author: SUGG, Justice,

text:
    J. C. KELLY v. MISSISSIPPI VALLEY GAS COMPANY, a Mississippi Corporation.
    No. 52337.
    Supreme Court of Mississippi.
    Feb. 4, 1981.
    John C. Sullivan, Jr., John M. Mooney, Jr., Sullivan, Sullivan & Blount, Jackson, for appellant.
    Carson M. Hughes, John M. Kuykendall, Jr., Overstreet, Kuykendall, Sumners & Hughes, Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

Plaintiff urges this Court to adopt a public policy exception to the common law rule that an employment contract at will may be terminated by either party with or without cause or justification, and hold an employer liable to an employee in a common law tort action when an employer has discharged an employee for filing a workmen’s compensation claim.

J. C. Kelly, plaintiff, an employee of the defendant, Mississippi Valley Gas Company, alleged in his declaration: (1) he suffered a work related injury while in the employ of defendant, (2) he filed a claim with the Mississippi Workmen’s Compensation Commission based upon the injury, (3) after he filed his claim, the defendant threatened to fire him if he did not dismiss his claim, (4) upon his failure to dismiss his claim, he was fired, and (5) his retaliatory discharge made defendant liable to him for actual and punitive damages.

Mississippi follows the common law rule that a contract of employment for an indefinite term may be terminated at the will of either party. The employee can quit at will; the employer can terminate at will. This means either the employer or the employee may have a good reason, a wrong reason, or no reason for terminating the employment contract. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So.2d 572 (1946); Rape v. Mobile and O. R. R. Co., 136 Miss. 38, 100 So. 585 (1924); Butler v. Smith and Tharpe, 35 Miss. 457 (1858). The reason for the rule was stated in Rape as follows:

An agreement to furnish a support or service, or a particular commodity, at a specified price, or to do a certain thing without specification as to time, will be construed either as terminable at pleasure, or as implying that the thing to be done shall be performed within a reasonable time, and the obligation will cease within the same limitation. Any other theory than this would subject incautious persons — a class, it may be remarked, which includes a majority of mankind— into lifelong servitudes, and greatly fetter and embarrass the commerce of the world. Indeed, it may be said that any other theory is a moral and practical impossibility, and, if indulged in by the courts, could not be enforced in the ordinary concerns of life.... (136 Miss. at 50, 51; 100 So. at 587)

The Fifth Circuit Court of Appeals considered the question before us in Green v. Amerada-Hess Corp., 612 F.2d 212 (5th Cir. 1980). Green filed suit against Amerada-Hess claiming he was wrongfully discharged for pursuing his rights under the Mississippi Workmen’s Compensation Law. The trial court granted Amerada-Hess’ motion for summary judgment on the ground that Green’s claim did not state a valid cause of action under Mississippi Law. The appellate court affirmed and stated:

It is clear that the terminable at will rule which Mississippi follows is directly relevant to the resolution of the issue on appeal. Loucks, supra [7 Cir.], 551 F.2d [745] at 747. While the harshness of the terminable at will rule is subject to exception in light of express legislative action, the absence of explicit statutory provision of a civil remedy in the Mississippi workmen’s compensation statute argues against recognizing a cause of action for retaliatory discharge. Loucks, supra, 551 F.2d at 747-49).
Appellant argues that even though Mississippi courts have not yet recognized a cause of action for retaliatory discharge, it is likely that they will do so when faced with an appropriate case in light of recent precedents from other jurisdictions finding such a cause of action. We decline this invitation to create law for Mississippi given the conflicting nature of existing precedents. (612 F.2d at 214)

Some states have adopted a public policy exception to an employer’s right to discharge an employee at will when the right is exercised in retaliation for the employee asserting his rights under a workmen’s compensation act. Brown v. Trancon Lines, 284 Or. 597, 588 P.2d 1087 (1978); Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978); Leach v. Lauhoff Grain Co., 51 Ill.App.3d 1022, 9 Ill.Dec. 634, 366 N.E.2d 1145 (1977); Sventko v. The Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (1976); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973). However, the statutes in each of the above states contain sanctions against discharging employees for filing claims for workmen’s compensation benefits.

The rationale of these cases is expressed by the Illinois Supreme Court in Kelsay as follows:

We are not convinced that an employer’s otherwise absolute power to terminate an employee at will should prevail when that power is exercised to prevent the employee from asserting his statutory rights under the Workmen’s Compensation Act. As we have noted, the legislature enacted the workmen’s compensation law as a comprehensive scheme to provide for efficient and expeditious remedies for injured employees. This scheme would be seriously undermined if employers were permitted to abuse their power to terminate by threatening to discharge employees for seeking compensation under the Act. We cannot ignore the fact that when faced with such a dilemma many employees, whose common law rights have been supplanted by the Act, would choose to retain their jobs, and thus, in effect, would be left without a remedy either common law or statutory. This result, which effectively relieves the employer of the responsibility expressly placed upon him by the legislature, is untenable and is contrary to the public policy as expressed in the Workmen’s Compensation Act. We cannot believe that the legislature, even in the absence of an explicit proscription against retaliatory discharge, intended such a result. (23 Ill.Dec. at 563, 384 N.E.2d at 357)

Other states have declined to adopt a public policy exception to the at will doctrine when an employee is fired for asserting his rights under a workmen’s compensation act. Dockery v. Lampart Table Co., 36 N.C.App. 293, 244 S.E.2d 272 (1978); cert. denied 295 N.C. 465, 246 S.E.2d 215 (1978); Martin v. Tapley, 360 So.2d 708 (Ala.1978); Segal v. Arrow Industries Corp., 364 So.2d 89 (Fla.Dist.Ct.App.1978); Stephens v. Justiss-Mears Oil Co., 300 So.2d 510 (La.App.1974); Narens v. Campbell Sixty-Six Express, Inc., 347 S.W.2d 204 (Mo.1961); Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122 (1956); Raley v. Darling Shop of Greenville, Inc., 216 S.C. 536, 59 S.E.2d 148 (1950).

These states refuse to allow recovery in tort upon a theory of retaliatory discharge for several reasons as expressed in the opinions. The reasons are: (1) It would do injury to the well established common law rule of contract allowing employers and employees to terminate their relationship at the will of either party when the employment is for an indefinite duration. (2) If one does an act which is legal in itself and violates no right of another, the fact that the rightful act is done with bad intent toward the other person does not give the latter a right of action against the former. (3) Remedies for claims resulting from alleged violations of the spirit of a workmen’s compensation act are best left to the legislature.

Plaintiff’s arguments in favor of a cause of action for retaliatory discharge under the facts alleged in his bill have considerable appeal. However, the merits of his arguments are clearly for the Legislature to assess, not the judiciary. Our Workmen’s Compensation Law does not contain a provision for retaliatory discharges, nor does it contain a provision making it a crime for an employer to discharge an employee for filing a claim. If we create the remedy sought by plaintiff in this case, we would thereby engraft on the law an exception different from that expressed by the Legislature. This is not the function of the judicial department as stated in Hamner v. Lumber Co., 100 Miss. 349, 56 So. 466 (1911) in the following language:

The courts have no right to add anything to or take anything from a statute, where the language is plain and unambiguous. To do so would be intrenching upon the power of the legislature. Neither have the courts authority to write into the statute something which the legislature did not itself write therein, nor can they ingraft upon it any exception not done by the lawmaking department of the government. Whenever the judiciary shall undertake to violate these rules — indeed, we may say maxims — then it is guilty of usurpation in its most obnoxious form; and the courts dare not do this lest they destroy their own usefulness and power. (100 Miss. at 417, 56 So. at 490)

The principle of the constitutional limitation on the power of the judicial department was succinctly stated in State v. Traylor, 100 Miss. 544, 56 So. 521 (1911) as follows:

The court cannot create a law. Its sole power is to enforce the statute as written by the legislature. (100 Miss. at 558, 56 So. at 522, 523)

In order to preserve the separation of powers set forth in Article 1, Section 1 of the Mississippi Constitution of 1890, it is essential that the judicial department give effect to the acts of the legislative department as long as those acts are expressed in constitutional terms. In modern times the trend to turn to the judicial department for a solution to all of the real or imagined ills of our society has increased sometime to the point of requesting the courts to usurp the legislative power of the legislative department. This, we must resist by the exercise of judicial self restraint and limit our role to the judicial power granted the judicial department under our Constitution. The lack of judicial self restraint has been a source of concern throughout our history. Mr. Justice Marshall, in discussing judicial self restraint, stated: “Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law.” Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 866, 6 L.Ed. 204, 234 (1824).

The Mississippi Workmen’s Compensation Law was adopted by the Legislature in the exercise of the legislative power vested exclusively in it under Article 1, Section 1 of the Constitution of 1890. In order to preserve the separation of powers mandated by the Constitution, any amendments to the Workmen’s Compensation Law or any public policy determinations of the law, likewise are vested exclusively in the Legislature. The facts alleged by plaintiff in his declaration pose valid public policy questions for the legislative department, not the judicial department of government. We therefore decline to adopt a public policy exception to the common law rule that an employment contract at will may be terminated by either party with or without justification, and decline to create a common law tort action against an employer by an employee who has been discharged for filing a workmen’s compensation claim. In our view, if we adopted the public policy exception requested in this case, we would be expressing a public policy different from that expressed by the Legislature in our Workmen’s Compensation Law. This public policy decision is not only a proper, but an exclusive, subject for the Legislature to consider.

We hold the trial court correctly sus-tamed the demurrer and affirm.

AFFIRMED.

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

„„„„ t-vt/-, t , , , BOWLING, J., takes no part.

      . The Oregon Supreme Court in Brown, relied in part on Or.Rev.Stat. § 659.410 which makes it an unlawful employment practice to discriminate against an employee for filing a workmen’s compensation claim.
      An Illinois Appellate Court in Leach held that the public policy of Illinois was established by a 1975 amendment to its workmen’s compensation act which makes it “unlawful for any employer ... to discharge or threaten to discharge ... an employee because of the exercise of his rights or remedies granted to him by this Act.” However, we note the Illinois Supreme Court, in Kelsay, did not base its opinion on the 1975 amendment because the events in Kelsay occurred before the 1975 amendment.
      In Sventko the court noted that M.C.L.A. Sec. 418.125; M.S.A., Sec. 17-237(125) makes it a crime for an employer to consistently discharge employees before they qualify under the act in order to evade the provisions of the act, but the question of consistent discharges was not present in the case.
      The Indiana Supreme Court in Frampton held that a retaliatory discharge of an employee for asserting rights under its workmen’s compensation act was in clear contravention of public policy because the court believed the threat of discharge was a “device” within the framework of § 22-3-2-15 Ind.Code Ann. (Burns 1971) [Ind.Ann.Stat. § 40-1215 (1965 Repl.)].
      The Missouri Supreme Court reached a different conclusion in Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122 (1956) holding a provision in its workmen’s compensation act, making it a crime for an employer to discharge or in any way discriminate against an employee for exercising any of his rights under the act, would not be construed as creating a new civil cause of action.

      . The Texas Legislature has addressed this public policy question and the Texas Workmen’s Compensation Law provides for a civil action for a retaliatory discharge. Texas Revised Civil Statutes Ann., Art. 8307c (Vernon Cumulative Supplement 1978):
      Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.
      Sec. 2. A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation, and an employee discharged in violation of the Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.
      Sec. 3. The district courts of the State of Texas shall have jurisdiction, for cause shown, to restrain violations of this Act.


source: Caselaw Access Project

author: SMITH, Presiding Justice,

license: Public Domain

text:
    R. L. NETTERVILLE v. MISSISSIPPI STATE BAR et al.
    No. 62.
    Supreme Court of Mississippi.
    March 18, 1981.

      R. L. Netterville, Natchez, pro se.
    Jimmy L. Miller, Jackson, for appellees.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

This is an appeal by a member of the Mississippi State Bar from a private reprimand ordered by the Mississippi State Bar through its Complaints Committee.

Mississippi State Bar, its officers, commissioners and its Complaints Committee are named as appellees. The opening statement in the brief filed on behalf of the appellees is as follows:

The proceedings were conducted under 1974 General Laws of Mississippi, Chapter 566, which has been codified as Sections 73-3-301 et seq., Mississippi Code of 1972, (1979) Supp., called hereafter Code. Sections 73-3-309, through 73-3-319, Code, specify how complaints shall be received and filed, investigations begun, hearings conducted, reports submitted by Complaint Counsel, and dispositions made by the Committee on Complaints, called hereafter the Committee. The procedures specified by those sections were followed except in those instances where a policy of the Committee was utilized in conjunction with the statutory scheme.

Appellant, an attorney actively engaged in the practice of law, representing a widow and four minor children, brought suit against Hutchinson Manufacturing, Inc., upon a products liability claim, wherein it was alleged that the defendant had designed, manufactured and marketed a defective grain auger which was hazardous and dangerous to its users and that the widow’s husband and father of the minor children had been killed as the result of using the defective auger.

The owners of all of the stock in Hutchinson Manufacturing transferred all of its assets to Royal Industries, Inc., a California corporation, in exchange for stock in Royal Industries, Inc. It seems to have been the contention of Royal Industries, Inc., through its attorneys, although it appears to have operated a “Hutchinson” division, that liability, if any, lay exclusively with Hutchinson Manufacturing, Inc. and that Royal Industries, Inc. in nowise became responsible or liable to plaintiffs since the auger had been designed, manufactured and placed on the market prior to the acquisition of the assets of Hutchinson Manufacturing by Royal Industries, Inc. It is asserted that the latter would not produce or make available any of the records of Hutchinson Manufacturing. This position adopted by Royal Industries, Inc. was disclosed in discovery proceedings by Leon B. Mugler, formerly secretary-treasurer of Hutchinson Manufacturing, Inc. acting for Royal Industries, Inc. Appellant, who was plaintiff’s attorney in the products liability suit, was unable to obtain information as to the nature and status of the merger with, or of the acquisition by, Royal Industries, Inc. of the former Hutchinson Manufacturing, Inc.

Appellant, as attorney for plaintiffs in the products liability suit, appears to have prevailed upon attorneys for Royal Industries, Inc. to provide him with the names and addresses of the stockholders of Hutchinson Manufacturing, Inc. This information was given to appellant over the telephone by Stuart Handy, an attorney for Royal Industries, Inc., and consisted of the names and addresses of one Leon B. Mugler and Gary N. Griffiths, together with their phone numbers.

On that same day, appellant telephoned Mugler at the number given, and asked to speak to him. Informed that Mr. Mugler was not in, petitioner asked to speak to Mr. Griffiths. The ensuing conversation with Mr. Griffiths gave rise to the complaint against appellant. A copy of the complaint is attached as Appendix A.

Appellant asserts that the purpose of the phone call was to obtain names, addresses and also the address of Dr. Carl Ruff, a former Hutchinson officer, in order to arrange a date for taking their depositions and so that they might be served with process, including a subpoena duces tecum requiring production of the records of Hutchinson Manufacturing, Inc. The transcription of the entire telephone conversation is attached as part of the complaint and is made a part of this opinion as Appendix B.

Following this incident, Royal Industries, Inc. attorney Charles Stoll, of California, filed the complaint against appellant.

Mississippi Code Annotated section 73-3-313 (Supp.1980) provides for an investigation of such complaints by complaint counsel. This section provides that an accused attorney shall be notified that he is under investigation, with a statement of the general nature of the charges and be furnished with a copy of the complaint “and any evidence supporting it.” That section also states that complaints counsel shall “afford the accused attorney a hearing.” Section 73-3-315(b) provides in part: “The accused attorney has no right to be present at any stage of the investigatory hearing, either in person or by counsel.” He shall have an opportunity to make a statement, verbally or in writing, offering matter refuting or admitting the alleged misconduct. He may document the statement to include affidavits but “shall not have the right to present other testimony or evidence and shall have no right to confrontation.” Section (c) of the same section states in part that: “[A] full evidentiary hearing on the merits is not contemplated.”

Section 73-3-317 provides that complaint counsel “will cause the testimony of any witnesses at an investigatory hearing to be taken and transcribed and shall certify the same to the committee on complaints, along with his written findings.” Apparently the reference to “any witnesses” does not refer to witnesses on behalf of the accused attorney as apparently (under Section 73-3-313) he has no right to present any.

Section 73-3-319(b) provides: If upon review of the record, complaint counsel’s report and any written response by the accused attorney, the committee determines that “there is reasonable ground to believe” that the accused attorney has been guilty of unprofessional conduct evincing unfitness for the practice of law and is of the further opinion that a public or private reprimand will be sufficient punishment, it may provide for administering such a reprimand. This section concludes: “In any event, written notice of the delivery of such reprimand shall be given to the person filing the complaint, the clerk of the court, the executive director of the Mississippi State Bar, and to the judges of the circuit and chancery court districts of the accused attorney.”

It will be observed that a reprimand may be ordered administered if the committee finds that “there is reasonable ground to believe” that the accused attorney has been guilty of unprofessional conduct or conduct evincing unfitness for the practice of law. This determination may be made by the committee although the accused attorney “has no right to be present at any stage of the investigatory hearing, either in person or by counsel,” has no right to produce witnesses of his own at such hearing, no right to confront or cross-examine the accuser or any witnesses whose testimony complaint counsel may include in his report.

The proceedings were conducted and concluded, and the Committee. issued the following findings:

The Complaints Committee has considered very carefully the above captioned complaint and all other relevant materials available to it, including the report of Complaints Counsel.
Our investigation in this matter indicates that during the course of your investigation and preparation of the litigation in question, you contacted by telephone one of the prospective witnesses; that during the course of that conversation you discussed elements of the litigation with him and unknown to him recorded by tape or otherwise that conversation for your future use. Such action on your part clearly constitutes unprofessional conduct. See Penny v. Blush, 256 So.2d 590 (1978). (This citation should be 356 So.2d 590.) (Emphasis added.)

Pursuant to the above conclusions, the Committee ordered that a private reprimand be administered to appellant as provided, by Section 73-3-319.

Feeling aggrieved at this action, appellant has appealed, assigning the following grounds for reversal:

(1)A complaint against an attorney is a criminal procedure and is penal in nature.
(2) There is no evidence in this record to support the fact that Netterville taped the conversation, and the committee misinterpreted the decision of this court in Penny v. Blush, 356 So.2d 590 (Miss.1978).
(3) Netterville was denied due process by the Mississippi State Bar.
(4) Sections 73-3-315 and 73-3-319 of the Mississippi Code of 1972, Annotated, authorizing a letter of reprimand of an accused attorney without the elements of due process of law, such as notice, hearing, to be tried before an impartial tribunal, confrontation, and cross-examination, denies the accused due process of law.
(5) Sections 73-3-315 and 73-3-319 of the Mississippi Code of 1972, Annotated, are unconstitutional and void. They deny substantive and procedural due process of law and violate the Constitutions of the United States of America and the State of Mississippi and are void.

Appellant’s second contention (that there was no evidence in the record capable of supporting a finding that the telephone conversation was taped and that the committee misinterpreted Penny v. Blush, supra, will be considered first.

It is pointed out that the only reference in evidence as to how the telephone conversation between Netterville and Griffiths was taken down and transcribed appears in his own statement. It is suggested that it must have been obvious to Griffiths that the request for names and addresses necessarily carried with it an implication that the data supplied would be taken down in some manner to serve as an aide memoire. Appellant stated that he had no recollection as to how the conversation was taken down although he did recall that he made notes on a “yellow pad,” that his secretary was also on the phone, and that she took the conversation in shorthand and later transcribed it. This was common practice. Appellant was unable to recall, whether the conversation also had been taped or not. Appellant stated that his practice was to tape only statements from witnesses, where permission was obtained. In the present case, appellant asserts that the conversation dealt only with data for setting up depositions. On the basis of the above, the Committee found that appellant had violated the rule announced in Penny v. Blush by recording a conversation with an adverse party on tape or otherwise for future use without informing the adverse party.

In Mississippi State Bar v. Phillips, 385 So.2d 943 (Miss.1980), the Court said that:

[T]he rule applicable to administrative agencies to the effect their orders must be affirmed unless (1) they are arbitrary and capricious and (2) are not supported by substantial evidence, and the rule that, as in chancery court, the chancellor will not be reversed on the facts, unless he is manifestly wrong, do not apply [...] to the question here. We hold that, on appeal, this Court reviews the evidence, the law, the findings and conclusions of the Complaint Tribunal, and then renders such order as the Court may find to be appropriate, based upon the entire record. [385 So.2d at 945],

The Committee cites American Bar Formal Opinion 337 (1974) referred to in J. C. Penny v. Blush, supra. In Opinion 337 it is stated:

Formal Opinion 150, issued in 1936, held that a prosecuting attorney could not ethically use a recording of conversation between defense attorney and his client in evidence in the prosecution of the defendant even though such recording was legally admissible at the time of the opinion. The Committee based its holding in part on the duty of attorneys in public employ to avoid the appeárance of impropriety. The opinion also stresses the nature of the intercepted conversation (between the accused and his counsel) as to which the attorney and client were entitled to confidentiality.

[Emphasis added].

The opinion continues and seems to stress the undesirability of using an electronic recording device to record secretly a telephone conversation. In the present case the Committee concedes that where a caller requests data or information, the person called reasonably should expect that the caller will take down the data or information in some manner, so as to have a memorandum of it.

Formal Opinion 337, which is quite lengthy, in its next to the last paragraph, states:

The conduct proscribed in DR 1— 102(A)(4), i. e., conduct which involves dishonesty, fraud, deceit or misrepresentation in the view of the Committee clearly encompasses the making of recordings without the consent of all parties. With the exception noted in the last paragraph, the Committee concludes that no lawyer should record any conversation whether by tapes or other electronic device, without the consent or prior knowledge of all parties to the conversation.

The opinion concluded by stating that the mere fact that the secret recordation in a particular instance is not illegal does not necessarily render the conduct of a public law enforcement officer in making such a recording ethical.

It is to be noted that under section 73-3-319, it is not until the Committee has determined that it has “reasonable cause to believe the accused attorney is guilty of such conduct, which, if proven, would warrant suspension for a definite or indefinite period or permanent disbarment,” that the Committee is required to file a formal complaint. Only then is there a provision for the appointment by this Court of a complaint tribunal, to hear and determine the matter. Thus it appears that where any punishment short of temporary or permanent disbarment is contemplated, the accused attorney is not allowed to confront the complaining witness, to be present or to present witnesses or to cross-examine.

Appellant responds to the Committee’s contention that the conversation was “secretly” recorded, pointing out that the Committee itself states: “It is, as appellant argues, obvious that any reasonable man would assume that a person who calls for information would take down that information in some fashion.” The Committee pursued the subject stating: “It is also equally obvious that appellant could not talk to Griffiths without Griffiths’ knowing that he was talking to appellant. In this respect there is no secrecy involved, but contrary to what appellant implies, it is obvious from the record that Griffiths did not know the secretary was on the line and, as submitted above, that is the point at which appellant crossed the line into unprofessional conduct.” [Emphasis added].

The question in Penny v. Blush, cited by the Committee in its decision, was fundamentally different from that presented here. The Committee, in its brief, acknowledges that Penny v. Blush, supra, involved a challenge to the propriety of an attorney taping a telephone conversation without informing the person called that he was doing so, and then, in a case where he was appearing as an attorney, as well as testifying as a witness, to vouch for the truth of his own testimony, and as attorney arguing to the jury that his own testimony as a witness with respect to the contents of the tape was true. It involved the dual role of an attorney who was actively engaged in representing one of the parties at trial using his testimony as to the other party’s statements on tape in his argument to the jury for the purpose of bolstering his own credibility.

In Mississippi State Bar v. Attorney-Respondent, Etc., 367 So.2d 179 (Miss.1979) this Court said in discussing In Re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968):

Similarly in In Re Ruffalo, where the United States Supreme Court classified disciplinary proceedings as quasi-criminal, there was no intent to equate them with criminal trials for all purposes. In Re Ruffalo was a due process case and the Court simply reiterated what it had held on previous occasions; that in any proceeding where there is the possibility of deprivation of property or liberty, due process demands notice, and the opportunity to be heard.
Thus, neither Spevack [v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967)] nor In Re Ruffalo held that a disciplinary hearing is the equivalent of a criminal trial. Both, however, recognized that due to the severity of possible punishment due process demands that the proceedings be conducted with regard to the attorney’s rights of notice and opportunity to be heard.

[367 So.2d at 185].

Following the rule laid down in Mississippi State Bar v. Phillips, supra, we have reviewed the evidence, the law, the findings and conclusions of the Committee and have concluded that appellant was guilty of no dishonesty, fraud, deceit or misrepresentation in connection with the telephone conversation, when considered within the context of the circumstances then existing, that the evidence failed to establish with the degree of credibility required, that the conversation was taped, and it is conceded that the information requested was of such a nature as reasonably to import to the person called the probability, if not certainty, that it would be taken down in some manner for future use.

We find that the conduct attributed to appellant, as reflected by the record, did not amount to professional misconduct and that it was error to order that he be reprimanded.

The proceedings in this case, although conducted according to the letter of the statute, convince us that the statutory procedure does not provide due process to an accused member of the bar.

Under the statutory procedure outlined above, the complaint counsel prepares a report to the complaints committee. This tribunal ultimately will exonerate or find the accused attorney guilty of unethical conduct and order his punishment in cases where the punishment does not extend to suspension or disbarment. The report contemplated by the statute is to consist of the transcribed testimony of such witnesses as complaints counsel may see fit to interview, apparently in private, whether known or unknown to the accused attorney, without notice to him and in his absence, and to whom the transcribed testimony is not revealed. The accused attorney may not confront, cross-examine or even know the identity of these witnesses. He is forbidden, to present witnesses or other evidence of his own. The accused attorney’s contribution to this report, upon the basis of which his professional conduct is to be judged, is limited by the statute to a statement, with supporting affidavits.

We think that a reprimand such as was ordered in this case, whether public or private, administered to an attorney, in formal proceedings, by the complaints committee of his state bar association, is neither trifling nor insignificant nor is it without material consequences to the attorney.

Where suspension or disbarment is not involved, on the basis of the report made up by complaints counsel as stated above, the complaints committee, if it has “cause to believe” that the accused attorney is guilty, shall find him guilty, and order his punishment, in this case, a private reprimand. We think that the requirements of due process, as well as traditional Anglo-American notions of fair play and substantial justice, are violated by this one-sided procedure. Fairness demands that an accused attorney be given the names and addresses of any witnesses whose testimony complaints counsel intends to take, together with a statement of the time and place where such testimony is to be taken, and be given the right to attend and cross-examine. The accused attorney must also have the right to take the testimony of witnesses of his own, in the same manner, their transcribed testimony also to become a part of the report.

It has been noted that the complaints committee, if it “has cause to believe” the accused attorney is guilty of the professional dereliction with which he is charged, based upon the report of complaints counsel, shall find him guilty and order his punishment. We have concluded that disciplinary proceedings such as those involved here, while said to be neither civil nor criminal, are of sufficient gravity to require a higher standard of evidence than that the complaints committee merely “have cause to believe” from the report that the accused attorney is guilty. A finding by the complaints committee, based upon a report to be made up as outlined above, that the guilt of the accused attorney has been established to its satisfaction by clear and convincing evidence, is necessary in order to meet the requirements of due process.

Based upon its inherent power in the area of the disciplining of members of the legal profession, it is the order of this Court that, in future proceedings under sections 73-3-301 et seq., in order to meet the requirements of due process and of traditional Anglo-American notions of fair play and substantial justice, the investigatory hearing while not “a full evidentiary hearing” must be expanded to permit the accused attorney the privilege of offering transcripts of the testimony of witnesses and the right to cross-examine witnesses whose testimony is taken by complaints counsel, the transcripts in each instance to be included as parts of complaints counsel’s report, with other material required by the statute.

Moreover, before any punishment may be ordered by the complaints committee, it must find from the report thus made up that there is clear and convincing evidence that the accused attorney is guilty of the professional dereliction with which he is charged.

REVERSED AND COMPLAINT DISMISSED.

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

HAWKINS, J., takes no part.

APPENDIX A

The Mississippi State Bar

101 Realtors Building

620 N. State Street

Jackson, MS 39201

Attention: Chairman, Complaints Committee

Gentlemen:

I wish to call to your attention a recent incident involving Mr. Robert L. Netter-ville, a member of the Mississippi State Bar, who maintains his office at the Natchez Office Building, Natchez, Mississippi 39120.

By way of background, Mr. Netterville represents the plaintiff in an action presently pending the Circuit Court of Wilkinson County, Mississippi, entitled “Jacqueline Clark White, Et Al vs. Hutchinson Division, Royal Industries, Inc., et al”, No. C. 4123, filed November 15, 1977. I am corporate counsel for Royal Industries, Inc., a Delaware corporation, and the Hutchinson Division of Royal Industries, Inc., which has no separate legal status. Subsequent to receipt of service of process, I employed the services of Mr. G. Stuart Handy of the firm of Handy, Fitzpatrick, Gwin, Blough & Lewis, Attorneys at Law, Post Office Box 1344, Natchez, Mississippi 39120, to represent and defend Royal’s interest in connection with that pending litigation. Since the date of filing, extensive discovery has been undertaken by both plaintiff and defendant.

In April of 1979, it was brought to my attention that Mr. Netterville had telephoned the office of my client, the Hutchinson Division of Royal Industries, Inc., and had spoken directly to an officer and employee, Mr. Gary N. Griffiths, after not being able to reach the President of the Hutchinson Division, Mr. Leon B. Mugler. I immediately telephoned Mr. G. Stuart Handy and expressed my shock and amazement that opposing counsel would directly contact an officer of a party represented by legal counsel without prior approval for such contact. I then received a copy of a letter dated April 23,1979 from Mr. Netter-ville which indeed confirmed that he had telephoned and, in fact, had apparently taped the conversation. I am attaching a copy of Mr. Netterville’s letter of April 23, 1979, including the transcript attached thereto.

On May 4, 1979, I wrote to Mr. Handy, with a copy of that letter addressed to Mr. Netterville. I enclose a copy of that letter herewith.

I am now in receipt of a letter of May 8, 1979 from Mr. Netterville which states, in part, that if I filed a complaint against him with the Bar, he will file a lawsuit against .me.

While I am certainly not versed on the canons of ethics nor the disciplinary rules of the State of Mississippi, I am aware that direct or indirect contact by an attorney with an adverse party represented by counsel is prohibited. The American Bar Association Disciplinary Rules state:

“DR 7-104 Communicating With One of Adverse Interest.
(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”

The Disciplinary Rules for the California State Bar also state, under Rule 7-103:

“Communicating with an Adverse Party Represented by Counsel.
A member of the State Bar shall not communicate directly or indirectly with a party whom he knows to be represented by counsel upon a subject of controversy, without the express consent of such counsel. This rule shall not apply to communications with a public officer, board, committee or body.”

If ethics or disciplinary rules of the State of Mississippi are to the contrary, then I will certainly be pleased to accept that advice from your Honorable Body. If, on the other hand, the conduct described above is prohibited by the Mississippi Bar, I will wish to file a formal complaint and would appreciate your advice.

Very truly yours,

IRSFELD, IRSFELD & YOUNGER

/s/ C. W. Stoll

Charles W. Stoll

cc: Stuart Handy, Esq.

Robert L. Netterville, Esq.

APPENDIX B

APRIL 18, 1979

: Yes, this is Hutchinson Division.

RLN: Hello, is this Hutchinson Division? Do you have a Mr. Leon B. Mugler there?

: Yes, but he is out of town, can I have him return your call tomorrow?

RLN: Ah . ..

: Could possibly someone else help you?

RLN: Well do you have a Mr. Gary N. Griffiths?

: Yes, we do.

RLN: May I speak to him?

: May I ask who is calling?

RLN: Bob Netterville, in Natchez, Mississippi.

: Thank you.

GNG: Gary Griffiths, may I help you?

RLN: Mr. Griffiths?

GNG: A-huh.

RLN: Is this Mr. Griffiths?

GNG: Yes, sir.

RLN: Mr. Griffiths, this is Bob Netterville in Natchez, Mississippi. I am an attorney down here and we have some issues that are in a case that I am involved in that has brought up some of the corporate status of your old corporation, the Hutchison Manufacturing, Company, Inc. I believe you were a part of that, were you not?

GNG: Yes, sir.

RLN: Now, who all were the stockholders in that do you recall?

GNG: Well, I would suggest that you talk to Leon Mugler here in our office, he was one of the previous owners and he could probably fill you in on that.

RLN: Well, I have, according, I have all the records here on that that the other side has filed, and I have your name and Mr. Mugler’s name, and Carl H. Ruff.

GNG: A-huh. '

RLN: Do you know the whereabouts of Mr. Ruff?

GNG: He lives in Clay Center.

RLN: Do you have his address and phone number?

GNG: Do you want a residence or office?

RLN: Give me both.

GNG: Okay, the offices is:

Carl H. Ruff

1101 Fifth

Clay Center, Kansas

Phone: (913) 632-3777

RLN: Now come at me again.

GNG: . (913) 632-3777

RLN: His address is what?

GNG: 1101 Fifth

RLN: That’s all, that’s Clay Center. I see. Now, what is his residence?

GNG: 1600 Twelfth

Clay Center, Kansas

Phone: (913) 632-3974

RLN: Now listen, I had gotten an impression back here, is he a doctor?

GNG: He is.

RLN: He is a doctor?

GNG: Yes, sir.

RLN: I see, and there were only three, according to your records here, there were only three stockholders in that corporation.

GNG: As far as I know.

RLN: And he was the president, Mr. Mug-ler was the Secretary, I am looking at some of the stuff here on the thing, and then, what kind of doctor is he, Carl H. Ruff, is he an M. D.?

GNG: Yes.

RLN: Is he a general practitioner?

GNG: Yes.

RLN: I see. Now look, would you know yourself, if I needed to depose you and Mr. Mugler, could you be available some time say the afternoon of the 3rd of July, 1979?

GNG: Well, that’s out. for the present time, but you know I can only speak for myself.

RLN: It won’t take us 30 or 40 minutes.

GNG: As far as I know I am available on that date at this point. As of this date. But I can’t speak for the other two gentlemen, or the other one.

RLN: Now, where do I write Mr. Mugler, there at the plant?

GNG: Yes.

RLN: Alright, well, you will be hearing from me, and I certainly appreciate this, sir, and that’s, let me ask you this, who kept the records of your old company?

GNG: I really don’t know. You know, I was basically an employee.

RLN: You were what?

GNG: I say I really don’t know, I was an employee.

RLN: Were you á stockholder?

GNG: I had one share of stock.

RLN: Oh, I see. Now how about Mr. Mu-gler was he a substantial stockholder?

GNG: Since there were only three, yes, a-huh.

RLN: He was. See my information is that he and Dr. Ruff kind of put up the thing, Ruff put up the money, and Mu-gler must be an engineer, isn’t he?

GNG: No, he is not.

RLN: He is not, he is just a smart cookie? Okay, well, I understand that he is the one that really designed the thing and got it going.

GNG: Well you can get ahold of him at our address here, at Clay Center.

RLN: Mr. Mugler?

GNG: Yes. Or you can talk to him on the phone now, if you wish.

RLN: Oh, is he there? I would appreciate it.

GNG: I would assume so.

RLN: See, I asked to speak to him, and they said he was out of town, and then I asked to speak to you.

GNG: Okay, he may have gone.

RLN: Okay, check if you will.

GNG: Let me check, I know he was going out of town, but I don’t know if he left is gone. Just a second and I will put you on hold and find out if he is still here.

RLN: Yeh.

GNG: Hello. No he is not back yet. I mean he is not here now.

RLN: He is already gone?

GNG: Yeh, he was gone this afternoon, apparently he is already preparing to go this afternoon, apparently he is already gone.

RLN: When it is convenient with him would you have him to call me collect in Natchez, Mississippi, and tell him

GNG: Hold and let me get a piece of paper. Bob ...

RLN: Netterville.

GNG: Wait a minute, I am going to have to have a little time getting started with you. Bob .. .

RLN: Netterville.

GNG: A-huh.

RLN: In Natchez, Mississippi. Now, my phone number is area code 601, number 442-1666. Now, I will tell you what. Tell him to call me collect, and if I am not here they won’t accept the call, but they will tell them when I will be back.

GNG: Are you representing the old Hutchinson Company in this suit?

RLN: No, I am not, I am representing the opposite side. I am representing a widow on a claim against the


text:
    Clifton W. BYRD v. Janet G. BYRD.
    No. 52670.
    Supreme Court of Mississippi.
    April 29, 1981.
    Earl P. Jordan, Jr., Self & Jordan, Meridian, for appellant.
    Robert M. Dreyfus, Jr., Goldman & Goldman, Meridian, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

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


text:
    Georgia Agnes ELLIS v. James H. ELLIS
    No. 52641.
    Supreme Court of Mississippi.
    May 6, 1981.
    Davey L. Tucker, Jackson, for appellant.
    No briefs filed for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

AFFIRMED.


text:
    George M. MITCHELL v. John R. NEYREY, Production Oil Corp., et al.
    No. 52573.
    Supreme Court of Mississippi.
    May 6, 1981.
    Michael J. Malouf, Michael K. Henry, Malouf & Malouf, Jackson, for appellant.
    Bob (Robert) H. Pedersen, Hassell H. Whitworth, Watkins & Eager, Jackson, for appellees.
    Before SMITH, P. J., and WALKER and BROOM, JJ.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

AFFIRMED.


text:
    Ronald R. LAWRENCE v. Mrs. Marion Alice LAWRENCE.
    No. 52601.
    Supreme Court of Mississippi.
    May 6, 1981.
    Harry Kelley, Jackson, for appellant.
    Fred T. Rucker, III, Scales & Scales, Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and HAWKINS, JJ.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

AFFIRMED.


text:
    Estate of Robert C. STOVALL, Sr., Dec’d.; Robert C. Stovall, Jr., Co-Trustee v. Richard M. STOVALL, Co-Executor.
    No. 52473.
    Supreme Court of Mississippi.
    May 6, 1981.
    Robert C. Stovall, Jr., Columbus, for appellant.
    Grady F. Tollison, Jr., Holcomb, Dunbar, Connell, Merkel, Tollison «fe Khayat, Clarks-dale, for appellee.
    Before ROBERTSON, P. J., and SUGG and BROOM, JJ.
   Appeal from Chancery Court, Chickasaw County; W. W. Brand, Jr., Chancellor.

AFFIRMED.


text:
    The MINISTERIAL AND INDUSTRIAL SCHOOL OF the FIRST CREEK BAPTIST ASSOCIATION v. Hubert C. HUNTER.
    No. 52633.
    Supreme Court of Mississippi.
    May 6, 1981.
    W. Howard Gunn, Dorothy W. Colom, West Point, for appellant.
    Leroy R. Kenneday, Macon, for appellee.
    Before SMITH, P. J., and WALKER and BROOM, JJ.
   Appeal from Chancery Court, Noxubee County; Lenore L. Prather, Chancellor.

AFFIRMED.


text:
    Patricia Diane Johnson FRATESI v. Ronald D. FRATESI.
    No. 52613.
    Supreme Court of Mississippi.
    May 6, 1981.
    George T. Kelly, Jr., Andrew M. W. Westerfield, Cleveland, Howard Dyer, III, Dyer, Dyer & Dyer, Greenville, for appellant.
   Appeal from Chancery Court, Bolivar County; Wm. H. Bizzell, Chancellor.

Frank L. McWilliams, Townsend, McWil-liams & Holladay, Indianola, for appellee.

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

AFFIRMED.


text:
    Bennie M. DUNCAN v. COAHOMA BANK, a Branch of the Grenada Bank, and Mark Foster.
    No. 52585.
    Supreme Court of Mississippi.
    May 6, 1981.
    John Kirkham Povall, Jacobs, Griffith, Pearson, Eddins & Povall, Cleveland, for appellant.
    Roy D. Campbell, Jr., Campbell & De-Long, Greenville, William R. Bradley, Maynard, Fitzgerald & Bradley, Clarksdale, for appellees.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

Bennie M. Duncan filed suit against Coa-' homa Bank, a Branch of The Grenada Bank, and its loan officer, Mark Foster, and charged that the bank’s exercise of its written contractual right of set-off was wrongful or tortious; that because of the wrongful exercise of the right of set-off plaintiff was subjected to mental stress which caused him to have a heart attack; and that defendants were liable for damages for plaintiff’s heart attack.

After the jury returned a verdict for $30,000 against defendants, the trial judge sustained defendants’ motion for judgment notwithstanding the verdict, set aside the jury verdict, granted a judgment for the defendants, and plaintiff appealed.

Plaintiff purchased a 1971 Audi automobile on January 23, 1976, and borrowed $1,967 from the bank to pay for the automobile. On the same day plaintiff executed an installment note to the bank payable in twenty-four monthly installments of $94.22 each, beginning March 5, 1976, and secured the note with the automobile as collateral.

The automobile was unsatisfactory and plaintiff was forced to make extensive repairs to it. He was unable to make payments on the note as scheduled because of the expense of repairs to the automobile. After attempting unsuccessfully to sell the automobile, plaintiff delivered the car to Foster who agreed to try to sell the automobile. The bank, acting through its agent, Foster, was unable to sell the automobile and stored it with a third party. While in possession of the third party, the automobile was severely damaged by unknown persons who removed many parts from it.

On December 30, 1977, plaintiff executed a renewal note at the request of the bank payable in twenty-four monthly installments of $78.93 each beginning February 5, 1978. Plaintiff made two payments on the renewal note and when he delivered the automobile to the bank he had permitted the insurance to lapse.

Both notes contained the following provision:

Each maker, co-maker, endorser, surety and guarantor hereof jointly and severally agrees to pay this note and guarantees payment hereof and waives demand, presentment, protest and notice of dishonor, and consents to any extensions and renewals hereof without notice, and consents to the release by the holder hereof with or without consideration of any of them, and exonerates the holder hereof from all duty and obligation to make demand on anyone for payment of any collateral now or hereafter securing this note or to give notice to anyone of nonpayment thereof or to collect or sell the same and consents to the extension, renewal, exchange, surrender or release by the holder hereof with or without consideration of any such collateral, and agrees that when or at any time after this note becomes due the holder hereof may without notice setoff or charge this note against any deposit account or other account then maintained by any of them with the holder hereof or then existing between any of them and the holder hereof and to pay any deficiency, and agrees in case of any default to pay all costs of collection, including reasonable attorney’s fees, and the late charges listed in the “Rebate & Default” section on the other side.

In February, 1978, plaintiff opened a savings account with the bank with a deposit of $6,300. By October 24, 1978, the balance in that account had been reduced to $1,710.10 by withdrawals made by the plaintiff.

On October 24, 1978, Foster, as agent for the bank, made the decision to set-off the balance due on plaintiff’s note against plaintiff’s savings account because the note was past due, plaintiff was depleting his savings account by withdrawals, and the loan had a history of delinquency. About October 26, 1978, plaintiff received his two notes, all of the documents pertaining to his loan transaction, and a withdrawal slip showing that $1,547 had been withdrawn from his savings account to pay off his delinquent debt. Plaintiff had not been advised that the bank intended to set-off the balance due on the note against his savings account. He testified that the notification from the bank that this had been done upset him to the extent that three days later he suffered a heart attack while visiting with relatives in another city.

The first question is whether a bank which holds collateral to secure a loan is required to seek satisfaction of its loan from the collateral before exercising its right to set-off a deposit of the debtor. We do not find any Mississippi case dealing with the right of set-off when a bank’s indebtedness is secured by collateral. However, in Moreland v. People’s Bank, 114 Miss. 203, 74 So. 828 (1917) the Court held:

It is well settled that the bank itself has a right, if it so desires, to apply whatever amount the maker of the note has on deposit with it to a payment on the note. Or, in other words, the bank itself has the right to set off the amount it owes the depositor against the amount owed it by the depositor. The relation existing between a bank and a depositor is simply one of debtor and creditor. (114 Miss. at 211, 212, 74 So. at 829, 830)

The majority rule is that the right of set-off exists even if a bank’s indebtedness is secured by collateral. The rationale of the majority rule is stated in Olsen v. Valley National Bank of Aurora, 91 Ill.App.2d 365, 234 N.E.2d 547 (Ill.App.1968) as follows:

The plaintiffs argue that other jurisdictions make a distinction between indebtedness secured by collateral and indebtedness not secured by collateral, relative to the right of set-off; however, plaintiffs do concede that the distinction they urge is the minority rule. The ultimate test,' of course, should not be numerical superiority, but the rationale supporting the rule. A bank should not be deprived of its right of set-off simply because it has the foresight to obtain collateral in exchange for obligations owed to it. The majority rule, including Illinois, is founded on the rationale that a creditor is able to pursue any one of a number of remedies against a debtor until the debt is satisfied. The minority rule is based upon the rule or statute that there is but one action for the recovery of a debt which is secured by collateral. (234 N.E.2d at 550)

See also, U. S. Ex rel. Crow Creek Sioux Tr. v. Tri-Cty. Bank, 415 F.Supp. 858 (D.C.S.D., 1976); Jensen v. State Bank of Allison, 518 F.2d 1 (C.A.8, 1975); Allied Sheet Metal Fab., Inc. v. Peoples Nat. Bank, 10 Wash.App. 530, 518 P.2d 734 (1974); Frank Bris-coe Company, Inc. v. Suburban Trust Company, 100 N.J.Super. 431, 242 A.2d 54 (1968), Annot., 96 A.L.R. 1242 (1935).

Our Uniform Commercial Code gives a creditor the right to proceed with a number of remedies until a debt is satisfied. Section 75-9-501(1), (2) Mississippi Code Annotated (1972) provides the following:

(1) When a debtor is in default under a security agreement, a secured party has the rights and remedies provided in this Part and except as limited by subsection (3) those provided in the security agreement. He may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure. If the collateral is documents, the secured party may proceed either as to the documents or as to the goods covered thereby. A secured party in possession has the rights, remedies and duties provided in section 75-9-207. The rights and remedies referred to in this subsection are cumulative.
(2) After default, the debtor has the rights and remedies provided in this Part, those provided in the security agreement, and those provided in section 75-9-207.

In this case, the security agreement and note executed by the plaintiff gave the bank authority to set-off or charge the note against any deposit account or any other account maintained by the plaintiff with the bank without notice to the plaintiff. We are of the opinion that the rationale for the majority rule as stated by the Illinois Court is sound. We adopt the majority rule and hold that a bank is not deprived of its right of set-off when the indebtedness due it is secured by collateral under a security agreement and the debtor is in default because a creditor may proceed with a number of remedies against a debtor until the debt is satisfied. A bank is not deprived of its right of set-off simply because it had the foresight to require collateral to secure the debt due it.

Having determined the bank had the right to set-off the deposit of the plaintiff against the debt to it, the next question is whether the bank and its loan officer may be required to respond in damages for the heart attack suffered by the plaintiff caused by mental stress to the plaintiff when the bank exercised its right to set-off without notice and without first seeking satisfaction of the debt from the collateral securing the loan.

Plaintiff’s suit was a tort action against the bank charging the bank with the wrongful or tortious exercise of its contractual right to set-off.

This Court has defined a tort in the following cases: Capital Electric Power Assoc. v. Hinson, 230 Miss. 311, 92 So.2d 867 (Miss.1957); Griffin & Sons v. Newton B. G. & O. Co., 210 Miss. 797, 50 So.2d 370 (1950) and Stokes v. Newell, 174 Miss. 629, 165 So. 542 (1936). A tort was defined in these cases as follows:

Capital Electric Power Assoc.
[I]t is clear from the foregoing statement of facts that this is an action in tort and not in contract. In 52 Am.Jur., Torts, Sec. 2, page 362, it is said:
“A tort is sometimes defined as a wrong independent of contract, or as a breach of duty which the law, as distinguished from a mere contract, has imposed. Generally speaking, a tort is a wrong, and a tortious act is a wrongful act. A tortious act has also been defined as the commission or omission of an act by one, without right, whereby another receives some injury, directly or indirectly, in person, property, or reputation. Although the same act may constitute both a crime and a tort, the crime is an offense against the public pursued by the sovereign, while the tort is a private injury which is pursued by the injured party.” (230 Miss. at 322, 92 So.2d at 870, 871)
Griffin & Sons
[A] tort is an unlawful violation of a private legal right, ... (210 Miss. at 806, 50 So.2d at 373)
Stokes v. Newell
It is a general principle of law that the breach of a legal duty owed by one person to another when damages have resulted therefrom gives the right to a cause of action. This form of action is called in law a tort. (174 Miss. at 641, 165 So.2d at 545)

In this case the bank merely exercised its right of set-off in accord with its note and security agreement. This did not constitute a breach of duty owed by the bank to the plaintiff; therefore, neither the bank nor its loan officer are liable for any injuries resulting from the act of the bank in exercising its right of set-off. The trial judge properly sustained the motion for judgment notwithstanding the verdict.

We note that plaintiff only sought damages for his heart attack on the theory that it was caused by emotional stress which resulted from the bank’s exercise of its right of set-off. He did not seek recovery for damages to his automobile while it was in the possession of the bank. The question of whether the bank used reasonable care to preserve the automobile while in its possession is therefore not before us. The rights and duties of a debtor and a secured party when collateral is in the secured party’s possession are set forth in section 75-9-207 Mississippi Code Annotated (1972).

For the reasons stated, we affirm.

AFFIRMED.

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


author: BROOM, Justice,

text:
    Thomas Hershel MORGAN v. Ada Lammons MORGAN.
    No. 52650.
    Supreme Court of Mississippi.
    May 6, 1981.

      Walker W. Jones, III, Jones & Mockbee, C. York Craig, Jr., Watkins, Ludlam & Stennis, Jackson, for appellant.
    Aleita M. Sullivan, Mendenhall, for appel-lee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court:

Alimony security is challenged here: impression of a lien upon the property of Thomas Hershel Morgan (appellant) to secure his paying alimony, etc. as provided in the parties’ divorce decree. When Mr. Morgan defaulted, his former wife Ada Lam-mons Morgan (appellee) initiated contempt proceedings in the Chancery Court of Simpson County; the court decreed him to be in contempt and fixed a lien against his property to secure future payments. Mr. Morgan, on his appeal, argues that fixing a “lien on property to insure future installments not now due is constitutionally infirm,” and “constitutes an invalid restraint on alienation” of his property. We affirm.

Succinctly stated, the facts are as follows. Decree of the Chancery Court of Simpson County dated July 29, 1976, divorced the parties and awarded child custody to Mrs. Morgan. By agreement made part of the decree, various real and personal properties became vested in the respective parties, and Mr. Morgan agreed to pay Mrs. Morgan alimony as follows: $25,000 per year for a period of three years from the date of the agreement, $20,000 per year for the next three years, and, thereafter, $16,000 per year until Mrs. Morgan’s death or remarriage. The decree also provided that Mr. Morgan would pay for their children’s college education. In addition he agreed to pay certain medical expenses: all of the minor children’s medical expenses and all of Mrs. Morgan’s medical expenses exceeding $600 per year. At that time Mrs. Morgan (as was known to Mr. Morgan) was a victim of Multiple Sclerosis to the extent that she was unable to care for herself.

It appears that after incurring financial reverses and marrying another woman, Mr. Morgan defaulted in making the decreed alimony and medical payments to his former wife. She then filed a contempt petition (as amended) charging him with substantial arrearage, about $26,000, relative to the years 1977, 1978, and a part of 1979. She averred that he owned considerable property against which the court should impress a lien as security for payments under their former decree. Proper process was personally served upon him; he answered, and by cross petition, sought modification of the prior decree. After hearing the matter, the lower court decreed that Mr. Morgan was in contempt for failure to pay alimony, etc. to the extent of over $26,000 and awarded Mrs. Morgan $331 suit money and a $500 attorney’s fee. The decree fixed a lien on certain of Mr. Morgan’s real and personal property. In his findings the chancellor noted that Mrs. Morgan has Multiple Sclerosis which was known to the parties when they agreed to their property settlement. In his argument that impressing the lien offended both the United States and the Mississippi Constitutions, Mr. Morgan asserts that fixing the lien

to ensure payments of future installments of alimony amounts to a prejudgment or conclusive presumption that Petitioner will not pay such future installments. Indulging in such a presumption, and, therefore, by-passing the recognized procedure for obtaining a judgment of contempt ... is analogous to saying the Petitioner is guilty until he proves himself innocent rather than innocent until proven guilty.

Further assertion by Mr. Morgan is

that the attachment of a lien to secure the payment of future installments is also invalid because the same amounts to a prejudgment seizure of the property of the Petitioner, which is violative of procedural due process.

WAS THE IMPOSITION OF THE LIEN ON MR. MORGAN’S PROPERTY IMPERMISSIBLE UNDER ARTICLE 3, SECTION 14 OF THE MISSISSIPPI CONSTITUTION OF 1890, OR THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION? Mr. Morgan argues that under the court’s decree imposing the security

he is presumed guilty until he proves his innocence, all of Petitioner’s real and personal property must remain burdened until all of his alimony obligations cease.

He further contends that imposition of the lien on his property amounts to a conclusive presumption that in the future he will not comply with the decree ordering the support payments and alimony.

In his brief, Mr. Morgan relies upon the landmark case of Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Fuentes involves state statutes of Pennsylvania and Florida pursuant to which certain personal property was seized by authority of a writ of replevin summarily issued without any notice or hearing being afforded the property owner. In the instant case, it cannot be said that Mr. Morgan was denied benefit of a hearing because the record clearly shows he was properly before the court upon appropriate process both when the original decree providing for the alimony and support was entered and when he was adjudged in contempt of court for failure to comply with that decree. In this connection we note that no lien was impressed upon Mr. Morgan’s property until he demonstrated by his conduct that he would not comply with the terms of the decree which he agreed to when it was entered.

Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), another landmark case relied upon by Mr. Morgan, is not applicable because of radically different factual circumstances. There the issue focused upon summary termination of welfare benefits without affording a recipient prior notice or any hearing. In addition to Fuentes and Goldberg, Mr. Morgan cites a number of other cases in support of his argument against the imposition of the lien, but all of them are factually dissimilar to the present case.

Long time, well established case law of this state is that the lower courts in instances such as that now before us may impose a lien on the husband’s property in order to insure payment of alimony. Smith v. Smith, 293 So.2d 466 (Miss. 1974); Pierce v. Pierce, 267 So.2d 300 (Miss. 1972).

The State of Mississippi has a substantial interest in situations presented like the present case concerning a disabled former wife (the appellee) who may become a charge on society unless Mr. Morgan is compelled to support her according to their agreement embodied in the decree, Here the record shows that after he and his former wife were divorced, he remarried and spent large sums of money pursuing his interest in horses. He expended considerable funds decorating the residence occupied by him and his second wife. After his divorce, he gave expensive gifts to his second wife and spent substantial sums of money on pleasure trips and the like. The situation here is dissimilar to Taylor v. Taylor, 348 So.2d 1341 (Miss. 1977) which states that a chancellor may not summarily order a party incarcerated in the event that he fails to make alimony payments in the future.

We reject the argument that the lien imposed “amounts to prejudgment seizure” of Mr. Morgan’s property in violation of his due process procedural rights. He set in motion the chain of events which culminated in the decree containing the order impressing the lien. Only after he took the initiative of suing for a divorce, did she seek divorce and alimony for herself. Then Mr. Morgan agreed to the decree providing for her to have alimony along with other items to be furnished by him. Having taken the initiative and triggered the unfortunate chain of events, he defaulted in paying what he agreed to pay. None of the authorities cited by Mr. Morgan are analogous to the present case, and therefore they are not controlling. The lien imposed was decreed only after the court accorded a full-blown hearing to Mr. Morgan. Upon the circumstances of the case, the decree imposing the lien was reasonable. Sanders v. Hicks, 317 So.2d 61 (Miss. 1975). The lien in no way restricts Mr. Morgan’s right to dispose of the land or use it except that it will remain as security until he fully discharges his obligation to his former wife or makes other arrangements to secure payments by some reasonable means acceptable to the lower court. Had Mr. Morgan complied with or made appropriate efforts to comply with the original decree approved by him under which he bound himself to support his former wife, there would not have been any reason for the court to impress the lien. As stated in 27B C.J.S. Divorce § 250(4)c (1959), “The court may restrain the husband from disposing of certain property until the alimony award is paid.” Dissette v. Dissette, 208 Ind. 567, 196 N.E. 684 (1935). The same authority in § 268, at pages 149-150, cites McCraney v. McCraney, 208 Miss. 105, 43 So.2d 872 (1950) and states “as a general rule the courts have power ... to make a decree for alimony ... a lien on the real estate of the husband.... ” Mississippi Code Annotated § 93-5-23 (Supp. 1980) provides that the court which decrees a divorce “may, in its discretion ... make all orders ... touching the maintenance and alimony of the wife or the husband ... and ... require sureties.... ” Our conclusion is that the court, without encroaching upon Mr. Morgan’s constitutional rights, acted upon substantial evidence and reasonably within its powers in fixing the lien against Mr. Morgan’s property. Therefore, affirmance is required.

AFFIRMED.

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

BOWLING, J., took no part.


text:
    Bev ALT v. CITY OF BILOXI.
    No. 52610.
    Supreme Court of Mississippi.
    May 6, 1981.

      Sue Esther Dulin, Tommy Dulin, Dulin & Dulin, Gulfport, for appellant.
    Paul J. Delcambre, Jr., Page, Mannino & Peresich, Michael B. McDermott, Biloxi, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

This case originated in the Municipal Court of the City of Biloxi. Appellant, Bev Alt, was arrested on June 5,1979 for violating an ordinance of the City of Biloxi, adopted under its police power, regulating vendors operating in the strip of public beach of the city, lying between U.S. Highway 90 and the Gulf of Mexico.

In the Municipal Court Alt entered a plea of nolo contendere and was found guilty. From his conviction, he appealed to the County Court of Harrison County. In that court, following a trial de novo, he was again convicted and sentenced to pay a fine of $300, all of which was suspended. From that conviction, he appealed to the Circuit Court of Harrison County, where the case was heard on the record and Alt’s conviction and sentence affirmed.

Alt now seeks to maintain an appeal to this Court, assigning as error:

1. The trial court committed error by refusing to hold Biloxi Municipal Ordinance 1229 unconstitutional or otherwise invalid.

2. The trial court committed error in refusing to grant him a judgment notwithstanding the verdict or a new trial.

Mississippi Code Annotated section 11-51-81 (1972) provides in part:

All appeals from courts of justices of the peace, special and general, and from all municipal courts shall be to the county court under the same rules and regulations as are provided on appeals to the circuit court.... And from the final judgment of the county court in a case appealed to it under this section, a further appeal may be taken to the circuit court on the same terms and in the same manner as other appeals from the county court to the circuit court are taken: ... [Pjrovided further that there shall be no appeal from the circuit court to the supreme court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the supreme court. [Emphasis added].

While the record does not reflect that a request was made to the circuit court judge by Alt for leave to appeal to this Court or by him rejected, Alt’s motion for permission to file an appeal was sustained by a justice of this Court under the provisions of the above statute.

Appellee has moved to dismiss the appeal upon the ground that, although permission to file has been granted, the case is not one in the determination of which “a constitutional question be necessarily involved.”

Thus, the threshold question is whether the appeal falls within the exception set out in the statute and is a case in the determination of which “a constitutional question be necessarily involved.”

On his appeal from the County Court to the Circuit Court of Harrison County Alt assigned as error for reversal several “constitutional” grounds. However, by filing what he terms an “England certificate” Alt informed the circuit court that he withdrew these questions from determination by the circuit court, “reserving” them for federal court.

In Alt’s appeal brief, he devotes only some twenty lines to his proposition “Constitutional Grounds.” In this section of his appeal brief, Alt cites no case or other authority and there are no references in it to pages in the record or in the abstract relating his constitutional objections to the facts or circumstances of the case or to the provisions of the ordinance complained of. Clearly, it was not intended that these questions be submitted to the circuit court and they were not. Apparently, judging from Alt’s appeal brief, they were deliberately not briefed seriously in his purported appeal here so as to present them for decision by this Court. It is the fixed policy of this Court not to issue advisory opinions.

An appellant to this Court from the circuit court may not, by refusing or neglecting to present his objections and have them passed upon by the circuit court, thus bypass that court and present them here for the first time.

In his appeal brief in this Court, Alt asserts: “Appellant has presented these grounds to the federal court by filed complaint. The federal court is abstaining pending the outcome of this decision in the event this decision would eliminate the need to litigate the matter to a conclusion in federal court.”

The record, however, names no specific federal court, is devoid of copies of pleadings or orders of any federal court, and contains no other information relating to the “filed complaint.” There is in the record no copy of an order of a federal court “abstaining” in the premises of the case. The certificate filed in the circuit court was as follows:

ENGLAND CERTIFICATE

RESERVATION TO THE DISPOSITION OF THE ENTIRE CASE BY THE STATE COURT

Comes now the Appellant, Bev Alt, by and through his attorney, Tommy Dulin, and hereby informs the Court that he is exposing his federal claims to the Court only for the purpose of complying with Government and Civic Employees Organizing Committee v. Windsor, 343 [353] U.S. 364, 77 S.Ct. 838 [1 L.Ed.2d 894], and that the Appellant herein intends, should this Court hold against him on the question of state law, to return to the District Court for disposition to his federal contentions. [Emphasis added].

In keeping with this, Alt did not submit to the circuit court judge any of his so-called “constitutional” grounds, as set out in his assignments of error on his appeal to that court, but effectively withdrew such questions from that court’s consideration.

This is a criminal prosecution. Alt has been tried and found guilty, has twice appealed and his conviction affirmed. We can only conclude that there has been a misapprehension as to the application of the “England” rule.

The abstention doctrine is explained in 20 Am.Jur.2d Courts section 14 (1965) as follows:

Where a party has a choice between state and federal courts and chooses the federal court, the federal court may, under the doctrine of abstention, order a stay of proceedings, on the ground that if unsettled questions of state law are first decided, the settlement of those questions might end the controversy, and that therefore the decision of the federal questions involved should be deferred until the state law questions are decided in a state court. Such abstention does not involve abdication of federal jurisdiction, but only the postponement of its exercise. It does not interfere with the right of a plaintiff, who has the option between, federal and state jurisdiction,.to choose the federal jurisdiction; nor does it preclude a litigant, remitted to the state court for decision of the state law issue, from returning to the federal court for determination of the federal questions, unless he has waived this right. [Emphasis added].

To preserve the right to return to the Federal Court for the resolution of federal constitutional issues a litigant must file an England certificate. The certificate procedure was derived from the United States Supreme Court decision in England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). In that case the Court ruled that a party in the state court may reserve a decision on his federal constitutional claim for the federal court by informing the state court that he is exposing his federal claims only as a matter of information, and that he intends to return to the federal courts for disposition of the federal constitutional claims. Id. at 421-422, 84 S.Ct. at 468, 11 L.Ed.2d at 447.

It is clear that this type of abstention is applicable in civil cases only and is to be invoked by the federal court, not by the parties.

In criminal eases, the United States Supreme Court has held that a federal court must not intervene either by injunction or declaratory judgment in a pending state criminal prosecution in the absence of extraordinary circumstances showing a threat of irreparable injury which is both great and immediate. Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

The case against Alt is a criminal prosecution. The filing of the England certificate by the defendant was clearly in error since abstention is a doctrine only appropriate in civil cases. This is a criminal, not a civil ease, Alt, being prosecuted in state court for an alleged criminál offense, is not a party who had “a choice” between state and federal courts and who chose the latter. Nor has he a right, in such a situation, to “reserve” .from the court having jurisdiction of his prosecution all constitutional questions.

It is apparent, moreover, that this is not a case falling within the statutory exception wherein cases originating in municipal court, appealed to the county court and there tried de novo, and from thence appealed to the circuit court, and by that court affirmed, may then be appealed to this Court as a case in which a constitutional question is “necessarily involved.”

Section 146 of the Mississippi Constitution provides:

The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals.

In Nationwide Mutual Insurance Company v. Tillman, 249 Miss. 141, 157, 161 So.2d 604 (1964) the rule was stated thus: “... [W]e are tempted to consider the other grounds in the assignment of error, but to do so would terminate a long-established rule of law which has long been recognized by this Court, namely, that if the lower court does not have the opportunity and right to pass upon the errors alleged to have been committed therein, we will not here for the first time consider those errors.” See also Seaney v. Seaney, 218 So.2d 5 (Miss.1969), A. H. George And Co. v. Louisville & N. R. Co., 88 Miss. 306, 40 So. 486 (1906).

To the same effect, see Humble Oil & Refining Co. v. Martin, 298 F.2d 163 (1961), rehearing denied 301 F.2d 313 (1962), cert. denied, 371 U.S. 825, 83 S.Ct. 45, 9 L.Ed.2d 64 (1962), wherein it was held that questions not presented to or not passed upon by the trial court will not be considered on appeal.

We have no way of knowing what type of “complaint filed” which Alt asserts he has in a federal court, but this is a criminal case, begun and concluded in state court, and not properly a subject for the “England” procedure, incidentally, a procedure criticized by writers and judges, even in civil cases where applicable, as unacceptably postponing a final decision of controversies and requiring a duplication of both effort and expense. In our view, no federal constitutional question has been preserved so as to be subject for review by this Court. Therefore, we hold that this is not a case in the determination of which a constitutional question is necessarily involved and therefore an appeal to this Court is precluded by the provisions of section 11-51-81, cited earlier in this opinion.

This being so, questions of statutory state law are not properly before us, and the appeal should be dismissed. Therefore, the motion to dismiss the appeal is sustained and the appeal dismissed.

MOTION TO DISMISS APPEAL SUSTAINED AND APPEAL DISMISSED.

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

      . England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).

      . See C. Wright, Law of Federal Courts § 52 at 220-21 (3rd ed. 1976); Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071, 1084-1090 (1974).