author: BYRNES, Judge. WARD, Judge,

text:
    Rowena SPENCER, M.D. v. CHILDREN’S HOSPITAL, et al.
    No. 12924.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 1, 1982.
    Rehearing Denied Oct. 22, 1982.

      John R. Martzell, A. D. Freeman, New Orleans, for plaintiff-appellant.
    A. R. Christovich, Jr., New Orleans, Corinne A. Morrison, Peter T. Dazzio, W. Shelby McKenzie, Nancy Tyler, Baton Rouge, Gordon F. Wilson, Jr., New Orleans, for defendants-appellees.
    Before WARD, WILLIAMS and BYRNES, JJ.
   BYRNES, Judge.

Dr. Rowena Spencer, Plaintiff-Appellant herein, appeals from a judgment of the District Court dismissing her suit with prejudice. The factual context in which this appeal arises is as follows:

Appellant is a pediatric surgeon of unquestioned skill. She is one of only two Board Certified Pediatric Surgeons in Louisiana. She has practiced in association with a number of hospitals throughout the state. In July, 1977, Dr. Spencer was suspended from the exercise of staff privileges at Chil-drens Hospital in New Orleans, Louisiana. One reason for this suspension was a threat by Dr. Spencer to finance a law suit against the Hospital on behalf of one of her patients whom she felt had been negligently cared for by the hospital staff. Another, more important reason, was Dr. Spencer’s inability to work with members of the staff, particularly nurses. At the time of her suspension, 35% of the nursing staff was threatening to resign due to Dr. Spencer’s abusive treatment.

Several days later the suspension was lifted on the condition that Dr. Spencer take a two month sabbatical and meet with an ad hoc committee of staff members to negotiate “conditions under which you will resume your practice at Children’s Hospital”. This agreement, known as the Cain agreement, was the result of several hours of ‘collective bargaining’ between Dr. Spencer and James Cain, then President of the Board of Trustees of the Hospital. When Dr. Spencer met with the ad hoc committee in October she refused to consider any conditions. She contended that the Cain agreement merely required her to meet with the committee as the sole condition for her return to the staff. Despite several subsequent meetings no agreement was ever reached.

During this period Dr. Spencer made the routine annual application for staff privileges which is required at Children’s Hospital and many other hospitals around the state. Her application was understandably denied, given the continued impasse which existed between Dr. Spencer and the administration and staff of the hospital.

Dr. Spencer then filed suit for damages and a preliminary injunction prohibiting Children’s Hospital from denying her staff privileges. The trial on Dr. Spencer’s petition was held in January, 1978. This proceeding was exceedingly thorough, taking seven full trial days. The trial court denied the plaintiff’s petition in a strongly worded opinion which characterized Dr. Spencer’s actions in dealing with the hospital staff as “unreasonable, over-bearing, extremely demanding, offensive, rude, insulting and unwarranted.” Dr. Spencer appealed, and this court affirmed in another strongly worded opinion which concluded that “any harm plaintiff has suffered appears to have been entirely her own doing.” This court further found that, “Dr. Spencer does not have staff privileges at Children’s Hospital because she voluntarily left, pursuant to the Cain agreement, which stated she could not return until conditions were agreed upon. She has never agreed to anything ... Dr. Spencer was not un-fairly, illegally, or un-constitutionaly dealt with by the hospital or its staff. She simply has not discharged the obligation which she voluntarily accepted.” (referring to the Cain agreement)

This cause came to trial on the merits on January 14,1980. By January 31,1980, Dr. Spencer had presented all of her evidence with the exception of her own testimony and that of her C.P.A. Court was adjourned early the day of the 31st, on the suggestion of Dr. Spencer’s counsel, to allow the parties one final opportunity to reach a compromise. While there is some conflict as to what occurred thereafter, this much is clear; Dr. Spencer absolutely refused to compromise her claim despite her own counsel’s recommendation that such a move would be in her best interest. At this point Dr. Spencer became very upset. She returned home and took a number of pills in an apparent attempt on her life.

When Dr. Spencer failed to appear in court the next morning her counsel informed the court that she was “ill in bed”, and requested a continuance until the following Monday, February 4, 1980, which was granted. When Dr. Spencer once again failed to appear, the trial judge held a conference in chambers to ascertain the reason for Dr. Spencer’s continued absence. At that time it was made known to the court that Dr. Spencer had attempted suicide and would be unavailable for an indefinite time. When it became clear that Dr. Spencer would not be able to appear for some time counsel for the defense moved that Dr. Spencer’s prior deposition and her testimony from the injunction proceeding be used in lieu of her present testimony. Alternatively, defendant’s counsel moved for a continuance. Dr. Spencer’s counsel vigorously opposed both motions and moved instead for a mistrial.

Upon discovery of the attempted suicide the trial judge dismissed Dr. Spencer’s suit, with prejudice, on the grounds of her deliberate non-appearance. Counsel for the plaintiff immediately applied for writs to this court. We annulled the trial court’s judgment and remanded for an evidentiary hearing on the circumstances surrounding Dr. Spencer’s non-appearance. The depositions of Dr. Spencer and Dr. Winn, her physician, were taken in anticipation of this hearing. After conducting the hearing ordered by this court the trial judge reinstated his original opinion with the following reasons: “Considering the depositions and the testimony as a whole the court is of the opinion that the attempt was deliberate, was made with the definite intent not to continue the trial.”

We affirm the results reached by the trial judge but find error in his reasoning. To begin with, we must note that the trial judge is without power to dismiss a case on his own motion. Code of Civil Procedure Articles 1671 and 1672 deal with dismissals. Art. 1671 covers voluntary dismissal and reads as follows:

“A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs if the application is made prior to a general appearance by the defendant. If the application is made after a general appearance, the court may refuse to grant the judgment of dismissal except with prejudice”.

The statute is clear that, while the judge has discretion in some cases to dismiss with or without prejudice, he must be acting on “application of the plaintiff”. Art. 1672 deals with involuntary dismissals and states:

“A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for the trial. In such case the court shall determine whether the judgment of dismissal shall be with or without prejudice.”

Once again the legislative intent is clear; the judge may not act on his own motion, but only “upon application of either party”.

These limitations are analogous to those applied to directed verdicts in that the court may not act on its own motion but only on motion of one of the parties. Pete v. NOPSI, 402 So.2d 807 (La.App. 4th Cir. 1982); Scholegel v. Robinson, 416 So.2d 366 (La.App. 4th Cir.), rendered 1982).

The plaintiff in this case argues that the trial judge had no such motion before him. He did, however, have before him the plaintiffs motion for a ‘mistrial’. This motion does not exist as a procedural device in civil cases in Louisiana. There is no mention of its use in the Code of Civil Procedure. We will not, however, assume that counsel for the plaintiff was making a meaningless motion. Code of Civil Procedure Art. 865 provides that:

“Every pleading shall be so construed as to do substantial justice”.

The jurisprudence of this state has consistently held that the characterization of a pleading by it’s author is not controlling. Pleadings are governed by their substance and not by their caption. Higdon v. Higdon, 385 So.2d 396, (La.App. 1st Cir. 1980); Louisiana Live Stock Sanitary Board v. Johnson, 372 So.2d 585, (La.App. 3d Cir. 1979); Weber v. Bon Marche Pharmacy, 378 So.2d 520, (La.App. 4th Cir. 1979); Cvitanovich v. Sorli, 347 So.2d 1204, (La.App. 1st Cir. 1977); Polk v. Hunt, 282 So.2d 614, (La.App. 1st Cir. 1973); Griffith v. Metry Cab Service, 266 So.2d 739, (La.App. 4th Cir. 1972); Moore v. Shell Oil Co., 228 So.2d 205, (La.App. 3d Cir. 1969); Succession of Smith, 247 La. 921, 175 So.2d 269, (1965)).

The trial judge has a duty to recognize the true nature of a pleading and treat it accordingly. C.C.P. Articles 854, 862, 865, Louisiana Live Stock Sanitary Board v. Johnson, supra, at 591. Fremin-Smith Services Inc., v. Saint Charles Parish Water District No. 1, 300 So.2d 514, (La.App. 4th Cir. 1974)

In this case the trial judge should have treated plaintiff’s motion for a mistrial as a motion to dismiss without prejudice under C.C.P. 1671. Plaintiff’s counsel opposed defendant’s motion for a continuance, so this apparently was not the true object of his motion. Nor could counsel have intended to move for a new trial. That device is reserved for post-judgment pre-appeal situations. In the instant case a final judgment had not been signed when the motion was made and thus a motion for new trial would have been premature. C.C.P. Art. 1971 et seq. Borderlon v. Dauzat, 389 So.2d 820, (La.App. 3d Cir. 1980). Chamblee v. Chamblee, 340 So.2d 378 (La.App. 4th Cir. 1976)

The substance of plaintiff’s motion clearly shows a desire to begin the trial anew at an undetermined time in the future when plaintiff’s health would permit her to give testimony. Voluntary dismissal under Code of Civil Procedure Art. 1671 is the only procedural device by which plaintiff could accomplish this goal in a civil trial. Accordingly we will treat defendant’s motion for a mistrial as a motion for voluntary dismissal under C.C.P. 1671.

The next issue presented for our consideration is whether or not the trial judge erred in ordering the dismissal with prejudice. C.C.P. 1671 clearly and unambiguously states:

“... If the application is made after a general appearance the court may refuse to grant the judgment of dismissal except with prejudice.”

This language leaves no doubt that, after a general appearance, the plaintiff’s right to dismiss is within the sound discretion of the trial court. State v. Sky Eagle, 345 So.2d 189 (La.App. 3d Cir. 1977). It is well settled that the trial judge’s wide discretion in acting on a motion for a continuance will not be disturbed on appeal absent a clear showing of abuse of that discretion. Sauce v. Bussell, 298 So.2d 832 (La.1974).

In analyzing whether a trial court has abused this discretion the particular facts and circumstances of each case must be considered. C.C.P. 1671 and 1672 give the trial judge wide discretion to dismiss an action, with or without prejudice, analogous to that allowed in ruling on a motion for a continuance. In either case the trial judge’s unique position gives him superior ability to determine the terms of a dismissal. He has first hand knowledge of the course of the trial, the circumstances surrounding each individual case, the evidence put forth by each party, and the effect a dismissal without prejudice will have on his docket. He must balance considerations of fairness to both parties against those of fairness to other litigants in his court and the need for an orderly and prompt administration of justice. Thomas v. State of Louisiana, 383 So.2d 108, (La.App. 3d Cir. 1980); Martin v. South Coast Corp., 356 So.2d 500, (La.App. 1st Cir. 1977); Malter v. McKinney, 310 So.2d 696, (La.App. 1st Cir. 1975); Powell v. Giddens, 271 So.2d 596, (La.App. 1st Cir. 1972).

In the circumstances presented by this case we find no abuse of discretion in dismissing appellant’s suit with prejudice. The hearing on the preliminary injunction in this matter took a full week of trial time. To devote a week to such a matter is an unusual circumstance, and illustrates the thoroughness with which all issues raised by the application were explored. It is significant that many of the issues and allegations made in that application are identical to those raised at the trial on the merits. This includes the allegations of a conspiracy by defendants to deny plaintiff staff privileges at Children’s Hospital, which is the main thrust of the plaintiffs case.

At the time of Dr. Spencer’s attempted suicide the only evidence not yet presented in support of her claim was her own testimony and that of her C.P.A. Dr. Spencer had given extensive testimony at the injunction hearing which preceded the trial on the merits. In addition, she had an opportunity to relate her version of the facts at a deposition taken by the defendants in December of 1979, slightly more than one month before the trial. The opinion of Judge Duran, who had tried the preliminary injunction, was part of the evidence as was the opinion of this court upholding Judge Duran’s denial of the injunction. These opinions left no doubt as to the throughness with which these issues had been covered previously. In addition, the trial judge himself heard three weeks of exhaustive testimony on behalf of the plaintiff. He clearly did not feel that Dr. Spencer’s testimony would bring out significant new evidence not already covered by her prior testimony and depositions. We cannot disagree with this conclusion given the facts of this case.

In deciding whether to dismiss a suit with or without prejudice the trial court must balance the plaintiffs interests in a dismissal without prejudice against society’s interest in a just result and the orderly disposition of disputes between parties. While pleadings should generally be construed so as to afford a litigant his day in court, the ultimate end of all judicial interpretations of this type should be substantial justice for both parties. Roy v. Commercial Union Assurance Co., 385 So.2d 1273, (La.App. 3d Cir. 1980)

Here there simply was not sufficient justification in the record or in the plaintiff’s motion for “mistrial” to support a dismissal without prejudice. The record makes it quite clear that Dr. Spencer’s testimony was not likely to add significantly to the strength of her case. A great deal of judicial time had already been expended on this controversy. Much of that time was spent in duplicitous relitigation of the same factual circumstances. There is no reason to allow this same set of facts to be litigated again when the result cannot reasonably be expected to be different.

In a case such as this one, where it appears that the plaintiff, has failed to make out its case due to a lack of sufficient evidence, and it does not appear that further proceedings would substantiate the plaintiffs claim, dismissal with prejudice is appropriate. Strother v. Villere Coal Co., 15 So.2d 383 (La.App. Orleans 1943) The judgment of the trial court is therefore affirmed.

All costs of this appeal to be borne by appellant.

AFFIRM.

WARD, Judge,

concurs and assigns written reasons.

I concur in the result, but I disagree with the majority’s reasons for its judgment. The majority’s opinion unnecessarily and erroneously relies upon a strained interpretation of La. C.C.P. Art. 1671 to reach what I believe to be the correct result for the wrong reasons. First, the majority concludes that the Trial Judge did not have authority to dismiss with prejudice Dr. Spencer’s lawsuit in the absence of a motion to dismiss. Then, after having created the need for a motion, the majority uncovers Dr. Spencer’s motion for a mistrial and converts it to a motion to dismiss without prejudice. As if this were not enough, it then holds that if counsel for plaintiff file a motion to dismiss without prejudice after an answer is filed, they may be surprised— more than that, shocked, to find they gave authority to the Trial Judge to dismiss the suit with prejudice. Shot down with their own bullet, so to speak.

In my opinion, this interpretation is erroneous. The intent of Art. 1671 is to distinguish those situations when the Trial Judge must grant a dismissal upon motion of counsel from those situations when he may exercise his discretion and refuse. That is to say, before an answer is filed, a plaintiff’s motion to dismiss without prejudice must be granted; and equally, after an answer is filed, a plaintiff’s motion to dismiss with prejudice must be granted; and it is within the sound discretion of the Trial Judge to refuse to grant a motion to dismiss without prejudice after an answer is filed. However, neither Art. 1671 nor Art. 1672 prohibits the Trial Judge from acting on his own initiative and exercising his sound discretion by dismissing the lawsuit. While it is also true that nothing in the Code of Civil Procedure specifically grants this discretion, it is my opinion that the Trial Judge in some rare instances has the authority through the inherent power of the courts to dismiss a lawsuit, as, say, for gross misconduct of one of the parties and to prevent the court from becoming a public spectacle. La. C.C.P. Arts. 191 and 1631.

This is not to say there was gross misconduct in the instant case. Here plaintiff failed to appear on the day set for her to testify in her lawsuit. Had counsel for defendants moved for dismissal, the motion would have been properly granted under Art. 1672. In my opinion, merely because opposing counsel does not move for dismissal, the Trial Judge does not have to sit idly by, waiting for counsel to make a proper motion. Here, too, and for the same reasons, I believe it is within the inherent power of the Trial Judge to order an involuntary dismissal, even on his own motion, because of plaintiff’s willful absence and failure to appear during trial.

This Court’s recent decisions holding that a Trial Judge does not have authority to direct a verdict in the absence of a motion by counsel (Pete v. NOPSI and Schloegel v. Robinson, supra) has been extended by the majority to hold that he may never dismiss with prejudice any lawsuit. I do not believe that rule applicable to those unusual, rare, unique situations, as in this case, where necessity dictates that the Trial Court exercise its inherent authority, even without a motion of counsel.

The Trial Judge did not err by dismissing plaintiff’s lawsuit with prejudice, even in the absence of a motion by opposing counsel.

      . Art. 191. A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.

        Art. 1631. The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Edmund M. BRIGNAC and Leonard J. Sintes, Trustees for the Alfred F. Brignac, Sr., Trust v. Azalie BRIGNAC.
    No. 12519.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 1982.
    Rehearing Denied Oct. 22, 1982.

      Peter E. Duffy, Vallerie Oxner, Metairie, for plaintiffs-appellees.
    A. Reed Sharpe, Jr., James D. Howser, New Orleans, for defendant-appellant.
    Before GULOTTA, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from an order' of the trial court ordering the eviction of the defendant appellant, Azalie Brignac, from the premises of 6751 Canal Boulevard, New Orleans, Louisiana, within twenty-four hours of rendition of the judgment on 6 March, 1981. The defendant proceeded with this suspensive appeal after furnishing security in the amount of $3,000.00.

The defendant, Azalie Brignac, is the widow of the late Alfred F. Brignac, Sr. who was the income beneficiary of the Alfred F. Brignac, Sr. Trust, established by his sister, Laura Brignac Montiero. The Alfred F. Brignac, Sr. Trust contained all the assets bequeathed to Laura Brignac Montiero’s nephew, Alfred F. Brignac, Jr., and designated Alfred F. Brignac, Sr. as the sole income beneficiary.

Subsequently, on October 31,1972, Alfred F. Brignac, Sr. executed his last will and testament bequeathing to his wife, Azalie Brignac, one-half of his estate. He also designated his wife as executrix. On June 4, 1974, the trustees of the Alfred F. Brig-nac, Sr. Trust purchased 6751 Canal Boulevard in the name of the Trust. On October 27,1976, Alfred F. Brignac, Sr. died, and his widow, Azalie Brignac, continued to live in the residence located at 6751 Canal Boulevard. On December 24, 1980, the trustees of the Alfred F. Brignac, Sr. Trust filed a rule to evict Azalie Brignac from the premises.

When the trial on the rule to evict was held, the defendant, Azalie Brignac, attempted to convert the summary eviction proceedings into a trial on the merits, alleging that the title to the property located at 6751 Canal Boulevard was disputed. The defendant attempted to subpoena the annual accounts prepared by the trustees of the Alfred F. Brignac, Sr. Trust in order to show that the money used to purchase 6751 Canal Boulevard was all, or part, of income that should have been distributed to Alfred F. Brignac, Sr. as the sole income beneficiary of the Alfred F. Brignac, Sr. Trust.

If the defendant could establish ownership interest in the residence, then an action for eviction would be improper as the title would be in dispute. At the trial of this matter, however, the court quite properly refused to allow the defendant to present any evidence of these alleged affirmative defenses and ordered her to vacate the premises. Many of the arguments raised by the defendant regarding the proper course of conduct for a trustee, more particularly, the trustee’s duties to render annual accounting are not relevant to the fundamental issue to be resolved in this proceeding.

Article 4702 of the Louisiana Code of Civil Procedure, basically provides for the eviction of an occupant from an immovable. In Vicknair v. Watson-Pitchford, Inc., 348 So.2d 695 (La.App. 1st Cir. 1977), the First Circuit set forth the general rule regarding evictions:

“It is well settled that a summary action for eviction of a tenant or lessee . .. involves the single issue of whether the lessor is entitled to possession of the leased premises. [citations omitted]. Equally well settled is the rule that a lessee cannot defeat his lessor’s right to summary action for eviction by injecting therein issues foreign to the one issue involved, and thereby convert the summary proceeding into an ordinary proceeding.” [citation omitted]. Id. at 696.

The defendant, therefore, did not have the right to demand an accounting from the trustees during the eviction proceedings.

The defendant’s position has consistently been that an eviction proceeding is not an appropriate vehicle to try a disputed title to property. Although this court agrees with the Third Circuit that the summary procedure is only to be employed when the possessor has “no semblance to claim of title or possession” Foreman v. Luquette, 344 So.2d 1111, 1113 (3d Cir. 1977), it is clear that in the instant case, the defendant has no claim whatsoever to the property.

The Alfred F. Brignac, Sr. Trust clearly possesses title to the property in question and any claims that Azalie Brignac may have regarding the proper disbursement from the Trust should be resolved in a separate adversary proceeding. The Louisiana Supreme Court has discussed at length in Reynolds v. Reynolds, 388 So.2d 1135 (La.1979) (Reh. 1980), the complex relationship concerning the ownership right of income and principal beneficiaries of property to which the trustee of the trust holds title. “No statute in Louisiana confers upon a trust beneficiary the ownership of the corpus of the trust; the interest of the beneficiary ... is an interest in the trust, not in the corpus.” Id. at 1138. See also La.R.S. 9:1731.

The issues raised by the appellants regarding the trial court’s ruling quashing the subpoena duces tecum are also without merit as the evidence contained therein is outside the scope of the proceedings.

Based upon the record before us, we cannot say the trial court erred in making absolute the rule of eviction. The decision of the trial is affirmed and the defendant is ordered to vacate the premises of 6751 Canal Boulevard and to bear all costs of these proceedings.

AFFIRMED.


text:
    Roy HOCK v. SEA CAMPER OF NEW ORLEANS, INC. Ocean Oil International Engineering Corp. and Hector Pazos.
    No. 12970.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 1982.
    Rehearing Denied Oct. 22, 1982.

      Morris Bart, III, New Orleans, for plaintiff-appellee.
    Gordon K. Konrad, Metairie, for defendants-appellants.
    Before WARD, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment of the trial court holding Sea-Camper of New Orleans, Inc., Ocean Oil International Engineering Corporation, and Hector Pazos liable in redhibition for damages suffered by the plaintiff, Dr. Roy Hock, who had purchased a defective pleasure vessel from the defendants.

The following facts were adduced at trial:

Hector Pazos was the sole shareholder of Sea Camper of New Orleans, Inc. [“Sea-Camper”] and also of Ocean Oil International Engineering Corporation [“Ocean Oil”]. Pazos formed Sea-Camper to sell pleasure crafts manufactured by Sea-Camper Industries, Inc. In March of 1979, the plaintiff visited Sea-Camper to purchase a pleasure craft. Pazos and an employee of Ocean Oil, John Crabtree, showed the plaintiff a boat that he eventually purchased. Before he purchased the boat, the plaintiff went on a test ride with Crabtree, and although problems with the boat developed during this demonstration, Crabtree assured the plaintiff that they would be taken care of. Pazos told the plaintiff that the boat was a 1978 model, warranted by the manufacturer. Neither Pazos nor Crabtree mentioned that the boat had been involved in an automobile accident while it was being towed. The boat had been run approximately fifty-five hours and was sold to the plaintiff as a demonstrator.

On March 23, 1979, the plaintiff purchased the boat. A number of problems developed with the boat, two of which were of specific concern for the plaintiff. Approximately seven days after he purchased the boat, the plaintiff and several others, including his wife and daughters, went for a ride on the boat for the first time. When docking the boat, the plaintiff could not change gears and was able to stop the boat only when two passengers grabbed onto a pier. His daughter almost was thrown overboard as he tried to dock the boat because the cover on the back stairs near where she was standing flew open. The plaintiff immediately called Crabtree who inspected the boat and said that something had come loose in the gearbox and that he would fix it.

The second incident occurred the next time that the plaintiff used the boat. The plaintiff, his wife, and ten-year old son spent the night aboard the boat. The plaintiff awoke about 2:15 a. m. and discovered two or three inches of water in the boat. He awoke his wife and son, and they got off the boat as quickly as they could. This was the last time that the plaintiff used the boat. He has moored the boat in a rented slip since that time.

The afternoon after the flooding incident, the plaintiff learned, from the owner of another Sea Camper boat, of the accident involving his vessel. Negotiations between Sea-Camper and the plaintiff about the return or repair of the boat were fruitless. The plaintiff tendered the boat to Sea Camper and the manufacturer authorized the return of the boat, but Sea-Camper refused to return it because the plaintiff would not pay for the cost of its transportation back to Florida. Finally, the plaintiff filed suit in redhibition against Pazos, Sea-Camper, and the manufacturer. He later amended his petition to include John Crab-tree and Ocean Oil as additional defendants. Trial was held and the district court ruled in favor of the plaintiff, holding Sea-Camper, Ocean Oil, and Hector Pazos liable for the return of the purchase price, attorneys’ fees, and rental of the slip.

Sea-Camper and Pazos have appealed, alleging two errors in the court below: (1) the court erred in finding that a redhibitory defect existed in the boat at the time that it was sold, and (2) the court erred in holding Pazos and Ocean Oil liable.

REDHIBITION

The defendants contend that: (1) no red-hibitory defects existed at the time of sale, and (2) the plaintiff failed to tender the boat for repairs of all of the problems upon which he based this action.

To rescind a sale for a redhibitory vice, a purchaser must prove: (1) that the seller sold him the thing; (2) that the thing contained a latent defect that rendered it useless; (3) that the purchaser would not have bought it had he been aware of the defect; and (4) that the defect existed at the time of sale. E.g., Custom Metal & Air Conditioning Co. v. Boudreaux, 346 So.2d 1379 (La.App. 3d Cir. 1977). An additional requirement has been added to this list: the purchaser must tender the thing for repair before the sale may be rescinded. La.Civ. Code art. 2531; Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133 (La.App. 3d Cir. 1979); Wiltz v. Dixie Auto Sales, Inc., 315 So.2d 811 (La.App. 3d Cir. 1975).

The defendants contend that the plaintiff failed to show that any redhibitory defects existed at the time of sale. A number of the defects about which Dowling, the plaintiff’s expert, testified were caused by passage of time. These include deteriorating draperies, carpets, etc. As the defendants point out in brief, Dowling did not inspect the boat until after a year had elapsed from the act of sale. Nevertheless, there is sufficient evidence in the record to uphold the trial court’s determination that a number of these defects existed at sale. Some of the problems that the plaintiff experienced with the boat were first observed on the demonstration ride. For example, the foul odor attributed to leakage, was first noticed at that time. According to Dowling, the flooding of the cabin floor experienced by the plaintiff was due to a leak. Because the plaintiff had taken the vessel out only one other time before the flooding incident and the odor had been noticed during the demonstration run, it was not error to conclude that this defect also existed at the time of sale. The defective latch on the stairwell cover did not manifest itself until the plaintiffs first outing on the boat only about one week after the sale, and it is also logical to assume that it existed at the time of sale.

Although there is no evidence to attribute directly these defects to the automobile accident in which the vessel was involved, there is sufficient evidence to base a holding that problems sufficient to rescind the sale existed at the time the plaintiff bought the vessel.

The plaintiff admitted during testimony that once he decided to file suit, he went through the boat and listed all of its problems, some of which he had not communicated to the defendants. As stated above, tender for repair is a prerequisite to the recission of a sale. Although the defendants did not have the opportunity to repair all of the boat’s defects, they nevertheless attempted to solve a number of them. In fact, the evidence at trial was uncontradic-taed that Crabtree worked constantly with the plaintiff, trying to fix the boat. Crab-tree testified that he fixed, among other things, the latch on the cover to the back stairwell, the gearbox, and inspected the boat when water was discovered on the floor.

At trial, Lionel Dowling was qualified as an expert for the plaintiff in the area of marine mechanics. Dowling testified that a number of problems still existed on the vessel, among them items that Crabtree had attempted to repair or had been informed of, including the latch on the stairwell cover and the condition of the propeller. He testified that the water that collected on the floor of the boat would be the result of a leak, and not failure on the part of the plaintiff to operate the equipment properly.

Although the plaintiff did not tender the boat for repair of all defects, the defendant nevertheless had an opportunity to repair some of the major ones. Furthermore, Crabtree spent a great deal of time handling the problems that the plaintiff was having with the boat. According to Dowl-ing, the repairs made by Crabtree were mostly unsuccessful.

Based upon the evidence adduced at trial, the district court could conclude that the defendant had ample opportunity to repair the defects in the boat. Even assuming that the defendants had not been informed of all of the defects about which the defendant complained at trial, they did attempt to repair a sufficient number of major problems of which they were aware, to satisfy the requirement that the purchaser tender the object for repair.

The court was not in error in finding that a sufficient number of redhibit defects existed at sale and were tendered for repair for the sale to be recinded

LIABILITY OF PAZOS AND OCEAN OIL

The trial court held Pazos personally liable for the damages suffered by the plaintiff. Ocean Oil also was held liable for this amount.

The trial court found that the corporate identities of Ocean Oil and Sea-Camper were merged. This holding was based on the fact that the boat was purchased from the manufacturer by Ocean Oil and not Sea-Camper. Pazos explained at trial that bank accounts had not been set up in Sea Camper’s name and Ocean Oil, therefore, purchased the boats and then conveyed them to Sea Camper. The plaintiff also emphasized that Crabtree, although an employee of Ocean Oil, did work for Sea Camper.

This is the only evidence contained in the record that relates to a mingling of corporate identity. No evidence of failure to keep separate identities, such as lack of corporate formalities, undercapitalization, failure to keep separate accounting records, etc. exists. Cf. Kingman Enterprises, Inc. v. Bakerfieid Electric Co., 339 So.2d 1280 (La.App. 1st Cir. 1976).

Absent any other evidence, the trial court was in error in holding Ocean Oil liable for the judgment rendered against Sea-Camper.

Pazos was held personally liable. The general rule is that corporations are entities distinct from their shareholders, and the shareholders, therefore, are not personally responsible for the debts of the corporation. La.Civ.Code arts. 435 & 437; La. R.S. 12:93(B); Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., 227 So.2d 265 (La.App. 2d Cir. 1969).

There are exceptions to this rule. For example, if the shareholder fails to conduct the business on a corporate footing to such an extent that the identity of the corporation cannot be distinguished from that of the shareholder’s, the corporation may be determined to be the alter ego of the shareholder. If this happens, the shareholder will be personally liable. Keller v. Haas, 202 La. 486, 12 So.2d 238 (1943). See generally, Comment, 38 Tul.L.Rev. 738 (1964).

In the case now before us, no evidence other than Pazos’s status as a sole shareholder of Sea-Camper was presented at trial. This clearly is insufficient to prove that SeaCamper was nothing more than the alter ego of Pazos. E.g., Gordon v. Baton Rouge Stores Co., 168 La. 248, 121 So. 759 (1929).

The plaintiff argued that Pazos committed fraud in representing to him that the boat was a “demonstrator” when industry standards would have considered it to be “used,” and by failing to inform him that the boat had been involved in an accident.

La.R.S. 12:95 states:

“Nothing in this Chapter shall be construed as in derogation of any rights which any person may by law have against a promoter, subscriber, shareholder, director or officer, or the corporation, because of any fraud practiced upon him by any of such persons or the corporation, or in derogation of any right which the corporation may have because of any fraud practiced upon it by any of these persons.”

Dowling testified at trial that a boat that had been ridden approximately fifty-five hours would not be considered a demonstrator in the industry. He also testified that the seller should have informed the buyer of the accident in which the boat was involved. He further stated that, in his opinion, the manufacturer’s warranty ceased to be effective because of the accident.

Pazos and Crabtree testified that they did not mention the accident to the plaintiff because, in their opinions, it was not important. They explained that the damage had been repaired, and the repairs had been warranted. They also stated that while logging hours when demonstrating the boat no problems had developed.

In Watson v. Big T Timber Co., 382 So.2d 258 (La.App. 3d Cir. 1980), a shareholder who sold timber by means of a warranty deed, but intentionally concealed that the purchaser would not enjoy peaceable possession, was held personally liable for breach of warranty against eviction. See La.Civ.Code art. 2501. Watson is distinguishable from the present case on two grounds. First, the shareholder’s intent to deceive the plaintiff to his detriment clearly was evident. In this case, the intent to deceive is not apparent from the record. Second, and more important, the decision to “pierce the corporate veil” in Watson was not based on fraud (La.R.S. 12:95), but rather was based on equitable considerations in view of the circumstances presented by the case as a whole.

The failure of the defendants to inform the plaintiff of the accident apparently caused the trial court the greatest concern. At trial, Pazos and Crabtree stated that because, in their opinions, the boat had been restored to a “like new” condition, they did not think that it was necessary to mention the accident. Although evidence was introduced to show that the plaintiff should have been informed of the accident, no evidence was introduced to show that the omission was made with intent to defraud. No conclusive evidence was introduced to prove that the problems that the plaintiff had with the boat were related to the accident. Furthermore, notwithstanding evidence that the boat should not have been represented to be a demonstrator, the plaintiff admitted that he was informed of the fifty-five hours logged on the boat at the time of purchase. No effort was made by the defendants to conceal this.

Louisiana always has required that fraud be proven and cannot be presumed. See, e.g. La.Civ.C. art. 1848; Johansen v. Port Jewell, Inc., 351 So.2d 184 (La.1977). By reason of the prohibition against presumption of fraud, coupled with the strong policy considerations that corporate identity is to be disregarded only in exceptional circumstances, we find that the trial court was in error in finding Pazos personally liable. In the instant case, we cannot presume that Pazos intended to defraud the plaintiff. Pazos, therefore, is not personally liable for the damages in redhibition.

For the foregoing reasons, the judgment holding SeaCamper liable to the plaintiff for $28,550.00 is affirmed. The judgment against Hector Pazos and Ocean Oil is reversed.

AMENDED IN PART REVERSED IN PART.

      . Although the manufacturer was named as a defendant in the plaintiffs suit, it is not before us on appeal. Testimony at trial indicated that the manufacturer had filed bankruptcy.


author: BROOM, Justice,

text:
    Betty Brown MATTHEWS v. WATKINS MOTOR LINES, INC., James Winfred Smith and Willie Hyde, d/b/a Hyde Truck Service.
    No. 53326.
    Supreme Court of Mississippi.
    July 21, 1982.
    As Modified on Denial of Rehearing Oct. 13, 1982.
    C. R. McRae, Henry P. Pate, III, Pasca-goula, for appellant.
    Roger T. Clark, Gulfport, John W. Chapman, Pascagoula, Bryant & Stennis, Gulf-port, for appellees.
    Before WALKER, BROOM and ROY NOBLE LEE, JJ.
   BROOM, Justice,

for the Court:

Credit against plaintiff’s (Betty Brown Matthews’) judgment in a tort action was ordered upon the post-trial motion of the defendants (appellees), Watkins Motor Lines, Inc., James Winfred Smith and Willie Hyde, d/b/a Hyde Truck Service, so as to reduce the judgment to the extent of payments for medical expenses previously advanced by appellees’ insurance carrier (Waco Fire and Casualty). Trial was in the Circuit Court of Jackson County, the Honorable Clinton E. Lockard, Circuit Judge, presiding. The jury verdict and judgment in favor of plaintiff (appellant), was for $43,000, which, upon appellees’ motion, was reduced by $9,206.96, to the lesser sum of $33,793.04. Aggrieved because her judgment was reduced, plaintiff Betty Brown Matthews appeals, contending that (1) the trial court erred “in hearing and determining appellees’ motion for credit”, and (2) the trial court “lacked jurisdiction to entertain appellees’ motion for credit.” We reverse.

Liability is not an issue in this suit which arose out of a traffic accident on July 7, 1974. The only issue is the amount of the judgment. In the accident on U. S. Highway 90 near Pascagoula, Mississippi, the appellees’ truck rear-ended the vehicle in which the plaintiff (appellant) and her minor son, William Gary Brown, Jr., were riding. Her suit was for bodily injuries and physical pain which she suffered plus “psychological and emotional pain for her being deprived of her son’s comfort, happiness, society and companionship”. She sought $500,000 actual and $500,000 punitive damages. The jury awarded her $43,-000, which was reduced by the trial court to the lesser sum of $33,793.04 at the post-trial hearing of appellees’ motion:

MOTION FOR CREDIT AGAINST JUDGMENT
Come now Watkins Motor Lines, Inc., James Winfred Smith and Willie Hyde, d/b/a Hyde Truck Service, Defendants in the above styled and numbered cause, and moves the Court for an order allowing an offset or credit against the Judgment of $43,000.00 previously entered in said cause, said offset or credit to be in the full sum and amount of any and all money previously paid by Defendants and their insurance carriers for medical treatment and miscellaneous expenses related to the injuries of William Gary Brown, Jr., suffered in the same accident which is the subject of this law suit. :

DID THE TRIAL COURT ERR IN HEARING AND DETERMINING APPEL-LEES’ MOTION FOR CREDIT? By its order, the trial court, before expiration of the term of court during which the jury trial took place, set the “Motion for Credit” for vacation hearing at a later time. The transcript and abstract before us omits any record of the actual testimony of the trial in chief, and consists in the main of proceedings including argument and testimony related to the “Motion for Credit”. Actually, the record of the introduction into evidence (at the trial in chief) of the bills or invoices (or the objections thereto) pertaining to the plaintiff’s son are not before us.

Appellees rest their case in part upon the thesis that the controversial “credits” were properly allowed because

Nowhere does Appellant contend in the subject lawsuit that she was entitled to recover for medical bills incurred by her son, William Gary Brown, Jr., the plaintiff in another lawsuit. Appellant by her pleadings admits that the medical bills incurred by her son were not a proper part of her lawsuit as no demand was made for them in the suit.
. .. The medical bills introduced into the record of this cause were addressed not to the Appellant but to Appellant’s then husband, the father of William Gary Brown, Jr.

Significant, however, is the fact that the issue of the admissibility of the bills incurred for the plaintiff’s son and former husband is not viable on the record before us. This is true because appellees (defendants below) made no appeal or cross-appeal from the lower court’s allowing into evidence, over appellees’ objection, testimony (documentary or otherwise) pertaining to either the son’s or former husband’s expenses. Weyen v. Weyen, 165 Miss. 257, 139 So. 608 (1932), is relied upon by appel-lees in support of their argument that “plaintiff should not be permitted to recover for these bills ... unless the plaintiff had reimbursed the defendant.” Failure of appellees to make any appeal from the trial court’s rulings simply precludes application of their argument under Weyen.

Appellees take the position that inasmuch as the plaintiff “did not plead as part of her damages the subject bills” she could not show “proof as to the medical expenses incurred by William Gary Brown, Jr. ... ” Further, appellees state

[Bjecause of the lack of notice Appellees had that Appellant was claiming these medical bills and miscellaneous expenses, the post judgment motion was the only way Appellees had to bring this properly before the court.

This argument lacks persuasion because when the subject “bills” were introduced by the plaintiff, appellees could have sought leave to conform their answer or pleadings to the proof. By doing so, appellees could have been in position to offer evidence of affirmative matter in avoidance of the controversial “bills” which went into evidence at plaintiff’s instance. In this situation, appellees never sought to amend their answer or cause their pleadings to conform to the proof, or aver affirmative evidence in that regard. They simply let the cause go to the jury. So far as the record shows, no instruction was requested by the appellees directing the jury to diminish any award made to the plaintiff by “bills” incurred by her son or former husband. To uphold the credits allowed below on appellees’ post-trial “motion” is to allow the appellees to deny all liability (as was done here by their mere general answer) without pleading any set-off or affirmative matter (except alleging that plaintiff’s driver was guilty of negligence) and then seeking reduction of the jury award by action of the judge alone. Such procedure has the effect of defeating the plaintiff’s right to a jury trial on the fact issue of how much, if any, should be subtracted from the plaintiff’s award as “bills” relating to her son or former husband. No case from this jurisdiction is cited which would be authority for us to hold, upon the skimpy record before us, that a plaintiff can be deprived even in part of the right of jury trial on an issue of fact.

Conceding here that the plaintiff should not recover for “bills” not related to her, the amount thereof would be a jury issue. In that connection, for the record does not contain the jury instructions, it could be that the jury did not include in its verdict amounts of “bills” unrelated to the plaintiff.

In the context presented, we will not second guess jurors as to how they arrived at their $43,000 verdict.

Although it will not affect our ruling in this case, we would point out that advance payments made to injured persons serve a very desirable humanitarian purpose and should be encouraged in instances where appropriate. In such cases, if the defendant or insuror seeks credit for such advance payments against a possible verdict in a lawsuit, the amount of advance payments made should be affirmatively pled so that the defendant will be placed on notice of the claim. After making such affirmative plea, it would then be proper for the defendant or insurer to make a motion in limine to exclude any evidence of the advance payments during the trial of the case before the jury. If a judgment is thereafter rendered against the defendant in favor of the plaintiff, it would be proper for the court to conduct a hearing without a jury to determine the amount of credit to be allowed against the judgment because of the advance payments. See Ferris v. Anderson, 255 N.W.2d 135 (Iowa 1977) and Byrd v. Stuart, 224 Tenn. 46, 450 S.W.2d 11 (1969).

Having decided that the “Motion for Credit” should not have been sustained in the case sub judice, we do not reach the issue of whether the lower court should have acted in vacation. Accordingly, we must reverse the lower court’s reduction of the jury verdict, and reinstate the jury verdict and judgment for that amount.

REVERSED; JURY VERDICT AND JUDGMENT REINSTATED.

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

PRATHER, J., takes no part.

      . Since the time of the accident, the plaintiff and her former husband, William Gary Brown, Sr., became divorced and she subsequently remarried. The son, William Gary Brown, Jr., was injured (not killed) in the same accident.


author: PRATHER, Justice,

text:
    Joe PATE (a/k/a Joe Payton) v. STATE of Mississippi.
    No. 53732.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    Calvin R. King, Durant, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and ROY NOBLE LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

Joe Pate was indicted and convicted in the Circuit Court of Holmes County for feloniously selling a quantity of cocaine, a Schedule II controlled substance. He was sentenced to twenty years in the Mississippi Department of Corrections and fined $10,-000. Pate now appeals from that decision and assigns as errors the following:

(1) That the lower court committed error in overruling the defendant’s motion for a mistrial since defendant’s counsel was allegedly surprised by a discrepancy in a prosecution witness’s testimony and a laboratory report statement delivered to defense counsel-prior to trial; and

(2) That the lower court committed error in failing to grant a peremptory instruction; and

(3) That the lower court committed error in failing to grant a motion for a new trial on the ground that the verdict of the jury was against the weight of the evidence.

STATEMENT OF FACTS

Reginald Gage, an agent of the Mississippi Bureau of Narcotics, arranged through a telephone conversation to purchase cocaine from one “Jimmy Payton.” On the following day he, together with surveillance officers in separate cars, traveled to J. J.’s Record Shop in Lexington, Mississippi for the purpose of making the purchase. Gage first knocked on the door of the record shop, but upon receiving no answer, he proceeded to an adjacent trailer located twenty to twenty-five feet from the record shop. Joe Pate invited him to come in and Pate retrieved a bag of cocaine from his refrigerator. At this time, the agent purchased approximately one ounce of cocaine for the price of $2,000. After Gage left Pate’s residence, he and the surveillance officers met at a church to conduct a field test on the substance purchased. The test results confirmed that the substance was cocaine.

“Joe Pate” (a/k/a Joe Payton) was subsequently arrested and charged for selling a controlled substance. Prior to trial Pate’s attorney filed a discovery motion seeking production of proposed evidence, including results of any scientific tests made in connection with the case, which would be used at the trial. In response to that motion, a Mississippi Crime Laboratory report was submitted to defense counsel. This report showed in typewritten remarks that the agent purchased approximately one ounce of cocaine from “Jimmy Payton.” The typewritten remarks additionally indicated that the “purchase was made at J. J.’s Record Shop, Cemetery Street, Lexington, Mississippi.” However, at some later time, the name “Jimmy” had been marked through and above it in ink the name “Joe” had been interlined.

At the outset of the trial, defense counsel objected to Gage’s testimony that the purchase was made at Pate’s residence instead of J. J.’s Record Shop. The defense counsel claimed that he was surprised because of this variance, but nevertheless, the objection was overruled and the trial proceeded.

During the trial, the defendant testified that he had never met Officer Gage and he further denied that he sold the cocaine. He added that Gage had perhaps confused him with his brother Jimmy Pate, who allegedly looked similar to the defendant. Gage, however, claimed that he knew both Jimmy and Joe Pate, and that he could distinguish between the two. Gage also testified that he originally thought that the defendant’s last name was Payton since Pate pronounced his name to sound like “Payton” over the phone. The three surveillance agents testified that Gage left the trailer once to find his weighing scales, and that Gage also returned from the trailer with the cocaine. But, none of the surveillance agents actually witnessed the sale of the cocaine inside the residence or saw the alleged perpetrator of the crime. The jury returned a verdict of guilty.

I.

The appellant contended that he was surprised, prejudiced and disadvantaged by Gage’s testimony since the testimony was at variance with the facts as stated on the Mississippi Crime Lab report. However, the prosecution also sent a “request for notice of alibi” to the defense attorney prior to trial, and that request not only stated the date and time of the crime but it also stated that the scene of the crime was at the home of Joe Pate. This obviously should have alerted counsel of any potential discrepancy. Furthermore, the defendant admitted at trial that his trailer was not more than 20 feet behind the record shop. Surely, there can be no basis for surprise when these pertinent facts were known by the defendant. See Carraway v. State, 167 Miss. 390, 148 So. 340 (1933) (attorney must be charged with the knowledge of what his client knew).

Additionally, the Court notes that the appellant’s brief on this point cites no authority of law. We require counsel to not only make a condensed statement of the case but, must also support propositions of law with reasons and authorities. Dozier v. State, 247 Miss. 850, 157 So.2d 798 (1963); Johnson v. State, 154 Miss. 512, 122 So. 529 (1929); Bridges v. State, 154 Miss. 489, 122 So. 533 (1929). We therefore conclude that this contention is without merit.

II.

The appellant also contends that the lower court should have granted him a peremptory instruction of not guilty. In passing upon a request for a peremptory instruction in a criminal case, the court considers as true all evidence submitted by the prosecution, together with any reasonable inferences. Bullock v. State, 391 So.2d 601 (Miss.1980), cert. denied, 452 U.S. 931, 101 S.Ct. 3068, 69 L.Ed.2d 432 (1981); Stinson v. State, 375 So.2d 235 (Miss.1979). If this evidence is sufficient to support a guilty verdict, then the request for a peremptory instruction of not guilty will be denied. Mosley v. State, 396 So.2d 1015 (Miss.1981); Saik v. State, 387 So.2d 751 (Miss.1980).

The defense maintained that the prosecution failed to produce adequate proof of identity for the question of guilt to be decided by a jury. However, Gage positively and directly identified the defendant as the guilty party, and he did so before the jury in the courtroom. This Court has previously commented on the weight of testimony given by a single witness in the case of Henderson v. State, 187 Miss. 166, 192 So. 495 (1939), in which we stated: “The testimony of a single witness whose testimony is not unreasonable on its face, and whose credibility is not successfully impeached, will sustain a conviction although there may be more than one witness testifying in opposition to such witness... . ” 187 Miss. at 171, 192 So. at 496. See also Passons v. State, 239 Miss. 629, 124 So.2d 847 (1960) (identification of accused in criminal case is primarily a jury question; positive identification by one witness may be sufficient). Following the principle stated in Henderson and Passons above, we conclude that a peremptory instruction would not be in order when the state produces a credible eyewitness who actually participated in the criminal transaction. This contention is therefore also without merit.

III.

The appellant’s final contention is that the jury’s verdict of guilty was against the weight of the evidence. Generally, it is the function of the jury to pass upon the weight and worth of the evidence and to determine the credibility and veracity of the witnesses. Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949); Henderson, supra. Indeed, the jury is under no duty to believe the defendant’s denial where there is ample contradictory evidence. Campbell v. State, 278 So.2d 420 (Miss.1973); Robinson v. State, 228 So.2d 373 (Miss.1969). Thus, this Court has previously held that it will not set aside a jury verdict of guilty unless it is clear that the verdict is the result of prejudice, bias, or fraud, or that it is manifestly against the weight of the evidence. Marr v. State, 248 Miss. 281, 159 So.2d 167 (1963); Clanton v. State, 49 So.2d 267 (Miss.1950). In the instant case, the jury’s verdict was substantiated by Officer Gage’s testimony that he purchased the cocaine from Joe Pate at Pate’s residence. Furthermore, the scene of the crime, which was Pate’s residence, was also confirmed by three other agents. The only evidence contradicting Pate’s guilt is Pate’s denial. Thus, we do not find from this record that the evidence was so weak as to be considered indicative of prejudice, bias, or fraud.

Finding no error in the record, this Court affirms the judgment of the lower court.

AFFIRMED.

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


author: SUGG, Presiding Justice, HAWKINS, Justice,

text:
    SQUARE D COMPANY v. Louis E. EDWARDS.
    No. 53160.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Rehearing Denied Oct. 27, 1982.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Grady F. Tollison, Jr., Mary Ann Connell, Oxford, for appellant.
    Omar D. Craig, William K. Duke, Oxford, for appellee.
    Before SUGG, BROOM and BOWLING, JJ.
   SUGG, Presiding Justice,

for the Court:

The appellee Louis E. Edwards, filed suit in the Circuit Court of Pontotoc County against Square D Company and Robbins & Myers, Inc., seeking damages for injuries he sustained while using a Robbins & Myers hoist controlled with a push button switch box manufactured by Square D Company. The jury found in favor of appellee against Square D Company, and assessed damages at $50,000. We consider only the question of whether plaintiff should have supplemented his answers to interrogatories propounded by Square D. Our decision in this question requires a reversal and remand for a new trial.

In Interrogatory No. 1, plaintiff was requested to furnish the names and addresses of all experts he expected to call as witnesses to give opinion testimony, and in Interrogatory 1-G, the substance of the opinions to which such experts were expected to testify. Plaintiff answered the interrogatories on January 24, 1979 and listed the name of his expert as Robert E. Briggs and in response to Interrogatory 1-G stated, “Unknown as no oral or written opinion has been expressed or furnished to me or my counsel.” Plaintiff filed a supplemental answer to the interrogatories on March 11, 1980 and supplemented his answer to Interrogatory 1-G in the following language: “See deposition taken on June 20, 1979.”

Plaintiff’s claim was predicated on evidence that the switch manufactured by Square D was defectively designed. At trial, plaintiff’s expert, Briggs, testified that three defects existed in the design of the switch manufactured by Square D; however, it was developed on cross examination that the expert did not list the three defects in design in his deposition of June 20, 1979 that he testified to at trial. Therefore, the question of whether plaintiff was under a duty to supplement his answer to Interrogatory 1-G is squarely before the Court.

Section 13-1-226 Mississippi Code Annotated (Supp.1981) permits a party, through interrogatories, to require any other party to identify the names of experts expected to be called as witnesses and to state the subject matter, and substance of the facts and opinions to which such expert is expected to testify.

(4) Trial preparation: experts. Discovery of facts known and opinions held by experts, otherwise discoverable under subsection (b)(1) of this section and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: '
(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. [Mississippi Code Annotated, Section 13 — 1—226(b)(4)(A) (Supp.1981) ]

In the event the initial responses do not adequately divulge the names of experts and the substance of the facts and opinions to which such experts are expected to testify, such party is under a duty seasonably to supplement a prior response.

(e) Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. [Mississippi Code Annotated § 13-1-226(e) (Supp.1981) ]

In Clark v. Mississippi Power Company, 372 So.2d 1077 (Miss.1979) defendant propounded interrogatories to the plaintiff. Interrogatory 37 requested the name of any expert witness, the subject matter on which the expert was expected to testify, the substance of the facts and opinions as to which such expert was expected to testify, and for a summary of the grounds for each such opinion. Plaintiff’s answer was, “None at the present time, but there will be an expert; name will be furnished later.” The name of the expert was not furnished until the morning of the trial and on the second day of trial the expert was presented as a witness. Upon objection by defendant, the trial court ruled that the expert could not testify because of the failure of plaintiff to conform to section 13-1-226. On appeal, we affirmed the action of the trial court.

In Huff v. Polk, 408 So.2d 1368 (Miss.1982) plaintiff propounded interrogatories to the defendant. In one interrogatory plaintiff asked the defendant if he expected to call expert witnesses and in another interrogatory for the substance of the experts’ testimony. In answer to the first interrogatory defendant replied, “Not determined at this time,” and in answer to the other interrogatory stated, “Not applicable.” Shortly before the trial began, defendant’s attorney furnished plaintiff’s attorney with supplemental answers to the interrogatories listing two doctors who would be called as experts and orally advised plaintiff’s attorney that another might be called. Plaintiff’s attorney dictated into the record a motion to exclude the testimony of the proposed expert witnesses on the ground that their names were not divulged until the day of the trial and that plaintiff had no chance to prepare for trial with reference to the testimony of the proposed witnesses.

The trial judge permitted the witnesses to testify after offering plaintiff a continuance. On appeal, we reversed and remanded holding that the witnesses should not have been permitted to testify for failure to supplement the answers to interrogatories. With reference to the offer of the trial court to give the plaintiff a continuance, we stated:

First, we have seen the appellant already had incurred the expense of preparation for trial, including the payment to a medical expert who was on his way from Jackson to Meridian. We can almost take judicial knowledge that this would be rather expensive.
The main point, however, is that under the lower court's ruling in this case, in justifying his actions by offering a continuance, the court is setting up a situation where either party to a cause in litigation may decide that he will not be ready for trial on the day it is set and wishes a delay. He could get one by not conforming to the above quoted discovery rules until the morning of the trial, knowing that he would get a continuance by the court giving the already prepared opposition a continuance. We certainly cannot condone the possibility of a situation such as that being legalized. (408 So.2d at 1371)

In both Clark and Huff, we held that section 13-1-226 requires a party who has answered interrogatories to supplement such answers by stating the names of the experts expected to be used at trial when the names of experts were not given in the original responses to the interrogatories. The statute, in addition to requiring a party to supplement the answers to interrogatories to disclose the names of experts expected to be used at trial, also requires the party to supplement responses to state the substance of the experts’ testimony. This was not done by the plaintiff in the case at bar.

Vague or unresponsive answers to interrogatories cannot be tolerated if the process of discovery is to survive as a reasonable method of discovering the information requested in the interrogatories. One of the principal reasons for permitting interrogatories for pretrial discovery of the opinion held by experts and the substance of their testimony is to prevent trial by ambush and surprise; therefore, “Discovery of expert opinion must not be allowed to degenerate into a game of evasion.” Voegeli v. Lewis, 568 F.2d 89 (8th Cir. 1977).

We therefore hold that a party must not only supplement interrogatories to reveal the identity of expert witnesses expected to be called at trial, but must also supplement interrogatories to reveal the substance of the testimony of such experts, if not stated in answers to the original interrogatories.

We therefore reverse and remand for a new trial because plaintiff did not supplement his interrogatories to state the substance of the testimony of his expert.

REVERSED AND REMANDED.

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

HAWKINS, J., specially concurs.

HAWKINS, Justice,

specially concurring:

The purpose of discovery is to prevent surprise. Even if no interrogatories had been filed in this case, there was a positive duty of the plaintiff to supplement the responses made by his expert in the expert’s deposition relative to the substance of his testimony. Mississippi Code Annotated section 13-1 — 226(e)(1). Attorneys representing both sides in lawsuits would be well-advised to follow the letter and spirit of this rule.

      . The Mississippi Rule of Civil Procedure now in effect is substantially the same as section 13 -1-226 except for the narrowing provision of Mississippi Rules of Civil Procedure 26(b)(1) limiting discoveries to issues rather than to subject matter, and the addition of a new section (c) which provides for the discovery conference.


author: PATTERSON, Chief Justice,

text:
    Jeffrey Glenn EUBANKS v. STATE of Mississippi.
    No. 53426.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    John E. Gregg, Raymond, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and ROY NOBLE LEE and PRATHER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Jeffrey Glenn Eubanks was convicted of simple assault upon a conservation officer by the Circuit Court of Perry County and sentenced to five years, fined $1,000 and ordered to pay court costs. Eubanks appeals, arguing the trial court erred in allowing the State to offer evidence of other separate and independent crimes and acts of misconduct not charged in the indictment.

On July 4, 1980, Eubanks, age 18, was driving his pickup truck in the Town of Beaumont when Harold Farlow and Cecil •Shoemake, Mississippi Game and Fish Commission Conservation Officers, flagged him to stop. Farlow testified he had a warrant for Eubanks’ arrest for reckless driving on state property, alcoholic beverages on state property, failing to yield to a blue light and resisting arrest which occurred at Lake Perry on June 21, 1980.

After stopping Eubanks, the officers informed him they had a warrant for his arrest. Eubanks got back in his truck and attempted to drive away, but Shoemake reached into the truck and grabbed the keys. Eubanks then jumped out of the truck and the officers proceeded to chase him. Unsuccessful in their attempt to apprehend Eubanks, Farlow radioed for assistance. He testified he was aware the Highway Patrol and the Police Chief of Beaumont also had warrants for Eubanks’ arrest relating to the incident of June 21, 1980.

William A. Smith, a Mississippi Highway Patrolman, responded to Farlow’s call and upon arriving at the scene seized Eubanks and the two men fell to the ground. Far-low and Shoemake got into the struggle and Farlow testified Eubanks kicked him in the stomach, and again in the ribs while he was escorting Eubanks to the police car. Upon arriving at the jail, Eubanks kicked Farlow a third time and also broke several of the jail windows and a commode tank. Due to this encounter, Eubanks was charged with simple assault upon a conservation officer.

Evidence was introduced by the state, over objection and after repeated motions for a mistrial, concerning the incident of June 21, 1980, resulting in the issuance of the warrant for appellant’s arrest which eventually led to the charge in the indictment — simple assault upon a conservation officer. Eubanks contends he was denied a fair trial due to the jury repeatedly being exposed to testimony regarding other alleged misconduct and misdemeanors.

Illustrative of the testimony which Eu-banks complains was error follows through a question by the district attorney to Far-low:

Q. I’d like for you to tell the Court and the jury the reason why no arrest was effected on that day. (Referring to June 21, 1980).
A. [W]e had a lot of reports from campers ... that there has been a lot of teenagers out there drinking and possibly smoking pot....

Over objection, Farlow further testified that on June 21,1980, he had to jump out of the road to keep from getting run over by Eubanks; Eubanks was cussing the officers; Farlow thought Eubanks was going to “swing at” Officer Shoemake; and eventually, Eubanks got in his truck and sped away. Farlow then went on to say:

A. I called H. J., and H. J. set up a roadblock somewhere there in Beaumont, and he run through it and he missed him. Well, then, Smitty, the Highway Patrolman, set up on 98 over there and he went through his, I believe and he run him down 98. I heard the chase and everything on my radio down 98, and I think he lost him....

Mississippi follows the general rule that proof of a crime distinct from that alleged in the indictment should not be admitted in evidence against the accused. E.g., Loeffler v. State, 396 So.2d 18 (Miss.1981); Massey v. State, 393 So.2d 472 (Miss.1981).

In Massey we cited Floyd v. State, 166 Miss. 15, 148 So. 226 (1933), which set forth the reason for this rule.

The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice and oppression in criminal prosecutions. Such evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and, while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him. “To permit such evidence,” says Bishop, “would be to put a man’s whole life in issue on a charge of a single wrongful act, and crush him by irrelevant matter, which he could not be prepared to meet.” 1 Bish.Crim.Proc. § 1124. (166 Miss. at 35, 148 So. at 230). 393 So.2d at 474.

We are mindful that this general rule has many exceptions. Tanner v. State, 216 Miss. 150, 61 So.2d 781 (1953). However, the State’s contention that the testimony complained of was admissible as part of the res gestae and was necessary to prove Officer Farlow was making a lawful arrest within the scope of his duty is without merit in our opinion. The separate alleged crimes and misconduct of June 21, 1980, are not so connected that they form a single criminal transaction and cannot be separated.

We are of the opinion Farlow’s testimony concerning the warrant for reckless driving on state property, possession of alcoholic beverages on state property, failing to yield to a blue light and resisting arrest, was admissible to prove Farlow was acting within his authority to arrest Eubanks. However, it was error for the trial court to allow Farlow and Shoemake to testify as to the details of the incident at Lake Perry on June 21, 1980. There was no connection between the facts surrounding that incident and the charge of simple assault for which Eubanks was tried.

We reverse and remand this case for the reasons enumerated in Spears v. State, 253 Miss. 108, 175 So.2d 158, 167 (1965), wherein we quoted from Scarbrough v. State, 204 Miss. 487, 37 So.2d 748 (1948), stating:

“This is not one of those cases for the application of the rule that a conviction will be affirmed unless it appears that another jury could reasonably reach a different verdict upon a proper trial than that returned on the former one, but rather it is a case where the constitutional right of an accused to a fair and impartial trial has been violated. When that is done, the defendant is entitled to another trial regardless of the fact that the evidence on the first trial may have shown him to be guilty beyond every reasonable doubt. The law guarantees this to one accused of crime, and until he has had a fair and impartial trial within the meaning of the Constitution and Laws of the State, he is not to be deprived of his liberty by a sentence in the state penitentiary.” 204 Miss. at 497, 37 So.2d at 750).

Excluding the prejudicial testimony complained of we are aware there was ample evidence to convict Eubanks for simple assault. However, the State, by continuously placing before the jury throughout the trial evidence designed to show Eubanks guilty of other and former misconduct, constituted prejudicial error. The combination of all this prejudicial testimony being introduced before the jury in a prosecution for simple assault, in our opinion, precluded the possibility of a fair trial upon the charge in the indictment. Sumrall v. State, 272 So.2d 917 (Miss.1973).

REVERSED AND REMANDED.

SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


author: DAN M. LEE, Justice,

text:
    SHERWIN-WILLIAMS COMPANY v. Jerry SARRETT and Sarrett Builders & Realty, Inc.
    No. 53436.
    Supreme Court of Mississippi.
    Sept. 29, 1982.

      Young, Scanlon & Sessums, Robert Wells, E. Stephen Williams, Jackson, for appellant.
    Taylor, Covington, Smith & Matrick, James E. Lambert, Jackson, for appellees.
    Before WALKER, HAWKINS and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Hinds County, sitting as an appellate court, which reversed the judgment of the County Court of Hinds County, awarding Sherwin-Williams Company, plaintiff/appellant, damages in the amount of $2,373.14 in Cause No. 90-636, and $1,770.23 in Cause No. 90-637. The action stemmed from labor and materials supplied to Jerry Sarrett and Sarrett Builders & Realty, Inc., defendant/appellee, which were used in connection with the construction of Sarrett’s personal residence (Cause No. 90-636) and the construction of a dwelling for sale (Cause No. 90-637). Sarrett tendered payment in an amount less than the amount owing to Sherwin-Williams, asserting he was entitled to a set-off for interest incurred due to Sherwin-Williams’ delay in completing both houses. The county court found no merit in Sarrett’s claim for a setoff or that the certification of Sarrett’s check by Sherwin-Williams constituted an acceptance, discharging the remaining balance on each account by accord and satisfaction. The circuit court reversed, holding that Sarrett had met his burden of proof to establish that an accord and satisfaction had occurred. From that decree, Sherwin-Wil-liams appeals. We affirm.

Appellee is in the homebuilding and real estate business. Sometime during 1979 and possibly the early portion of 1980, appellee contracted with appellant for labor and materials to be used in the construction of his personal dwelling and in the construction of a custom-built dwelling for sale. Appellee was subsequently billed by appellant in the amount of $5,338.95 on his personal dwelling and $3,294.60 on the dwelling built for sale.

On January 30, 1980, appellee tendered a cheek to appellant for payment of his account, as to his personal dwelling, in the amount of $2,965.81. The statement attached to said check listed a deduction for interest incurred and provided thereon that the amount tendered was “payment in full.” Appellee deducted $2,373.14 from the amount of appellant’s invoice for seventy-seven days of interest incurred on his construction loan due to appellant’s alleged tardiness in correcting defects in the dwelling. This information was conveyed to Phil Womack, appellant’s credit manager, on tender of the check. Womack took the check but told appellee he was not taking the check as payment in full. Appellant subsequently certified the check on April 21, 1980.

On April 14, 1980, appellee tendered another check to appellant, with itemized deductions for various amounts, including an amount for an overcharge, the cost of replacing shoemold, paint, and sixty days interest on the construction loan due to appellant’s alleged failure to correct certain defects, causing a delay in the closing of the house loan. The statement on this check likewise provided the amount tendered constituted payment in full. This check was certified by appellant on April 14, 1980.

Appellant subsequently brought suit for the amounts billed to appellee on both projects. The two causes were consolidated for trial and tried without a jury by the County Court of Hinds County. The county court found there was no acceptance of appellee’s checks, based on certification of the same, and therefore no accord and satisfaction. Judgment was entered for appellant. On appeal, the circuit court reversed holding that appellee met his burden of proving the affirmative defense of accord and satisfaction.

I. Did the circuit court err in finding that certification of appellee’s checks was an acceptance thereof and sufficient to sustain the affirmative defense of accord and satisfaction?

Appellant first contends that since his claims were liquidated, additional consideration was necessary, outside the amount paid in satisfaction, to support the existence of an accord and satisfaction. Appellant’s proposition has been decided adversely to appellant’s claim in Metropolitan Life Ins. Co. v. Perrin, 184 Miss. 249, 188 So. 917 (1938), wherein this Court stated:

The question then presented is whether the acceptance by a creditor from his debtor of less than what the debtor actually owes him in full settlement of the debt constitutes an accord and satisfaction. Under all of the authorities if “A owes B a debt which is unliquidated, or of which either the existence or amount is honestly and reasonably disputed, a payment of any amount by A is sufficient consideration for B’s agreement to accept it in full satisfaction.” Rest. Contracts, Vol. 1, Sec. 76, Comment a. and Illustration 4 thereof, and Vol. 2, Sec. 420; Williston on Contracts, Rev.Ed., Vol. 1, Secs. 128 and 129, and Vol. 6, Sec. 854; 1 Am.Jur., Accord and Satisfaction, Sec. 60; 1 C.J.S., Accord and Satisfaction, Sec. 32. And such also is the rule of this court. Among its decisions so holding are: McCall v. Nave, 52 Miss. 494; Darrill v. Dodds, 78 Miss. 912, 30 So. 4; Cooper v. Yazoo & M. V. R. Co., 82 Miss. 634, 35 So. 162; Phillips v. St. Paul Fire & Marine Insurance Co., 156 Miss. 41, 125 So. 705.
This court, however, goes further than the authorities generally and holds that it is immaterial whether the creditor’s claim is liquidated or disputed. Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189, 37 L.R.A. 771, 60 Am.St.Rep. 522, and the many cases following and approving it. May Bros. v. Doggett, 155 Miss. 849, 124 So. 476. ...
(184 Miss. at 258-259, 183 So. at 919-920).

See also Dix v. Trigger Contractors, Inc., 337 So.2d 694 (Miss.1976).

In the case sub judice, the trial court found the second condition had not been met — certification of the check being at best a conditional acceptance. On appeal, the circuit court reversed, holding appellant had accepted the checks in full payment by having them certified. The crux of the matter before this Court is whether appellant can, with full knowledge of the terms and conditions noted on the check, have the same certified, thereby depriving appellee of the amount tendered as payment in full, and not be bound by the terms and conditions noted on the check.

Four basic conditions must exist to constitute an accord and satisfaction. In Lovorn v. Iron Wood Products Corp., 362 So.2d 196 (Miss.1978), this Court enumerated these conditions as follows:

AN ACCORD AND SATISFACTION: The four basic conditions of an accord and satisfaction are: (1) something of value offered in full satisfaction of demand; (2) accompanied by acts and declarations as amount to a condition that if the thing offered is accepted, it is accepted in satisfaction; (3) the party offered the thing of value is bound to understand that if he takes it, he takes subject to such conditions; and (4) the party actually does accept the item. Cooper & Rock v. Yazoo M.V.R.R., 82 Miss. 634, 35 So. 162 (1903).
(362 So.2d at 197)

1 C.J.S. Accord and Satisfaction section 34c (1936), provides in part:

Similarly, procuring the certification of a check tendered or delivered as full settlement of a claim or demand ordinarily operates as an acceptance of the payment, for, as has been pointed out, causing a check to be certified is practically the equivalent of collecting or cashing it, in that it places the amount of the check within the exclusive control of the creditor.

Furthermore, Mississippi Code Annotated section 75-3-411(1) (1981) of our Uniform Commercial Code provides:

(1) Certification of a check is acceptance. Where a holder procures certification the drawer and all prior indorsers are discharged.

In Kersh v. Manis Wholesale Co., 135 Ga.App. 943, 219 S.E.2d 604 (1975), the Georgia Court of Appeals held certification of an unendorsed check acceptance thereof in construing the above-mentioned statute and decisions of the Georgia Supreme Court pri- or to enactment of the statute.

Appellant relies upon Post Road Realty, Inc. v. Zee-Bar, Inc., 117 N.H. 136, 370 A.2d 282 (1977), wherein it was held that certification of a check by the payee did not constitute an acceptance under the above-mentioned statute. However, the New Hampshire Supreme Court also found in that case that had the payee cashed the check, an accord and satisfaction would not have occurred, contrary to our holding in Lovorn, supra.

Certification of a check is the equivalent of collecting or cashing the same. The amount of the certified check is placed within the exclusive control of the creditor. The debtor is deprived of the right to stop payment on the check and is likewise deprived of the money the same as if the check had been cashed.

We extend our holding in Lovorn to include that certification of the check by appellant under the facts and circumstances in the present case amounted to an acceptance thereof. The circuit court was therefore correct in finding appellee’s debt was extinguished by accord and satisfaction.

Based on the foregoing, this cause must be and is hereby affirmed.

AFFIRMED.

PATTERSON, G. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and PRATHER, JJ., concur.


author: ROY NOBLE LEE, Justice,

text:
    TERRACINA MOTOR COMPANY v. Salvador SARULLO.
    No. 53811.
    Supreme Court of Mississippi.
    Sept. 29, 1982.

      Harty & Kimble, R. V. Kimble, Jr., Greenville, for appellant.
    Lake, Tindall, Hunger & Thackston, J. A. Lake, Greenville, for appellee.
    Before SUGG, ROY NOBLE LEE and PRATHER, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

The Circuit Court of Washington County, Honorable B. B. Wilkes, presiding, entered judgment in the sum of thirty-three hundred seventy-five dollars ($3,375.00) in favor of Salvador Sarullo and against Terraci-na Motor Company for rent, after expiration of a commercial property lease. Terra-cina has appealed and assigns two (2) errors in the trial below.

On January 4,1971, appellee, as landowner and lessor, entered into an agreement with the appellant for the rental of certain commercial property in the City of Green-ville. The lease provided a primary term of five (5) years, with option to renew for an additional five (5) years at the same monthly rental of six hundred dollars ($600.00). At the expiration of the primary lease term, appellant renewed for the additional five years. It was agreed that the lease would terminate, under the extension, on June 30, 1981. The lease further provided that appellant had a period of thirty (30) days following termination of the lease in which to remove improvements installed on the premises.

About thirty days prior to expiration of the lease, appellant contacted appellee and attempted to negotiate a new lease. Appel-lee’s proposed terms included three thousand dollars ($3,000) per month rental for a five-year lease. Appellant countered for a one-year lease at $3,000 with a four-year option to renew, but appellee declined to accept that offer. Appellant was unable to negotiate a new lease, and, on July 9, 1981, sent appellee a check for $600.00 to cover an additional thirty days’ rent. Appellee contacted his attorney, who returned the check to appellant, and then filed an action in ejectment against it.

At trial, the parties stipulated that appellant vacated the property on August 15, 1981, and that, previous to such time, appellant removed the improvements pursuant to the lease provision. There was conflicting evidence on value of the property and fair monthly rental. Witnesses for appellee gave opinions of monthly rental up to thirty-two hundred dollars ($3,200). Evidence for appellant placed the rental from two hundred dollars ($200.00) to six hundred fifty dollars ($650.00) per month.

I. — II.

Did the trial court err in holding that lessee was liable to the lessor for anything over the maximum liability of double rent?

In the alternative, if a reasonable rent standard was correctly applied, did the trial court err in its computation of a reasonable amount?

Appellant contends that no rent was due for the month following the termination date of June 30, 1981. If wrong, he then contends only $600.00 per month, which was the amount provided for monthly rental in the lease, should be allowed. In any event, he argues that the double rent statute, Mississippi Code Annotated § 89-7-25 (1972), is exclusive. It provides:

When a tenant, being lawfully notified by his landlord, shall fail or refuse to quit the demised premises and deliver up the same as required by the notice, or when a tenant shall give notice of his intention to quit the premises at a time specified, and shall not deliver up the premises at the time appointed, he shall, in either case, thenceforward pay to the landlord double the rent which he should otherwise have paid, to be levied, sued for, and recovered as the single rent before the giving of notice could be; and double rent shall continue to be paid during all the time the tenant shall so continue in possession.

In Tepper Bros. v. Buttross, 178 Miss. 659, 174 So. 556 (1937), the lessor obtained judgment for possession of property and statutory double rent. Subsequently, he filed a declaration for actual damages, which included rent, and punitive damages. The Court held that recovery in the first suit was a bar to any further recovery. The Court mentioned that prior to the enactment of 1924 Miss. Laws 167 [Mississippi Code Annotated § 95-5-3 (1972) ] the owner of land or timber could recover either the actual or the statutory penalty, but not both. The facts in Tepper distinguish it from the present case.

Appellee takes the position that the above statute does not apply because Mississippi Code Annotated § 89-7-23 (1972) states:

Notice to quit shall be necessary only where the term is not to expire at a fixed time. In all cases in which a notice is required to be given by the landlord or tenant to determine a tenancy, two months’ notice, in writing, shall be given where the holding is from year to year, and one month’s notice shall be given where the holding is by the half-year or quarter-year; and where the letting is by the month or by the week, one week’s notice, in writing, shall be given. (Emphasis added)

In Hinds Motor Co., Inc. v. Hederman, 201 Miss. 859, 30 So.2d 70 (1947), the lease provided that the lessor could retake the property upon payment of a certain sum. The provision was exercised but the lessee remained in possession of the property. The lease' also contained a provision that, upon termination of same, a reasonable time was afforded to remove improvements. The lower court allowed double rent for holding over. However, the case was remanded for the purposes of fixing a reasonable time for the removal of the improvements, during which period simple rent would apply. There, again, the facts are different from the case sub judice and the case is distinguished on those facts.

According to appellee, the proper measure of damages is reasonable rent pursuant to Mississippi Code Annotated § 89-7-5 (1972):

Where there is no contract, or where the agreement is not in writing, a landlord may maintain an action to recover a reasonable satisfaction for the use and occupation of the lands held and enjoyed by another. If on the trial of such action there appear in evidence any demise or agreement the plaintiff shall not on that account be nonsuited, but may take use thereof as evidence of the amount to be recovered. (Emphasis added)

It may be argued that, since the lease in the present case expired under its own terms, no contract existed and the landlord could maintain an action to recover reasonable rent on the property. Also, that he had the option of bringing suit to recover rent either under the double rent statute or for the reasonable rent value of the property-

In our opinion, the lease provision granting unto appellant thirty (30) days in which to remove the improvements placed on the leased premises was effective to extend the term of the lease for an additional thirty (30) days and appellee is entitled to recover $600.00, the monthly rental provided in the lease, for that period. Further, appellee, having sought reasonable rent after expiration of the lease, may recover same from August 1 to August 15, 1981. We do not consider whether or not appellee could claim double rent during the August period, had he chosen only to pursue that remedy. Therefore, the judgment of the lower court is reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


text:
    Troy LANG v. STATE of Mississippi.
    No. 53693.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    Curtis H. Austin, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P. J., and HAWKINS and DAN M. LEE, JJ.
    PATTERSON, C. J., SUGG, P. J., and BROOM, ROY NOBLE LEE, BOWLING and PRATHER, JJ., concur.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

AFFIRMED.


text:
    WAGNER ELECTRIC CORP. v. Myrtis Pearson LEE.
    No. 53442.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    Riddick & Carpenter, Robert M. Carpenter, Jackson, for appellant.
    Williams, Williams & Montgomery, Joe H. Montgomery, Poplarville, for appellee.
    Before WALKER, P. J., and BOWLING and DAN M. LEE, JJ.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

AFFIRMED.


text:
    S. & G. LUMBER CO., INC., A Mississippi Corporation v. EMPLOYERS INS. OF WAUSAU.
    No. 53797.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    J. R. Gilfoy, Lexington, for appellant.
    McBee & Dulin, George H. Dulin, Greenwood, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Holmes County; Arthur B. Clark, Judge.

AFFIRMED.


text:
    Charles W. PARKER, d/b/a C. & E. Marine v. The SAMPSON AGENCY, INC. et al.
    No. 53804.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    Christian T. Goeldner, Southaven, for appellant.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

Watkins & Eager, Richard T. Lawrence, Wise Carter Child & Carraway, Charles T. Ozier, Richard D. Gamblin, Jackson, for ap-pellees.

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

AFFIRMED.


text:
    Bernard JEFFRIES, Alias “Jackson” v. STATE of Mississippi.
    No. 53913.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    Thomas L. Kesler, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and ROY NOBLE LEE and PRATHER, JJ.
   Appeal from Circuit Court, Lowndes County; Harvey S. Buck, Judge.

AFFIRMED.


text:
    Joseph M. RAULT, Jr. v. Hancock BANK.
    No. 53822.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    Greaves, Terry & Sheely, Jerry 0. Terry, Herbert J. Stelly, Sr., Gulfport, for appellant.
    White'& Morse, D. Knox White, Gulfport, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Harrison County.

AFFIRMED.