text:
    John MERCIER, Plaintiff-Appellant, v. Clifton FLUGENCE; Adam J. Tollivow; Hott’s Concrete; Insured Lloyd’s Insurance Co; XYZ Insurance Company and International Indemnity Co., Defendants-Appellees.
    No. 8514.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Domengeaux & Wright, Robert K. Tracy, Lafayette, for plaintiff-appellant.
    McBride & Foret, Norman P. Foret, Lafayette, for defendants-appellees.

      Before CULPEPPER, CUTRER and STOKER, JJ.
   CUTRER, Judge.

John Mereier appeals the judgment of the trial court which dismissed State Farm Mutual Automobile Insurance Company from this damage suit. The trial court sustained exceptions of “no right and of no cause of action.” We reverse and remand.

The record discloses that plaintiff was injured in an automobile accident on August 11, 1979. The petition states that the collision was allegedly caused by the negligence of an employee of Hoot’s Concrete Service, Inc. (Hoot’s), Adam Tollivow, who struck plaintiff’s car from the rear while driving a company owned truck, forcing plaintiff’s car into the rear of one driven by Clifton Flugence. Plaintiff alleged injuries and damages as a result of the collision. Plaintiff brought suit against Adam Tolli-vow and Hoot’s liability insurer, State Farm Mutual Automobile Insurance Company (State Farm). Also named as defendants were the driver of the third car, his insurer and plaintiff’s uninsured motorist carrier.

State Farm filed peremptory exceptions of no cause and/or no right of action alleging that Hoot’s policy had been cancelled prior to the accident; therefore, no coverage existed. The trial judge, after a hearing on the exceptions, sustained “the exceptions of no cause and no right of action.” Plaintiff’s suit against State Farm was dismissed. From that judgment plaintiff appealed.

Plaintiff presents three assignments of error. We shall treat only the issue of whether the trial court erred in sustaining the exceptions. Our decision to reverse the trial court’s judgment sustaining the exceptions renders it unnecessary to discuss the remaining issues.

EXCEPTIONS OF NO RIGHT AND/OR NO CAUSE OF ACTION

State .Farm filed “Exceptions of No Right and/or No Cause of Action.” The basis for these exceptions is that the liability policy, previously issued to Hoot’s, had been cancelled before the accident in question. At the hearing of the exceptions State Farm introduced into evidence the deposition of Harold Pierson, an agent for State Farm. Also, State Farm introduced several other documents in support of its position that the policy had been cancelled prior to the accident. Based upon this evidence the trial judge sustained the exceptions. This ruling of the trial judge was erroneous.

In Louisiana law there exists no single exception of no right and/or no cause of action. They are separate and distinct exceptions, each serving a particular purpose and each following particular procedural rules. Succession of Vidrine, 377 So.2d 564 (La.App. 3rd Cir. 1979); LSA-C.C.P. art. 927(4) and (5).

The exception of no right of action serves to question the right of a plaintiff to maintain his suit; i.e., his interest in the subject matter of the proceedings. The want of interest raised by the exception relates to whether the particular plaintiff falls, as a matter of law, within the general class in whose favor the law grants the cause of action sought to be asserted by the suit. In the exception of no right of action, evidence is admissible in a determination of whether the particular plaintiff falls within the general class having a legal interest to sue upon the cause of action asserted.

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition. The correctness of the well-pleaded allegations of fact is conceded and the issue is whether the face of the petition presents a case which legally entitles the plaintiff to the redress which is sought. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975). Citations are unnecessary for the principle that evidence is inadmissible in a determination of an exception of no cause of action.

As we apply these well-established principles to the case at hand, it is clear that both exceptions must be overruled.

The plaintiff in this case clearly has a right of action to bring this suit for damages arising out of the accident. The evidence presented only pertains to State Farm’s contention that its liability policy previously issued to Hoot’s had been can-celled before the accident in question. Nothing in the evidence disputes the plaintiff’s legal interest to sue upon the cause of action he asserts.

State Farm is attempting to use the exception of no right of action to raise the defense of no liability coverage due to cancellation of the policy. Such a defense cannot be raised by this exception but such defense must go to the merits. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir. 1979). The exception of no right of action must be overruled.

The exception of no cause of action must also be overruled. In making this determination, we examine only the allegations of plaintiff’s petition, which allegations are accepted as true. The evidence in connection with the exception of no right of action cannot be considered in the disposition of the exception of no cause of action.

The plaintiff’s petition alleges a cause of action in tort against Hoot’s, the alleged employer of one of the drivers. The petition alleges that plaintiff was injured and damaged by the negligence of such driver, the employment of such driver by Hoot’s and the fact that the driver was in the course and scope of his employment at the time of the accident. The petition also alleges liability coverage of Hoot’s by State Farm. On its face the petition states a cause of action in tort against Hoot’s and its alleged insurer, State Farm. Thus, the exception of no cause of action must be overruled and the plaintiff shall be afforded a trial on the merits.

For the reasons assigned, the judgment of the trial court is reversed and the peremptory exceptions of no right and no cause of action are overruled. This case is remanded to the district court for further proceedings according to law and consistent with the views expressed herein. The cost of the appeal shall be paid by State Farm Mutual Automobile Insurance Company. Assessment of other costs will be made upon final disposition of the suit.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    FLEET TIRE SERVICE v. SCHWEGMANN BROTHERS GIANT SUPER MARKETS, INC.
    No. 12668.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 16, 1981.

      Corwin B. Reed, New Orleans, for plaintiff-appellee.
    C. Monk Simons, III, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

Defendant’s argument in this appeal from a judgment on an account for $2,789.74 plus $559 attorney’s fees is the prescription of three years, C.C. 3538.

This suit was filed December 11, 1978. Payments had been made within the three previous years. The suit, however, attached the exact 38 invoices alleged to total the claimed balance (thereafter reduced by two small payments). Those 38 invoices were selected from 37 pages of ledger entries of charges and credits. Those ledgers show that for the whole seven years plaintiff identified every payment with specific invoice(s) for the exact dollars- and-cents amount, until the time this lawsuit was filed.

The case is similar to and (as to charges over three years old) controlled by Avis Rent A Car Sys. Inc. Truck v. Elmer Candy Corp., 305 So.2d 136, 137 (La.App. 4 Cir. 1974):

The prescription question turns on imputation of payments. Plaintiff urges that payments should be imputed to the earliest charges, as C.C. art. 2166 provides (when the payment is not otherwise imputed by other facts). Thus plaintiff would treat the old disputed items as paid, and only more recent, unprescribed charges as due.
This view cannot be adopted. Plaintiff’s own record of defendant’s payments shows that payments were in most cases in the exact amount of an invoice, or the sum of two or three invoices; there was never a round-figure payment as if on an open account. More important, plaintiff’s own books related all payments to specific invoices, by a simple letter-coding. Thus, if it could be said that the debtor did not in every case “declare . . . what debt he mean[t] to discharge,” C.C. art. 2163, by paying precisely the amount of invoice(s), the creditor itself understood, accepted and on its books treated the payments as paying specific invoices
We conclude it is the older and disputed invoices which remain unpaid. They are prescribed by three years, C.C. art. 3538 ....

Not all, however, of our unpaid invoices are older than the three-year prescriptive period on the “accounts of merchants, whether selling for wholesale or retail” and “all other accounts,” C.C. 3538. Unpaid invoices less than three years old total $1,045.98 and the principal of the judgment is reduced to that amount.

Under R.S. 9:2781, when the plaintiff’s written demand “correctly set[s] forth the amount owed” (with supporting invoices), the claimant is entitled to “reasonable attorney fees for the prosecution and collection of such claims when judgment on the claim is rendered in favor of the claimant.” (Emphasis added.) The amount demanded must be the correct amount, or fees are not due, Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3 Cir. 1979). Because “amount owed” and “such claim” mean the identical thing in the statute, a judgment rejecting part of the claim on the basis of prescription disentitles the claimant to attorney fees, just as surely as would a judgment rejecting the entire claim as prescribed.

Judgment reduced to $1,045.98 with legal interest from judicial demand and all costs, save that costs of this appeal shall be divided equally.

      . Although the last four credits before suit are not letter-coded by plaintiffs ledger clerk (as were the previous credits, AF, AG, AH, AI), the next credit of $28.88 is the exact amount of a charge coded AJ; $494.06 is the sum of June 23 and 30 charges of $253.53, $201.67 and $38.86 (not coded); and $98.20 is the sum of charges of $40.96, $18.90 and $38.34, all coded AL; and $33.77 bears the note “inv. 21107,” and is the exact amount of that invoice. A $12.09 payment made after suit was filed is not identified by either side, but apparently pays a $12.09 invoice of August 28, 1975.

      . Unprescribed unpaid charges begin February 4, 1976, and are $13.65, 27.78, 39.70, 26.25, 257.84, 22.58, 212.29, 224.31, 16.80, 16.80, and 187.98, the last dated March 29, 1978.

      . We also note that the supporting invoices do not total the $2,844.60 demanded, but $2,843.69, but we do not decide whether that error alone would justify following Scarborough in eliminating attorney fees.

      .Costs are divided because defendant argued all invoices were prescribed.


text:
    LAFAYETTE ENTERTAINMENT CENTER, INC. v. LOUISIANA STATE ATHLETIC COMMISSION.
    No. 12726.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 16, 1981.
    John J. Messina, Metairie, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis M. Jones, Joe Giarrusso, Jr., Asst. Attys. Gen., Louisiana Dept, of Justice, New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal as moot of its action for 1980 boxing licenses and for a declaratory judgment invalidating defendant commission’s rule that only one promoter’s license can be issued in each city. Plaintiff concedes the mootness of the 1980 licenses issue, but argues that the issue of the validity of the commission’s rule is not moot notwithstanding that plaintiff did not apply for 1981 licenses.

We agree. A rule that only one license can be issued obliges an applicant to compete with and defeat the existing license-holder and all other would-be licensees. A plaintiff might have no hope of defeating a more experienced licensee, and thus deem it futile to apply for a license while the one-license rule remains in force. Moreover, the one-year period for a license of any year might expire while judicial review is pending. Were it not for this appeal’s having been selected for the accelerated disposition docket, it would not have been heard until 1982, by which time any question of a 1981 application could also be argued to be moot. Thus we conclude that plaintiff’s declaratory judgment action on the one-license rule is not moot notwithstanding that plaintiff’s application for a 1980 license has become moot and plaintiff has not applied for a 1981 license.

Nevertheless, La.R.S. 49:963 provides the validity of a rule can be determined by action for declaratory judgment “only after the plaintiff has requested the agency to pass upon the validity ... of the rule . . .. ” Plaintiff’s petitions do not show that it did request the commission to pass upon the validity of the one-license rule. The petitions therefore fail to state a cause of action and must be dismissed on that ground, with leave, however, to amend to allege, if it can, the facts necessary to authorize this action within R.S. 49:963.

Amended to allow amendment within a delay to be fixed by the trial court.


author: STOKER, Judge.

text:
    Janet F. LAMB, Plaintiff-Appellant, v. Edward Carroll LAMB, Defendant-Appellee.
    No. 8786.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1981.
    Shelton & Legendre, Thomas R. Shelton, Lafayette, for plaintiff-appellant.
    Simon & Dauterive, J. Minos Simon, Lafayette, for defendant-appellee.
    Before STOKER, SWIFT and LA-BORDE, JJ.
   MOTION TO DISMISS

STOKER, Judge.

The defendant-appellee, Edward Carroll Lamb, moves to dismiss the appeal of the plaintiff-appellant, Janet F. Lamb, as not being timely filed.

We dismiss defendants-appellant’s appeal.

Plaintiff-appellant, Janet F. Lamb, on November 7, 1980, filed a petition for separation alleging abandonment and cruel treatment by her husband. On November 17,1980, defendant-appellee filed a separate lawsuit seeking a separation alleging cruel treatment and constructive abandonment by his wife.

On May 5, 1981, a motion was filed by appellant to fix a rule for alimony pendente lite. In response the defendant-appellee filed a dilatory exception alleging improper and illegal service of the petition upon a person not authorized to receive service on behalf of exceptor. On June 22, 1981, the exception was heard by the trial court and was taken under advisement. A written judgment was signed on July 18, 1981, by the trial court maintaining the exception and ordering the dismissal of plaintiff-appellant’s lawsuit for a separation. The Clerk of Court formally certified that a certified copy of that judgment was mailed to appellant on July 20, 1981, in accordance with LSA-C.C.P. art. 1913.

Plaintiff-appellant filed this appeal on September 22, 1981. On November 23, 1981, defendant-appellee filed this motion to dismiss this appeal as untimely.

LSA-C.C.P. art. 3943 provides that an appeal from a judgment granting or refusing “an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(1)-(3).”

LSA-C.C.P. art. 2087(l)-(3) provides that the time period in which a party may take an appeal shall commence from the date of the mailing of the notice of the court’s refusal to grant a timely application for a new trial or the expiration of the delay for applying for a new trial as provided by Article 1974 of the Code of Civil Procedure.

LSA-C.C.P. art. 1974 provides that the delay for applying for a new trial commences to run from the day after the clerk has mailed or the sheriff has served the notice of judgment as required by Article 1913.

The trial court’s judgment dismissing appellant’s suit for separation from bed and board constitutes a judgment refusing to grant a separation from bed and board within the meaning of LSA-C.C.P. art. 3942; therefore, the thirty-day appeal period in that article is applicable though the judgment may have been erroneous and liable to certain reversal on appeal. California Company v. Price, 234 La. 338, 99 So.2d 743 (La.1957). Under LSA-C.C.P. arts. 1974 and 2087, the delay for applying for a new trial began to run on July 20, 1981, when the Clerk of Court mailed a certified copy of the judgment, and the thirty-day delay for appealing the judgment began to run seven days later.

Appellant, according to our calculations would have had until August 28, 1981, to have filed her appeal. Accordingly, the appeal taken on September 22, 1981, was untimely.

For the above and foregoing reasons, the appeal is dismissed, at the cost of defendant-appellant.

APPEAL DISMISSED.


author: SWIFT, Judge.

text:
    ASSOCIATES COMMERCIAL CORPORATION, Plaintiff-Appellee, v. Lincoln PREJEAN, et al., Defendants-Appellants.
    Nos. 8605, 8606.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1981.

      Richard S. Hoover, Domengeaux & Wright, Robert K. Tracy, Lafayette, for defendants-appellants.
    Dragon & Kellner, Robert A. Dragon, Jr., Lafayette, for plaintiff-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   SWIFT, Judge.

From a judgment “dismissing” a defendant’s “Declinatory Exception of Insufficiency of Service of Process of Notice of Seizure and Sale,” the trial court has certified the matter to this court for review of its findings. No appeal or application for the exercise of supervisory jurisdiction has been filed by any party to the suit.

Louisiana Constitution Article 5, § 11, and LSA-R.S. 13:4449 authorize the courts of appeal to certify questions of law to the supreme court for its opinion thereon. However, this court finds no authority for a district court of this state to submit such questions for review by the courts of appeal in cases pending before the lower court. Absent such authority, this Court declines to rule upon this request for review from the district court. See 4 C.J.S. Appeal and Error § 26, p. 119.

For the reasons assigned, this case is hereby remanded to the district court for further proceedings in accordance with law. The costs of this appeal will be assessed upon final determination of the suit.

REMANDED.


author: GULOTTA, Judge.

text:
    Lawrence C. SAUNDERS v. Elizabeth Budd SAUNDERS.
    No. 13030.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    Murray, Murray, Ellis, Braden & Landry, Stephen B. Murray, New Orleans, for appel-lee.
    John M. Holahan, New Orleans, for appellant.
    Before GULOTTA, GARRISON and KLIEBERT, JJ.
   ON MOTION TO DISMISS

GULOTTA, Judge.

Plaintiff-appellee, Lawrence C. Saunders, moves to dismiss the appeal filed by defendant-appellant, Elizabeth Budd Saunders, from a judgment of divorce on the ground that the appellant has not timely filed a suspensive appeal with sufficient bond or security. We deny the motion to dismiss.

From the decree of divorce rendered on July 7, 1981, the wife timely filed a petition for appeal on August 7, 1981. The trial judge granted an order for appeal on the same day, but no bond was set nor security furnished.

LSA-C.C.P. Art. 8942 provides for a thirty-day appeal period from a judgment granting a divorce and states that such appeal shall suspend the execution of the judgment insofar as it relates to the divorce. This procedural article, however, makes no requirement that a “suspensive” appeal be taken or that bond or security be furnished; it merely states that the effect of the appeal is to suspend the execution of the judgment.

As pointed out in Post v. Post, 376 So.2d 1275 (La.App. 2d Cir. 1979), a devolutive appeal may be perfected without the filing of a bond, and, under LSA-C.C.P. Art. 3942, any appeal timely perfected from a judgment of separation suspends the execution of the judgment, whether it is called a suspensive or devolutive appeal. We are in agreement with our brothers on the Second Circuit that it is not necessary that the appellant post a suspensive appeal bond from judgments of separation, divorce or annulment.

For the foregoing reasons, we deny the motion to dismiss.

MOTION DENIED.

      . LSA-C.C.P. Art. 3942 provides:
      “Art. 3942. Appeal from judgment granting or refusing annulment, separation, or divorce.
      An appeal from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(1) — (3). Such an appeal shall suspend the execution of the judgment in so far as the judgment relates to the annulment, separation, or divorce.”


text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION v. Daniel M. SWILLEY, et al.
    No. 53180.
    Supreme Court of Mississippi.
    Dec. 2, 1981.
    Rehearing Denied Jan. 6, 1982.
    Leo T. Aragon, Jackson, for appellant.
    Watkins, Ludlam & Stennis, Robert H. Weaver and Peyton S. Irby, Jr., Jackson, for appellees.
    Before SMITH, P. J., and WALKER and LEE, JJ.
   SMITH, Presiding Justice, for the Court:

This appeal is taken from the Circuit Court of Adams County. That court reversed a decision by the Mississippi Employment Security Commission Appeals Referee, affirmed by the Board of Review, which found that Swilley was disqualified from receiving unemployment insurance benefits.

In April, 1980, the Armstrong Rubber Company terminated Swilley’s employment, and Swilley began to receive unemployment insurance benefits. In August, 1980, pursuant to a collective bargaining agreement wherein senior employees were notified that work was available before junior employees, Armstrong notified Swilley that he could resume employment. However, the available employment was at salary level VIII, instead of salary level IX; the level at which Swilley was employed when he was dismissed in April, 1980. For that reason Swilley declined to return to work at Armstrong, and a junior employee took the position.

Swilley testified that since he had been laid off he had made several job contacts; however, he had not secured employment since he refused to work for a salary of less than $10 per hour, the compensation he had received prior to his April, 1980 termination of employment.

The Mississippi Employment Security Commission Appeals Referee found that Swilley’s refusal to return to work at Armstrong, and refusal to accept work for less than $10 per hour, disqualified him from receiving unemployment insurance benefits. Swilley was considered not qualified since he had not made himself available for work as required by Mississippi Code Annotated section 71-5-511 (Supp.1981).

In Mississippi Employment Security Commission v. Blasingame, 237 Miss. 744, 749, 116 So.2d 213, 215 (1959), this Court said:

That words ‘available for work’ imply that in order that an unemployed individual be entitled to benefits he must be willing to accept any suitable work which may be offered him without attaching thereto restrictions or conditions not usual or customary in that occupation, but which he may desire because of his particular needs or circumstances. . . . The burden is upon the unemployed individual to show the required conditions have been met entitling him to benefits....

Although the test of availability is subjective and must depend on the facts and circumstances of each case, it is clear in the present case that Swilley did not show he was entitled to benefits. His refusal to work at Armstrong for a lower salary, or anywhere for less than $10 per hour, did not justify his refusal to return to work. Therefore, we find that Swilley was not available for work within the meaning of Mississippi Code Annotated section 71-5-511 (Supp.1981). The judgment appealed from is reversed and the decision of the Mississippi Employment Security Commission Board of Review and Appeals Referee is reinstated,

REVERSED AND DECREE OF MISSISSIPPI EMPLOYMENT SECURITY COMMISSION REINSTATED.

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

BOWLING, J., takes no part.


text:
    WALTER HAVENS CHEVROLET-BUICK, INC. v. Cecil HALL, Sylvia Mallette and First National Bank of Jackson County.
    No. 52969.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Rehearing Denied Jan. 20, 1982.
    Hurt & Dickerson, Gerald A. Dickerson, Lucedale, for appellant.
    Laurel G. Weir and Thomas L. Booker, Philadelphia, Oscar R. Jordan and Briley Richmond, Ocean Springs, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   ON DIRECT APPEAL, JUDGMENT FOR THE BANK AGAINST WALTER HAVENS, INC.' REVERSED AND RENDERED AND JUDGMENT HERE FOR THE APPELLANT AGAINST HALL AND MALLETTE IN THE SUM OF $2,349.20. AFFIRMED ON CROSS-APPEAL.

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


author: HAWKINS, Justice, for the Court:

text:
    PASCO ENTERPRISES, INC. and Lawrence and Frazier, a Partnership v. The SOUTHLAND INSURANCE AGENCY, INC. and National Security Fire and Casualty Company.
    No. 52959.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Rehearing Denied Jan. 20, 1982.
    Shaddock & Dryden, George S. Shaddock, Pascagoula, for appellants.
    Bryan, Nelson, Allen, Schroeder & Back-strom, Ernest R. Schroeder and John Bana-han, Pascagoula, for appellees.
    Before SMITH, P. J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice, for the Court:

The plaintiffs, Pasco Enterprises, Inc., and Lawrence and Frazier, sued The South-land Insurance Agency, Inc., and the National Security Fire and Casualty Company in the circuit court of Jackson County. Following trial, the jury found in favor of National Security, but rendered a verdict for the plaintiffs against The Southland Insurance Agency in the amount of $75,000. Judgment was entered accordingly.

Plaintiffs appeal, assigning as error that the verdict was against the overwhelming weight of the evidence and that conflicting instructions were given. National Security cross-appeals, assigning as error the refusal of the circuit judge to grant a directed verdict in its favor. Southland has not responded to the brief of either party.

The sole question to be determined on this appeal is whether National Security had any hazard insurance policy in effect covering plaintiffs’ mobile homes when Hurricane Frederick struck Jackson County September 12, 1979. We hold that it did not, and affirm on both the direct and cross appeals.

National Security Fire and Casualty Company is an insurance corporation with principal offices in Elba, Alabama. Under the provisions of Mississippi Code Annotated Section 83-21 — 17 (1972) it held a certification as a nonadmitted insurer issued by the commissioner of insurance.

The Southland Insurance Agency, Inc., was a local incorporated insurance agency operating out of Biloxi in 1978, and had been in business for several years. Initially, it was named the Bohanovich Agency and later called Continental Insurers. In 1976 the name was again changed to Continental-Sekul; in 1977, to Continental-Biloxi Insurance Agency; and in 1978, the name became The Southland Insurance Agency, Inc. At all times, apparently, it was a Mississippi corporation engaged in selling insurance as a local insurance agent for various insurance companies.

In 1977, Harvey Brooks acquired a part ownership in the agency and became its president. He had had many years of experience in the insurance business and had been employed by the agency since 1976.

Harold Lawrence and John D. Frazier are residents of Jackson County, and partners in the firm Lawrence and Frazier. They are also the principal shareholders and officers in Pasco Enterprises, Inc., a Mississippi corporation with principal offices in that county. Both Mr. Lawrence and Mr. Frazier had licenses to sell insurance which they had held for a number of years, and each had engaged in the insurance business as local agents.

The partnership firm and corporation owned a number of mobile homes in Jackson County which they rented out. Although they owned a few prior to 1976, they increased their ownership considerably that year, and secured hazard insurance for these homes through Continental-Sekul (later Southland). National Security issued eleven insurance policies covering twenty-three mobile homes through Continental-Sekul, for the period November 2, 1976 through November 2, 1977, the premiums therefor being paid by Lawrence and Frazier and Pasco through Continental-Sekul. The policies were renewed in 1977 by Pasco and Lawrence and Frazier again paying premiums through the local agency, Continental-Biloxi (later Southland). The yearly renewal was for November 2, 1977 through November 2,1978. From time to time units would be added or deleted by endorsements to the policies, and fifty-one mobile homes were insured by National Security at the expiration date of November 2, 1978.

Following its customary business policy, National Security, some 30 to 45 days prior to the due date of these policies, mailed plaintiffs notices of the due date of the policies, notifying them they would expire November 2. On November 2, 1978, National Security mailed plaintiffs eleven notices informing them that the policies had been terminated.

These notices are perforated, with the customer to keep the right half for his records and to return the left half to National Security. The faces of both halves give the termination date as November 2, 1978, the policy number, the quarterly premium, and the annual premium. The left sides of both' list the “Agent/Broker” as “The Southland Ins. Agcy.” National’s copy very plainly begins with “MAKE CHECK PAYABLE TO:” and just below in larger, bolder lettering is printed: “NATIONAL SECURITY FIRE & CASUALTY COMPANY.” Then, just below in smaller but plain print is “ELBA, ALABAMA 36323.” The customer’s half also gives the name and address of the insured.

On the customer’s copy, just beneath the name and address of the company, is printed “TERMINATION & REINSTATEMENT NOTICE.” Below this statement, is printed: “Payment Date to Reinstate 11/17/78.” Additionally, in the center of the customer’s copy, the notice states that:

Because the premium has.not been received the policy numbered herein terminated as of the above termination date. Please disregard this notice if your check was recently forwarded.
See over for reinstatement offer.

On the reverse side of the customer’s half of the notice is printed the following:

REINSTATEMENT OFFER
The Company offers to reinstate, without lapse, the policy which terminated, provided:
(1)payment of the premium stated on the other side of this OFFER is received at the home office of the Company on or before the payment date to reinstate
(2) a check shall be accepted as payment of premium only if honored on first presentation for payment, and
(3) if the Company has not received payment of said premium as specified above, the Termination Date on the other side of this OFFER shall be the end of the policy, without further notice to the named Insured.
The Company reserves the right to withdraw this offer at any time before payment is received at the home office. Withdrawal will be effective at the time notice thereof is mailed to the insured. Payment to a branch office or agent will not be considered payment to the home office of the company.

The company’s half of the reverse side of the notice provided room to give the company notice of a change of address, beneath which was a place to date the notice and for the insured to sign.

When these notices were received by the plaintiffs, there had been no premium payment by them either to Southland or National Security, nor, was any payment transmitted to either Southland or National Security prior to November 17, 1978.

On November 29, 1978, Southland sent an invoice to Lawrence and Frazier for $3,118.00. Although a place was provided on the invoice for the policy number and presumably who the carrier was supposed to be, the only information typed on the invoice gave the effective date as “11/2/78” and expiration date as “11/2/79”, and under Description was typed “Mobile Home.”

On November 29, 1978, Southland likewise sent an invoice to Pasco for $3,619.00, which has typed thereon the same information as the invoice sent Lawrence and Frazier.

On November 30,1978, plaintiffs mailed a check of the same date to Southland, payable to “The Southland Insurance Agency, Inc.” in the amount of $6,737.00, the total of the two invoices.

On December 13, 1978, Southland wrote Mrs. Doris Kieper, secretary and bookkeeper for the plaintiffs, the following letter:

Dear Doris,
Please find enclosed the list of insured Mobile Homes and their respective premiums per unit. I have circled the premium amount in the left hand column.
These premiums per unit are not exactly to the penny, because the total premium charge was computed on a schedule basis and not on a per unit figure. I used a different method of computation on the Lawrence and Frazier mobile homes because of the later models of homes on that schedule.
If you have any questions, please call. Sincerely
(signed) Harvey Brooks President-Southland Insurance Agency

A handwritten list of fifty-six mobile homes was enclosed with this letter, giving the unit premium, year, make, serial number, size, and location of each. National Security was not listed as having been sent a copy of the letter; its name did not appear on the letter or the attached handwritten schedule.

On January 26, 1979, Mrs. Kieper wrote Brooks the following letter:

Dear Harvey:
Enclosed please find copy of all our mobile homes- — the units underlined in red need to be insured, if you have not already done so. Do not insure the two units underlined in green.
I would appreciate confirmation in writing of the units underlined in red having been insured.

It should be noted that following November 2, 1978, there was no written or oral statement from Southland to plaintiffs that their insurance for the following year was with National Security, nor was any inquiry made by the plaintiffs of Southland as to whether or not they had insurance with National Security. Inquiries aplenty flowed, but apparently none to the specific question: has National Security issued coverage?

Southland never mailed any premium to National Security. There is no record of the $6,737.00 payment by plaintiffs going anywhere except to Southland. Upon repeated inquiries by Mrs. Kieper to South-land, she was orally assured by Brooks they had coverage. Plaintiffs never received any premium receipts from any insurance company, or any endorsements from any insurance company that these mobile homes were insured. There was no communication from plaintiffs to National Security or from Southland to National Security following the expiration notices mailed by National Security to plaintiffs and Southland on November 2, 1978, until some date following the storm on September 12, 1979, when plaintiffs’ mobile homes were either destroyed or damaged. The record shows that following November 2, 1978, and prior to September 13, 1979, the only communications were between plaintiffs and South-land, and plaintiffs and inquiring lienhold-ers on various mobile homes.

Notice of loss to Southland was duly given by plaintiffs, and Brooks sent an adjuster who made an appraisal. No payment was ever made, and plaintiffs through their attorney wrote National Security two letters requesting payment, without any reply.

This suit followed, resulting in a jury verdict in favor of plaintiffs against South-land for $75,000, but in favor of the defendant National Security.

Plaintiffs argue on their appeal that the trial judge erred in giving conflicting instructions. He instructed the jury that as a matter of law Southland was the agent of National Security, and also gave an instruction authorizing the jury to return a verdict in favor of National Security. We must reject this argument for two reasons, the first being that the plaintiffs did not object to any given instruction; secondly, the two instructions do not conflict. The jury was entitled to find, despite the fact that South-land was National Security’s agent, that Southland did not have either actual or apparent authority to collect the premium due National Security in event plaintiffs wished to reinstate their policies.

For the same reason we must find the verdict of the jury was not against the overwhelming weight of the evidence.

In this situation, payment to Southland had not been made before the termination notice was received by plaintiffs. Nor, do plaintiffs claim they were misled in any way by the notices received from National Security, or that they misunderstood the language in each. These notices plainly informed plaintiffs to make payments to National Security at its home office. They also stated payment to an agent would not be considered payment to the home office of the company. It would be somewhat difficult for plaintiffs to make such an assertion, since both Messrs. Lawrence and Frazier are licensed insurance agents themselves.

Plaintiffs duly received termination notices in November, 1978. Thereafter, they never received any premium receipt from any insurance carrier, and of course none from National Security. They never received any endorsements or renewal policies from any insurance carrier, including National Security, evidencing their having insurance following November 2, 1978.

Unfortunately for them, they relied completely and totally upon the oral assurances from Brooks and his agency, and did nothing further until the disastrous storm of September 12, 1979.

Under the provisions of each policy, they lapsed upon nonpayment of premiums, a provision common to most if not all insurance policies. This fact could not have been lost upon plaintiffs.

When the policies lapsed, they were no longer in force and effect. There was no coverage, and no further obligation existing between either National Security or plaintiffs to the other.

We must hold National Security had a right to provide that any reinstatement of these policies following November 2, 1978, could only be made by payment to it at its home office. This is basic contract law, which this Court cannot ignore. Plaintiffs had clear notice that no agent, which in-eluded Southland, had authority to collect a premium on behalf of National Security following November 2, 1978. Plaintiffs, therefore, at their own peril paid South-land. Southland remitted no premium to National Security on behalf of plaintiffs, nor apparently, to any other insurance carrier.

In Matheny v. Massachusetts Mutual Life Ins. Co., 235 So.2d 690 (Miss.1970), we affirmed a chancery court’s denial of coverage under a life insurance policy for nonpayment of premium, and payment of which had been made to a local agent following death of the insured. The policy provided:

Premiums are payable in advance. All premiums after the first are payable on their due dates at the Home Office or to an agent or cashier holding the Company’s official receipt signed by the Secretary or an Assistant Secretary.

We stated:

In order to reinstate the policy on the life of Jordan, it was necessary for Math-eny to tender to the home office or the Hughes general agency during the lifetime of Jordan the quarterly premium. This was made perfectly clear in the policy itself. This the appellants failed to do. (Emphasis added) Id. at 694.

In Kansas City Life Insurance Co. v. Root, 238 Ala. 412, 191 So. 219 (Ala.1939), Mrs. Root made some payments to Mr. Pope, a local agent for a life insurance policy on her husband. Usually he remitted the payment, and had remitted payments from his own funds when she was delinquent. She paid him $3.50 to pay a premium, but he applied it to money she owed him for past premiums he had paid, and it was not forwarded to the company. The policy provided:

2. The first premium only may be paid to the agent. All subsequent premiums are due and payable in advance at the Home Office of the Company without notice. However, they may be paid to an authorized agent of the Company on or before the date when due, but only in exchange for a receipt signed by the President, Vice-President, Secretary or Assistant Secretary, and countersigned by such agent.
The Alabama Supreme Court stated:
It is unquestionably the law that the contract restricted the payment of all premiums, except the initial one, to a certain authority and upon the issuance of an official receipt and excluded the authority of Pope, the soliciting agent, to collect same and, when the insured or beneficiary paid the same to Pope, they made him their agent to see that the payments reached the defendant insurance company.
* * * * * *
The plaintiff no doubt intended that the sum last paid by her was intended to go as a payment of the premium on the policy and not as a credit on what was due Pope, at least, the jury so found, but, when she made said Pope her agent to remit it to the defendant, she assumed the risk of his failure to send it in and, while this may be what is termed “a hard case,” we must heed the admonition of the great and lamented Chief Justice Stone, “Let not hard cases make shipwreck of the law.”

191 So. at 220.

There was no element of estoppel or waiver in this case following November 2, 1978. And, for more compelling reasons than in the above-cited cases, National Security in this case had the right to provide as a condition precedent to the reinstatement of any policy with it that the premium be received at the home office in Elba, Alabama. See Hawkins v. Graber, 198 N.E.2d 275 (Ohio Com.P1.1963); American Standard Life Ins. Co. v. Denwitty, 256 S.W.2d 864 (Tex.Civ.App.1953); Carter v. Old Faithful County Mut. Fire Ins. Co., 243 S.W.2d 215 (Tex.Civ.App.1951); Kansas City Life Ins. Co. v. Elmore, 226 S.W. 709 (Tex.Civ.App.1920). See generally Appleman, Insurance Law and Practice, Section 7984 (1944); Couch on Insurance Section 31:123 (2d ed. 1961).

AFFIRMED ON DIRECT AND CROSS APPEALS.

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

      . Insurance companies doing business in this state fall into one of the following categories:
      (1) Domestic companies organized under the provisions of Mississippi Code Annotated Section 83-19-1, et seq.
      (2) Foreign companies licensed and admitted to do business under certificates of authority issued by the insurance commissioner and regulated under Mississippi Code Annotated Sections 83-1-23; 83-1-27; 83-21-3 through 83-21-13.
      (3) Foreign companies who hold certifications as nonadmitted insurers, but which are authorized to do business in this state, the category in which National Security falls.
      (4)Nonlicensed and unauthorized insurance companies, who nonetheless solicit insurance business and issue policies in this state.
      In its cross-appeal National Security argues its status as a non-admitted insurer, as opposed to an admitted foreign insurance company, makes a difference in this case on whether Southland held actual or apparent authority as its agent. Under our holding in Southeastern Fidelity Insurance Company v. Gann, 340 So.2d 429 (Miss.1976), no such distinction should be made.


author: LEE, Justice, for the Court:

text:
    Calvin WILKS v. STATE of Mississippi.
    No. 53198.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    Rehearing Denied Jan. 20, 1982.

      W. E. Gore, Jr. and Robert G. Nichols, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and LEE, JJ.
   LEE, Justice, for the Court:

Calvin Wilks was indicted, tried and convicted in the Circuit Court of the First Judicial District, Hinds County, Honorable William F. Coleman, presiding, on a charge of murder, was sentenced to a life term with the Mississippi Department of Corrections, and he appeals here.

I.

Did the lower court err in permitting witnesses to testify for the state whose addresses had not been furnished the appellant and in refusing to enter a mistrial because of same?

Rodney Sumrall and Eddie White testified for the state and identified appellant as the person who killed Jerry Miller. Carolyn Wilks, sister of appellant, and Percy Lee Samuel, testified for the state on rebuttal. Appellant contends that the state failed to follow the agreed order entered pursuant to Rule 4.07 of the Uniform Circuit Court Criminal Rules in that the state failed to furnish the correct address of Sumrall and White prior to trial. However, the record reflects that Sumrall’s address was given as Houma, Louisiana, and such was the best address that the state had. Also, the best address of White, which the state had, was furnished to the appellant’s attorney.

Appellant interposed no objection to the testimony of Carolyn Wilks and Percy Lee Samuel on rebuttal, except that he made the objection Miss Wilks had been present during the trial when the sequestration rule was invoked. The trial judge exercised his discretion and permitted her to testify. We are of the opinion that failure to raise the specific objection at trial constitutes a waiver of the point, and we find no merit to this assignment.

II.

Did the lower court err in failing to grant a mistrial when the district attorney commented upon the disappearance of Carolyn Wilks and Percy Lee Samuel during his closing argument?

In his closing argument, the district attorney said: “Calvin Wilks’ sister Carolyn and her husband were here this morning, but mysteriously disappeared.” Appellant objected and moved for a mistrial, which the trial judge overruled. The district attorney’s total closing argument is not in the record and it is not possible for this Court to ascertain in what context the statement was made. In Peyton v. State, 286 So.2d 817 (Miss.1973), the Court said:

[W]e do not have the advantage that the trial judge has of hearing the argument as a whole. The trial judge has a peculiar and distinct advantage of the judges of this court in judging upon such questions, because he is not only familiar with the evidence and the atmosphere of the case, as it may be called, but he has heard the entire argument and knows the setting that the language complained of has in connection with the argument on both sides of a case.
(286 So.2d at 818-19)

Carolyn Wilks and Percy Lee Samuel were present during the trial, they were called by the state to testify on rebuttal and they were examined by the state and appellant. We are of the opinion that the remark of the district attorney under the facts and circumstances of this case does not constitute reversible error.

III.

Did the lower court err in failing to grant appellant a directed verdict or peremptory instruction of not guilty?

About 9:00 p. m. on Friday, December 21, 1979, Jerry Miller was driving a Ford Mustang automobile near the intersection of Highway 80 and Gault Street in Jackson, Mississippi, accompanied by appellant Calvin Wilks. The car ran off the road, collided with a pole and came to rest in a shallow ditch. Appellant got out of the car, walked around to the driver’s side where Jerry Miller was still seated and pulled Miller out of the car. In the presence and hearing of six bystanders appellant said to Miller: “Hey, man, you busted my nose. I’m gonna kill you.” Miller pleaded with appellant not to kill him, but appellant pulled out a knife and stabbed Miller several times. Miller fell down by the side of the car, mortally wounded. Appellant walked over to three of the bystanders, Eddie White, C. T. White and Ricky Harris, and offered them $15 to take him away from the scene, but the young men declined to do so. Appellant then spoke to an unidentified man in a green Toronado automobile, got into that car and the two men drove away.

Eyewitnesses testified at trial about the fatal stabbing and identified appellant as the person who stabbed Miller. Appellant’s defense was an alibi. He claimed that December 21, 1979, was his birthday and that he was at a birthday party at the time of the incident. Three witnesses who attended the birthday party testified that it was held on Saturday, December 22, 1979, and not on Friday, December 21, 1979, the date of the homicide.

In passing on motions for directed verdicts and requests for peremptory instructions of not guilty, all evidence on behalf of the state is taken as true, together with reasonable inferences that may be drawn therefrom, and, if there is sufficient evidence to support a verdict of guilty, the motion for directed verdict must be overruled and the peremptory instruction must be denied. Warn v. State, 349 So.2d 1055 (Miss.1977). The evidence in the case sub judice overwhelmingly supports the verdict of guilty and the trial court correctly denied the motion for directed verdict and the request for a peremptory instruction of not guilty.

There being no reversible errors in the record, the judgment of the lower court is affirmed.

AFFIRMED.

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


text:
    LIBERTY LOAN CORPORATION v. Rosie L. McTILLER.
    No. 53082.
    Supreme Court of Mississippi.
    Dec. 23, 1981.
    Rehearing Denied Jan. 20, 1982.
    Swain & Swain, Kinney M. Swain, Green-ville, for appellant.
    Leslie D. King, Greenville, for appellee.
   Appeal from Circuit Court, Washington County; Arthur B. Clark, Judge.

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

REVERSED AND JUDGMENT RENDERED FOR APPELLANT.

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


author: SUGG, Justice, for the Court:

text:
    June MILLIEN and Joachim Larry Millien v. STATE of Mississippi, Forrest County Department of Welfare and Robert Taylor, Guardian Ad Litem.
    No. 53057.
    Supreme Court of Mississippi.
    Dec. 23, 1981.
    Rehearing Denied Jan. 20, 1982.
    Rex K. Jones, Hattiesburg, for appellants.
    Katie Smith Matison, William Robert Taylor, Jr., Hattiesburg, for appellees.
    Before PATTERSON, SUGG and LEE, JJ.
   SUGG, Justice, for the Court:

The parental rights of Larry and June Millien were terminated by separate decrees of the Chancery Court of Forrest County with different chancellors rendering the decrees. June Millien appeals from a decree rendered by Chancellor Michael Sullivan terminating her parental rights to two of her children. Larry Millien appeals from a decree sustaining a General Demurrer to his Petition For Leave to File a Bill of Review of a decree rendered by Chancellor Patterson terminating his parental rights to his son and stepdaughter. We reverse and render.

On March 8, 1978 the Assistant District Attorney of the Twelfth Circuit Court District filed a Petition to Terminate the Parental Rights of Appellants. The children involved were Larry Millien, Jr., the son of appellants, and Connie Vandeveer, the daughter of June Millien and the stepdaughter of Larry Millien. The petition alleged that: (1) Larry Millien was under an indictment by the Forrest County Grand Jury on a charge of child abuse against Connie Vandeveer for an incident that occurred on October 22, 1977; (2) appellants left the children at their residence without adult supervision, without adequate heat when the outside temperature was near freezing, and failed to return for a period of approximately six hours; (3) appellants were mentally, morally, and otherwise unfit to rear and train the children.

Temporary custody of the children was granted to the Director of the Forrest County Welfare Department on March 4, 1978. A decree pro confesso was entered against Larry Millien on October 18, 1978 and a final decree was entered on the following day terminating the parental rights of Larry Millien to the two children. Larry Millien filed a motion to set aside the decree pro confesso on October 27, 1978.

On April 27, 1979, Chancellor Michael Sullivan entered a decree terminating the parental rights of June Millien to the two children, “subject to periodic review by this court on its own motion.” The decree then granted June Millien reasonable visitation rights with the children but provided that visitation should not take place in the presence of Larry Millien because his parental rights had been terminated. June Millien filed a petition to modify the April 27 decree on October 11, 1979. All of the above proceedings were in cause No. 36,005 in the Chancery Court of Forrest County.

Larry Millien filed a Petition For Leave to File a Bill of Review for error apparent on the pleadings and decree and on the basis of newly discovered evidence. Millien alleged that no evidentiary hearing was conducted in the case against him which resulted in the final decree of October 19, 1978 terminating his parental rights. On June 19, 1980 Chancellor Howard Patterson sustained a General Demurrer to the Petition For Leave to File a Bill of Review.

The Petition For Leave to File a Bill of Review was assigned Cause No. 39,323, and was consolidated with No. 36,005 for appeal to this Court.

I. JUNE MILLIEN’S APPEAL

June Millien’s Petition to Modify was heard on June 10, 1980. At the conclusion of the hearing Chancellor Michael Sullivan rendered the following opinion:

BY THE COURT:
The initial reaction based on the testimony is that the burden of proof has not been met for a modification. In fact, the testimony substantially seems to be that there’s been absolutely no change in circumstances, and the Court has now become somewhat more concerned about the existing order. Though there is no prayer that it be modified from the standpoint of the State.
BY MR. PHILLIPS:
If it please the Court, I was going-to make that urgent on the Court if you gave me the opportunity. It is affirmatively pled in the amended answer that the final order be rendered and the final — that a permanent order be entered forever terminating the rights. That is affirmatively pled.
BY THE COURT:
I’ll plow through all of this and try to find it.
BY MR. JONES:
If the Court please, of course, our position would be that the affirmative relief can’t be granted except on cross bill, as I understand the rules and procedures.
BY THE COURT:
I think that’s probably correct. However—
BY MR. JONES:
I think we’re sitting right where we were with the welfare- — I mean that would be—
BY THE COURT:
Based on the testimony that I have heard today, though, the consistent attitude of the petitioner and petitioner’s chief witness toward court orders that are not favorable to him from the City Court to the Supreme Court. I have grave doubt about the advisability of allowing continuing visitation under the aegis of the particular welfare department worker that testified here today considering her somewhat happy go lucky view of court orders. Petition to modify particularly based on the fact that the testimony indicates no change in circumstances except an increase, perhaps an increase in the income, and the change in the location of the living quarters of the parties. Particularly Mrs. Millien. I’ll try to limit it to that. When the Court is faced with returning the children to a home wherein lives a party where this Court through another branch, namely the order of Judge Patterson, has permanently terminated the parental rights of the other parent living there. If this Court were to find, and this is not to say that the Court has so found, that a change in circumstances did exist that would justify returning the children to Mrs. Millien, it could not do so in the face of the direct order of a co-equal court terminating parental rights of Mr. Millien with Mr. Mil-lien in the home. To do so would make a joke of the order of Judge Patterson. For that, and for the reason that the burden of proof in this Court’s opinion has not been met, for the modification at this time, the petition to modify is denied. The Court will still reserve handing down a memorandum opinion until he’s had an opportunity to read its last decree, and review the exhibits and testimony concerning the visitation. It was the view of this Court in the Mrs. Millien case, and the Mrs. Millien case only, because I did not hear the Mr. Millien case, coinciding with that of the Welfare Department that if possible, the best interest of the children would be served by returning the children to their parent, if and when it could be shown that it could be done without it being to the detriment of the best interest of the children, and I am by no stretch of the imagination convinced that such circumstances presently exist. In fact from the testimony, I’m not too sure that they ever will, and if that is to be the case, continued visitation seems to be a cruel and unusual thing to do with the mother, and to the children. I’ll deny the modification request, and reserve ruling on whether or not to allow the continued visitation. I will try to notify Mr. White, Mr. Jones, and Mr. Taylor, the Guardian Ad Litem by Thursday.

On August 13, 1980 the court entered a final decree terminating the parental rights of June Millien to the two children and placed the children in the custody of the Forrest County Department of Public Welfare, “until such time as they may be placed for adoption.”

The evidence at the June, 1980 hearing is summarized as follows. June Millien was married twice, and three children were born during her first marriage, one of whom died in infancy. Her oldest son, Shannon Vandeveer, was living with his father in Chicago by agreement of the parties, and Connie Vandeveer lived with the appellants from the time of their marriage until she was placed in the custody of the welfare department. Larry Millien has been previously married and the two children of that marriage had lived with appellants since 1977.

After the children were placed in the custody of the Welfare Department in March, 1978 by a temporary order, June Millien took the children to Chicago in defiance of the order, was arrested, and brought back to the state. June stated she was placed in jail for kidnapping, child abuse and contempt of court. She remained in jail for several months and the charges against her were dismissed.

Larry Millien was indicted in 1977 on a charge of child abuse involving his stepdaughter, Connie Vandeveer. This indictment was retired to the files, and according to the assistant district attorney the state decided to seek termination of his parental rights rather than to prosecute him criminally. Larry testified in detail about this incident and stated Connie was burned when she pulled a pot of water off the stove which spilled on her. His explanation of this event was plausible and was not seriously controverted by the evidence for the state. June Millien was not present when this incident occurred.

The only other charge of unfitness arose from an incident that occurred on March 4, 1978 when officers picked up the children at the apartment of the appellants late at night. Appellants testified that their neighbor had agreed to look after the children while they went to purchase groceries and run errands. They testified that the apartment was heated by central heat which was controlled by a thermostat and the heating unit was working when they left the apartment. The neighbor testified that she did not agree to look after the children, but gave a statement to officers on March 6 that she agreed to watch the children for appellants. She testified she checked on the children at thirty minute intervals until the officers came about midnight to get the children. In her written statement she said appellants left the apartment about 9:15 p. m. but in her testimony stated they left about 7:30 p. m. Of course, appellants should not have left the children unattended in the apartment and remained absent for a period of five or six hours, but this one incident is not sufficient ground upon which to terminate the parental rights of June Millien.

The Welfare Department recommended that the children be returned to appellants under supervision for a period of approximately six months. Appellants had purchased a home, owned two automobiles, were both working, and were financially ■able to take care of the children in question. At all times the two children of Larry Mil-lien had resided with them and no effort was made to terminate the parental rights as to these two children.

Larry Millien was sentenced to jail for 30 days for contempt of court because he interrupted a ceremony in January, 1980 held in the courtroom when the oath of office was being administered to some elected officials.

The assistant district attorney testified that Larry Millien had complained to him that June was bringing marihuana to the apartment and entertaining men in the apartment during his absence. There was no other proof of these assertions. The above facts were brought out at the only evidentiary hearing on the question of terminating the parental rights of June Mil-lien.

We are of the opinion that the trial court should have returned custody of the children to June Millien. It was not necessary for her to show a change in condition from the rendition of April 27, 1979 decree because it was a nullity. The decree terminated her parental rights subject to periodic review by the court on its own motion and then provided for visitation rights with the children. This is an unusual decree and we find no cases in this state or in other jurisdictions where a similar decree dealing with termination of parental rights has been entered. When a decree terminating parental rights is entered, it either terminates the parental rights or it does not. This decree does neither. It terminates parental rights ■and then grants visitation to the parent which contradicts termination of parental rights. We therefore conclude that the decree has no force and effect whatever and hereby set it aside.

June Millien has not abandoned the two children involved. Absent an abandonment, it was necessary to prove, under Section 93-15-1 Mississippi Code Annotated (1972), that June Millien was, “mentally, morally, or otherwise unfit to rear and train” the two children. There is no evidence that June Millien was mentally unfit to rear and train the children. Petitioner failed to show by a preponderance of the evidence that she was morally or otherwise unfit to rear and train the children. Obviously, the real reason the chancellor terminated her parental rights was because she was living with her husband whose parental rights had been terminated by another chancellor, and the children would necessarily be in the home with the father. This is no reason to terminate the parental rights of the mother.

We therefore reverse and direct that Larry Millien, Jr. and Connie Vandeveer be returned to the custody of June Millien. It was stated in the brief filed on behalf of June Millien that she had filed a suit for a divorce after the decree appealed from was entered. If there is any controversy between appellants as to the custody of their child, Larry Millien, Jr., custody between them should be adjudicated in that case or in some other appropriate action.

II. LARRY MILLIEN’S APPEAL

Larry Millien has appealed from a decree sustaining a general demurrer to his Petition For Leave to File a Bill of Review. It is not necessary to address the error assigned by Larry Millien because we have concluded that the decree terminating the parental rights against him was null and void.

The petition to terminate the parental rights of appellants named both of appellants as defendants. At that time, and at all times up until the hearing on June 10, 1980, appellants lived together as husband and wife. When Larry Millien failed to file an answer to the petition to terminate parental rights, the court entered a final decree on October 19, 1978 based on a decree pro confesso entered the previous day. This case was then in this unusual posture; the parental rights of the father had been terminated but no hearing had been held on whether the parental rights of the mother should be terminated, and the mother and father were living together in the same house.

Section 93-15-7 Mississippi Code Annotated (1972) provides that the parental rights of one parent may be terminated in the following language:

After hearing all the evidence in regard to such petition, if the court or chancellor is satisfied that the parent or parents have abandoned or deserted said child, or are mentally, morally, or otherwise unfit to rear and train said child, then the court may terminate all the parental rights of said parent or parents, including the right of inheritance, and the right of the child to inherit from such parent or parents. The termination of the parental rights of one (1) parent may be made without affecting the parental rights of the other parent should circumstances and evidence ever so warrant.

In this case one petition was filed against appellants, but instead of hearing the petition against both appellants, who were then living together as husband and wife, one chancellor heard the petition against the father and another against the mother. The parental rights of Larry Mil-lien were terminated before all of the evidence in regard to the petition was heard. This procedure was contrary to the clear provisions of the statute which prohibits termination of parental rights before “hearing all the evidence in regard to such petition.” This was in derogation of the statute and makes the decree of October 19, 1978 terminating the parental rights of Larry Millien null and void. We therefore set aside the decree terminating the parental rights of Larry Millien.

REVERSED AND RENDERED.

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


author: ADAMS, Justice.

text:
    Dr. Joseph M. DIXON v. The CLUB, INC., a Corporation.
    80-197.
    Supreme Court of Alabama.
    Sept. 18, 1981.
    Rehearing Denied Jan. 8, 1982.
    William M. Acker, Jr. and Carleton P. Ketchum, Jr., Birmingham, for appellant.
    Irvine C. Porter and James W. Porter, II, Birmingham, for appellee.
   ADAMS, Justice.

This case comes to us as a result of the denial of injunctive relief by the Jefferson County Circuit Court. The plaintiff below, Dr. Joseph M. Dixon (Dixon), sought relief in a declaratory judgment action to copy the membership list of The Club, the defendant below. Dixon has been a member of The Club for over 25 years and visits the building housing The Club’s operation at least once a week for the purpose of dining, dancing and socializing with its members. The Club is considered by many to be one of the most prestigious social clubs in Alabama. It sits like a jewel atop Red Mountain overlooking Birmingham’s sprawling industrial and commercial complex. Its members have contributed much to the growth of the City of Birmingham, as well as the State of Alabama.

The Club came into existence by Declaration of Incorporation filed in the office of the Judge of Probate of Jefferson County on November 29,1951, pursuant to the provisions of the Social Clubs Section of Code 1940, Tit. 10, § 139 et seq. As a result of incorporation under this section, The Club is a voluntary non-profit corporation in the State of Alabama. This section requires that the declarant set forth the objects of the corporation. Article II of the Constitution of The Club states that the objects and purposes of the non-profit corporation are as follows:

The objects and purposes of this club are: to foster, promote and encourage the social advancement of its members; to provide, conduct, maintain and operate suitable and proper club facilities for its members, and for their pleasure, health and happiness, but for nonpecuniary purposes exclusively and not for pecuniary profit or gain to its individual members, and without capital stock; to foster and advance the best interests of Birmingham and Jefferson County; to acquire, hold and use such real and personal property as may be needed or required, from time to time, to accomplish such purposes and objects, and to do and perform such other things as may be'necessary and proper for the carrying out and accomplishment of such purposes and objects as are deemed necessary or proper by the Board of Governors of said club, including borrowing money and mortgaging club property.

Dixon claims that he wants the membership list to further advance the objects and purposes of The Club in fostering, promoting and encouraging social advancement of its members and to urge members to support him in his candidacy for a position as a member of the Board of Governors. He claims this is especially necessary because The Club is comprised of over 5,000 members and he cannot get to know all of them by visits at The Club, and, therefore, must communicate by letter or telephone.

The position to which Dixon aspires is provided for in Article IV, Section 6, of the Constitution of The Club. That section reads as follows:

BOARD OF GOVERNORS. The management of this organization shall be under the Board of Governors. The Board of Governors may declare any office vacant and shall fill any office that may become vacant between elections. The Board of Governors shall have authority to make from time to time such rules and regulations governing the conduct of the members of the Club as said Board of Governors may from time to time deem advisable. The Board of Governors shall meet monthly and at such other times as they may be called by the President.

There can be no doubt that The Club has been highly successful operating in its present fashion under its Board of Governors. The Club owns assets worth in excess of six million dollars. Dixon does not dispute this fact, but contends that it may be even more successful if he is allowed to converse with other members about the purposes of the organization and about his candidacy for a position on the Board. Dixon contends that the system now being pursued by The Club results in its being run by a close-knit group of “insiders,” and “outsiders” like himself are prevented from presenting new ideas to advance the stated purposes of the organization.

Dixon points out that The Club is governed by an elected 12-member Board of Governors, which in turn, appoints the executive officers. On a day to day basis, The Club is run by a salaried general manager. The terms of one-third of the Board of Governors expire each year and the results of the balloting for these four board members is announced at the annual meeting of The Club, held on the last Thursday in January.

Sixty days prior to the annual election, the president of The Club appoints a nominating committee to make nominations to fill the vacancies on the Board of Governors, expiring that year. Forty-five days before the annual meeting, the nominating committee mails to each member, using the membership list, a statement setting forth the names of those nominated by it for the Board of Governors. Thirty days before the annual meeting, the nominating committee will accept nomination of any other member on written petition of twenty-five members in good standing. Ten days before the annual meeting, the Board of Governors mails to each member a ballot containing all of the names of those nominated. Thése ballots are returned by mail and must be received not later than the day before the annual meeting. A special firm is appointed to count these ballots on the day of the annual meeting and the results of the election are announced at the annual meeting. Other than the members of the Board of Governors, and the officers of the organization, only two or three other members attend the annual meeting.

Dixon’s name was put in nomination by written petition of twenty-five members in good standing for the 1980 election. This was the first time in the 30-year history of The Club that such a nomination had been made. Dixon was not elected. Dixon believes that failure to have access to a membership list may have contributed to his failure in the election.

In early July of 1980, Dixon asked The Club for a list of the names and addresses of his fellow members. On July 23, 1980, Dixon again requested a list of the members of The Club and stated that he would be willing to pay the cost of copying same. This request was denied by The Club on the ground that “no such list had been prepared and distributed in the past.” Finally, on October 7,1980, Dixon demanded, by letter, that he be furnished a list of his fellow members and added an assurance that “he has no intention of using the list for any commercial purpose and will limit his use exclusively to that of exercising his right to the democratic process in accordance with the corporation laws of the State of Alabama, under the Charter and By Laws of The Club, Inc.” A few days before Dixon’s suit was filed the Board of Governors passed a resolution allowing Dixon to inspect the membership list, but denied him the right to copy the names, addresses and telephone numbers from the list. That resolution is as follows:

[T]hat Dr. Dixon and his attorneys be advised that the list of [5,000] members of the organization would be available for inspection by him and his attorneys in the presence of counsel for the organization at the office of the organization during regular business hours; that such right of inspection [is] not to include the right to make copies of the names, addresses and telephone numbers of the members appearing on said list.

The trial court denied Dixon’s request for injunctive relief to obtain the membership list based on a general fixed policy of The Cliib not to furnish a list to any member, the above resolution, the fact that there was no vested property interest in Dixon, the fact that the purpose for requesting the list by Dixon was for “politicing” [sic], and the fact that there was no showing of bad faith, fraud or malfeasance on the part of The Club.

The record does not reveal any long standing policy communicated to its members against furnishing a list, nor does it reveal that its Constitution and By Laws are furnished to its members on admission to membership. Dixon testified that he was not given a copy. The Club offered testimony that when its present general manager was hired in 1972, he was told not to furnish the membership list to the members. Only one request for the membership list had been made during that period of time and it was denied because admittedly the member wanted the list for commercial purposes.

The sole issue in this case is whether the trial court erred in denying the plaintiff injunctive relief to obtain the membership list of The Club under the facts in this case. The trial court did so err and its judgment is reversed.

Unfortunately, there is a paucity of authority dealing with the precise issue herein involved. 14 C.J.S. Clubs § 18, at 1291 (1939), states the general rule. The rule is:

The members of an incorporated club are entitled to inspect the membership roll for a proper purpose; but, under a provision of a club constitution that action taken by the executive and advisory committees, not affecting the club’s finances or property, shall be final, a member is not entitled to access to the membership roll, where such right is denied by the officers and the committees pursuant to a general policy, the member’s rights being limited by the agreement under which the club was formed, as shown by the constitution and the by-laws. [Footnotes omitted.]

Counsel for the parties call to our attention three cases from other jurisdictions which they say control the disposition of the issue involved in this case. These cases are Allee v. James, 68 Misc. 141, 123 N.Y.S. 581 (1910); McClintock v. Young Republicans of Philadelphia, 210 Pa. 115, 59 A. 691 (1904); State v. Barton, 93 So.2d 388 (Fla.1977). The Club relies on the Allee case and Dixon relies on McClintock and Barton. In Allee, the Supreme Court of New York said the following:

The simple question presented herein is this: Is the plaintiff, as a matter of right, entitled to access to the roll of membership as against the refusal of the officers and committees, acting under the constitution and by-laws of the club, to allow the same? This question is purely personal to the plaintiff, arising from the fact of membership solely; for no property right is involved, and no allegation or proof indicates fraud or improper conduct on the part of the defendant and those represented by him, in violation or disregard of the plaintiff’s rights.... I think the plaintiff’s rights are limited by the agreement under which he and all other members of the club are associated, in promotion of its objects and purposes; the agreement being in this case the constitution and by-laws.
It appears that the denial of access to the rolls has been made in pursuance of a general policy of the officers and the committees, and is now sought to be maintained by definite action taken by them under article 3 of the constitution, which, among other things, provides that:
Any action taken at a properly constituted joint meeting of the executive and advisory committees, which does not affect the finances or property of the club, shall be final.

Allee, at 123 N.Y.S. 582-3.

This case may have stated a controlling precedent, but for the fact that in addition to the contract of membership, the decision also hinges on the pursuance of a general policy of the organization denying membership lists. The refusal in one instance to furnish membership lists to a member seeking them for commercial purposes, plus direction to the general manager, uncommu-nicated by the Board of Governors to the membership not to furnish the list to the members, in our opinion, falls far short of a general policy denying a membership list. The position of The Club is also weakened by the fact that they could not controvert the statements made by the plaintiff to the effect that he did not receive the Constitution and By Laws, and that insofar as he knew, no other member had received them.

The Club’s argument that Dixon cannot prevail because there is nothing in the Constitution granting him access to a membership list is of no avail. The countervailing argument is that there is nothing in the Constitution and By Laws that forbids the plaintiff having the membership list.

In State v. Barton, supra, a member of The Surf Club sued to compel the club to allow him to make a list of the names and addresses of the members of the club. This right was denied him by the trial court and the Florida Supreme Court reversed, holding thusly:

Although the position of the appellant is not the same as that of a stockholder in a corporation for profit, he nonetheless now enjoys a voting privilege in The Surf Club. To that extent, he is entitled to know the names and addresses of others similarly conditioned. He has the right to communicate with such other holders of ownership units and to discuss with them matters that involve their mutual interest in the club such as they are.

Barton, at 389.

In McClintock v. Young Republicans of Philadelphia, supra, a similar result was reached. There, the plaintiff sought to inspect and copy the membership list in order to advocate policies which would tend to promote the objects for which the corporation was organized and oppose the election or re-election of incompetent officials. The Supreme Court of Pennsylvania upheld the trial court, granting the plaintiff’s right to copy membership lists and said:

We are, however, of opinion that the plaintiff is entitled to have furnished him by the appellants a list of the members of the defendant association for the purposes set forth in his petition. These purposes have been quoted above, and it is manifest that they are legitimate and lawful, and, if carried out, will promote the best interests of the association. . . . We can see no good reason why the officers of this corporation should withhold from any of its members the information desired by the plaintiff. If the purposes of the association, which are social and political, are to be accomplished and made effective, it is necessary that the members should know and communicate with each other. Hence each member should have access to the list of members of the organization, and to deprive him of it is to prevent him from assisting in carrying out the very object for which the corporation was created. Nor is there any sufficient reason shown here why the officers of the association should have access to the roll of members of the organization to the exclusion of the other members. All the members are presumed to be equally interested in promoting the welfare of the association, and all should be accorded equal privileges in the association for these purposes. To deny the plaintiff the relief he seeks here is, however, to give the officers of the corporation, the custodians of the list of membership, the opportunity to control the association, and to use the list, in the language of the plaintiff’s petition, “to further the private political ambitions of any member or group of members.” It is, we think, manifest that the list of membership of associations of this character should, at proper times, be open to the inspection of all members, thereby affording to each member an opportunity to aid in carrying out the object of the organization as set forth in its charter.

It would seem from the above pronouncements, if we choose to accept them, that the plaintiff’s position here is unassailable. However, in Alabama, we are loath to enter into the affairs of voluntary private associations, particularly if they are of a social or religious nature. The law regarding voluntary associations has been fully developed in Medical Society of Mobile County v. Walker, 245 Ala. 135, 16 So.2d 321 (1944). There, this Court said:

Ordinarily a court of equity will not interfere with the internal affairs of a voluntary association, or assume jurisdiction to restrain its acts done or attempted in accordance with its rules and within the scope of its powers.... 28 Amer. Jur. section 161, page 351.

Walker, 245 Ala. at 140, 16 So.2d at 325.

The Walker court also said that a voluntary association,

[M]ay make their own constitution and by-laws; and so long as they remain unchanged, each member is alike bound and shielded by them. The society too must observe its own constitution and by-laws until it changes them in legal form. Of course such constitution and by-laws, to be obligatory, must not contravene public law, nor any principle of public policy. Weatherly v. Medical & Surgical Society of Montgomery County, 76 Ala. 567.

Walker, 245 Ala. at 138, 16 So.2d at 324.

We do not find that the actions of The Club contravene public policy. Although plaintiff urges that the 1955 NonProfit Corporation Act provides at Code 1975, § 10-3-127, a right which the plaintiff seeks in this case, we simply cannot hold that the public policy expressed in that Act applies to a corporation incorporated under Code 1940, Tit. 10, § 139 et seq., some 4 years earlier simply because The Club is a non-profit corporation and could have qualified under the social section of that Act if it had been in existence at the time of its incorporation or may still elect to come under the provisions of that Act. Indeed, the legislature could have amended Code 1975, § 10-4-300 (the recodification of Code 1940, Tit. 10, § 139 et seq.) to include the provision of the Non-Profit Corporation Act, § 10-3-127, which requires the corporation to keep complete books and records of account and the names and addresses of its members entitled to vote and make them available for inspection by any member or his agent or attorney at a reasonable time. This they declined to do and we refrain from conferring that right by judicial fiat. See also, Hayes v. Mobile County Board of School Commissioners, 405 So.2d 366 (Ala.1981).

Having found neither approach made by the parties satisfactory, we broach another alternative, the application of which is more in line with the facts of this case. When the Board of Governors by resolution authorized the plaintiff or his attorney to inspect the membership list of The Club, it conferred a property right upon plaintiff which he may or may not have had prior to said resolution. We do not take The Club’s offer to allow plaintiff to inspect the membership list to have been a meaningless gesture. However, the right to inspect without the concommitant right to copy would have been a meaningless gesture, considering that the plaintiff and his attorneys would have had 5,000 names, addresses and telephone numbers to inspect. When this court provided for the production of documents by discovery, it coupled with the right to inspect, the right to copy. See Rule 34, A.R.C.P. It recognized that the right to inspect is of questionable value without the right to copy.

Although we are reluctant to intervene in the internal affairs of voluntary associations, religious and social, an exception is made where a member can show an invasion of a private property right granted him by the association or club. In such instances we apply due process safeguards. Hill v. Abyssinia Missionary Baptist Church, 370 So.2d 1389 (Ala.1979); Abyssinia Missionary Baptist Church v. Nixon, 340 So.2d 746 (Ala.1976); Willowbrook Country Club, Inc. v. Ferrell, 286 Ala. 281, 239 So.2d 298 (1970); Williams v. Jones, 258 Ala. 59, 61 So.2d 101 (1952); 6 Am.Jur.2d Associations and Clubs, § 28, at 454 (1963). Due process required that Dixon be allowed to copy the documents he had been given the right to inspect.

It is important to note what we have not decided. We have not decided that every member is entitled to a membership list, nor that the plaintiff has a right to circulate this list among the other members of the corporation. We have not decided that under proper circumstances the corporation could not amend its constitution and bylaws to prevent members from obtaining membership lists. These questions must await another time and another case. Plaintiff is entitled to the membership list for the uses which he articulated at the trial of this case. He has committed himself to pay for the list and not to use same for a commercial purpose and we respect this commitment.

The Club has predicted dire consequences as a result of the release of the membership. We cánnot foresee such dire consequences, but in any event, our courts stand open to correct any illegal use of the list. The judgment of the trial court is due to be reversed and the trial court is directed to enter an injunction requiring The Club to furnish Dixon with its membership list.

REVERSED AND REMANDED WITH DIRECTIONS.

FAULKNER, JONES, SHORES, EM-BRY and BEATTY, JJ., concur.

TORBERT, C. J., and MADDOX and AL-MON, JJ., dissent.

      . Article IV, Section 2, of The Club’s constitution specifies the number of members constituting the Board of Governors and their respective terms in office. This section reads as follows:
      The Board of Governors shall consist of twelve (12) members of The Club, elected as herein provided, together with the officers and the last retiring President of the Club who shall be ex officio members of said Board. The members of said Board, except ex officio members thereof shall serve for a period of three (3) years, or until their successors shall have been elected and take office.
      Rule No. 15, General Rules and Regulations Governing The Club, describes the manner in which the Board of Governors is elected. This rule provides as follows:
      a. At least sixty days before the annual meeting in January, the President shall appoint a nominating committee, which shall nominate at least" two candidates to fill each vacancy on the Board of Governors which will exist on the Annual Meeting date.
      b. At least forty-five days before the Annual Meeting in January, a copy of the report of the nominating committee shall be posted on the bulletin board at “The Club, Inc.,” and a copy mailed to each member of the “The Club, Inc.” Additional nominations may be made over the signature of twenty-five members in good standing, provided the nominations are received by the Secretary at least thirty days before the Annual Meeting in January.
      c.Voting for nominees for the Board of Governors shall be by mail ballot only. At least ten days before the Annual Meeting in January, an official ballot shall be mailed to each member of “The Club, Inc.,” in good standing, with a self-addressed return envelope enclosed, marked “Official Ballot.” Ballots, to be counted, must be received not later than the day before the Annual Meeting in January. The President shall appoint tellers to count the votes, and they shall meet at 9:00 A.M. on the day and at the place designated for the Annual Meeting, and shall report the results of the election at the Annual Meeting. The number of candidates to be elected that receive the largest number of votes will be declared elected.

      . The record reveals that there is no membership list in existence, but it is retained in The Club’s computer. This list can be reproduced within approximately two and one-half hours. The plaintiff is prepared to pay the cost of such reproduction.


author: JONES, Justice.

text:
    Steven D. PUGH v. Virgil KITSON.
    80-728.
    Supreme Court of Alabama.
    Oct. 30, 1981.
    Rehearing Denied Dec. 18, 1981.
    Steven D. Pugh, pro se.
    J. N. Holt, Birmingham, for appellee.
   JONES, Justice.

Appellant seeks to challenge on five separate and several grounds the propriety of the trial court’s denial of a new trial.

We have made a thorough and painstaking effort to identify each of .the alleged errors in the record of trial before us. Without exception, none of the issues presented is traceable to a specific adverse ruling by the trial court which was properly preserved for appellate review. See Rule 51, ARCP.

We affirm.

AFFIRMED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: BEATTY, Justice.

text:
    Jerry R. HOPPER and Mavis Hopper v. R. O. CURRY and Edna Curry.
    80-723.
    Supreme Court of Alabama.
    Nov. 6, 1981.
    Richard D. Greer, Birmingham, for appellants.
    Morgan Reynolds of Reynolds & Reynolds, Clanton, for appellees.
   BEATTY, Justice.

This action was brought by Jerry R. Hopper and his wife Mavis Hopper for damages allegedly suffered by them as a result of breach of contract and fraudulent misrepresentations in connection with the sale to them of a certain tract of real property. The trial court, after hearing the evidence ore tenus, entered a final judgment in favor of R. O. Curry and his wife Edna Curry, the sellers of the property. The Hoppers appeal from that judgment and from the denial of their post-trial motions seeking a new trial, or in the alternative, a new judgment. We affirm.

On August 11, 1974 the Hoppers saw an advertisement in The Birmingham News for the sale of forty (40) acres of real property situated in Chilton County, Alabama. The property was owned at that time by the Currys, who had listed the property for sale with Bob Moore, their real estate agent. The Currys had told Mr. Moore that the property contained 40 acres. Mr. Moore, upon being contacted by the Hoppers, informed them that the property contained 40 acres as reflected in the advertisement. After the Hoppers viewed the property, they met with the Currys on August 13, 1974, at which time Mr. Curry personally told them that the property contained 40 acres. The real estate contract, which designated the acreage of the property as “40 AC. M/L,” was signed that same day. Before the closing date, Mr. Curry offered to have the land surveyed, but the Hoppers stated that it was unnecessary. On August 21, 1974 the Currys conveyed the property to the Hoppers by warranty deed. The deed made no mention of acreage.

In October of 1978, more than four years later, the Hoppers had the property surveyed by Franklin Parker, a land surveyor. The completed survey, which was based upon the warranty deed, revealed that the property conveyed by the warranty deed contained thirty and eighty-three one-hundredths (30.83) acres rather than 40 acres. Upon learning of the discrepancy in acreage, Mr. Hopper confronted the Currys, at which time Mr. Curry told him that the property was “supposed” to contain 40 acres. The Hoppers filed suit within three months thereafter.

On appeal, the Hoppers claim that the trial court erred in not finding that the Currys made misrepresentations recklessly without accurate knowledge or by mistake about the number of acres in question, thereby constituting legal fraud pursuant to Code of 1975, § 6-5-101.

Initially, we note that when a trial judge hears the evidence ore tenus, his findings are favored with a presumption of correctness and will not be disturbed unless palpably wrong, without supporting evidence, or manifestly unjust. Ray v. Robinson, Ala., 388 So.2d 957 (1980). The Hoppers contend, however, that the ore tenus rule is inapplicable to this case because the trial court misapplied the law to the facts. We disagree.

A case similar to the one before us is Stinson v. Adams, Ala.Civ.App., 376 So.2d 1108 (1979). In Stinson the plaintiffs claimed that the defendant represented that a tract of real property contained more acreage than it actually held and that they relied to their detriment upon that misrepresentation. The factors in common with the instant case are that the defendant informed the real estate agent that there were a certain number of acres in the tract, the plaintiffs inspected the parcel of land before purchasing it and accepted a deed which made no mention of acreage, and no survey was conducted prior to the sale. The Court of Civil Appeals found:

After reviewing the record, the most that can be said on this point is that the defendant thought she owned 16.75 acres. There is no evidence that any misrepresentation was made by the defendant. That is, the defendant merely told the real estate salesman, and not the plaintiffs, that there was supposed to be 16.75 acres in the tract. The trial court was free to conclude that this statement of what the defendant “supposed” was contained in the parcel was not a misrepresentation, but was an expression of an opinion....
Since the statement by the defendant that there was supposed to be 16.75 acres did not entitle the plaintiffs to rely on the statement as a representation of a fact, the trial court found that the plaintiffs did not make out a cause of action for innocent fraud.. ..
In summary, the absence of any misrepresentation coupled with the viewing of the property on several occasions by the plaintiffs and the deed which made no reference to acreage make this court conclude that the trial court did not err to reversal in failing to find fraud on the part of the defendant. [Emphasis added.] Id. at 1111.

The Hoppers argue that Stinson is distinguishable from the case at bar because, unlike the facts in Stinson, the record in this case reveals that the Currys personally misrepresented to the Hoppers that the acreage in question consisted of 40 acres. Although the Court of Civil Appeals did mention in Stinson the lack of a face-to-face misrepresentation between the parties as a factor negating fraud, it was certainly not emphasized as the decisive factor. We, therefore, agree with the opinion of the Court of Civil Appeals in Stinson and add that the persuasive factor supporting the trial court’s conclusion in this case was the failure of the Hoppers to accept Mr. Curry’s offer to have the property surveyed. By making the offer, Mr. Curry was telling the Hoppers that they did not have to rely upon his word as to the number of acres. In fact, even without the offer, the Hoppers could have insisted upon a survey.

Because there has been no showing that the finding was either wrong or unjust, and there was ample evidence to support the trial court’s finding that legal fraud is not present in this case, the judgment below is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX,-JONES, SHORES, EMBRY and ADAMS, JJ., concur.