author: CULPEPPER, Judge.

text:
    James SPEIGHT, Plaintiff and Appellant, v. Wingate DOWDEN, Defendant and Appellee.
    No. 8366.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Rehearing Denied Nov. 20, 1981.

      Gahagan & Gahagan, Fred S. Gahagan, Natchitoches, for plaintiff and appellant.
    E. L. Edwards, Jr., Many, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   CULPEPPER, Judge.

This is a petitory action in which the defendant reconvened claiming possession and ownership of the approximately one acre in dispute. The trial judge rejected plaintiff’s demand and held that the defendant is the possessor and owner of the entire property in dispute. Plaintiff appealed.

On appeal, plaintiff assigns three errors by the trial judge: (1) not recognizing plaintiff as owner of the disputed area by the acquisitive prescription of 30 years provided in LSA-C.C. Article 794, which replaced former Civil Code Article 852, (2) alternatively, rejecting plaintiff’s claim to a 31.8-foot strip based on the acquisitive prescription of 10 years under LSA-C.C. Article 3478 et seq., (3) finding defendant (plaintiff-in-reconvention) proved ownership by the acquisitive prescription of 10 years under LSA-C.C. Article 3478 et seq.

The issues on appeal are entirely factual. There is no dispute as to the law. The trial judge has written an excellent opinion of 28 pages discussing in detail the evidence, finding the facts, and correctly applying the applicable law. We will discuss only the issues urged on appeal.

For purposes of clarity, we include in our opinion the following plat of a survey by E. L. Palmer made in August of 1976 and used at the trial by both parties with certain notations added thereon:

The approximately one acre in dispute is shown on the plat as enclosed within the four corners marked A, B, C and D. The evidence shows that by deed dated March 4, 1968 the plaintiff Speight purchased from H. H. Tibbett the approximately one acre designated on the plat by his name, together with a strip of land 31.8 feet in width shown on the plat as running across the southern portion of the property in dispute. Tibbett purchased the identical property from D. A. Dowden by deed dated October 17, 1964. D. A. Dowden purchased the identical property from Elmer A. Rhodes by deed dated January 22, 1949. There are no other deeds in evidence in plaintiff’s chain of title.

Speight contends that when he purchased his property including that in dispute, it was bound on the west by the public road and on the north, east and south by fences. When Speight originally filed this suit on February 12, 1979, he alleged that the defendant, Wingate Dowden, had disturbed his possession by tearing down certain fences, planting a garden and exercising other rights of possession. The evidence actually shows that in about August of 1976, defendant did tear down a fence which ran approximately along the south boundary of the property in dispute. In his original petition, Mr. Speight prayed for recognition of his ownership of the property in dispute, restoration of his possession and for damages for disturbance by Dowden. Of course, this was an improper cumulation of the petitory and possessory actions, resulting in the waiver by plaintiff of the possessory action. LSA-C.C.P. Article 3657. Thus, plaintiff’s action is treated as petitory.

The defendant Dowden answered, denying plaintiff’s ownership and alleging by reconventional demand that he possesses and owns the entire 8.15 acres shown on the attached plat, including the area in dispute. The record shows that by deed dated March 16, 1955 Wingate Dowden acquired from Minnie A. Taylor and Bertha Taylor Tabor record title to the 8.15 acres shown on the plat, which, of course, includes the entire area in dispute. Minnie A. Taylor and Ber-tha Taylor Tabor are respectively the wife and daughter of Hoy Lee Taylor, who acquired the identical property on February 28, 1946 by deed from Elias B. Lee.

Defendant Dowden contends that he and his ancestors in title have been in corporeal possession of the entire 8.15 acres, including the property in dispute, since the 1920s, when Elias B. Lee lived on the property. Bertha Taylor Tabor and her husband testified the Taylors lived in the house on the property from the time they purchased it from Elias B. Lee to 1946. Wingate Dow-den has lived on the property since he purchased it from the Taylors in 1955.

The principal cause of this litigation arises out of the 31.8-foot strip across the south end of the property in dispute, which strip was first described in the deed from Elmer A. Rhodes to D. A. Dowden, dated January 22, 1949. When Wingate Dowden purchased the 8.15 acres in 1955, he had no knowledge that the 31.8-foot strip across his property had been included in the prior above described deeds in Speight’s chain of title. Defendant did not know about the 31.8-foot strip until 1959 or 1960. This is made clear in the trial judge’s written reasons:

“Defendant and plaintiff-in-reconvention commenced his good faith possession of the disputed parcel in July, 1955, when he began to clear off the property in order to render it more suitable for grazing purposes. He removed all the remaining vestiges of prior possessions of the disputed parcel and repaired and/or constructed perimeter fences on the North, West, and, East sides of the disputed parcel, leaving it open to his adjoining property to the South of the disputed parcel. This work was completed some time in 1956 or 1957 when the last of some domestic fruit trees were removed from the disputed parcel. Some time after the purchase of the property by defendant and plaintiff-in-reconvention in 1955, D. A. Dowden, the then record owner of the property in plaintiff’s deed, and uncle to defendant and plaintiff-in-reconvention, acquired a milk cow, which defendant permitted him to pasture on both the disputed parcel and the remainder of defendant’s adjoining property. During either 1959 or 1960, D. A. Dowden requested the permission of defendant and plaintiff-in-reconvention for the construction of a fence across the South end of the disputed parcel in order to eliminate the daily trips by D. A. Dowden to more distant points on defendant’s property to get his milk cow. In the course of his discussions of this matter with defendant, D. A. Dowden pointed out that he had a 30-odd foot strip of land in the disputed parcel, which strip of land had never been fenced. Defendant agreed to the construction of the fence requested by D. A. Dowden, but insisted that the new fence corner with the south end of the east boundary fence of the disputed parcel, i. e., the fence, C-D, on Exhibit D — 1. The fence permitted by defendant was erected by D. A. Dowden, some time in 1959 or 1960 and remained until its removal by defendant, some time in 1979, at which time defendant personally took corporeal possession of the whole of the disputed parcel. He has personally maintained possession of the disputed parcel since some time in 1976.
“D. A. Dowden obviously considered himself to be the owner of the 31.8 foot strip in his deed and, therefore, did not need defendant’s permission to enclose it. However, he did consider defendant’s permission necessary for the enclosure of the rest of the disputed parcel. He was, therefore, after some time in 1959 or 1960, clearly possessing that portion of the disputed parcel with defendant’s and plaintiff-in-reconvention’s permission and indulgence.
“Moreover, D. A. Dowden’s successors in title, including plaintiff, acquired no greater rights to that portion of the disputed parcel beyond the boundaries of the 31.8 foot strip thereof, described in their deeds, than D. A. Dowden had to transfer to them. Thus, their possession of that portion of the disputed parcel not included in their deeds, was also with the permission and at the indulgence of defendant and plaintiff-in-reconvention. Therefore, their possession of that portion of the disputed parcel was not for themselves, but, rather for him.”

Plaintiff contends the testimony of Mr. H. H. Tibbett and of a daughter of Mr. D. A. Dowden, ancestor in title to plaintiff, shows there was an old east-west fence in existence approximately along the south boundary of the property in dispute since 1944, and that this fence remained in existence until the defendant tore it down in 1976. Of course, this testimony conflicts with defendant’s testimony, which the trial judge accepted, that when defendant purchased the property in 1955 he removed all of the old fences, fruit trees or other vestiges of former possession from the property. Under the facts found by the trial judge, if there was such an old fence existing since 1944, it was removed by defendant in 1955 and there was no east-west fence from that time until 1959 or 1960 when Doss Dowden built a new fence with defendant’s permission.

We will now discuss plaintiff’s three assignments of error in the order listed above. Plaintiff first contends the trial judge erred in not recognizing plaintiff as owner of the disputed area under the 30-years’ acquisitive prescription provided by LSA-C.C. Article 794, which provides in pertinent part that “If a party and his ancestors in title possessed for 30 years without interruption, within visible bounds, more land than their title called for, the boundaries shall be fixed along these bounds.” As stated in the Official Comment to Article 794, this article replaced former Article 852 but does not change the law. Plaintiff quotes from Fruge v. Lyons, 373 So.2d 220 (La.App. 3rd Cir. 1979) as follows:

“Where there is a visible boundary which has been in existence for 30 years or more, and the defendant in a boundary action and his predecessors in title have in addition to the land described in the title, actually possessed land extending to that visible boundary, a plea prescription of thirty years should be sustained. It is our view that, for the rule to be applicable, two conditions must concur: First, there must be a visible boundary, artificial or otherwise; Second, there must be actual uninterrupted possession either in person or through ancestors in title, for thirty years or more, of the land extending beyond that described in the title and embraced within the visible bounds.”

The trial judge rejected plaintiff’s claim under Article 794 to that portion of the disputed area beyond the 31.8-foot strip for the reason that plaintiff could not tack successive possessions of his ancestors in title for the necessary period of 30 years. The trial judge points out that in plaintiff’s chain of title the first deed which described the 31.8-foot strip was from Elmer A. Rhodes to D. A. Dowden dated January 22, 1949. In order to tack the possessions of ancestors in title under Article 794, there must be privity of title between the respective possessors, i. e., the titles must describe the property. There is no evidence to show any privity of title between Elmer Rhodes and any previous owners of the property. Thus, the only possessions the plaintiff can tack to his own are those of D. A. Dowden after his January 22, 1949 purchase from Elmer Rhodes and of H. H. Tibbett from the time of his purchase from Dowden on October 17, 1964 to the time of his sale to plaintiff on March 4, 1968. These two possessions added to plaintiff’s possession, which clearly ended at least in 1976 when defendant tore down the fence, total only 27 years.

Moreover, the trial judge held that any corporeal possession by plaintiff and his ancestors in title beyond this 31.8-foot strip to whatever fences existed was not continuous and uninterrupted for 30 years because the evidence shows clearly that the defendant took corporeal possession of the entire disputed property in 1955 when he bought it and cleared it of any remaining vestiges of possession including any old fences, old orchards, etc.

We conclude the trial judge was clearly correct in rejecting plaintiff’s claim under Article 794.

Plaintiff’s second assignment of error is that in the alternative and in the event the court rejects his claim under Article 794 to the entire disputed area, the plaintiff is at least entitled to recognition of his ownership of the 31.8-foot strip under the acquisitive prescription of 10 years provided by LSA-C.C. Article 3478 et seq. The trial judge did not decide this issue because plaintiff did not plead this prescription in the trial court, and, under LSA-C.C. Article 3463, the court cannot supply the plea of prescription. However, plaintiff has filed in this Court of Appeal a special plea of acquisitive prescription of 10 years. This is permissible under the provisions of LSA-C.C. Article 3464 which provide that “Prescription may be pleaded in every stage of a cause, even on the appeal, but it ought to be pleaded expressly and specially before the final judgment.” Therefore, we will consider the plea of acquisitive prescription of 10 years as to the 31.8-foot strip.

Plaintiff argues that he purchased the 31.8-foot strip in good faith from Mr. Tib-bett in 1968 and has possessed since that date. Plaintiff also relies on the testimony of Mr. Tibbett that he purchased the 31.8-foot strip in good faith from D. A. Dowden in 1964 and possessed it until the sale to plaintiff. Plaintiff argues that his possession tacked to that of Mr. Tibbett is sufficient to support 10 years’ acquisitive prescription.

The first answer to this contention is shown in the above quoted portion of the trial judge’s written reasons where he finds as a fact that when the defendant, Wingate Dowden, purchased the property in 1955 he immediately removed all remaining vestiges of prior possessions, including fences, fruit trees, etc., and prepared the entire property, including the 31.8-foot strip, for use as a pasture. Thus, Wingate Dowden went into corporeal possession of the 31.8 foot strip in 1955 in good faith under a deed translative of title. Furthermore, in the above quoted portions of the trial judge’s opinion, it is shown the trial judge found the facts to be that when D. A. Dowden built the cross fence in 1959 or 1960 and started to use the property as a pasture for his milk cow, and later when plaintiff made some use of the property, they both did so with the permission of defendant. Under the facts found by the trial judge, neither Tibbett nor Speight possessed the property because they could not possess it at the same time that Wingate Dowden corporeally was possessing it.

Our conclusion is supported by the following from the trial judge’s written reasons wherein he discusses defendant’s claim to a record title to the entire disputed property, including the 31.8-foot strip, but nevertheless concludes that plaintiff had not shown either a record title or a prescriptive title by 10 years’ prescription to the 31.8-foot strip:

“Plaintiff-in-reconvention has proven a valid and a more ancient record title chain to the disputed parcel, including the 31.8 foot strip in plaintiff’s deed, than the record title chain of defendant-in-recon-vention to the 31.8 foot strip of the parcel included in his deed. (See Exhibit D-8 and D-4; and, P-1; P-14; and, P-17.). Plaintiff (defendant-in-reconvention) has not proven prescriptive title to any portion of the disputed parcel; defendant (plaintiff-in-reconvention) is in possession of the disputed parcel, and, plaintiff-in-reconvention has proven a more ancient record title chain to the disputed parcel than the title chain of defendant-in-re-convention to a 31.8 foot strip of the parcel. Therefore, defendant (plaintiff-in-reconvention) has met his burden of proving better title to the whole of the disputed parcel, under Article 3653(2) of the Louisiana Code of Civil Procedure. (See Tassin vs. Rhynes, 366 So.2d 580, La. 3rd Cir.Ct. of App.1978).
“Consequently, defendant (plaintiff-in-re-convention) has proven both his ownership of the disputed parcel and his right to possess it.”

Plaintiff’s third and final assignment of error is that the trial judge erred in finding that defendant (plaintiff-in-recon-vention) proved ownership of the disputed parcel by 10 years’ acquisitive prescription. Under the facts found by the trial judge, as set forth in the above quoted portions of his written reasons, it is clear that when Win-gate Dowden purchased the disputed property, including the 31.8-foot strip, from the Taylors in 1955, he was in good faith and that he did not learn of the adverse claim to the 31.8-foot strip until 1959 or 1960. It is also clear under the facts found by the district judge that from the time Wingate Dowden purchased this property in good faith in 1955 down to the time of trial of this case in 1980, he has had corporeal possession as owner. Under these facts, the defendant (plaintiff-in-reconvention) proved ownership by the acquisitive prescription of 10 years.

The only serious argument made by plaintiff in opposition to defendant’s ownership under 10 years’ acquisitive prescription is that the deed by which Wingate Dowden acquired the property from the Taylors in 1955 does not adequately describe the property. In particular, plaintiff says the following portion of the deed is vague and indefinite:

“Ten (10) acres off the East side of the Southeast quarter of the Northwest quarter of Section 9, Township 7 North, Range 10 West, less 3 acre off the South side thereof heretofore sold to C. Self, and less two acres off the North side thereof.”

In his written reasons, the trial judge correctly answers this argument as follows:

“The principal issue here is whether the disputed parcel is described or included in defendant’s deed. If it is not, defendant does not have ten (10) year prescriptive title, regardless of his possession of the property. (See Harang vs. Bowie Lumber Co. [145 La. 96, 81 So. 769] and Article 3479, Section 2, Louisiana Civil Code, both cited supra.)
“Parol evidence is admissible on the question of whether disputed property is included within the property description of a claimant’s deed if there is sufficient body in the description to leave the title substantially resting on writing and not essentially on parol. (See J. H. Jenkins Contractors, Inc. vs. Farriel, 246 So.2d 340, La. 1st Cir.Ct. of App., 1971 and [261 La. 374] 259 So.2d 882, La. Sup.Ct., 1972; Lemoine vs. Lacour [213 La. 109] 34 So.2d 392, La. Sup.Ct., 1948; and, Snow vs. McDonald, cited supra.).”
“The law does not require that a deed, to support the prescription of ten (10) years, shall contain such a description that the land can be identified without reference to other records. (See Bruce vs. Cheramie [231 La. 881] 93 So.2d 202, La. Sup.Ct., 1956).
“Mr. E. L. Palmer, a registered land surveyor, testified that the whole of the disputed parcel is included in the property description in defendant’s (plaintiff-in-reconvention’s) deed. His certificate of survey, Exhibit D — 1, so indicates.
“There is sufficient body in the description in defendant’s (plaintiff-in-reconvention’s) deed to leave his title substantially resting on the deed, rather than on the parol evidence of the surveyor, Mr. Palmer. Admittedly, the description in the deed is somewhat defective in that the acreage excepted therefrom is not described with particularity. (See Snow vs. McDonald and Bruce vs. Cheramie, cited supra.). However, the description of the excepted acreage can be obtained from the public records, which is what the surveyor has apparently done. Thus, the deed is not so defective that the property actually conveyed cannot be ascertained with the aid of this permissible extrinsic evidence. (See Bruce vs. Cheramie, cited supra; and, Hanna vs. Green, 329 So.2d 850, La. 2d Cir.Ct. of App., 1976). Furthermore, the excepted acreage has not been shown to include any portion of the disputed parcel.”

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

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Robert JARVIS v. STATE of Mississippi.
    No. 52943.
    Supreme Court of Mississippi.
    Nov. 11, 1981.
    Brown & McDonnell, Billy F. Brown, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

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

AFFIRMED.


text:
    Frederick M. HOLLIS v. Francis Lorene HOLLIS.
    No. 52918.
    Supreme Court of Mississippi.
    Nov. 11, 1981.
    Graham, Segrest & Johnson, J. Tyson Graham, Columbus, for appellant.
    Thomas A. Coleman, Ackerman, for ap-pellee.
   Appeal from Chancery Court, Choctaw County; Edward C. Prisock, Chancellor.

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

DECREE AFFIRMED AS MODIFIED, AND REMANDED.

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


text:
    M. C. LITTLE & Linda Little v. CITY OF MERIDIAN, etc., and Massey-Ferguson, Inc.
    No. 52968.
    Supreme Court of Mississippi.
    Nov. 11, 1981.
    John V. Woodfield, Gulfport, for appellants.
    Williams, Gunn & Crenshaw, William J. Gunn, Bourdeaux & Jones, Thomas D. Bourdeaux, Meridian, for appellees.
   Appeal from Circuit Court, Lauderdale County; Henry Palmer, Judge.

Before PATTERSON, C. J., and WALKER and BOWLING, JJ.

AFFIRMED.


text:
    George Paul FLY v. Mrs. Mary Ann W. FLY.
    No. 52970.
    Supreme Court of Mississippi.
    Nov. 11, 1981.
    Sam Waits, Grenada, for appellant.
    J. Terry Peeples, Coffeeville, for appellee.
   Appeal from Chancery Court, Yalobusha County; Dennis M. Baker, Chancellor.

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

AFFIRMED.


author: BOWLING, Justice,

text:
    Judy SMITH v. Melvin Roger SMITH.
    No. 53018.
    Supreme Court of Mississippi.
    Nov. 11, 1981.
    Edwards, Storey & Helveston, James C. Helveston, West Point, for appellant.
    James D. Waide, West Point, for appel-lee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant and appellee were divorced on September 26, 1975. At the time the parties had two minor children. Appellee in the decree was required to pay $150 per month toward the support of each child. He further was directed to pay “major medical expenses for the children that exceeded $50 per month.” For some strange reason a copy of the divorce decree does not appear in the record before us or any of the briefs. The allegation about the major medical expense requirement is merely set out in the petition that is the subject of this appeal.

On February 16, 1981, appellant filed her petition requesting the Chancery Court of Clay County to cite appellee for contempt for refusing to pay an orthodontic treatment bill in the sum of $1,885. This was for orthodontic treatment to Kim Smith, daughter of the parties. Her age is not mentioned in the record or other instruments now before us. The statement from the orthodontist requires that initial payment of $685 be paid on June 19, 1980, and a payment of $50 each month thereafter for twenty-four months through July 4, 1982.

Appellee filed a special demurrer to the petition contending that the original decree does not require defendant to pay dental expenses, and therefore the petition does not set out a cause of action. Other grounds were set out in the demurrer. The demurrer was sustained by the chancellor for the reason that the dental bill was not major medical expenses. Appellant contends that the above quoted part of the divorce decree contemplated that the expense in question be paid by appellee as “major medical expenses.”

We, therefore, are faced with the question as to whether or not dental expenses in the form of orthodontic procedures on the daughter of the parties come within the definition of “major medical expenses” as that term relates to a provision in a divorce decree regarding future support of the minor children of the parties. Neither appellant nor appellee in their rather brief briefs cite specific authorities on the question before us, and our research does not reveal that this Court has passed specifically on the question in this appeal.

Bearing in mind continually as heretofore stated, we are dealing with medical and/or dental treatment of a young female child, who is entitled to receive complete medical attention from her parent or parents. We first note the definition of the practice of dentistry as defined in Section 73-9-3, Mississippi Code Annotated, (1972), as follows:

. . . treating any of the diseases or disorders of lesions of the oral cavity, teeth, gingivae or maxiliary bones or who shall extract teeth, repair or fill cavities of human teeth, correct mouth position or irregularities of the teeth and jaws, practice surgery of the head or neck incident to the practice of oral surgery or construct or repair or mend artificial teeth, crowns or bridges or who shall administer anesthetics or use x-ray in the connection with the practice of dentistry. . ..

In 59 Am.Jur.2d, Parent and Child, § 87, p. 184, we find the following under the heading “Medical Services.”

That medical care, when needed, is included among the necessaries for which a third person can recover from the parent in a proper case, has never been doubted. This, of course, includes dental services, and any surgical operations essential to the preservation of the life or health of the child ....

We find good reasoning set out by the appellate court of California in Jones v. Jones, 116 Cal.App.2d 604, 254 P.2d 67 (1953). There the court was involved with the question as to whether or not eye examination and glasses of the child in question was included within the term medical expenses required to be paid by her father. The court in answering this question in the affirmative said:

.'. . the expression “medical expense” as commonly understood, we believe is sufficiently broad and comprehensive to include that incurred for the examination of eyes and the cost of procuring the glasses prescribed for the correction of any defects of vision ascertained as a result of the examination. Particularly would this appear to be true when the expression is found in a decree of separate maintenance. It is common knowledge that decrees frequently provide, as here, for the payment of a stated sum monthly for the support and maintenance of the wife and children and in addition for the payment by the defendant husband of the cost of necessary medical and dental care which may be required by them. The evident thought being that while the stated amount is considered adequate to provide for the every day necessities of the family, such as rent, clothing and food, it is recognized as being insufficient to meet the extraordinary contingencies which may arise as a result of illness or other physical disability. Defect of vision may be no less disabling than a physical injury or illness and the cost of remedying the former would appear to be within the scope of such a provision no less than that incurred in curing or relieving the latter. In this respect we perceive no material distinction, except perhaps in degree, in the cost of a tonsilectomy and the expense necessarily incurred for the examination of eyes and the cost of optical lenses required to correct defective vision.

It is common knowledge that sometimes children in growing develop situations with their teeth requiring orthodontic treatment, not only for the mere straightening of the teeth, but for other health related conditions. We recognize that a percentage of such orthodontic treatment is done solely for cosmetic reasons. We therefore hold that the primary question in this cause is whether or not the dental orthodontic treatment to the child of the parties was reasonably necessary for her health and well being, including mental and physical, and is the proper treatment. The definition of the practice of dentistry clearly indicates that the orthodontic treatment in certain instances is required to correct not only the teeth but other body problems. We, therefore, hold that it is a question of fact as to whether or not the orthodontic treatment of the child is reasonably necessary, and, if so, such treatment comes within the term “medical expenses.”

REVERSED AND REMANDED.

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


author: HAWKINS, Justice, specially

text:
    SEARS, ROEBUCK & COMPANY v. Linda DEVERS.
    No. 52721.
    Supreme Court of Mississippi.
    Nov. 11, 1981.

      White & Morse, George E. Morse, Gulf-port, for appellant.
    Gordon, Myers & Gordon, William H. Myers, Pascagoula, for appellee.
   En Banc.

The appellant Sears, Roebuck & Company (Sears) appeals from a judgment of the Circuit Court of Jackson County affirming the judgment of the Jackson County Court against appellant in favor of the appellee, Linda Devers, for $4,300.00 after trial and jury verdict in that amount in the county court. We reverse and render judgment for appellant.

On December 11,1977, Mrs. Devers was a customer in a Sears store in Jackson County. Her thirteen-year-old daughter was with her. The store was crowded. She was leaving the store after purchasing two blouses and a sweater, and as she approached an exit door, an automatic alarm went off. The exit doors then locked and would not open with people pushing to leave. The numerous customers became excited, began looking at each other, as she stated: “It scared me to death.” She further testified two men and a woman came running toward her, one man and a woman grabbed her by the arm, and started telling her, “to come that way.” The other man followed.

Mrs. Devers was escorted to the men’s department, her daughter repeating: “Mama, what are they doing, what are they doing?” She did not know. When they got to the men’s department, Sears’ employees removed her purchases from her bag, and it was discovered a certain tag inside the sweater had not been removed from the sweater when the clerk sold it to Mrs. Dev-ers. The tag, which was supposed to be removed when the merchandise was sold, activated the alarm.

The Sears’ employees realized a mistake had been made, and apologized to Mrs. Dev-ers. By that time she was very upset.

She drove home crying and informed her husband. She and her daughter were both crying when Mrs. Devers told him she “felt just like a common criminal.” He understandably likewise became angry and upset.

She continued to be upset and testified she “cried for two or three days.” Her husband noticed she was extremely nervous and had crying spells for several days following the incident. She never took any medication, however, and never consulted a physician. She did not lose any time from her job.

No suit was filed for civil assault. On July 12, 1979, Mrs. Devers filed a declaration in the Jackson County court alleging simple negligence on the part of Sears’ employees from which she became mentally and emotionally upset, suffered emotional trauma, and was subjected to ridicule, embarrassment and humiliation due to the negligence of Sears. She demanded $10,-000.00 damages.

Sears filed an answer of general denial. It did not plead the one year statute of limitations, Mississippi Code Annotated Section 15-1-35 (1972), for civil assault. At the trial, when the plaintiff rested, counsel for Sears moved for a directed verdict, arguing that while the declaration was premised on negligence, the proof was premised on assault, and barred by this statute.

Counsel for Mrs. Devers responded:

Your Honor, we pled negligence in this case saying that Sears was negligent in failing to remove this tag causing this lady to be embarrassed as a result of this negligence, and the emotional trauma.
Mrs. Devers’ counsel further responded: We have not pled assault and battery whatsoever. We have not pled anything that would fall under the one year statute. In fact, your Honor, our pleadings are complete in that this is strictly a negligence case. And, your Honor, there is no affirmative defense pled as to any statute of limitations running, (emphasis added)

The motion for a directed verdict was overruled. The instructions are somewhat in conflict. A peremptory instruction to find for the plaintiff was given, but instructions were also given authorizing the jury to find for the defendant.

The defendant was also given an instruction to the jury that it should not award any damages by way of punishment.

No cross appeal has been taken by the plaintiff because of the court’s granting defendant an instruction that punitive damages should not be awarded.

Appellant’s first assignment of error on this appeal states it was entitled to a peremptory instruction because the plaintiff was not entitled to recover any damages in this case based upon simple negligence. We need only address this first assignment.

The declaration in this cause was based upon simple negligence. By a liberal construction arguably it included an allegation which could be considered an assault.

When Sears failed to affirmatively plead the one year statute dealing with civil suits based upon an assault, of course it waived this defense. W. T. Raleigh Co. v. Fortenberry, 133 Miss. 467, 97 So. 722 (1923); Davis v. Davis, 210 Miss. 182, 49 So.2d 242 (1950); Davis v. Bar, 250 Miss. 54, 157 So.2d 505 (1963).

At the conclusion of the plaintiff’s case, however, when the precise point was raised by Sears’ counsel, the response of plaintiff’s counsel that this was a simple negligence case removed any possible contention on appeal that this case is an assault case. When, during the course of a trial an attorney, with intent to influence the ruling or decision by the court on a point in issue, makes a solemn statement to the court committing his client to some legal position on the issue before the court, the client is bound thereby. Noxubee County v. Long, 141 Miss. 72, 106 So. 83 (1925). 7 Am.Jur.2d Attorneys-at-Law, Section 151; 7A C.J.S. Attorney and Client, Section 205(a).

Section 205(a) states in part:

An attorney employed for purposes of litigation has the general implied or apparent authority to enter into such stipulations or agreements, in connection with the conduct of litigation, as appear to be necessary or expedient for the advancement of his client’s interests or to accomplishment of the purpose for which the attorney was employed. Such stipulations or agreements are binding on the client, without regard to the client’s actual knowledge or consent.

Under circumstances as shown in this case, it is imperative that parties be bound by legal positions taken by them in court, and upon which opposing counsel and the trial court rely.

The only question before this Court on this appeal, therefore, is whether Mrs. Dev-ers received compensable injuries in a suit based on simple negligence. An entirely different question would be presented if this case were based upon assault, Morgan v. Loyacomo, 190 Miss. 656, 1 So.2d 510 (1941); or upon some “wanton or shamefully gross wrong,” Saenger Theaters Corp. v. Herndon, 180 Miss. 791, 178 So. 86 (1938); or upon “. . . conduct exceeding all bounds usually tolerated by society, of a nature which is especially calculated to cause and does cause mental damage of a very serious kind.” Lyons v. Zale Jewelry Co., 246 Miss. 139, 150 So.2d 154 (1963); or acts done “. . . maliciously, intentionally, or with such gross negligence or recklessness to show an utter indifference to the consequence.” Daniels v. Adkins Protective Service, Inc., 247 So.2d 710 (Miss.1971).

Appellee excluded assault as a cause of action in the trial of this cause. Likewise, in making no objection to the defendant Sears’ instruction to the jury not to award punitive damages, .and in not perfecting a cross-appeal citing such instruction as error, we can only consider this case on appeal as one of ordinary simple negligence. Therefore, the additional tools to construct legal liability set out in Saenger Theaters, Zale Jewelry and Adkins Protective Service have been removed by appellee.

As above stated Mrs. Devers suffered no physical injury, developed no sickness, and no medically cognizable mental injury. No physician ever attended her, and the incident occurred on Sunday, and she was not off from work as a result of her experience. Mrs. Devers was unnecessarily embarrassed and humiliated in public, and understandably quite upset for several days.

In Morgan v. Loyacomo, supra, under similar facts to this case this Court held the conduct of the store employees constituted an assault and battery rendering the store owner liable for damages, even though no physical injury was done to plaintiff.

In Saenger Theaters Corp. v. Herndon, supra, the abuse was purely verbal. The ticket taker at a theater refused to permit a fourteen-year-old girl who had purchased a ticket to enter, stating angrily in the presence of several persons she had been guilty of “indecent and lowdown conduct” in the show. This Court stated:

The court was, therefore, not in error in admitting evidence of mental pain and suffering, although unaccompanied by a distinct physical injury. Ordinarily, it is true, damages for mental pain and suffering not accompanied by a distinct physical injury are not allowable; but this rule does not include cases of wanton or shamefully gross wrong, such as the case now before us. . .. And for the same reason the court properly submitted to the jury the issue of punitive damages; .... (178 So. at 87).

In Lyons v. Zale Jewelry Co., supra, an attorney for the defendant jewelry company, in attempting to collect a debt due by plaintiff’s son, used vile, insulting and abusive language over the telephone to the plaintiff, causing her to undergo nervous shock, mental anguish and physical suffering. A demurrer to plaintiff’s declaration was sustained in the circuit court. Upon appeal, the case was reversed and remanded for trial. In a detailed opinion giving the history of the problem of awarding damages for mental anguish where there was no physical injury, this Court stated as follows:

In general, damages for mental anguish or suffering are recoverable when they are the natural or proximate result of an act committed maliciously, intentionally, or with such gross carelessness or recklessness as to show an utter indifference to the consequences when they must have been in the actor’s mind. In most jurisdictions in fact, damages are recoverable for mental anguish and suffering caused by a willful, wanton, malicious, or intentional wrong, even though no bodily injury is sustained or other pecuniary damage alleged or proved. (150 So.2d at 158).

In Lyons we stated further:

We are not called upon to consider here the creation of an independent (new) cause of action in tort. This Court has recognized the undeniable fact that a strong emotion of the mind, and particularly when that emotion is highly unpleasant, as from a sense of insult, may produce a physical personal injury. . . . This Court has also recognized the principle that, when definite and objective physical injury is produced as a result of emotional stress wrongfully caused by the defendant, a defendant under some circumstances may be held liable for such physical consequence notwithstanding the absence of any physical impact upon the plaintiff at the time of the mental shock. (150 So.2d at 162).

In Daniels v. Adkins Protective Service, Inc., supra, the embalmer employed by the defendant caused gangrene of the corpse to the extent the funeral home handling the funeral services advised the family not to view the body. This caused the widow such shock she suffered a nervous breakdown. This Court held the embalmer was not guilty of anything beyond simple negligence, and therefore damages were not recoverable. This Court again stated the general rule as follows:

The rule in this State is that there can be no recovery for mental pain and suffering from the mere negligent act of another unaccompanied by physical or bodily injury. However, damages are recoverable for mental pain and anguish by a willful, wanton, malicious or intentional wrong even though no bodily injury was sustained. (247 So.2d at 711).

Where there is something about the defendant’s conduct which evokes outrage or revulsion, done intentionally — or even unintentionally yet the results being reasonably foreseeable — Courts can in certain circumstances comfortably assess damages for mental and emotional stress, even though there has been no physical injury. In such instances, it is the nature of the act itself — as opposed to the seriousness of the consequences — -which gives impetus to legal redress. Thus, our holdings in the above enumerated cases.

Also, in a case of simple, or ordinary “garden variety negligence,” even in the absence of physical injury accompanying the negligent conduct, if there is a resulting physical illness or assault upon the mind, personality or nervous system of the plaintiff which is medically cognizable and which requires or necessitates treatment by the medical profession, this Court has followed the modern tendency and held a legal cause of action exists. This assumes, of course, the test of reasonable foreseeability is also satisfactorily met.

In First National Bank v. Langley, 314 So.2d 324 (Miss.1975), the negligence of the bank in failing to use reasonable care in searching for a deposit made by Langley, which was lost by becoming hung up in the night depository, created a suspicion of him and a cloud over his employment. This, in turn, caused him to suffer a physical distortion of the face stemming from angioneu-rotic edema, which resulted in the swelling of the lower lip, the tongue, and the upper lip, the swelling being so severe on occasions that the plaintiff had difficulty breathing and consequently had to be rushed to the hospital emergency room. He suffered severe psychic and personality problems, including paranoia, depression, anxiety neurosis, for which he was treated by a psychiatrist. He was also subjected to bouts of over-breathing muscular tension, shaking, sweating and acute response to sudden noise. Even though we held this case to be one of simple negligence we abandoned the long standing “physical impact injury” prerequisite to a recovery of damages, and affirmed a judgment in favor of plaintiff.

Two recent cases involving simple negligence and no physical impact injury were Aldridge v. Johnson, 318 So.2d 870 (Miss. 1975), and Sears, Roebuck & Company v. Young, 384 So.2d 69 (Miss.1980). The main thrust of Aldridge v. Johnson was absence of any particular injury, either physical or mental, and we therefore held no liability existed. Likewise, in Sears, Roebuck & Company v. Young, a case quite similar to this case, there was no evidence of any mental or physical injury which necessitated or required medical treatment, and we again held no liability existed.

The facts of this case do not bring it within the ambit of our holding in Langley. The judgment of the circuit court is therefore reversed and judgment is rendered here for the appellant.

REVERSED AND RENDERED.

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

HAWKINS and BOWLING, JJ., specially concur.

HAWKINS, Justice, specially

concurring:

I concur in the result reached by this opinion. I agree that an act which can only be characterized as one of simple negligence happens to cause transitory emotional or mental disturbance, ephemeral in nature, and requiring no professional help, recovery should not be allowed.

I do not believe the language in any previous opinion should be construed to mean, however, that this Court will never uphold a judgment for serious mental injury alone caused by the negligence of another. Although it might be considered an unnecessarily fine distinction, because it is difficult to conceive of an act causing medically serious mental injuries which does not thereby have some physical consequences as well upon the body, this Court should specifically recognize that mental injury alone, if carrying serious consequences and supported by competent medical evidence, is sufficient to support a claim for damages. If there is a genuine basis of liability due to the negligence of another, the plaintiff should not be denied recovery simply because the assault is only upon the mind or nervous system, when the result is a serious, medically cognizable injury. This would not be changing a rule of law, but would be a recognition by this Court of the enormous advance which has been made in the art, science and technology of the diagnosis and treatment of mental and emotional infirmities. This, in my opinion, was the thrust of our holding in First National Bank v. Langley, 314 So.2d 324 (Miss.1975), and should be clearly enunciated here.

BOWLING, J., joins in this opinion.


author: SUGG, Justice, BOWLING, Justice, HAWKINS, Justice,

text:
    Patricia C. Champagne AKIN v. Charles COWIE.
    No. 52848.
    Supreme Court of Mississippi.
    Nov. 11, 1981.

      Holleman & Krogstad, Michael B. Holle-man, L. Kenneth Krogstad, Gulfport, for appellant.
    Bryan, Nelson, Allen, Schroeder & Cobb, Billy W. Hood, Harry R. Allen, Gulfport, for appellee.
   SUGG, Justice,

for the Court:

The Plaintiff, Patricia Champagne Akin, recovered a judgment of $1944.00 against the Defendant, Charles Cowie, in the Circuit Court of the First Judicial District of Harrison County for injuries received in an automobile collision. On appeal Plaintiff assigns as error the granting of Defendant’s comparative negligence instruction and the inadequacy of the verdict. The facts will be stated as each assignment of error is discussed.

Under the assignment of error pertaining to the comparative negligence instruction, Plaintiff argues Defendant was not entitled to a comparative negligence instruction and the instruction given by the court was not properly drawn.

WAS DEFENDANT ENTITLED TO A COMPARATIVE NEGLIGENCE INSTRUCTION?

On the afternoon of September 2, 1977, Plaintiff left her office in downtown Gulfport to return to her home on Klondyke Road. Plaintiff was proceeding north on Pineville Road south of the V-intersection where it is intersected by Klondyke Road, and saw Defendant’s southbound car stopped on Pineville Road opposite the Golden Nugget Package Store. Defendant’s turn signal indicated his intention to turn left across Pineville. Several cars were stopped in back of Defendant and some cars were ahead of Plaintiff in her lane of travel but were not immediately in front of Plaintiff. According to Plaintiff, Defendant suddenly turned in front of her as she passed in front of the package store and a collision resulted. There was a light rain falling; plaintiff had her windshield wipers on; she estimated her speed at about 25 miles per hour at the time of impact, and estimated her speed was about 25 miles per hour after she turned on Pine-ville Road to proceed north. Plaintiff was asked if she slowed her speed below 25 miles per hour when she reached the point where Defendant’s car was. She responded, “No, I had no reason to. I didn’t expect him to pull out in front of me.”

Defendant testified that he was traveling south on Pineville Road and was going to the Golden Nugget Package Store which is located on the Pineville Road where it intersects with Klondyke Road. His windshield wipers were on, and as he approached the area where the package liquor store was, he came to a stop and turned on his left turn signal. He remained stopped until a car, which was approaching in the northbound lane, passed and then started to turn to the left. At that time Plaintiff’s automobile was about 180 feet south of Defendant. Defendant testified that Plaintiff’s car was at a canal, which crosses Pineville Road, when he started his turn; that he measured the distance from the canal to the center of the parking lot into which he was turning.

Plaintiff argues that Jones v. Craft, 218 So.2d 727 (Miss.1969) is almost identical to this case, thereby requiring a reversal. In Jones, Plaintiff was driving east on Highway 28 which is a paved highway having two lanes of traffic, one for eastbound traffic and one for westbound traffic. The accident occurred in front of Sullivan’s store which was located on the south side of the highway. The area between the store and highway was graveled and a gravel road ran south along the west side of Sullivan’s store. Wilson, who was driving west, arrived in front of Sullivan’s store about the time Plaintiff approached from the west. Wilson stopped his pickup truck in the westbound lane to allow Plaintiff to pass before he turned south on the gravel road. Plaintiff slowed his vehicle to about 55 miles per hour as he approached the store and blew his horn as he passed the Wilson vehicle. Defendant arrived from the east about this time and undertook to turn to his left so as to stop in front of Sullivan’s store. Defendant turned left directly across Plaintiff’s lane of traffic and the two vehicles collided.

The trial court peremptorily instructed the jury to find for the Plaintiff on the question of liability and there was no cross-appeal by Defendant questioning the propriety of this instruction. Plaintiff assigned as error the granting of two instructions requested by Defendant instructing the jury to consider the contributory negligence of plaintiff, if any, in awarding damages. The court noted that Plaintiff testified that he reduced his speed to about 55 miles per hour before reaching the Sullivan store, in an area where the speed limit was 65 miles per hour. The only proof that Plaintiff was guilty of excessive speed was the testimony of Defendant that he did not see Plaintiff’s automobile until, “It was right ready to hit me.” When asked if he observed the speed of Plaintiff’s vehicle, he answered, “Well, it was coming like lightning.”

The Court held that the testimony of Defendant was no more than a bare scintilla that Plaintiff was driving at an excessive speed; therefore, no instruction on contributory negligence should have been given because the record failed to reveal any substantial evidence of any negligence on the part of Plaintiff.

In the case at bar, Plaintiff admitted seeing Defendant stopped with his left turn signal on some distance prior to the impact, and that she did not reduce her speed from 25 miles per hour because, “I had no reason to. I didn’t expect him to pull out in front of me.” Moreover, Defendant testified that he started his turn across Pineville Road when Plaintiff was approximately 180 feet south of the point of the collision. Jones was correctly decided on the facts in that case, but the case at bar presents an entirely different factual situation.

Plaintiff’s theory of Defendant’s negligence, set forth in her instructions, was that the Defendant turned his vehicle into the lane occupied by her at a time when she was so close as to constitute an immediate hazard. Defendant’s theory of Plaintiff’s negligence set forth in his instructions was that when he turned his vehicle to cross the northbound lane of Pineville. Road, the Plaintiff was not close enough to constitute an immediate hazard and Plaintiff negligently failed to yield the right of way.

A policeman who investigated the collision made a sketch showing that Defendant’s vehicle was located partially in the package store parking lot and partially in the lane of traffic after the collision, corroborating Defendant’s testimony that his car was about two feet into the parking lot when the collision occurred.

Plaintiff and Defendant were the only two witnesses who testified about the collision. Plaintiff claimed that Defendant suddenly turned in front of her when she was so close that she could not stop. Defendant denied this, and, claimed that he started his turn when Plaintiff’s vehicle was approximately 180 feet from him and, in his opinion, he had sufficient time to make the turn safely across the road. Under these disputed facts, we hold that the Defendant was entitled to have the question of whether the Plaintiff negligently failed to yield the right-of-way presented to the jury.

WAS DEFENDANT’S CONTRIBUTORY NEGLIGENCE INSTRUCTION PROPER?

The following instructions were given by the court:

JURY INSTRUCTION NO. P-2
The Court instructs the Jury that the driver of a vehicle waiting at an intersection, intending to turn to the left, shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection, or so close thereto as to constitute an immediate hazard. If you believe from the evidence, if any, that at the time Charles Cowie turned his vehicle into the lane occupied by Patricia C. Champagne Akin at a time the Plaintiff was so close so as to constitute an immediate hazard, then Charles Cowie was negligent. You are further instructed that if you believe such negligence, if any, proximately caused or proximately contributed to any injuries or damages sustained by Patricia C. Champagne Akin, then it shall be your sworn duty to return a verdict for Patricia C. Champagne Akin.
JURY INSTRUCTION NO. P-3
The Court instructs the jury that the driver of a motor vehicle shall not turn his vehicle in the path of an oncoming vehicle unless it is safe to do so, and further, that the turn could be completed without endangering the driver of the oncoming vehicle.
If you believe from the evidence that Charles Cowie turned his vehicle into the path of the vehicle driven by Patricia C. Champagne Akin at a time when it was not safe to do so, then Charles Cowie was negligent. You are further instructed that if you believe such negligence, if any, proximately caused or proximately contributed to any injuries or damages sustained by Patricia C. Champagne Akin, then it shall be your sworn duty to return a verdict for Patricia C. Champagne Akin.
INSTRUCTION NO. D-7
The Court instructs the jury that if you find from a preponderance of the evidence in this case that the Defendant, Charles Cowie, immediately before the collision in question, gave a signal of his intention to turn left across the northbound traffic of Klondyke Road and in the exercise of reasonable care, began traveling left across the northbound lane of Klondyke Road into a private parking area, when the Plaintiff, Patricia Champagne Akin, approaching from the south, was not so close as to constitute an immediate hazard, then the Defendant Cowie held the right of way over the Plaintiff Akin, and in that event, if you further find from a preponderance of the evidence that the Plaintiff Akin negligently failed to yield the right of way to the Defendant Cowie and that such negligence, if any, was the sole proximate cause of the collision in question, it would be your sworn duty to return a verdict for the Defendant, Charles Cowie.
INSTRUCTION NO. D-8
The Court instructs the jury that before you can return a verdict for the Plaintiff, she must prove by a preponderance of the evidence that the Defendant was guilty of negligence which proximately contributed to her injury, if any, and even then, if you further believe from the evidence that the Plaintiff was herself guilty of negligence, if any, in the operation of her vehicle which proximately contributed to any injury, the Court instructs you that you must, in this event, reduce the damages from any injury to the Plaintiff in proportion to the negligence contributed by the Plaintiff which resulted in her injury, if any.

Defendant’s Instruction D-8 did not define the acts which would constitute contributory negligence; however, even though failure to do so is error, it is harmless error where another instruction correctly informs the jury what facts constitute negligence. In Trainer v. Gibson, 360 So.2d 1226 at 1228 (Miss.1978), we held:

We have stated on several occasions that an instruction charging negligence or contributory negligence must define those acts which would constitute such. Jones v. Craft, 218 So.2d 727 (Miss.1969); Rayborn v. Freeman, 209 So.2d 193 (Miss. 1968); Gore v. Patrick, 246 Miss. 715, 150 So.2d 169 (1963).
We have also held that even though failure to do so is error, it is harmless error where another instruction correctly informs the jury what facts constitute negligence. Gore v. Patrick, supra.
Thus, if another instruction correctly defines negligence, the error would not ordinarily be reversible.

Defendant’s Instruction D-7 correctly informed the jury what acts of the Plaintiff could constitute negligence, and under the familiar rule that all instructions must be considered together, we hold it was not reversible error to give Instruction D-8.

In Jones v. Craft, 218 So.2d 727 (Miss. 1969) a contributory negligence instruction, similar to D-8, in this case was condemned. However, the court pointed out that no other instruction cured the error. In Jones, a peremptory instruction was given for the Plaintiff and the record does not contain any instruction on negligence.

In Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356 (1929) appellant argued that an instruction was erroneous because, in the testimony offered by the respective parties, the Appellee claimed that she was not negligent at all, and the collision was caused solely by the negligence of the Appellant, Adams, while Adams claimed he was not negligent, but the collision was caused solely by the negligence of Appellee; consequently, there was no room for a finding by the jury that it was caused by the negligence of both of them. In disposing of this argument the Court held:

The fact that the driver of each of the automobiles involved in the collision testified that it was caused solely by the negligence of the other does not render an instruction based on our Comparative Negligence Statute (Hemingway’s Code 1927, § 516) inapplicable or erroneous. The jury was not required to accept, in its entirety, the theory of either party, and it was its duty to consider all the testimony of the witnesses in the light of the physical facts and the circumstances shown, and to determine therefrom the negligence, if any, of the respective parties. (155 Miss. at 382, 124 So. at 357)

See also, Ferguson v. Denton, 239 Miss. 591, 124 So.2d 279, 280 (1960).

In this case, as in Morrell Packing Co., the jury was not required to accept, in its entirety, the theory of either party, and it was its duty to consider all the testimony and to determine therefrom the negligence, if any, of the respective parties.

We hold that the Instruction D-8 was not proper, but giving the instruction was harmless error because D-7 properly defined Defendant’s theory of the negligence of the Plaintiff; to-wit, failure to yield the right-of-way.

WAS THE VERDICT OF THE JURY CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE?

The collision occurred on September 2, 1977, and Plaintiff testified that she was thrown up over the steering wheel, hit the top of her head on the windshield and bruised and cut her left knee. Plaintiff was treated at the emergency room of the Memorial Hospital at Gulfport and the complaints given by her to the emergency room physician were severe headache and abrasions to her knee. The X-rays were normal and Plaintiff was released on the same day with no complaint of back injury being made at that time. The total medical expense incurred in this treatment was $144.

Plaintiff stayed at home for the next three or four days suffering with headaches and pain in her knee. When the pain started subsiding, she noticed a low back pain that radiated into the right buttock. She did not seek any medical help for the back pain at that time; however, the pain became gradually worse over the next few weeks and she made an appointment with her family physician but had to cancel the appointment because of a conflict in her schedule. Sometime during the first or second week in December, Plaintiff noticed the pain was radiating down into her right leg and made another appointment with her family physician for January 5, 1978.

Plaintiff was not able to fill this appointment because on January 3, 1978, as she was getting dressed for work, she leaned over to open the top drawer of her dresser, heard a pop in her back, could not straighten up, could not move, and had her daughter call her former husband to come and assist her. By the time he arrived she was able to straighten up and take some short steps. Her husband called Dr. Corban, an orthopedic surgeon, and she was taken to his office. Dr. Corban admitted her to the Gulfport Memorial Hospital where she remained for a period of three weeks. She was placed in traction at the hospital and during the last day or two of her hospital confinement was allowed to walk. She stayed with her mother for the next three weeks and then returned home for another three weeks before returning to her law office.

Plaintiff was examined by Dr. Richard Buckley, a neurosurgeon, on March 30,1978, and this examination suggested to the doctor that she suffered a mechanical instability of her back. Dr. Buckley requested that Plaintiff have additional X-rays to confirm the possible mechanical instability and return in a few weeks for a follow-up visit.

Plaintiff did not return to see Dr. Buckley until March, 1979. His examination at that time revealed that Plaintiff suffered from spondylolisthesis, a congenital condition that probably developed during her late teens. Both doctors testified that Plaintiff gave a medical history of back pain following the accident which continued until the acute episode of January 3, 1978. The acute episode was brought on by the activity Plaintiff was engaged in at that time, namely, bending over to open a dresser drawer. Dr. Buckley stated that the automobile accident did not cause Plaintiff’s spondylolisthesis. Both doctors were of the opinion that there was a causal relation between the automobile collision and the symptoms Plaintiff was having in 1978 and 1979 based largely on the medical history given by Plaintiff, after the acute episode of January, 1978, of back pain following the collision. Dr. Buckley testified that there was a marked improvement in Plaintiff’s condition from her first visit in 1978 and her last visit in 1979.

Dr. Buckley recommended that Plaintiff have an operation on her back because of the symptoms she was having. The operation would entail approximately two weeks hospitalization and Plaintiff would probably not be able to go back to work for a period of three to four months. Dr. Buckley estimated Plaintiff could probably count on a period of six months to a year after surgery before she could resume a normal caseload or normal activity. He estimated that a two week hospitalization for the operation would cost between $3,000 and $4,000 and the surgical fee would be approximately $2,000. Plaintiff had not had the operation at the time of trial.

Plaintiff’s medical expenses following the automobile collision were $144 and her total medical expenses following the acute episode of January 3, 1978, were $2,790.01, which included expenses of hospitalization and examinations by Dr. Corban and Dr. Buckley. Plaintiff argues that the verdict of the jury is against the overwhelming weight of the evidence because the verdict of $1,944 is less than her total medical expenses which have been paid and which she will incur in the future. Plaintiff thus attributes all of her back problem and medical expenses to the automobile collision of September 2, 1977, and none to the accident which occurred when she bent over to open a dresser drawer on January 3, 1978.

The doctors who testified related her current symptoms to the automobile collision largely on the testimony of the Plaintiff that she suffered pain after the collision before she hurt her back in 1978. There is no evidence in the record that Plaintiff complained to anyone about back pain during this interval.

The jury had before it the question of comparative negligence of the Plaintiff and had the right to take Plaintiff’s negligence into account in assessing damages. As the Court stated in Morrell Packing Co., supra, the jury was not required to accept in its entirety the theory of either party and it was its duty to consider all the testimony of the witnesses and the physical facts and determine therefrom the negligence, if any, of the respective parties. The right to take comparative negligence into account may justify an otherwise inadequate verdict. Matheny v. Illinois Central RR. Co., 235 Miss. 173, 108 So.2d 589 (1959). Moreover, the jury had the right to determine whether Plaintiff’s symptoms with her back were caused by the acute episode of January 3,1978, rather than the collision. We therefore affirm.

AFFIRMED.

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

BOWLING, HAWKINS and LEE, JJ., dissent.

BOWLING, Justice,

dissenting:

In my opinion the granting of Defendant’s Instruction D-8 was reversible error; for otherwise we shall be doing violence to the prior decisions of this Court without specifically overruling them.

The majority opinion admits that Instruction D-8 is error but states that this admitted error is harmless primarily because of defendant’s Instruction No. 7 and Plaintiff’s Instructions Numbers 2 and 3, all of which are set out in the majority opinion.

It cannot be disputed that we have held that the granting to a defendant of a contributory negligence instruction should include instructions to the jury as to what guidelines it should follow in determining whether or not the plaintiff was guilty of contributory negligence and thereby requiring the jury to diminish the plaintiff’s damages.

With deference, I cannot see how the majority can hold that Instructions P-2, P-3 and D-7, as set out in the majority opinion, cure the admitted error in Instruction D-8. The two instructions granted the plaintiff clearly refer solely and exclusively to alleged negligence of the defendant and have nothing whatever to do with any jury guidelines as to possible negligence of the plaintiff.

This brings us to the real reasoning of the majority opinion stating that Instruction D-7 renders erroneous Instruction D-8 harmless. The sole and only point of law about which the jury was instructed in D-7 was that if the defendant did certain things under the applicáble statute, he had the right of way. The instruction then goes on to say that if he was not given this right of way, he was entitled to a verdict. In other words, the instruction involved only the question as to whether or not the defendant was entitled to a verdict and in no way includes any guidelines regarding any specific acts of negligence on the part of the plaintiff that would reduce a verdict for the plaintiff.

Neither Instruction D-8 nor other instructions gave any guidelines whatever to the jury regarding any alleged action of the plaintiff such as speed, look-out, control, etc. It merely turns the jury loose to grope in the dark about any specific acts of contributory negligence, as required by the pri- or cases of this Court cited in the majority opinion.

The above conclusion is necessary even under the language of Instruction D-7 where it states that “if you further find from a preponderance of the evidence that the plaintiff Akin negligently failed to yield the right of way. . . . ” This instruction itself leaves the jury to blindly try to determine what the word “negligently” means. At the risk of repetition, the instruction then goes solely to the rights of the defendant exclusively under the contention that he was entitled to a verdict and the plaintiff entitled to nothing.

There is one question that can be asked which clarifies what I am saying; that is, if the plaintiff was guilty solely of negligence in “failing to yield the right of way” and the defendant was entitled to a verdict under Instruction D-7, which was the sole request, then why is contributory negligence involved at all under D-7?

In laymen’s language, the defendant cannot have his cake and eat it too. He cannot contend that he is entitled to a verdict simply because he had the right of way and then confuse the jury by stating, “Oh, well, if that is not correct then I am entitled to a reduction of damage because of plaintiff’s contributory negligence.” The question arises, which is wholly and completely absent from the instruction: “what was plaintiff’s contributory negligence?” It could not be failing to yield the right of way as Defendant’s D — 7 under the alleged facts in that instruction, give him the right of way. In other words, if the plaintiff was guilty of contributory negligence, it could not be “failing to yield the right of way.” This would have been the “sole” cause and no contributory negligence would be involved. It is inescapable, therefore, that if the jury were permitted to delve into the issue of plaintiff’s contributory negligence, such as control, speed, look-out, etc., they received absolutely no instruction and under our pri- or decisions Instruction D-8 is clearly reversible error.

LEE and HAWKINS, JJ., join in this dissent.

HAWKINS, Justice,

dissenting:

I respectfully dissent. In my view giving the contributory negligence instruction over the objection of the plaintiff constituted reversible error.

Under the facts of this case there was just one issue presented for the jury to decide: whether it was the plaintiff or the defendant who had the right of way for the east side of Pineville Road at the moment of the collision. One had it, the other did not. As set forth in the majority opinion the jury was clearly and unmistakably instructed on this precise issue.

Giving the contributory negligence instruction in this case makes the same sense as authorizing a jury to find there are two fathers in a paternity suit.

BOWLING, J., joins in this opinion.

      . Instruction C.01 states in part, “You are not to single out one instruction alone as stating the law, but you must consider these instructions as a whole.”


author: SUGG, Justice,

text:
    Bennie J. COLE v. STATE of Mississippi.
    No. 52906.
    Supreme Court of Mississippi.
    Nov. 11, 1981.

      J. Kennedy Turner III, Philadelphia, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and HAWKINS, JJ.
   SUGG, Justice,

for the Court:

Bennie James Cole was indicted and tried in the Circuit Court of Neshoba County for the crime of murder, but was convicted of the lesser included crime of manslaughter. The court sentenced him to serve twenty years in the custody of the Mississippi Department of Corrections. We affirm.

On August 4, 1980, Patricia Cole died from five .22 caliber gunshot wounds fired from a rifle, and inflicted by the defendant who was her brother-in-law. Two witnesses actually saw him shoot and kill the victim. Following the shooting, a third witness heard him state that he had killed his sister-in-law, Patricia Cole.

The majority of the trial, and the facts presented, revolved around whether the defendant possessed the necessary mental capacity to determine right from wrong, and the nature and quality of his acts at the time of the homicide. The defendant testified that he remembered nothing about the incident. He also complained of frequent headaches and blackouts during which he remembers little or nothing. Furthermore, one of these headaches was induced shortly before the incident in question by a conversation with his sister-in-law, Cynthie Cole. His ex-wife testified that when he had these headaches he did not understand what he was doing. His mother also testified that he had frequent headaches, and that he had no memory of his actions following these headaches.

The state also presented evidence on the issue of the defendant’s insanity. Bobbie Coleman, who had been with the victim and the defendant shortly before he chased his sister-in-law out of the house and shot her, stated that defendant was acting normally and doing nothing unusual. Dr. Robert McKinley, a staff psychiatrist at Whitfield, testified that, in his opinion, the defendant knew right from wrong and could appreciate the nature and quality of his act at at the time of the homicide. Dr. William Dudley, a practicing psychiatrist, also testified and stated that the defendant was capable of assisting in his defense.

On motion of defendant, the trial judge reduced the charge from murder to manslaughter.

One of the assignments of error is that the trial court should have granted a continuance. The Public Defender of Nesh-oba County was appointed to represent defendant on Wednesday, September 17,1980, and the trial was held the following Wednesday, September 24. Defendant filed a motion for continuance on September 18 and alleged that his attorney did not have sufficient time to prepare for trial; that his attorney’s presence was required in court on other cases in which he had been appointed, and that it would be necessary to file several motions and interview many witnesses in this case. Defendant’s attorney filed a motion for special venire, a motion to quash the indictment, a motion for discovery and inspection, and a motion for mental examination on September 19, and filed a motion for a psychological and physical examination on September 22. The twelve-day September, 1980 term opened on September 15. The homicide was committed on August 4 and defendant was indicted and arraigned on September 17.

The motion for continuance was overruled on September 23 and the order recited that the court heard evidence on the motion, but the evidence is not included in the transcript.

In Barnes v. State, 249 So.2d 383 (Miss. 1971), the Court noted the difference between a motion for continuance based on the lack of reasonable time for an attorney to prepare for trial and an application for continuance based on the ground of absent witnesses.

The application for continuance upon the ground that the attorney for the defendant has not had a reasonable time to prepare for trial is different from an application for continuance on the ground that there is an absent witness. When a witness is absent the movant must continue his effort to obtain the witness after having filed the motion required by Section 1520 Mississippi Code 1942 Annotated (1956). See: King v. State, 251 Miss. 161, 168 So.2d 637 (1964). On the other hand, a motion for continuance upon the ground that an attorney has not had sufficient time to prepare for trial is subject to proof and also as to facts as they may appear from that which is known to the trial court. (249 So.2d at 384)

In Jackson v. State, 254 So.2d 876 (Miss. 1971) we noted that a trial judge has broad discretion in granting and refusing continuances, and stated:

As the trial court has broad discretion as to whether or not a continuance should be granted in the trial of a case, and, unless this Court can say from facts shown in the trial that the trial court abused its discretion, or that an injustice has been done, the Supreme Court of Mississippi will not disturb the holding of the trial court denying such a motion. Boydstun v. Perry, 249 So.2d 661 (Miss. 1971); Barnes v. State, 249 So.2d 383 (Miss.1971); Cummings v. State, 219 So.2d 673 (Miss.1969); Bennett v. State, 197 So.2d 886 (Miss.1967). (254 So.2d at 878)

Applying the rule stated above, we cannot say the trial judge abused his discretion in refusing a continuance in this case.

. Appellant also alleges that the psychological, mental, and physical examinations given him pursuant to court order were improperly conducted as his mental capacity at the time of the offense was not ascertained. In complying with section 99-13-11 Mississippi Code Annotated (1972), the trial judge ordered that the tests should determine whether “The defendant was mentally competent to stand trial for the crime, to cooperate with his counsel, and that he knew the difference between right and wrong at the time of the commission of the crime.” Dr. Robert McKinley, a staff psychiatrist for the Mississippi State Hospital, had previously examined the defendant on August 26, 1980. Dr. McKinley testified that, in his opinion, the defendant knew the difference between right and wrong on August 4,1980. Another psychiatrist, Dr. William Dudley, who examined the defendant on September 22, 1980, testified that the defendant was capable of assisting in his defense.

At trial, defense counsel elicited testimony from Dr. Robert McKinley that he could not say beyond a reasonable doubt that the defendant knew right from wrong at the time the offense occurred. Based upon this statement the appellant moved for a directed verdict on the issue of insanity. The motion was denied by the trial judge and is now assigned as error.

In overruling the motion for directed verdict, the trial judge stated:

On the question of insanity, a doctor who testifies as to his opinion, and he is not required to give his opinion on a finding beyond reasonable doubt. That rule only applies to the burden of the State to prove material elements of a crime beyond every reasonable doubt. In doing so, the jury would be entitled to consider all of the testimony of those who testify, with reasonable inferences flowing from their testimony, and in addition, they have the right to observe the demeanor of those witnesses, and particularly, of the Defendant, if he chooses to testify. So that part of the Defendant’s motion will be overruled.

The trial judge correctly stated the rule with reference to the testimony of an expert and the burden of proof and properly refused to grant the motion for a directed verdict.

Alternatively, the defendant contends the verdict of the jury is against the overwhelming weight of the evidence on the question of whether defendant was capable of knowing the difference between right and wrong at the time of the homicide. Both Cole and the state presented evidence as to the defendant’s ability to discern right from wrong at the time the offense was committed.

We have repeatedly held that it is the function of the jury to make the final determination on the issue of a defendant’s sanity. Such determination is the purpose for which juries exist. Annaratone v. State, 399 So.2d 825 (Miss.1981); King v. State, 374 So.2d 808 (Miss.1979); Lias v. State, 362 So.2d 198 (Miss.1978); Knight v. State, 360 So.2d 674 (Miss.1978); Hollins v. State, 340 So.2d 438 (Miss.1976).

The verdict of the jury was not against the overwhelming weight of the evidence.

Appellant contends the trial court erred by overruling his motion for a directed verdict, and granting the state’s manslaughter instruction because the element of a killing in the heat of passion was not proved beyond a reasonable doubt.

The evidence was sufficient to sustain a verdict of murder. Therefore, appellant may not complain of the state’s manslaughter instruction. As stated in Huston v. State, 105 Miss. 413, 419, 62 So. 421, 422 (1931),

Technically the contention of defendant may be flawless; but practically we think it is without substance or merit... Upon an indictment charging murder, the person charged may be legally convicted of manslaughter, provided there is evidence justifying the belief that the defendant is guilty of the lesser crime. This is admitted; but it is contended that there was no evidence even tending to prove manslaughter. The reply is that there was abundant. evidence to prove murder .. . and we are unable to see how he can complain of the instruction on manslaughter, or of the verdict of the jury.

AFFIRMED.

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


text:
    Arthur Lee GENTRY v. STATE of Mississippi.
    No. 53112.
    Supreme Court of Mississippi.
    Nov. 11, 1981.

      Chatwin M. Jackson, Jr., Kosciusko, for appellant.
    Bill Allain, Atty. Gen. by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   ON MOTION TO REQUIRE APPELLANT TO FILE A PROPER ABSTRACT OF THE RECORD

SUGG, Justice,

for the Court:

Appellee moved that appellant be required to prepare and file an abstract of the record in conformity with Supreme Court Rule 41 as interpreted in Hamilton v. Poteet, 343 So.2d 1222 (Miss.1977). The grounds of the motion are: the abstract does not comply with Rule 41 because the first person was not used in abstracting the testimony of witnesses, and the abstract omits much testimony favorable to the ap-pellee. The record in this case consists of five volumes of seven hundred seventy six pages and the abstract is five pages in length.

At the outset, we emphasize that Rule 41 does not require an abstract of the entire record but only of such material parts of the record necessary for a clear understanding of the questions presented to the Supreme Court for decision. If a cross-appeal is filed, cross-appellant has the duty to abstract the material parts of the record necessary for a clear understanding of the questions presented for decision by the cross-appeal. In this case the assignments of error are:

I.The court erred in arraigning the defendant in vacation over the objections of the defendant.
II. The court erred in refusing to grant the defendant’s motion for a change of venue.
III. The court erred in admitting into evidence, the alleged confessions of the defendant.

Appellant is only required by Rule 41 to abstract the material part of the record necessary for a clear understanding of the issues raised by his assignments of error. It is entirely possible that a five page abstract might be sufficient in the present case; however, we sustain the motion because the testimony of witnesses relating to the second and third assignments of error has not been abstracted in the first person.

Experience has demonstrated that the abstracts which are most helpful are those which are prefaced by an index. An index is helpful, not only to the Court, but also to attorneys for the appellant and the appel-lee. Accordingly, we amended Rule 41 to require that each abstract be prefaced by a comprehensive index of its contents, and deleted the requirement that the abstract contain copies of exhibits. The amended rule follows:

ABSTRACT OR ABRIDGMENT OF RECORD REQUIRED
(a) In all cases, the appellant shall make and file with his brief an abstract or abridgment of the record which shall consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary for a clear understanding of all questions presented to this Court for decision. The abstract shall contain references to the pages of the record. When testimony is abstracted, the first person shall be used. Whenever a map, plat, photograph, or other exhibit must be examined for an understanding of the testimony, the appellant shall not be required to reproduce such exhibit but shall refer to the page of the transcript of the record where the exhibit appears. Each abstract shall be prefaced with a comprehensive index of its contents. Appellant’s failure to file an abstract or abridgment of the record shall be cause for dismissal of the appeal.
(b) If the appellee considers appellant’s abstract to be defective or insufficient he may, at his option, submit with his brief a supplemental abstract which shall be prepared generally as set out in Paragraph (a) insofar as is practical, and shall point out wherein appellant’s abstract is defective or insufficient, with appropriate references to pages in the record. Appel-lee’s supplemental abstract shall not repeat those parts of appellant’s abstract not claimed to be defective or insufficient.
(c) The abstract, and any supplemental abstract, may be included in the brief of the party filing it, and this section shall not contain any argument or editorializing. Any argument on the facts shall be contained in other parts of the brief. The pages containing appellant’s abstract of the record and appellee’s supplemental abstract shall not be counted for purposes of the fifty-page limitation on the length of briefs.

For the reasons stated, the motion is sustained and appellant is required, within 30 days, to file an abstract in accordance with Rule 41 prefaced by a comprehensive index.

MOTION SUSTAINED.

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

BOWLING, J., took no part.