biloxi, for appellant.
    Donald F. Rose, Gulfport, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   AFFIRMED.


author: WALKER, Justice,

text:
    Arthur Lee GENTRY v. STATE of Mississippi.
    No. 53112.
    Supreme Court of Mississippi.
    May 26, 1982.
    Rehearing Denied July 28, 1982.
    Chatwin M. Jackson, Jr., Kosciusko, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.

      Before WALKER, BOWLING and HAWKINS, JJ.
   WALKER, Justice,

for the court:

This is an appeal from the Circuit Court of Montgomery County, Mississippi, wherein the jury convicted appellant, Arthur Lee Gentry, for the capital murder of Jerry Grice and sentenced him to a term of life in the custody of the Mississippi Department of Corrections.

I.

Appellant first assigns as error his arraignment during vacation over his objection. He contends his conviction and sentence should be set aside so that he might be properly arraigned during a court term and retried.

Assuming, arguendo, arraignment was improperly held during vacation, the appellant has not demonstrated wherein he was prejudiced in any manner by being arraigned in vacation on a day designated by the court for arraignments and motions.

II.

Appellant next contends the trial court erred in refusing to grant his motion for a change of venue.

The appellant’s motion was not supported by affidavits of two or more credible persons as required by Mississippi Code Annotated section 99-15-35 (1972). We have held this requirement is essential to the validity of the motion. Wilson v. State, 234 So.2d 303 (Miss.1970); Thompson v. State, 231 Miss. 624, 97 So.2d 227 (1957); Purvis v. State, 71 Miss. 706, 14 So. 268 (1893). An affidavit was filed by appellant’s attorney to the effect that he was unable, after diligent search and inquiry, to locate two reliable citizens of the county who would be willing to sign an affidavit that, in their opinion, the appellant could not receive a fair trial due to excessive and improper publicity in the press, on the radio and word of mouth and gossip. The attorney further alleged:

That it is my opinion, based on my thirty-two years of active practice of law, both as a defense attorney and as a former District Attorney for the district which includes Montgomery, the reluctance of citizens to sign such an affidavit is due variously to fear of reprisal, both personal and economic, and their pre-judgment of the guilt of the defendant and therefore not wishing to take any action which causes others to believe that they sympathize with the plight of the defendant. That normally such affidavits can be obtained from family members or friends of the defendant, but as pointed out, this defendant has no family and no friends anywhere in this county or state.

The trial court held a hearing on appellant’s motion on October 16, 1980. It was established there was only one newspaper account of the murder in Montgomery County and the case mentioned on radio station WONA only six times at or about the time the crime was committed. WONA also reported the finding of the preliminary hearing and recently a brief mention that the case would be coming to trial. From the time of the first newscast until the case was called to trial, approximately eight months elapsed.

At the hearing the State called numerous witnesses including:

(1) Billy Costilow, Sheriff of Montgomery County
(2) Percy L. Parker, Member of the Board of Supervisors of Montgomery County
(3) Guy Lee Campbell, Retired factory worker
(4) James Card, Employee of International Paper Company
(5) George English, Employee of Whites Auto Store (Serviceman for appliances).
(6) Robert Berry, Jr., Employed by the Administrative Assistant for the Central Mississippi Planning and Development Foundation.
(7) Edward A. Woods, Manager for Mississippi Power & Light Company in Winona
(8) Maxie Ellis, A Deputy State Fire Marshall
(9) Roger Mason, President of Montgomery County Bank
(10) Ned Blaylock, Justice Court Judge of District Two in Montgomery County
(11) Terry Thomas, A conservation officer with the Department of Wildlife of the Game and Fish Commission
(12) Peggy Hathcock, owner of beauty salon in Winona
(13) Daniel Fielder, Chief of Police for City of Winona
(14) John Bassinger, An assistant inspector with the Mississippi Highway Patrol
(15) Sam Pitner, Editor and publisher of The Conservative in Carroll County, Editor and publisher of the Winona Times in Montgomery County

All of the above testified they knew of no prejudgment of the case or prejudice against appellant in the public mind and in their judgment the appellant could obtain an unbiased and fair trial in Montgomery County. Furthermore, several attorneys called by the appellant and his alleged accomplice testified that although they could not represent the appellant for various reasons, when asked, stated, in their opinion, he could receive a fair and impartial trial in Montgomery County.

We have carefully considered the record and are of the opinion the trial judge did not abuse his discretion in denying appellant’s motion for a change of venue.

III.

Appellant’s final proposition is that the trial court erred in admitting into evidence his alleged confession.

The appellant was indicted for capital murder on a charge of having committed the crime of murder while engaged in an a.rmed robbery. He objected to the introduction of his confession on several grounds but urges only the following one on appeal:

[Tjhat the State has wholly and totally failed to produce a scintilla of evidence of any robbery or attempted robbery a liundi the confession offered. Expressed another way, the corpus delecti [sic] of the crime of robbery is not supported by a scintilla of proof a liundi the confession and a confession can’t be received into evidence unless the State has proved a prima facie case of robbery prior to the offering of a confession; . . .

There is no question that the corpus delicti as to murder was fully established. See Jackson v. State, 337 So.2d 1242 (Miss.1976). However, the appellant argues the State could not introduce his confession until also proving the corpus delicti of robbery.

This assignment is wholly without merit as the proposition is controlled by Rhone v. State, 254 So.2d 750 (Miss.1970). The fact that Rhone was decided under our felony murder statute, Mississippi Code Annotated section 97-3-19 (1972), which was subsequently amended as our present capital murder statute and under which appellant was tried, does not change the rule announced in Rhone. In Rhone, we held:

The material part of the evidence upon which appellant was convicted was his confession. The appellant urges that the trial court was in error in admitting this confession for several reasons. It is first contended that the confession should not have been admitted into evidence because the state had not sufficiently established the corpus delicti before the confession was admitted into evidence. The basis for this contention is that the appellant was indicted for murder while engaged in the commission of armed robbery and that there was no independent proof of the commission of armed robbery by the defendant. We find no merit in this contention. The reason for the rule requiring evidence independent of the confession is to avoid convicting a person solely out of his own mouth of a crime that was never committed or was committed by someone else. It is well established in this state that the corpus delicti in a homicide case is made up of two fundamental facts, the first being the death of the deceased and the second the fact of the existence of a criminal agency as to the cause of death. Elliott v. State, 183 So.2d 805 (Miss.1966). Thus, in a prosecu-ton [sic] for premeditated murder the state is not required to prove independently those mental elements if the defendant had made a confession that admitted them. It follows that independent proof of the felony in a felony-murder prosecution is not necessary if the proof of the felony can be gathered from the confession. In this case the state satisfied the burden upon it by proving the death and that it resulted from a criminal agency. Appellant confessed that he killed the deceased while committing armed robbery. Jones v. State, [253 Ind. 235] 252 N.E.2d 572 (1969); State v. Johnson, 31 N.J. 489, 158 A.2d 11 (1960). (254 So.2d at 753).

The corpus delicti with respect to the murder was sufficiently proved and this is admitted by the appellant. Therefore, under Rhone the robbery could then be proved entirely from the confession to make out a case of capital murder.

Finding no reversible error, the conviction and sentence of appellant are affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

      . The Winona Times, a weekly publication.


author:
WALKER, Presiding Justice,
      DAN M. LEE, Justice,

text:
    Mary George Peterson RIVES v. Don Shurden RIVES, Deceased, First United Bank of Meridian, Ms., Administrator.
    No. 53256.
    Supreme Court of Mississippi.
    June 30, 1982.
    As Modified on Denial of Rehearing July 28, 1982.
    Dan M. Lee, J., dissented and filed opinion in which Hawkins, J., joined.

      Deramus, Lewis & Tucker, Frank Dera-mus, Louisville, W. 0. Dillard, Jackson, for appellant.
    Keyes, Moss & Piazza, Ben J. Piazza, Jackson, Kenneth Bridges, Louisville, for appellee.
    Before WALKER, P. J., and BROOM and HAWKINS, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Chancery Court of Winston County wherein a divorce was granted to Don Shurden Rives from the appellant, Mary George Peterson Rives.

Mary George Peterson Rives had first filed her bill of complaint for divorce against Don Shurden Rives. Don Shurden Rives answered together with a cross-bill charging Mary George Peterson Rives with habitual cruel and inhuman treatment.

When trial was begun, the appellant, Mary George Peterson Rives, moved to amend her bill of complaint for divorce and in lieu thereof made her bill of complaint one for separate maintenance.

The appellee, Don Shurden Rives, opposed the motion. The court ruled:

We have the Motion of the Complainant to drop her prayer for a divorce and in lieu thereof to seek separate support and maintenance. This is opposed by the Defendant and Cross-Complainant. Cross-Complainant contends that he is entitled to a divorce himself. The Court is certainly of the opinion that if Mrs. Rives does not want a divorce, the Court would not be in a position to force her to seek a divorce. If she has grounds that would support separate maintenance, I think she is entitled to that. Since she is in effect seeking lesser relief on the same pleadings, I see no reason to deny the Motion. Therefore, the Court will permit the amendment of the Bill of Complaint so that Mrs. Rives will not be entitled to a divorce. She will only be entitled to separate support and maintenance. If Mr. Rives establishes that he is entitled to a divorce, then he might be granted a divorce himself.

During the course of the trial the parties stipulated as follows:

At this time both parties move in view of the evidence to stipulate that the Complainant does in fact have grounds for separate maintenance and support and would like to confine the issue toward the amount relative thereto and to our Cross Bill.

In accepting the stipulation, the court made it clear that it was being accepted subject to the court making a determination of the amount of separate maintenance and support, if it should award any, the rights of visitation and the rights of the appellee, Don Shurden Rives, with reference to his cross-bill for divorce.

After hearing much conflicting testimony and observing the demeanor of the witnesses, weighing their testimony, the court filed a lengthy and comprehensive written opinion in which it made the specific finding:

The Court further concludes that the continuation of the marriage will simply further damage both parties as well as the children. Though the Court finds both parties to be guilty of cruelty and both parties at fault, the Court concludes that considering all the actions of the Cross Defendant [Mrs. Rives] and the effects that these have had on him, [Mr. Rives] that the Cross Complainant is entitled to a divorce on the grounds of habitual cruel and inhuman treatment. Having determined that the husband should be awarded a divorce, the Court must now address the issue of child custody. There is no controversy over this issue in that the husband admits that the wife is a proper parent and the custody of the children should be awarded to her.

The court awarded the two automobiles, a 1980 Cadillac and a 1978 Lincoln Continental to the wife for her and the children’s use, and required the husband to provide tags and insurance on these automobiles. The court also ordered that Mr. Rives provide a reasonable supply of gasoline for the use of the children, if they asked him for it. The wife was awarded the use of the house and all of its contents provided she reestablished it as her permanent place of residence within ninety days. Mrs. Rives was awarded the sum of $750.00 per month alimony, plus $250.00 per month per child (a total of $750.00 per month for the children). The court further awarded additional sums required to provide college educations for the children. Additionally, Mr. Rives was required to pay all reasonable and necessary medical expenses for the three minor children.

Mr. Rives was awarded the income from the farm but was required to satisfy the obligations to the Federal Land Bank and Small Business Administration for the notes secured by the farm from this income.

The court further ordered that Mr. Rives pay the complainant the sum of $2,500.00 to cover legal expenses incurred.

The decree awarding Mr. Rives a divorce was entered on February 5, 1981. An appeal was immediately taken to this Court. Thereafter on September 6,1981, the appel-lee, Don Shurden rives, died. The executor named in the last will of Mr. Rives resigned as executor, and the Chancery Court of Winston County by order dated October 16, 1981, named the First United Bank of Meridian, Mississippi, Administrator De Bonis Non Cum Testamento Annexo of the Estate of Don Shurden Rives, deceased.

Thereafter, upon proper motion made, this appeal was revived in the name of First United Bank of Meridian, Mississippi, administrator d.b.n.c.t.a.

ON MOTION, AS AMENDED, TO WITHDRAW APPELLEE’S BRIEF

On March 25, 1982, the administrator moved for leave to withdraw the brief of appellee and other papers filed in this cause by the appellee. In support of the motion, the administrator alleged that he had been advised and was of the opinion that his fiduciary duty as administrator required the withdrawal of the brief of appellee and other papers in order to best serve the interest of the estate of Don Shurden Rives, deceased, and the beneficiaries of the estate. Attached to said motion was an order of the Chancery Court of Winston County dated March 18, 1982, in which the court found that there appeared to be a substantial monetary savings to the estate by the estate’s withdrawal from the appeal of the divorce case between the decedent, Don Shurden Rives, and Mary George Peterson Rives; and, the court further found that the heirs, Mary Donna Rives, Gennifer George Rives, and Don Shurden Rives, Jr., would receive approximately $11,991.00 more per individual if the divorce was overturned. However, the court specifically found that Don Shurden Rives’ will clearly showed that he intended that the divorce appeal be carried out by his estate.

The court was of the opinion that it would not be in the best interest of the estate to resist the divorce appeal and authorized the bank administrator to withdraw the appellee’s brief and to allow the divorce to be reversed.

The appellant, Mary George Peterson Rives, had no objection to the motion or order.

The question presented is whether the monetary interest of the estate overrides the express will of the deceased that his executor (administrator d.b.n.c.t.a) pursue the appeal on his behalf.

We are of the opinion that the executor is bound by the wishes of the deceased, as found by the chancellor in his order, that the divorce appeal be pursued. In our opinion, the administrator would be derelict in his duty to willfully fail to carry out the express wishes of the deceased and substitute his own judgment therefor.

Therefore, the motion to withdraw appel-lee’s brief is overruled.

THE APPEAL ON THE MERITS

The appellant, Mary George Peterson Rives, first assigns as error that the court erred in overruling her motion for a continuance.

We find no merit in this assignment of error. The appellant has not demonstrated in what way, if any, she was harmed or prejudiced by the court’s refusal to grant a continuance. Moreover, a chancellor has broad discretion relative to the matter of continuances and will not be reversed unless there is shown a manifest abuse of discretion. We find none here.

The appellant next contends that the court erred in dismissing the bill of complaint for separate support and maintenance after it was stipulated that the complainant had grounds for the same.

In support of this proposition, the appellant argues that both parties cannot be guilty and innocent of habitual cruel and inhuman treatment at the same time. The complainant was asking for separate support and maintenance on the grounds of habitual cruel and inhuman treatment, and Mr. Rives was asking for a divorce on the grounds of habitual cruel and inhuman treatment. It is Mrs. Rives’ position that when the defendant voluntarily stipulated that she had grounds for separate support and maintenance, that if both parties cannot be guilty and innocent of habitual cruel and inhuman treatment, then the court was manifestly wrong in granting the divorce to the appellee.

As authority, the appellant cites Hinton v. Hinton, 254 Miss. 50, 179 So.2d 846 (1965) where it is said:

We are of the opinion that this Court should not affirm a decree granting a divorce to both parties on the ground that both are guilty of habitual cruel and inhuman treatment. In order for habitual cruel and inhuman treatment to warrant a divorce, it must be the proximate cause of the separation. Bunkley and Morse’s Amis, Divorce and Separation in Mississippi § 3.14(17), page 131 (1957). The two parties cannot be both guilty and innocent of habitual cruel and inhuman treatment. The divorce laws of this State do not provide that the habitual cruel and inhuman treatment of both parties can be concurring proximate causes of the separation, entitling both to a divorce. The decree in this case is self-contradictory, and should be reversed. (179 So.2d at 848).

However, that opinion observed, “We have carefully studied the testimony and conclude that the chancellor could have resolved this question in favor of either party, or he could have denied both a divorce.” (Id. at 847-48).

Since the divorce laws of this State do not provide that habitual cruel and inhuman treatment of both parties can be concurring proximate causes of the separation entitling both to a divorce, the Court, in Hinton, supra, was of the opinion that the decree was self-contradictory and should be reversed. However, the cause was remanded to the chancellor for an appropriate decree on the record made in the former trial, together with any other evidence the chancellor might have desired to hear and consider.

The Court in Hinton made it clear that where both parties are guilty of habitual cruel and inhuman treatment, it is en-cumbent upon the chancellor, if a divorce is to be awarded, to determine which party’s cruel and inhuman treatment is the proximate cause of the divorce.

In the case sub judice, the chancellor specifically found that the actions of the husband did not cause the wife to separate. The court further found that the acts of the appellant, Mrs. Rives, “did stimulate” the physical violence toward her by Mr. Rives. The court further concluded “that the continuation of the marriage will simply further damage the parties as well as the children.”

Considering the conflicting evidence before him, we cannot say that the chancellor was manifestly wrong in dismissing Mrs. Rives’ cross-bill for separate maintenance and support and granting a divorce to Mr. Rives.

The appellant next contends that if the court was not in error in granting the divorce, the court was in error for not determining the property rights of the parties.

There is no merit to this contention because the record reveals of the 459 acres of land owned by Mr. and Mrs. Rives, Mrs. Rives, the appellant, owned all but 80 acres of the property as a joint tenant with right of survivorship. The chancellor awarded her full and complete use of the home, all the furnishings, together with two cars and alimony. It is true that Mr. Rives also owned a sawmill operation which was in his name and which the court made no mention of in its decree. However, this is not a community property state and the chancellor was under no obligation to divide the property equally. Cox v. Cox, 183 So.2d 921 (Miss.1966); Pierce v. Pierce, 267 So.2d 300 (Miss.1972).

This case is readily distinguishable from Jenkins v. Jenkins, 278 So.2d 446 (Miss.1973); Clark v. Clark, 293 So.2d 447 (Miss.1974); and recently in Reeves v. Reeves, 410 So.2d 1200 (1982).

In view of the fact that Mrs. Rives was awarded the full and complete use of the family residence together with all of the furnishings, provided that she reestablish it as a place of residence within ninety days, and the fact that she owned approximately 379 acres of land as joint tenant with Mr. Rives and that Mr. Rives was ordered to pay all of the outstanding indebtedness that was due and owing, we are unable to say that the chancellor erred in his award.

Finding no error, we are of the opinion that the decree of the chancellor should be and is hereby affirmed.

AFFIRMED.

PATTERSON, C. J., SUGG and SMITH, P. JJ., and BROOM, ROY NOBLE LEE and BOWLING, JJ., concur.

DAN M. LEE and HAWKINS, JJ., dissent.

DAN M. LEE, Justice,

dissenting:

I most respectfully dissent. The majority opinion being handed down proceeds to rule as a matter of law that the terms of the will expressly directed that the divorce appeal be carried-out by First United Bank of Meridian, administrator of the estate of Don Shurden Rives, when, as a matter of fact, this Court does not have before it the will of Don Shurden Rives to determine whether such will did expressly so provide. All this Court has is an order dated March 18, 1982, which provides:

This Court this date heard the Ex Parte Petition of the Administrator for Directions and Authority to Carry said Directions Out and the Court does find and rule as follows, to-wit:
1. The Court finds that it has jurisdiction of the matters pled in the Petition.
2. The Court finds that there appears to be a substantial monetary savings to the Estate by the Estate’s withdrawal from the appeal of the Divorce Case between the Decedent and Mary P. Rives. The Court further finds that the heirs Mary Dona Rives, Gennifer George Rives and Don Shurden Rives, Jr. would receive approximately $11,991.00 more per individual if the divorce is overturned. That each heir would receive more in the event that the separate action for Partition and Marshalling of Assets filed by Mary P. Rives is not victorious.
3. The Court further finds that Don Shurden Rives’ will clearly showed that he intended that the divorce appeal be carried out by his estate. But the Court does not believe that it is in the best interests of the estate to resist the divorce appeal.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED by this Court as follows, to-wit:
The administrator is hereby authorized to withdraw the Appellee’s brief in the divorce appeal and to allow the divorce to be reversed, (emphasis added)
ORDERED, ADJUDGED AND DECREED, this the 18th day of March, 1982.
/s/ John C. Love. Jr.
CHANCELLOR

There is ample authority to the effect that if there is doubt as to the propriety of bringing, prosecuting or defending any suit, such party should submit the matter to the chancellor. In Morse, Wills and Administration in Mississippi, section 20:18, page 355, (1968) it is stated in part:

In case of doubt as to propriety of bringing, prosecuting or defending any suit, or the employment of attorneys for such purpose, he should submit the matter to the Chancellor.

In 33 C.J.S. Executors and Administration, section 147, page 1110, (1942), it is stated in part:

Sometimes it is the duty of the representative to seek direction and guidance from the court, and he should apply if he is in doubt as to his duties or the policy to follow, particularly if the security of the Estate is affected thereby. . . .

The rule of this Court is that the chancellor must be found manifestly wrong in making the finding and entering the order, supra. I cannot say that the chancellor was manifestly wrong, particularly in view of the fact that the Court did not have a copy of the will included in the appeal in this case in order that the Court could determine what the express wishes of the deceased were. The majority opinion states: However, we are of the opinion that the executor is bound by the express wishes of the deceased, as found by the chancellor in his order, that the divorce appeal be pursued. In our opinion, the administrator would be derelict in his duty to willfully fail to carry out the express wishes of the deceased and substitute his own judgment therefor.” (emphasis added.)

I do not think that this Court should accept that part of the judge’s order which states, “The Court further finds that Don Shurden Rives’ will clearly showed that he intended that the divorce appeal be carried out by his estate”, and then reject the following sentence of the learned chancellor which says, “But the Court does not believe that it is in the best interests of the estate to resist the divorce appeal.”

The majority opinion further provides, without citing any authority therefor, the following: “No briefs or any authority whatsoever have been furnished in support of the motion to withdraw appellee’s brief on the grounds above alleged. The Court has no obligation to consider motions and petitions not supported by briefs and the motion could be overruled for that reason alone.”

The case of Dozier v. State, 247 Miss. 850, 157 So.2d 798 (1963), and its progeny advance this proposition. I do not think that it should be applied in this case because it is obvious that the motion and the amended motion to withdraw appellee’s briefs are joined in by both the appellant and the appellee, which was fortified by a decree of the chancery court, who were no doubt operating under the theory that if the appellant and the appellee agreed, and the chancellor authorized it, then this Court would follow the wishes of the opposing parties. This would particularly be true when the chancellor enters his order finding that it would be in the best interests of the appellant and appellee that the appellee be allowed to withdraw its briefs.

It should not be the purpose of any court, particularly an appellate court, to make a finding of what the express wishes of a testator are in a will that the court has never seen. It is folly to do a vain and foolish thing to the detriment of the appellant and the appellee, joined in by the chancellor, for the purpose of setting legal precedent. This Court would do well to follow the admonition of Judge Griffith in his monumental work on Mississippi Chancery Practice, section 564, page 586 (2d Ed. 1950), where he stated in part:

Courts do not instigate or initiate civil litigation. They act only when called on for aid, and only in respect to that which is within the call.... (emphasis added.)

It therefore follows that I would sustain the motion of the appellee, joined in by the appellant and the lower court, and allow the appellee to withdraw its briefs.

HAWKINS, J., joins this dissent.

APPENDIX

The Dozier Court raised Rule 7, section 2, did not dismiss the appeal, but said:

Bridges v. State, supra [154 Miss. 489, 122 So. 533], states that an assignment of error not argued is waived. However, the Court is not dismissing this appeal because of the brief filed. We have gone into the testimony in the case, and after a thorough examination of the evidence we are of the opinion that the case was a question for the jury, that the state made out a case of manslaughter against the defendant, and that the jury was warranted in bringing in a verdict against the defendant. The case is therefore, oh the facts, affirmed. (247 Miss, at 853, 157 So.2d at 799-800)

      . See Appendix.