author: PATTERSON, Chief Justice,

text:
    Elizabeth HAVER, a Minor, By and Through Her Parents as Next Friend, Jon R. Haver and Deborah P. Haver v. Elizabeth HINSON (Now Mrs. Elizabeth Hinson Ainsworth).
    No. 51942.
    Supreme Court of Mississippi.
    May 28, 1980.
    Rehearing Denied July 23, 1980.

      Gilbert & Moore, Alan L. Moore, Don W. Moore, Jackson, for appellant.
    Steen, Reynolds, Dalehite & Currie, William M. Dalehite, Jr., Jackson, for appellee.
    Before PATTERSON, C. J., and SMITH and SUGG, JJ.
   PATTERSON, Chief Justice,

for the Court.

In the Circuit Court of Rankin County, Elizabeth Haver filed, through her parents as next friend, a declaration alleging that Elizabeth Hinson negligently drove a car over her, causing extensive injuries. From a verdict for Hinson, Haver appeals, arguing that the trial court erred (1) by not instructing the jury peremptorily on liability, (2) by not granting a motion in limine to preclude defense remarks relating to any failure of due care on the part of Jon and Deborah Haver, parents, (3) by permitting testimony of Deborah Haver’s alleged out-of-court statement of belief that the accident was not Elizabeth Hinson’s fault, (4) by giving instruction D-14 relating to the applicable standard of care, and (5) by refusing alternative requests for a j. n. o. v. or a new trial. We affirm.

At approximately 6:00 p. m., on March 30, 1977, Elizabeth Hinson, driving a 1972 automobile, accompanied by Garth Haver, the plaintiff’s brother, approached the Haver home from the west, pulled from the right to the left, or “wrong” side of the street where she parked, partially blocking the Haver driveway, and let Garth out of the car. Mr, Haver stood in his driveway getting his newspaper, and Mrs. Haver, with her child Julie in her arms, walked down to the car to chat. Mr. Haver followed his wife to the car and at this time Elizabeth Hinson noticed Elizabeth Haver standing between her parents.

Concluding the conversation, Hinson said goodbye, started her car, looked in all directions, and seeing nothing, pulled away. She acknowledged she “didn’t know [at that time] where [Elizabeth Haver] was.” After moving one or two car lengths from where she had parked, Hinson heard a thud, stopped her car, and got out, saying “what did I hit?” By this time, the Haver parents had neared the entrance of their garage and faced their home. They turned, ran to the car, and discovered Elizabeth Haver pinned beneath the rear portion of the car, under the exhaust pipe, seriously injured. No one on the scene could be sure just how Elizabeth came to be under the car, although it appears likely that she crawled under before Hinson began to pull away.

We reject Haver’s argument that she was entitled to a peremptory instruction on liability. Mississippi Code Annotated section 11-7-17 (1972) provides: “All questions of negligence and contributory negligence shall be for the jury to determine.” We think the evidence presented a factual situation necessary for jury determination. When viewed in the light most favorable to the verdict, the evidence portrayed circumstances from which reasonable minds could find that Hinson afforded Elizabeth Haver all of the care which was due under the circumstances, including the presence of her parents in the immediate vicinity. See Smith v. Kilpatrick, 254 Miss. 155, 180 So.2d 607 (1965); Hebert v. Lenart, 247 Miss. 494, 153 So.2d 658 (1963). The jury received appropriate instructions on all applicable duties of care and found Hinson breached none which proximately contributed to the injury. The jury also received instructions correctly stating the rule against imputation of negligence from parent to child and against finding a child of tender years contributorily negligent.

Haver, however, relies upon two cases holding drivers as a matter of law had failed to discharge the duty imposed by Mississippi Code Annotated section 63-3-1105(4) (1972) to “exercise due care to avoid colliding with any pedestrian upon any roadway and . . . [to] exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway”: Cole v. Todd, 355 So.2d 292 (Miss.1977), and McGee v. Bolen, 369 So.2d 486 (Miss.1979). We think these cases are clearly distinguishable.

In Cole we reversed a verdict for the defendant, a hit and run driver who killed a man standing in open view on the shoulder of a highway. A witness had “noticed a man lying on or near the road and watched [the defendant’s] van as it sped through a red light and passed from view.” 355 So.2d at 293. In the present case, however, we cannot say, as we did in Cole, “[t]he only explanation that we can fathom for the accident is that [the defendant] was not maintaining a proper lookout for pedestrians and this negligence was the proximate cause of [the injury].” 355 So.2d at 294. Here, there is no evidence the child was in open view of the driver. Indeed, the evidence is to the contrary, leaving the strong probability the child unexpectedly crawled beneath Hinson’s car before it pulled away from the curb, resulting in injury notwithstanding Hinson’s vigilance in looking in all directions before moving.

McGee, supra, involved a defendant driver traveling on a highway at a high rate of speed. He observed several children on both sides lurking perilously close to the traveled portions of the roadway, and heard the prudent warning of a passenger to take great care. He reduced his speed only to twenty-five miles an hour and injured a darting child. This Court held tort liability attached as a matter of law.

Unlike McGee, this case does not involve a driver who indisputably observed a number of unsupervised children in precarious positions when he failed to reduce his speed within reasonable limits to provide for the likelihood that sudden braking might be necessary to protect human life. We need no expert on probability and statistics to observe that the more children present, the greater is the chance of darting, and — correspondingly — the greater is the need for caution on the part of the driver. In sum, we think this case more closely resembles Smith and Hebert, supra, than Cole or McGee, supra.

Haver also argues Hinson was negligent per se in driving and parking on the wrong side of the street in contravention of Mississippi Code Annotated section 63-3-601 (1972). We disagree, because violation of a safety statute constitutes negligence per se only where (1) the plaintiff is a member of the class sought to be protected by the statute, and (2) the resultant harm is of the type sought to be prevented by the passage of the statute. U-Haul Co. v. White, 232 So.2d 705 (Miss.1970).

We think it clear that the class sought to be protected by Section 63-3-601 includes only pedestrians and drivers who act in reliance upon the orderly flow of traffic dictated by the statute. The jury, having received instructions on the elements of negligence per se in view of Hin-son’s admitted violation of the statute, found—not unreasonably in view of the Haver child’s age and position—no proximate causal link between the violation of the statute and the injuries. The risk of an accident of this sort would have been no less likely if Hinson had rounded the block and parked facing in the “appropriate” direction.

Haver next complains that the trial court erred in failing to grant her motion in limine, by which she urged the court to instruct the attorneys before trial to refrain from alluding in any fashion “to the supervision of or responsibility for the plaintiff, Elizabeth Haver, by her parents as their said acts or lack of action may relate to this cause of action.” We decline to put the trial court in error for refusing to grant this motion. In McCay v. Jones, 354 So.2d 1095 (Miss.1978), we suggested a preference for overruling broadly-drafted pretrial motions aimed at excluding whole blocks of evidence when more specific objections could be efficiently dealt with at trial. Haver’s motion asked too much. Had it been granted in toto, it would have prevented Hinson’s attorney from developing the whole story necessary to the jury’s understanding of the circumstances of the injury, particularly the likelihood that Hinson relied upon the parents’ presence as an added safety factor that could be taken into account by her when she stated her car and scanned the scene for pedestrians before departing.

Haver’s next assignment of error concerns the admissibility of her mother’s out-of-court statement that the accident was not Hinson’s fault. It appears in the following segment of the record:

Q. Would you state to us what Deborah Haver stated to you upon your visit during the second hospitalization of Elizabeth?
A. Well, we were in the waiting room and she said “Well”, said, “I might as well tell you, Jon is going to sue you.” She said, “I’ve been trying to talk him out of it but I haven’t been able to.” Said, “I’ve tried to tell him that it’s not your fault, we were negligent parents and we should have been watching after our child.”
BY MR. MOORE:
Objection your Honor. We would like to approach the bench please..

Whereupon an off the record conference was held at the bench after which the jury left the courtroom and the following proceedings were had and done:

* * * * * *
BY THE COURT:
I’m going to sustain I think the objection to that part of it which says “We were negligent parents.”
* # * $ * *
The jury returned to the courtroom and the following proceedings were had and done:
BY THE COURT:
Ladies and Gentlemen I have sustained the objection that was made just before you left the courtroom and you are to disregard that part of the answer concerning any parents negligence.
BY MR. DALEHITE, continuing:
Q. Mrs. Ainsworth, did you have occasion to talk with Mrs. Haver in your home sometime around August or September 1977?
A. Yes, sir.
Q. And would you relate what occurred at that time?
BY MR. MOORE:
We would object, your Honor, for the record.
BY THE COURT:
OVERRULE.
A. She came down to my house and she was very upset and she told me that Jon had been pressing her into signing this paper to sue me. In fact I think she hadn’t signed it at that time, but she was upset about it, and she told me it was not my fault, she had been trying to tell Jon it was not my fault. .
******

Offered for its truth, the statement plainly falls within the hearsay exclusionary rule unless it can be admitted pursuant to the party-opponent admissions exception. If within that exception, it should have been admitted although it was a conclusory opinion with doubtful foundation in the declar-ant’s personal knowledge. Matthews v. Carpenter, 231 Miss. 677, 97 So.2d 522, 524-26 (1957); Scott v. Fowler, 227 Miss. 643, 86 So.2d 477 (1956); Hickey v. Anderson, 210 Miss. 455, 49 So.2d 713 (1951).

In Mississippi Central Railroad Co. v. Pillows, 101 Miss. 527, 58 So. 483 (1912), we held the pre-litigation statements of nominal parties suing as next friend without beneficial interest in the suit do not come within the admissions exception to the hearsay rule. We presently must consider the fact that the parent, not the child, bears the ultimate legal liability for the medical expenses for which reimbursement was sought in the declaration in this case. See Lane v. Webb, 220 So.2d 281 (Miss.1969); St. Regis Paper Co. v. Seals, 211 So.2d 547 (Miss.1968). Thus, despite the established rule preventing imputation of negligence from parent to child, see Bunch v. Shaw, 355 So.2d 1383 (Miss.1978), the out-of-court statements of a parent suing as next friend for the medical expenses of a minor child may be offered by the defendant as the admissions of an adversary having an identifiable beneficial interest in the suit. In our opinion, it follows that the court properly sustained the objection concerning Mrs. Haver’s statement suggesting that the Hav-ers were “negligent parents,” and properly overruled the objection concerning Mrs. Haver’s statement that the accident was “not [Mrs. Hinson’s] fault.”

Haver next complains that the trial court instructed the jury to return a verdict for Hinson if it found Hinson maintained “a reasonable and proper lookout for other vehicles . . and for minor pedestrians in the vicinity . . and acted as a reasonable person would have acted in the operation of her automobile . .” We see no defect in this instruction, particularly when we read it, as we must, with other related instructions which were given. Shields v. State, 244 Miss. 543, 144 So.2d 786 (1962). Haver’s only basis for objecting to the instruction at trial, moreover, falls short of the specificity required by Mississippi Supreme Court Rule 42: She said only that the instruction was “not justified by law and evidence in the case.”

Haver’s final assignment of error attacks the refusal of the trial court to grant a j. n. o. v. or a new trial. Our discussion of the propriety of denying a peremptory instruction applies as well to the propriety of denying a j. n. o. v. As for the motion for a new trial, it follows from our discussion of the evidentiary issues that it too was properly denied.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


source: Caselaw Access Project

author: SUGG, Justice, for the Court:

license: Public Domain

text:
    Ernest W. STONE, III, Executor of the Last Will and Testament of Mary Doris Stone  v. Ernest W. STONE.
    No. 51810.
    Supreme Court of Mississippi.
    June 4, 1980.
    Rehearing Denied July 23, 1980.
    Robertshaw & Merideth, H. L. Merideth, Jr., Greenville, for appellant.
    Mansour & Thomas, Stephen L. Thomas, Greenville, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.

      . Mrs. Stone died while this appeal was pending and the appeal was revived in the name of her executor.

   SUGG, Justice, for the Court:

Mary Doris Stone (wife), filed suit in the Circuit Court of Washington County against Ernest W. Stone (husband) to recover the fair rental value of land owned jointly by the parties but farmed exclusively by the husband from 1969 to 1979. The husband asserted as an affirmative defense that he was entitled to farm the land free of any rent under the provisions of a separation agreement entered into between the parties in 1965.

The trial judge sustained a motion for directed verdict at the conclusion of the wife’s case. The principal issue is whether the husband was entitled to use the land rent free under the 1965 separation agreement.

The parties were married in 1936 and lived together as husband and wife until 1965 at which time they separated. During their marriage, the parties acquired 633 acres of land in Washington County. The husband was engaged in farming operations on the land with the wife devoting her time and interests to making a home for the parties and their four children. Title to 433 acres of land was in the husband and title to 200 acres of land was in both parties.

The wife filed a bill for separate maintenance in 1965 and a separation agreement was signed by the parties with the approval of their respective attorneys on December 3,1965. Under the terms of the agreement, the husband agreed to convey to the wife an undivided one-half interest in the 433 acres owned by him. He was to have the use of the land for agricultural purposes without charge or rental except he agreed to maintain the property, timely pay all debts secured by a lien on the property, and to pay all taxes. The agreement also provided that the covenant with reference to the 433 acres should apply to 200 acres of land jointly owned by the parties. The wife was granted exclusive possession, use and occupancy of the residence, including a reasonable curtilage thereto, which had been occupied by the parties before the separation and was occupied by the wife at the time the agreement was signed. The husband also agreed to convey a Lincoln automobile then owned by him to his wife, to pay all indebtedness owing on the automobile, to assign to the wife all his interest in two life insurance policies with the exception that the husband’s mother would remain a joint beneficiary in one policy, and the husband was to pay all premiums due on the policies.

The separation agreement provided for the support of the wife by the husband as follows: the husband was to pay the wife $500 monthly for her support, pay all medical expenses incurred by the wife, pay the cost of all utilities, except telephone expense, for the home occupied by the wife, to give the wife exclusive use and possession of all items of household goods and personal property located in the residence house, except personal items belonging to the husband, to keep the residence and household goods insured, to purchase and give to the wife a new automobile of her choice costing no more than $4500, exclusive of taxes, every three years beginning with the 1967 year model, reserving the right to the husband to sell or trade the automobile then owned by the wife on such new automobile, to pay all taxes on the automobiles and to maintain them except the wife was to furnish gasoline, oil and routine maintenance costing less than $100 at any given time, and to maintain liability, collision, comprehensive, property damage and medical insurance on such automobiles.

The separation agreement also contained provisions for payment of debts then due and for the support of two minor children and attorney’s fees. The agreement also provided that it could be incorporated in whole or in part in any temporary order or final decree rendered in the suit for separate maintenance then pending between the parties.

The husband delivered a quitclaim deed and bill of sale on December 3, 1965, by which he conveyed to his wife an undivided one-half interest in the 433 acres of land and the Lincoln automobile mentioned in the agreement. The chancery court of Washington County entered an interlocutory order on December 3, 1965, and incorporated the separation agreement in the order. A final decree in the separate maintenance suit was entered April 1, 1966 expressly incorporating the agreement in the decree by reference.

Mrs. Stone filed a bill for divorce against her husband in March, 1969, and prayed that the separation agreement be incorporated in any decree of divorce. She also alleged that, since the date of the separation agreement, the earnings and ability of her husband to support her had materially increased, her cost of living had materially increased, and requested that the support provided for her in paragraph seven of the agreement should be increased as alimony in the sum of not less than $750 per month. She also alleged that the defendant had failed to pay $394.13 of medical expenses incurred by her and that the defendant had assigned to her the two policies of life insurance mentioned in the separation agreement but had not executed documents of assignment so that the assignment could be perfected with the Prudential Life Insurance Company of America. She also alleged that the defendant had failed to maintain the residence in accordance with the separation agreement and alleged that defendant should be directed to make necessary and reasonable repairs to the residence. She also prayed for an allowance of attorney’s fees for representation in the divorce action.

In the final decree of divorce rendered August 29, 1969, the chancery court awarded the wife a divorce and directed the husband to pay alimony in the amount of $675 per month beginning September 1, 1969, directed the husband to pay to the complainant $650 to pay the cost of her solicitor’s fees, awarded custody of the one minor child of the parties to the wife with reasonable visitation privileges granted to the husband, directed the husband to pay the reasonable costs and expenses of the child for attending college, including medical expenses of the child. The decree also granted the wife exclusive possession of the residence, including a reasonable curtilage, and the personal property located in the residence and directed the husband to keep the property insured with no less than the same insurance coverage then carried on the property, and to timely pay the insurance premiums and all taxes due on the property. The decree also awarded complainant legal title to the automobile she then had in her possession on the theory that complainant was the equitable owner thereof and directed the husband to deliver the automobile free of any liens or to timely pay any indebtedness then owing on the automobile.

With reference to the prayer of the decree pertaining to matters covered by the separation agreement, the husband was directed to pay complainant $394.13 for the medical expenses sued for, the husband was required to perform everything reasonably necessary to complete the assignment to the wife of the two policies of insurance and to timely pay all premiums then or thereafter due on the policies. The decree did not direct the husband to make any repairs to the residence occupied by the wife. No appeal was taken from the decree.

We note the separation agreement dealt with a property settlement and the subsequent transfer of property by the husband to the wife and provided for the support of the wife and the children of the parties. All of the provisions of the separation agreement dealt with support of the wife and children except for the provision pertaining to the conveyance of the land, the right of the wife to occupy the home, and assignment of insurance policies to the wife.

The property settlement entered into between the parties was not made subject to the approval of the chancery court; therefore, all of the provisions of the agreement except those pertaining to support of the wife, child support and custody retained a purely contractual nature. The provisions of the agreement pertaining to support of the wife and children and custody of the children were subject to modification by the chancery court in the divorce action, but the provisions pertaining to the conveyance and use of the land, the occupancy of the residence house by the wife, the duty of the husband to maintain the real property and the assignment of life insurance policies were permissible subjects of a contractual agreement. This principle was enunciated in the case of Logue v. Logue, 234 Miss. 394, 106 So.2d 498 (1958). In that case Ben Logue sued his wife for divorce and the parties entered into a separation agreement before the final decree was entered whereby they undertook to settle all property and support questions between them. The agreement provided that Mrs. Logue was to have full and complete title to a house and lot in Jackson, Mississippi, and Mr. Logue agreed to assume the indebtedness then existing on the house and lot and to make payments on the indebtedness in monthly installments of $78.00 each. Mr. Logue was given full and complete title to a deed of trust, a yacht, and Mrs. Logue was to have full ownership of an automobile. The separation agreement further provided that Mr. Logue was to pay his wife $150 per month as alimony and support to continue as long as Mrs. Logue did not remarry. Thereafter the monthly alimony was reduced from $150 to $100 per month and after Mrs. Logue remarried, Mr. Logue was relieved of any further payment of alimony.

Mr. Logue filed a petition for modification of the decree and sought to be relieved of the payment of $78 per month on the debt due on the house and lot. The chancery court denied the relief sought and in affirming, this Court stated:

Of course if this agreement to pay the $78 monthly installments of the indebtedness on the real estate had been fixed by the chancellor in the first instance as a part of the alimony to be paid to the wife, then her remarriage would have terminated his obligation to pay the $78 per month, but the chancellor was entitled to take into consideration in determining whether or not the payment of this $78 per month was intended as alimony the fact that the separation agreement expressly provided that the “$150 alimony” should continue “so long as the Party of the Second Part does not remarry”, and that these words were not contained in the subsequent provision whereby he assumed to pay the $78 per month. The chancellor denied the appellant any relief on his petition to modify the decree of January 30,1953, and dismissed the same. Of course if the $78 per month installments had been designated as part of the alimony, as was the $150 per month, the court would have had jurisdiction and authority, upon proper cause shown, to have modified the allowance of alimony at a subsequent date, but the court was warranted in holding that the appellant was bound by his separation agreement since there were considerations moving to him in connection with the Zilish deed of trust, the yacht, and the amount that he was to pay monthly as alimony, as mentioned therein. (234 Miss. at 400, 401; 106 So.2d at 500).

In the case of Hughes v. Hughes, 221 Miss. 264, 72 So.2d 677 (1954), we held that the support provision for a wife in an agreement between a husband and wife which included both a property settlement and alimony for the wife could be modified as to alimony under changed conditions and circumstances. Mrs. Hughes was granted a divorce from Mr. Hughes. Before the final decree was entered the parties entered into a written agreement by which Mr. Hughes agreed to convey to Mrs. Hughes their home, pay off the mortgage on the home, and pay her $200 per month alimony. The agreement was incorporated in the final decree and the court ordered Mr. Hughes to pay, within a reasonable time, the balance due on the mortgage on the home which he had deeded to Mrs. Hughes, and pay Mrs. Hughes $200 per month alimony until further orders of the court. On petition of Mr. Hughes the chancery court reduced the alimony from $200 to $100 per month. On appeal Mrs. Hughes argued that the court was without authority to modify the former decree because the agreement entered into between the parties was a binding contract and not subject to change. In affirming, this Court stated:

We find no merit in this contention. Section 2743, Mississippi Code of 1942 provides as follows:
“When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just make all orders touching the maintenance and alimony of the wife, or any allowance to be made to her, and may, if need be, require sureties for the payment of the sum so allowed; and the court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require.”
In Amis, Divorce and Separation in Mississippi, Section 209, we find the following on the subject of force and effect of a consent decree: “ . . Such a consent decree merely dispenses with the necessity of taking proof and making an allowance based thereon. And in all cases it is the decree of the court, rather than the contract of the parties, and may be enforced, modified, or revoked, in the same way as if it had been an adjudication based on testimony duly taken. There is much authority on the contrary, holding that a judgment by agreement or consent, is a mere record contract and that it may not be changed or modified by the court. That is the rule in other classes of cases; but the duty of the husband to support his wife is a matter in which the state has an interest, and the statute has accordingly authorized the court to change or modify any decree for continuous alimony, and to make new decrees from time to time as the necessities of the case may require. Such being true, the parties may not by contract or agreement deprive the court of that power, nor may the court itself renounce it. It is a continuing duty of the court as well as a continuing power. The whole question of the wife’s alimony, and all its incidents, is committed by the statute to the court, as a continuing power and duty; and it would be a strange proceeding, if the court, by adopting the agreement of the parties and incorporating it into the decree as its adjudication could thereby estop itself, or abdicate the duty, power and authority conferred on it by statute. Whatever may be the rule elsewhere the statute in this state is supreme; and every agreement in reference to alimony, to be incorporated in any decree of the court, is made subject to the power of the court to modify or revoke it, which is necessarily incorporated in every such agreement.” (221 Miss, at 267, 268; 72 So.2d at 677, 678).

The separation agreement of the parties in this case included matters subject to modification and other matters not subject to modification. The provisions of the agreement relating to the support of the wife and custody and support of the minor children were subject to modification under changed situations and circumstances under section 93-5-23 Mississippi Code Annotated (Supp.1979). Logue v. Logue, supra; Hughes v. Hughes, supra. The provisions of the agreement not subject to modification include the transfer of an undivided one-half interest in 433 acres of land to the wife, the right of the wife to occupy the residence on the land during her lifetime, the agreement of the husband to maintain the real property and to timely pay the taxes and debts due on the real property, the right of the husband to use the real property rent free for agricultural purposes, and the assignment of the two life insurance policies. These provisions are not subject to modification because they are permissible subjects of contractual agreements between a husband and wife.

If the wife had any complaint about the husband not fulfilling his contractual agreement to maintain the property she should have brought suit for this item, and not a suit to collect rent. If she had any complaint about the insufficiency of the support allowed in the final decree of divorce, her remedy was by petition for modification. The wife was not entitled to rent on the land because her agreement that her husband could use the land for agricultural purposes without payment of rent was a valid agreement not subject to modification. The trial court properly sustained the motion for a directed verdict at the conclusion of the wife’s evidence.

AFFIRMED.

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

      . This appears in the 1972 Code as section 93-5-23.


text:
    The WAX COMPANY v. J. H. RILEY.
    No. 51862.
    Supreme Court of Mississippi.
    June 4, 1980.
    Rehearing Denied July 23, 1980.
   Appeal from Circuit Court, Lawrence County; R. I. Prichard, III, Judge.

Richard E. Stratton, III, Brookhaven, for appellant.

Robert G. Turnage, Monticello, for appel-lee.

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

REVERSED AND JUDGMENT ENTERED FOR APPELLANT.

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


text:
    James A. JOHN v. STATE of Mississippi.
    No. 51900.
    Supreme Court of Mississippi.
    June 4, 1980.
    Rehearing Denied July 9, 1980.
    Richard L. Stradley, Walnut Grove, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leake County; Marcus D. Gordan, Judge.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


author: COFER, Justice, for the Court:

text:
    The PEOPLES BANK & TRUST COMPANY v. Hollis KINSEY et al.
    No. 52003.
    Supreme Court of Mississippi.
    June 11, 1980.

      Mitchell, Eskridge, Voge, Clayton & Beasley, W. P. Mitchell, Jak McGee Smith, Tupelo, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Guy Mitchell, III, Carnathan, Davidson & Wright, Glen Davidson, Carr & Goodman, H. R. Goodman, Parker & Butts, David 0. Butts, Tupelo, for appellees.
    Before PATTERSON, C. J., and SUGG and COFER, JJ.
   COFER, Justice, for the Court:

This case is here from the Chancery Court of Lee County, where the appellees’ plea of a statute of limitations was sustained, and the cause was dismissed as to appellees.

Appellant is The Peoples Bank & Trust Company, and the appellees are Hollis Kinsey and others, stockholders of a corporation. Beginning the manufacturing business, the corporation (Fashions by Wisz, Incorporated), sought and had established for it by appellant a line of credit, by which line of credit, the corporation (Fashions) could borrow from appellant funds in the maximum amount of $300,000, and appel-lees were to become indorsers on notes of Fashions to appellant.

Fashions borrowed $150,000 against this line of credit, on December 19, 1975, and appellees became indorsers on that note which matured June 17, 1976. Another loan was procured, dated January 28, 1976, and due July 27, 1976. Appellees were in-dorsers on the note, and the loan exhausted the limit of the line of credit.

At the maturity of the first of these notes, it was renewed on June 29,1976, by a note in the principal amount of $150,000 to mature on August 28, 1976. Apparently inadvertently, this renewal note was not indorsed by the stockholders, and, when this fact later became known to the bank official in charge of Fashions’ business with the bank, it was arranged that a new note, properly signed, would be made for the entire $300,000, the amount then owed and matured. This was done on August 9,1976, with the same indorsers and with the same collateral therefor as appeared in the notes renewed thereby. It became due, by is terms, on October 8, 1976. The record reflects that no interest was ever paid on the indebtedness evidenced by the notes noticed hereinabove.

On July 30, 1976, Fashions procured another loan from the bank, in the amount of $50,000, evidenced by a note signed by all but one of the individual stockholders, and secured by Fashions’ assignment of two invoices. It became due on October 29, 1976.

Parenthetically here, in addition to other collateral making up that to be used to secure the loans on the line of credit, some effort was made to include items of personal property useful in manufacturing and furnished to Fashions by a defendant, Cutters’ Exchange, Incorporated, and certain leasehold equipment in the building leased to Fashions by defendant, McGraw-Edison, Incorporated. The bank seeks adjudication of their rights and to have awarded to it relief as to them, but those issues and that relief are not involved in this appeal.

In addition thereto, in an entirely different transaction, appellee Kinsey gave certain bonds to the bank to secure a loan by the bank to Kinsey’s employee, which bonds have not been returned by the bank, though the employee’s debt has been paid, the bank claiming them under a clause of a document executed by Kinsey providing that all collateral thereof might be applied by the bank toward any indebtedness of Kinsey to the bank.

Fashions ceased operations. Cutters Exchange, Inc., and McGraw-Edison, Inc. took possession of property to which they claimed they are entitled, and the bank took into its possession a number of sewing machines and a table, given to it as collateral by Fashions on the notes evidencing loans under the line of credit.

By the notes taken by it as noticed here-inabove, the bank took to itself, in case of default, the “remedies of a secured party under the Uniform Commercial Code of Mississippi.” See Mississippi Code Annotated sections 75-9-105(l)(i), 75-9-503, and 75-9-504(3) (1972).

The bank basically sold these items of collateral in three separate transactions, June 13,1977, October 3, 1977, and November 11, 1977. (This last sale may or may not have been contracted for, or made, about August 18, 1977, depending upon the viewpoint of the party, an issue not necessary here to be resolved.) All of these transactions, according to the undisputed proof, were coordinated with, and approved by, the indorsers or their attorney. (It may be concluded here that the parties had not then withdrawn themselves to an arms-length distance from each other, but were working together to salvage as much credit as possible to the parties.)

On August 23, 1978, the bank sued the makers and indorsers on the indebtedness for the principal and interest on the $300,-000 note, for interest on the two $150,000 notes which had accrued prior to their becoming the principal of the $300,000 note, and for accounting and relief against the Cutter’s Exchange, Inc. and McGraw-Edi-son, Inc., defendants.

The individual defendants incorporated in their answer a plea that the suit was barred by Mississippi Code Annotated, section 15-1-23 (1972), not having been brought within a year from foreclosure or sale of the collateral securing the indebtedness.

That statute reads as follows:

In all cases, no suit or action shall hereafter be commenced or brought upon any installment note, or series of notes of three or more, whether due or not, where said note or notes are secured by mortgage, deed of trust, or otherwise, upon any property, real or personal, unless the same is commenced or brought within one year from the date of the foreclosure or sale of the property pledged as security for said note or notes.

We conclude that this suit is not upon an installment note or upon a series of three or more notes. We accordingly, reverse the chancery court decision thereon.

The evidence or evidences of debt sued upon is not or are not an installment note or notes. A more troublesome problem is involved in a consideration of whether a series of notes, three or more in number, is involved.

We have no difficulty in eliminating from consideration here the $50,000 note of July 30, 1976, with a due date of October 29, 1976. It is secured by different collateral, and may not properly be included as one of “a series of notes of three or more,” as in our opinion is contemplated by the statute here under consideration.

The remainder of the indebtedness, other than interest thereon sought, may be traced as follows:

Note for $150,000 dated December 19, 1975, and maturing June 17, 1976;
Note for $150,000 dated January 28,1976, and maturing July 27, 1976;
Note for $150,000 dated June 29, 1976, maturing August 28, 1976; given to renew the December 1975 note;
Note for $300,000 dated August 9, 1976, and maturing October 8, 1976, given in renewal of both the $150,000 notes dated January 28, 1976, and June 29, 1976.

The Uniform Commercial Code does not contain a definition of the words “series of notes,” nor has our attention been drawn to such a definition in the jurisprudence of Mississippi or elsewhere. We must give an appropriate meaning to the use of those words in the statute, and be governed by the fact that they are used. If we found that the statute means the same without them, then we would be amending the statute and ascribing to the Legislature an exercise in futility in limiting or defining the statute by their inclusion.

We believe and hold that the words “series of notes” as employed in this statute, mean multiple notes given in a single transaction and for the same consideration, and without regard to their several maturity dates. Annot., 64 A.L.R. 457 (1929) and the authorities there collated and cited.

It seems logical to conclude that the legislature was considering installment notes [Moon & Sons v. Hood, 244 Miss. 564, 572, 144 So.2d 782, 784 (1962)] and a series of notes wherein provision had been made for payment of a single indebtedness in portions to be evidenced by several promissory notes [In re Flint, 150 F.2d 126, 32 CCPA 1116 (Court of Customs & Patent Appeals, (1945)], [Funk & Wagnalls New Practical Standard Dictionary (1952), p. 1193, where “series” is defined as being “1. An orderly arrangement of one thing after another; a connected succession of persons, books, objects, observations, etc., on the basis of like relationship. 2. A succession of terms whose values are fixed by a common law, relation or mode of derivation; called in some of the simplest cases a progression. .”] (Emphasis that of the dictionary.)

We do not construe the statute as contemplating a “succession of notes of three or more,” as here involved.

We, therefore, hold as error the sustaining of the plea in bar, and reverse and remand the case for further proceedings not inconsistent herewith.

REVERSED AND REMANDED.

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


text:
    Johnny Carl ABEL v. GARAN, INC. and Insurance Company of North America.
    No. 51999.
    Supreme Court of Mississippi.
    July 9, 1980.

      Laurel G. Weir, Philadelphia, for appellant.
    McCoy & Wilkins, Joseph T. Wilkins, III, Jackson, for appellees.
    Before PATTERSON, ROBERTSON and COFER, JJ.
   COFER, Justice, for the Court:

The appellant Abel was injured by a machine which he was operating as an employee of Garan, Inc., which employer had as its insurance carrier, Insurance Company of North America. The employer and carrier are appellees.

Appellant employed counsel and filed his motion to controvert, wherein he included as matters in dispute his claim to recovery “for the permanent scar and disfigurement, compensation provided by the Mississippi Workmen’s Compensation Act, medical expenses, travel expenses, interest, penalties and all benefits provided by the Mississippi Workmen’s Compensation Act.”

The hearing was scheduled to begin, and appellant amended his claim to include a prayer for double compensation on his allegation that his employer had violated the child labor law. The appellant was between sixteen and seventeen years of age at the time the accident occurred, and the violation of the child labor law forming the basis of this claim was his having worked in excess of the maximum hours fixed in Mississippi Code Annotated, section 71-1-21 (1972), for which violation the employer would be liable to double compensation as provided by Mississippi Code Annotated, section 71-3-107 (1972).

The administrative judge found no violation of the statute and denied the claim for double compensation. The Commission and the Circuit Court of Neshoba County affirmed the finding and decision. On appeal here, this finding and the denial of double compensation thereon are made the basis of one assignment of error. We find that there is no merit in this assignment.

The administrative judge emphasized at the hearing, and thereafter in his decision, that the only question then being considered was the issue of double compensation. When the matter was before the circuit court on appeal, the appellant moved that the cause be remanded to the commission, because “he desires to prosecute his claim for permanent scar and disfigurement, compensation for future disability, medical expenses, travel expenses, interest, penalties, and damages and these were not waived by said minor and have not been litigated, and he moves the court to remand this matter back to the Mississippi Workmen’s Compensation Commission so that he can litigate this matter fully.

This motion was overruled and the action was assigned as error here.

The claimant was not present at the hearing before the administrative judge.

It is our conclusion that (1) the hearing then had did not preclude another and subsequent hearing on the other matters made subjects of controversy; (2) the hearing was on the narrow issue of double compensation or none; and (3) that the claimant is entitled to a hearing on the remainder of his claim.

We therefore, affirm the denial of double compensation to the claimant, but without prejudice to his right to have determination of the additional matters he submitted in his motion to controvert, and, for determination of all unresolved issues, the cause is remanded to the Workmen’s Compensation Commission.

AFFIRMED AND REMANDED TO THE WORKMEN’S COMPENSATION COMMISSION.

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

SUGG, J., took no part.


author: SUGG, Justice, for the Court.

text:
    Theodore F. BRUNO v. SOUTHEASTERN SERVICES, INC.
    No. 51742.
    Supreme Court of Mississippi.
    July 9, 1980.
    Heidelberg, Woodliff & Franks, Sam E. Scott, John B. MacNeill, Jackson, for appellant.
    Gerald, Brand, Watters, Cox & Hemle-ben, Kenneth Harmon, Jack W. Brand, Luther S. Ott, Jackson, for appellee.
   SUGG, Justice, for the Court.

The principal question in this case is whether a stockholder who owns all the stock of a corporation can bring a suit to recover individually for defendant’s breach of an oral agreement under which the defendant was to invest equity capital in the corporation and guarantee a loan to the corporation from a bank.

Theodore F. Bruno, plaintiff, filed an action for damages in the Circuit Court of the First Judicial District of Hinds County against Southeastern Services, Inc., defendant, alleging breach of contract, malicious interference with the right of plaintiff to pursue a lawful business, and fraud. Defendant’s demurrer to the declaration was sustained, hence this appeal by plaintiff.

Plaintiff filed his declaration in three counts against the defendant for $200,000 actual damages and $50,000 punitive damages. In Count I, plaintiff alleged that about October 10, 1978, defendant learned that plaintiff was seeking sources of equity capital for his business, Bruneau’s, Inc., and through its agent represented to plaintiff it was interested in investing equity capital in the corporation. Plaintiff owned one hundred percent of the capital stock of Bru-neau’s, Inc. After discussions which lasted about three weeks, defendant offered to invest $50,000 equity capital in the corporation together with an individual who would also invest $50,000 equity capital in the corporation. The offer was subject to the condition that First National Bank of Jackson would make an additional loan of $250,-000 to the corporation which would be guaranteed by the defendant. Defendant’s offer was later changed in that two individuals would invest $25,000 each in equity capital. Plaintiff accepted defendant’s offer but a contract was never signed by the parties. First National Bank agreed to make the loan and later raised its commitment to the sum of $275,000. Plaintiff alleged that defendant breached the contract without notice, and as a result of the breach First National Bank foreclosed on various loans which forced the corporation into bankruptcy and destroyed the value of his stock in the corporation. Plaintiff alleged that he suffered actual damages of $200,000, the value of his stock.

In Count II, plaintiff alleged that the negotiations leading up to the contract and the steps taken toward performance of the contract were done at a time when it was imperative for plaintiff to find additional capital for his business, Bruneau’s, Inc. He further alleged that the breach of contract, and the delay occasioned by the actions of the defendant deprived him of the opportunity to obtain capital from other sources, and these facts were well known to defendant when it breached its contract and refused to invest capital in the corporation. Plaintiff charged the acts of defendant caused plaintiff to suffer actual damages in the amount of $200,000. Plaintiff further alleged that he was entitled to punitive damages in the amount of $50,000 because the actions of defendant were intentional, willful and malicious.

In Count III, plaintiff alleged the acts of the defendant amounted to fraud and deceit.

Defendant filed a general demurrer on numerous grounds which may be consolidated as follows: (1) Any cause of action for breach of an agreement to invest equity capital in the corporation belonged to the corporation and to guarantee a loan of the corporation belonged to the corporation rather than to plaintiff individually. (2) The only manner by which plaintiff can assert the cause of action alleged in the declaration is on behalf of the corporation in a shareholder derivative action.

In his suit, plaintiff sought damages for the destruction of the value of his stock in the corporation. His suit is based on a contract between defendant and the corporation under which the defendant agreed to invest capital in the corporation and to guarantee a loan of the corporation. The defendant did not contract with the plaintiff to lend plaintiff money or to guarantee a debt of the plaintiff, but the contract was between plaintiff and Bruneau’s, Inc., a corporation owned by the plaintiff. Under Mississippi Law, a corporation is an entity separate and distinct from its stockholders. Illinois Central RR. Co. v. Cottonseed Co., 166 Miss. 579, 148 So. 371 (1942). See United States v. State Tax Commission of the State of Mississippi, 505 F.2d 633 (5th Cir. 1974), and Childers v. Beaver Dam Plantation, Inc., 360 F.Supp. 331 (N.D.Miss.1973), (Applying Mississippi Law).

Our research reveals no Mississippi cases dealing with the right of a stockholder to bring suit in an individual capacity to redress a wrong done to a corporation. In other jurisdictions the rule is well established that a stockholder of a corporation has no personal or individual right of action against third persons for a wrongful injury to a corporation although the injury may result in the destruction or depreciation of the value of corporate stock. 36 A.L.R.2d 1351; 167 A.L.R. 280; 18 C.J.S. Corporations § 559; 19 Am.Jur.2d, Corporations § 525 (1939).

In Schaffer v. Universal Rundle Corp., 397 F.2d 893 (5th Cir. 1968), (applying Texas law), the Court stated:

The general rule is, of course, well established that an action to redress injuries to a corporation, whether arising out of contract or tort, cannot be maintained by a stockholder in his own name but must be brought in the name of the corporation, since the cause of action being in the corporation, the stockholder’s rights are merely derivative and can be asserted only through the corporation. The general rule is applicable in cases where the individual is the sole stockholder. The rule does not apply in a case where the stockholder shows a violation of duty owed directly to him. That exception to the general rule does not arise, however, merely because the acts complained of resulted in damage both to the corporation and to the stockholder, but is confined to cases where the wrong itself amounts to a breach of duty owed to the stockholder personally. (397 F.2d at 896).

The reasons supporting the rule are succinctly stated in 6 Cavitch, Business Organizations section 199.03[1] (Rev.Ed.1979), as follows:

(1) The corporation is a separate entity and the shareholder does not have a legal interest in its property.
(2) Multiplicity of suits by individual shareholders will be avoided.
(3) Impairment to creditors’ rights will be avoided since the recovery will belong to the corporation.
(4) Corporate recovery benefits all shareholders equally.

We adopt the rule in Mississippi that an action to redress injuries to a corporation, whether arising in contract or in tort cannot be maintained by a stockholder in his own name, but must be brought by the corporation because the action belongs to the corporation and not the individual stockholders whose rights are merely derivative. The rule applies even though the complaining stockholder owns all or substantially all of the stock of the corporation. Artic Contractors, Inc. v. State, 573 P.2d 1385 (Alaska 1978); Martin v. Maldonado, 572 P.2d 763 (Alaska 1977); Maki v. Ziehm’s Estate, 55 A.D.2d 454, 391 N.Y.S.2d 705 (1977); Bevelheimer v. Gierach, 33 Ill. App.3d 988, 339 N.E.2d 299 (1975); Box v. Roberts, 112 Colo. 234, 148 P.2d 810 (1944); Cullum v. General Motors Acceptance Corp., Tex.Civ.App., 115 S.W.2d 1196 (1938); Hi-dalgo v. McCauley, 50 Ariz. 178, 70 P.2d 443 (1937); Warren Telephone Co. v. Staton, 46 Ohio App. 505, 189 N.E. 660 (1933); Stinnett v. Paramount Famous Lasky Corp. of New York, Tex.Com.App., 37 S.W.2d 145 (1931); Green v. Victor Talking Machine Co., 24 F.2d 378 (2d Cir., 1928), cert. denied, 278 U.S. 602, 49 S.Ct. 9, 73 L.Ed. 530 (1928); 13 W. Fletcher, Cyclopedia of the Law of Private Corporations § 5910 at 283 (Rev.Ed. 1970); 18 C.J.S. Corporations § 559 (1939).

We hold that the basis of the suit in this case is a wrong to the corporation and plaintiff may not bring suit in his individual capacity to redress a wrong to the corporation. The cause of action belongs solely to the corporate entity, Bruneau’s, Inc., and may be asserted only by the corporation itself or by plaintiff in a representative capacity in the form of a shareholder derivative suit. The corporation is an indispensable party to such an action. In 13 Fletcher, Cyclopedia Corporations, Section 5908, pages 279, 280, the author states:

Where the basis of the suit is a wrong to the corporation, redress must be sought in a “derivative” suit. The stockholders’ derivative suit, like the pure “class” suit, was an invention of equity as a form of “representative” suit. But the incidents and characteristics of derivative and class suits are quite different. In the stockholders’ derivative suit the right of the plaintiff to maintain the suit is derivative or secondary. The corporation is not a mere formal, but is an indispensable party to the action.

The declaration alleges that Bruneau’s, Inc., was in bankruptcy at the time the action was instituted, so the decision regarding whether the corporation should bring an action, and the prosecution of such an action, is vested in the Trustee in Bankruptcy. Plaintiff may not bring a shareholder derivative action without authorization by the bankruptcy court.

The bill of complaint states an action for Bruneau’s, Inc., and, of course, the bankruptcy court may authorize a suit by the corporation. In such suit by the corporation, any recovery would inure to the benefit of the creditors of Bruneau’s, Inc., and after their claims are satisfied, any balance remaining would inure to the benefit of plaintiff as the sole stockholder.

The trial court properly sustained the demurrer because the suit was based on a contract between defendant and Bruneau’s, Inc., to invest capital in the corporation and guarantee a loan of the corporation. The defendant did not agree to lend plaintiff money or to guarantee plaintiff’s debt, but rather to the corporation which was wholly owned by the plaintiff. The gravamen of the action is a wrong to the corporation which may not be redressed by plaintiff in his individual capacity.

AFFIRMED.

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


text:
    C. W. BARNES and Western Surety Company v. TOWN OF BURNSVILLE, Mississippi, ex rel. Richard TILL and Richard Till, Individually.
    No. 51804.
    Supreme Court of Mississippi.
    July 9, 1980.
    Langston, Lott & Cadle, Duncan Lott, Booneville, for appellants.
    James H. Mathis, Corinth, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   SUGG, Justice, for the Court:

Richard Till filed suit in the Circuit Court of Tishomingo County against C. W. Barnes and his surety for $1,000 compensatory damages and $9,000 punitive damages. The jury awarded plaintiff $2,000 compensatory damages and $1,300 punitive damages and judgment was entered accordingly. The principal question in this case is whether a plaintiff may recover more damages in a tort claim than he sued for.

Watkins v. Blass, 164 Miss. 325, 145 So. 348 (1932) was a replevin action for recovery of an automobile valued in the affidavit for the writ of replevin at $120. The writ of replevin and the return of the officer on the writ fixed the same value. The defendant in the replevin action executed a bond in the penalty of $240, double the value of the automobile fixed in the affidavit, the writ, and the return of the officer. The verdict of the jury, and the judgment of the court, was that the defendant return the automobile to the plaintiff and on failure to do so, the plaintiff should have judgment against the defendant and his sureties in the sum of $125. The evidence showed that the automobile was of the value of $125 and when plaintiff was attempting to prove the value of the automobile, defendant’s attorney dictated into the record, “I will agree that the car is worth $125.00.” On appeal the judgment was reversed and judgment entered for $120 instead of $125 because the verdict and judgment was for more than the amount sued for.

The holding in Watkins is in accord with the rule stated in 61 Am.Jur.2d Pleadings §§ 381, 778, 779 (1972) as follows:

As a general rule, in the absence of statute, the relief awarded by the judgment will be restricted to that claimed by the party in his pleading. Irrespective of what may be proved, a court cannot, without statutory authority, adjudge to the plaintiff more than he claims in his pleadings. However, where judgment is improperly entered for more than the amount permitted under the rule requiring conformity to the pleadings and issues, the excess may be remitted and the remainder of the judgment will stand.

Pursuant to our decision in Watkins, supra, and the general rule as stated above, we hold a plaintiff in a tort claim may not recover more than he sues for. The plaintiff should know the amount of damages he has suffered, and when the plaintiff states the amount of compensatory damages sought in his suit, a jury may not disregard the amount sued for by the plaintiff and award him more than he seeks.

The verdict in this case was for a sum greater than the amount sued for; accordingly, we reduce the amount of compensatory damages from $2,000 to $1,000 to conform with the amount of damages alleged in the declaration.

The defendant also contends that the jury erred by awarding punitive damages to the plaintiff. The evidence shows that C. W. Barnes, a policeman for the Town of Burnsville, issued a ticket to plaintiff for speeding on February 9, 1978. Plaintiff was informed, and one witness testified, that defendant told the witness that he, the defendant, was going to drag the plaintiff out of his car and knock him in the head the next time he stopped him. According to plaintiff’s evidence, this is precisely what happened. We affirm the award of the punitive damages because the evidence amply supports the award of punitive damages.

We have considered the other assignments of error but find no merit in them.

AFFIRMED IN PART, REVERSED IN PART, AND JUDGMENT CORRECTED AWARDING PLAINTIFF COMPENSATORY DAMAGES IN THE AMOUNT OF $1,000.00 AND PUNITIVE DAMAGES IN THE AMOUNT OF $1,300.00.

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


author: ROBERTSON, Presiding Justice,

text:
    Thomas SANCHEZ and Michael Holmes v. STATE of Mississippi.
    No. 51949.
    Supreme Court of Mississippi.
    July 9, 1980.

      Terrell Simpson, Poplarville, for appellants.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Thomas H. Sanchez and Michael F. Holmes were convicted on December 3, 1978, in a justice of the peace court of the Second District of Pearl River County, Mississippi, of “willfully and unlawfully hunting deer with aid of light.” The transcript of the judgments entered in the justice of the peace court reflect that the defendants pleaded guilty to the charge, were found guilty, and each was fined $500 plus court costs.

Charges were also brought against each defendant for “willfully and unlawfully hunting from public road.” All charges resulted from arrests made at 3:00 A.M. on December 3, 1978, when the defendants were found driving down a public road with spotlights on and shotguns loaded with buckshot.

A transcript of the record for each defendant reflects that these charges were tried at the same time, that each defendant pleaded guilty, each was found guilty and each fined $100 plus court costs.

Sanchez and Holmes appealed from these judgments to the Circuit Court of Pearl River County. In accordance with MCA § 99-35-1 (1972) which provides in part:

“On appearance of the appellant in the circuit court the case shall be tried anew and disposed of as other cases pending therein,”

Sanchez and Holmes were tried anew for spotlighting deer. The jury returned a verdict of “not guilty” for each defendant.

The consolidated trial took place on April 19, 1979, and the circuit court immediately entered an order of discharge of each defendant.

During the course of the trial for spotlighting deer, Sanchez and Holmes each admitted that they were hunting rabbits the night of December 3, 1978, with the aid of the car’s headlights. On the basis of this admission or confession made in the trial for spotlighting deer, the circuit court entered an order of conviction against each defendant, each order reciting:

“During the course of said trial, the defendant confessed in open court that he was guilty of hunting on a public highway, and was an accessory to shooting therefrom and there was, at the time of said confession in open court, a charge pending against said defendant for said offense of hunting or shooting from the public highway, being Cause No. A-847 [A-852] on the Docket of this Court, the same having been appealed by the defendant from the Justice of the Peace Court of District No. 2 of Pearl River County, Mississippi.
The Court finds therefore that there was a confession of guilt in open court by the defendant, THOMAS H. SANCHEZ [MICHAEL F. HOLMES], by his admitting the truth of said charge against him, and that under Section 99-19-3 of the Mississippi Code of 1972, this would constitute a conviction of said charge in Cause No. A-847 [A-852] on the docket of this Court.
The Court further finds that said confession of guilt in open court was freely and voluntarily given and that the defendant freely and voluntarily took the stand to testify under oath to questions propounded to him by his attorney and the State of Mississippi by the District Attorney.
THEREFORE, upon said confession, it is the sentence of this Court and said defendant is hereby sentenced to serve a term of thirty (30) days in the Pearl River County, Mississippi Jail and to pay a fine in the amount of FIVE HUNDRED DOLLARS ($500.00), and the defendant is hereby remanded into the custody of the Sheriff of Pearl River County, Mississippi to serve said sentence.”
Appellants have assigned as error:
The Trial Court erred and was without authority in entering the Orders of Conviction as they were entered without a guilty plea or a verdict of a jury.

The State contends that MCA § 99-19-3 (1972) applies. That section reads:

“A person indicted for a criminal offense shall not be convicted thereof, unless by confession of his guilt in open court or by admitting the truth of the charge against him by his plea, or by the verdict of a jury accepted and recorded in court. A person charged with an offense shall not be punished therefor unless legally convicted thereof in a court having jurisdiction of the cause and of the person.”

MCA § 99-19-3 must be harmonized with MCA § 99-35-1, which provides that a case appealed from a justice of the peace court “shall be tried anew” in the circuit court. We think that this language of § 99-19-3:

“A person indicted for a criminal offense shall not be convicted thereof, unless by confession of his guilt in open court or by admitting the truth of the charge against him by his plea, or by the verdict of a jury accepted and recorded in court.” (Emphasis added)

makes it clear that this section only applies when the confession or admission is made to the charge for which the defendant is then being tried.

Inasmuch as Sanchez and Holmes were being tried anew on the single charge of spotlighting deer when they confessed or admitted hunting rabbits at night with the aid of the car’s headlights (an entirely different offense for which they were not being tried), such confessions or admissions could not be used against them without calling up their separate appeals of their convictions of hunting from a public road, and giving them the opportunity of pleading anew and being tried anew on these separate charges.

Of course, upon the trial of Sanchez and Holmes for unlawfully hunting from a public road, the admissions or confessions made in their trial for spotlighting deer could be introduced into evidence under the general rule on judicial admissions, stated in this way in 22A C.J.S. Criminal Law, § 733, p. 1061:

“In the absence of statutory regulation of the subject, testimony and written statements given voluntarily or made by a party or a witness in a judicial proceeding, are, as admissions, competent against him on the trial of any issue in a criminal case to which they are pertinent. Admissions made in the course of judicial proceedings are substitutes for, and dispense with, the actual proof of facts in such proceeding. Such rule applies not only to formal admissions by way of pleading or stipulation, but also to admissions made by accused in the course of his testimony.”

Mississippi adopted this general rule in Smith v. State, 160 Miss. 227, 133 So. 681 (1931), when the testimony of a defendant at a former trial of a co-indictee was held admissible against the defendant at his subsequent trial.

The orders of the circuit court are reversed and this cause remanded for a new trial on the specific charge of unlawfully hunting from a public road.

REVERSED AND REMANDED.

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


text:
    James L. BARRETT and Ginger Bass Barrett v. STATE HIGHWAY COMMISSION of Mississippi.
    No. 51977.
    Supreme Court of Mississippi.
    July 9, 1980.
    Alfred Lee Felder, McComb, for appellants.
    Statham, Watkins & Mitchell, William F. Watkins, Thomas W. Brock, Magnolia, for appellee.
    Before PATTERSON, C. J., and SUGG and COFER, JJ.
   PATTERSON, Chief Justice,

for the Court.

In the Pike County Special Court of Eminent Domain, the State Highway Commission condemned property owned by James L. Barrett and Ginger Bass Barrett; the jury found $6,000 to be just compensation for impairment of value resulting from the relocation of Mississippi State Highway No. 44. The Barretts appeal, arguing (1) that the trial court erred in refusing to extend the Mississippi discovery statutes, MCA §§ 13-1-201 through 13-1-271 (1972), to this eminent domain proceeding, and (2) erred in refusing to permit a court-supervised jury view of the property. We reverse and remand for a new trial.

The Barretts’ first assignment of error presents a question of first impression in this State: Do the provisions of the Mississippi Code relating to discovery in civil proceedings apply to the special courts of eminent domain? In Jackson Redevelopment Authority v. King, Inc., 364 So.2d 1104, 1111 (Miss.1978), we did not reach this question, believing it to be moot. To answer it, we must determine the legislative intent underlying MCA § 13-1-201 (Supp.1979), which states that the discovery statutes “apply to civil proceedings in the circuit, chancery and county courts of this state.”

A creature of the legislature, see MCA §§ 11-27-1 through 11-27-91 (1972), the special court of eminent domain now performs functions once allocated to the justices of the peace. While the court is “special” in that it utilizes some procedures peculiarly adapted to actions to determine just compensation for public taking of private property, see Mississippi State Highway Comm. v. First Methodist Church of Biloxi, 323 So.2d 92 (Miss.1975), its powers clearly flow from a particularization of the jurisdiction conferred upon the county and circuit courts of this state. As MCA § 11-27-3 (1972) states in part:

“The original powers and jurisdiction [of the special court of eminent domain] shall be . fixed in the county court [in counties having a county court, and in counties not having a county court] . the original powers and jurisdiction shall be . fixed in the circuit court . , which . . . powers and jurisdiction may be exercised in full either in term time or vacation, or both.” (Emphasis supplied).

The jurisdictional derivation of this “special” court, we believe, places it within the purview of MCA § 13-1-201, thus extending the availability of the discovery statutes to proceedings in it, as well as in other civil proceedings in the county and circuit courts. Indeed, the appellee offers no plausible reason why this construction would not serve the salutary legislative aim of promoting the efficient administration of justice in its truth-seeking process.

We are met nevertheless with the appellee’s argument that the trial court’s suppression of the Barretts’ interrogatories and other attempted discovery devices constituted harmless error, if it were error at all. See Mississippi Supreme Court Rule 11. We cannot agree that the erroneous denial of discovery in this case produced no “miscarriage of justice.” The highway commission apparently had developed extensive information concerning the impact on drainage which the construction would have. It had prepared blueprints, for example, and the Barretts had none of this information available for examination in advance of trial because of the trial court’s denial of discovery and later restrictive ruling on their motion for a subpoena duces tecum. It is true that the Barretts presented some slides depicting the property and cross-examined the expert witnesses proffered by the commission, but the record leaves the distinct impression that pretrial access to information held by the commission would have been helpful to the landowners in preparing their case.

Because the merit of the first assignment of error requires reversal, we need not decide whether the trial judge in this case abused his discretion by not granting a jury view. MCA § 11-27-19 (1972). We would note, however, that it is ordinarily wise to afford the property owner a jury view in eminent domain cases, and that inconvenience alone must be regarded as an insubstantial reason for refusing a view.

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Sherry YEAGER v. STATE of Mississippi.
    No. 51756.
    Supreme Court of Mississippi.
    July 9, 1980.
    LeRoy Pitts, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; Ben Guider, Judge.

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

REVERSED AND REMANDED.

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


text:
    Edward Ray SIMS v. Toye Robertson SIMS.
    No. 51973.
    Supreme Court of Mississippi.
    July 9, 1980.
    Scales & Scales, Fred T. Rucker, Jackson, for appellant.
    Keyes, Moss & Piazza, Joe B. Moss, Dennis W. Watkins, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

Affirmed.


author: BEATTY, Justice. EMBRY, Justice

text:
    Wiley Lamar COOPER v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC.
    79-130.
    Supreme Court of Alabama.
    June 6, 1980.
    Rehearing Denied July 9, 1980.
    John T. Crowder, Jr., of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellant.
    Thomas M. Galloway, Jr., of Collins, Galloway & Smith, Mobile, for appellee.
   BEATTY, Justice.

This appeal is from a Mobile County Circuit Court order granting a motion for summary judgment in favor of defendant Alabama Farm Bureau Mutual Casualty Insurance Company (Farm Bureau). We reverse and remand.

Plaintiff Wiley Cooper owned a Farm Bureau insurance policy covering his pickup truck. Cooper was involved in an accident and filed a claim with Robert Anderton, an agent for Farm Bureau. A dispute between Farm Bureau and Cooper arose concerning whether the truck should be repaired or “totalled.” At this time the plaintiff’s pickup was stored in a garage in Rob-ertsdale, Alabama. While located there it burned from an undetermined cause.

Subsequently, Anderton had a conversation about the fire incident with Robert Gulledge whose bank had made a loan to Cooper on the pickup truck. According to Cooper’s complaint, Anderton defamed Cooper during that conversation by implying that Cooper had intentionally burned his pickup truck. Cooper filed suit in this action against Anderton and Farm Bureau for slander. Farm Bureau moved for summary judgment filing an affidavit stating that the company had neither previously authorized nor subsequently ratified the statement made by Anderton. The trial court granted the motion and Cooper appealed.

This jurisdiction has consistently held that a corporation will not be held liable for a slanderous utterance made by a corporation’s agent unless the corporation previously authorized or subsequently ratified the slanderous utterance; it has been held insufficient to show that the corporation’s agent was acting within the line and scope of his employment. This rule was first enunciated in Singer Manufacturing Co. v. Taylor, 150 Ala. 574, 43 So. 210 (1907), and has been reaffirmed in all subsequent cases. McIntyre v. Cudahy Packing Co., 179 Ala. 404, 60 So. 848 (1913); Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328 (1915); Choctaw Coal & Mining Co. v. Lillich, 204 Ala. 533, 86 So. 383 (1920); National Life Insurance Co. v. Abernathy, 206 Ala. 26, 89 So. 725 (1921); Luquire Insurance Co. v. Parker, 241 Ala. 621, 4 So.2d 259 (1941); Weaver v. Darling Stores, 243 Ala. 65, 8 So.2d 575 (1942).

The underlying rationale of the Singer case was that slander should be distinguished from libel and other torts in that slander is, by its nature, an individual act. The Court, in Singer, stated, 150 Ala. at 577-78, 43 So. at 210-11:

The offense of slander is essentially single, differing in this respect from libel. In Cooley on Torts, p. 124, it is said: “Some wrongs are in their nature necessarily individual, because it is impossible that two or more should together commit them. The case of the oral utterance of defamatory words is an instance. This is an individual act, because there can be no joint utterance. He alone can be liable who spoke the words; and, if two or more utter the slander at the same time, still the utterance of each is individual, and must be the subject of a separate proceeding for redress.” See, also, 13 Ency.Pl. & Pr. p. 30.
The liability of the principal for the torts of the agent, when not based upon a breach of duty arising out of contract, as in the case of common carriers, is based upon principles of public policy. It is essential to such liability that the tort of the agent, if not authorized or ratified by the principal, should be committed by the agent in the course of the business of the principal and of the agent’s employment. By reason of the fact that the offense of slander is the voluntary and tortious act of the speaker, and is more likely to be the expression of momentary passion or excitement of the agent, it is, we think, rightly held that the utterance of slanderous words must be ascribed “to the personal malice of the agent, rather than to an act performed in the course of his employment and in aid of the interest of his employer, and exonerating the company unless it authorized or approved or ratified the act of the agent in uttering the particular slander.” — 10 Cyc. p. 1216. Mr. Odgers, in his work on Libel and Slander (star page 368), states the doctrine in this language: “A corporation will not, it is submitted, be liable for any slander uttered by an officer, even though he be acting honestly for the benefit of the company and within the scope of his duties, unless it be proved that the corporation expressly ordered and directed that officer to say those very words; for a slander is the voluntary and tortious act of the speaker.”

It is curious that this same reasoning can be applied to other torts which are by their natures individual acts, but for which the Court nevertheless has held a corporation liable in situations wherein the “individual acts” were done by agents of the corporation within the line and scope of the agents’ employment. The Court has recognized that a corporation may be held liable for assault and battery, Alabama Fuel & Iron Co. v. Rice, 187 Ala. 458, 65 So. 402 (1913), even where the agent’s acts of assault and battery may constitute homicide, Mount Vernon-Woodberry Mills v. Little, 222 Ala. 605, 133 So. 710 (1931); fraud and deceit, Standard Oil Company of Kentucky v. Gunn, 234 Ala. 598, 176 So. 332 (1937); trespass, Union Naval Stores Co. v. Pugh, 156 Ala. 369, 47 So. 48 (1908); false imprisonment, Owsley v. Montgomery & West Point Railroad Co., 37 Ala. 560 (1861); malicious prosecution, Jordan v. Alabama Great Southern Railroad Co., 74 Ala. 85 (1883); conspiracy, National Park Bank v. L. & N. R.R. Co., 199 Ala. 192, 74 So. 69 (1917); libel, Choctaw Coal & Mining Co. v. Lillich, 204 Ala. 533, 86 So. 383 (1920), and conversion, U-Haul Co. of Alabama v. Long, 382 So.2d 545 (Ala.1980). Corporations have also been held liable for punitive damages, Jefferson County Savings Bank v. Eborn, 84 Ala. 529, 4 So. 386 (1888), and in other jurisdictions, corporations have been held liable for conversion, Donnelly v. Levers & Sargeant Co., 226 Mass. 214, 115 N.E. 252 (1917); forcible entry and detainer, Iron Mountain & H. R. Co. v. Johnson, 119 U.S. 608, 7 S.Ct. 339, 30 L.Ed. 504 (1887); and intentional interference with business relations, Lichter v. Fulcher, 22 Tenn.App. 670, 125 S.W.2d 501 (1938). The test in all cases is whether the alleged tortious conduct was committed by the agent within the line and scope of his employment.

We see no substantial legal distinction between the “individual act” of slander and the other “individual acts” for which we have already indicated the Court has held that a corporation may be liable. The overwhelming majority of jurisdictions have held that there is no distinction. See, e. g., Malvo v. J. C. Penney Company, Inc., 512 P.2d 575, 583-84 n. 13 (Alaska 1973); Baker v. Atlantic Coast Line R. Co., 141 Fla. 184, 192 So. 606 (1939); Dossett v. New York Mining & Manufacturing Co., 451 S.W.2d 843 (Ky.1970); Poledno v. Bendix Aviation Corp., 360 Mich. 129, 103 N.W.2d 789 (1960); Rivers v. Yazoo & M. V.R. Co., 90 Miss. 196, 43 So. 471 (1907). The consensus of commentators is also that there should be no distinction between the intentional tort of slander and other intentional torts. See, e. g., 9 Z. Cavitch, Business Organizations §§ 211.07(1)-(3) (1980); 10 C. Fletcher, Cyclopedia of the Law of Private Corporations § 4888, pp. 419-21 (Rev.ed.1978); W. Prosser, Handbook of the Law of Torts, 476-77, 479-80 (3d ed. 1964); Restatement (Second) of Agency §§ 247, 254 (1958).

Having reviewed the many cases in other jurisdictions and having analyzed the holdings of our earlier cases, it is our opinion that the better reasoned rule is that a corporation may be held liable for a slanderous utterance made by one of its agents if the slanderous utterance was made within the line and scope of the agent’s employment. Singer Manufacturing Co. v. Taylor, supra, and other cases which hold to the contrary are hereby overruled.

Realizing that this result may be considered by some to be a departure from the doctrine of stare decisis, we direct attention to the dissent of the eminent Mr. Chief Justice Anderson in National Life Insurance Co. v. Abernathy, 206 Ala. 26, 29, 89 So. 725 (1921), in which, battling vigorously but unsuccessfully for the result we reach, he stated:

I fully appreciate the admonition in brief of appellant’s counsel against departing from the rule of stare decisis, but while certainty and repose is desirable, it should not be founded upon a glaring and undebatable error, and the sooner that a structure, based upon a false foundation, is demolished, the better for our jurisprudence. “Where a grave and public and palpable error widely affecting the administration of justice must be either solemnly sanctioned or repudiated, fiat jus-titia, ruat coelum, should apply, and not the rule of stare decisis.” Indeed, the false doctrine declared in the Owsley Case, [holding that a corporation could not be held liable for malicious prosecution if done by one of its agents] 37 Ala. remained the law in this state until repudiated and corrected in the Jordan Case nearly 20 years thereafter. .

His view emerges victorious, albeit belatedly. See also, Justice Shores’ opinion in Jackson v. City of Florence, 294 Ala. 592, 597-98, 320 So.2d 68 (1975):

No one believes in the validity of the rule of stare decisis and the necessity for stability in the law more than we do.
As strongly as we believe in the stability of the law, we also recognize that there is merit, if not honor, in admitting prior mistakes and correcting them. .

This cause therefore is due to be reversed and remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, ALMON and SHORES, JJ., concur.

EMBRY, J., dissents.

BLOODWORTH, J., not sitting.

EMBRY, Justice

(dissenting):

I vigorously disagree because I deem the distinction between the rule regarding vicarious liability of a corporation for slanderous statements made by its agent and the rule regarding liability of a corporation for a libel published by its agent to be based upon sound and logical principles.


author: PER CURIAM.

text:
    SOUTHWESTERN CONSTRUCTION COMPANY, INC., et al. v. V. A. LIBERTO et al.
    78-197.
    Supreme Court of Alabama.
    June 20, 1980.

      Allan R. Chason of Chason & Chason, Bay Minette, for appellants.
    J. Don Foster of Foster, Brackin & Bolton, Foley, for appellees.
   PER CURIAM.

This is an appeal from a judgment that permanently enjoins defendants, Southwestern Construction Company, Inc., and John H. Kuglar, from conducting a sand excavation operation and related business on land owned by them and located in Baldwin County. The land in question is part of a subdivision which fronts the Gulf of Mexico and is adjacent to Perdido Pass. A sketch of it is appended to this opinion.

The Gulf’s beach runs horizontally from west to east. Lots run perpendicularly to the beach front and are, from west to east, designated by numbers 1 to 6. The defendants own lots 2 and 3. Plaintiff V. A. Liberto owns lots 4 and 15. Plaintiff Rosa-mond Tarplay owns lots 5 and 6. The owner of lot 1 is not a party to this action. As shown in the sketch, lot 15 lies above lot 3, separated by Gulf Road, which runs parallel to the beach adjacent to the north end of lots 1 through 6. There is a ten foot wide walkway between lots 3 and 4 which runs from Gulf Road to the beach, giving landowners who own land across Gulf Road access to the beach.

As shown, a spoil easement runs across all the lots at approximately half the depth of the lots. That easement gives the Army Corps of Engineers the right to enter the land and, among other things, to dump and remove spoil which accumulates from dredging operations the Corps periodically conducts in Perdido Pass. The lots are also subject to the following restrictive covenant:

“No noxious or offensive trade or activity shall be carried [on] upon any of the said lots, nor shall anything be done thereon which may be or may become a nuisance or annoyance to the neighborhood * * *.”

Defendants began their excavating in April 1978, selling sand to at least five different contractors and utilizing one diesel front end loader. The contractors who bought sand from defendants picked it up in their own dump trucks using defendants’ front end loader to load them. The sand was transported along Gulf Road, the entrance road, and the state highway. The excavation site is entirely on defendants’ property, and measured at the pit’s widest points is approximately 300 feet by 150 feet.

This action was brought by plaintiffs against defendants, seeking damages and injunctive relief, alleging that defendants’ activity was a private nuisance and that it violated the restrictive covenant. Defendants answered that use of their land was reasonable so that the activity did not constitute a private nuisance and that the restrictive covenants had been extinguished because the Corps’ activities changed the character of the neighborhood. The case was tried ore terms and injunctive relief accorded plaintiffs, the judgment holding that defendants’ activity constituted a private nuisance and violated the restrictive covenant. Nuisances are defined in the Code:

“A ‘nuisance’ is anything that works hurt, inconvenience or damage to another. The fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man." § 6-5-120, Code 1975.
“Nuisances are either public or private. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals. Generally, a public nuisance gives no right of action to any individual, but must be abated by a process instituted in the name of the state. A private nuisance gives a right of action to the person injured.” § 6-5-121, Code 1975.

Finding either the existence of a private nuisance or a violation of the restrictive covenant is sufficient to support injunctive relief and injunction is a proper remedy to abate a private nuisance. Baldwin v. McClendon, 292 Ala. 43, 50, 288 So.2d 761 (1974). If a restrictive covenant is clear and unambiguous, effect will be given its manifest meaning. Springdale Gayfer’s Store Co. v. D. H. Holmes Co., Ltd., 281 Ala. 267, 277, 201 So.2d 855 (1967). In either case, our standard of review is the same. A determination made by the trial court, when evidence is taken ore tenus, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust, especially where, as was done in this case, the trial judge has made a personal inspection of the premises. Balwin, supra, at 49, 288 So.2d 761; Laney v. Early, 292 Ala. 227, 234, 292 So.2d 103 (1974).

Defendants contend that under the terms of the spoil easement, the Army Corps of Engineers could enter the property to either deposit or remove spoil, that in removing the spoil the Corps would have the authority to use bulldozers and dump trucks, that the Corps could not be lawfully enjoined from removing spoil, and because the Corps could not be lawfully enjoined from excavating the spoil neither can defendants. Defendants further contend the land is subject to the easement and that activity conducted within the terms of the easement, no matter who conducts it, is not an unreasonable use that can constitute a nuisance. Moreover, they contend the Corps has the authority to contract with defendants for the latter to do exactly what they were already doing; the fact that there is no express approval by the Corps should make no difference. Finally, defendants contend the dredging operations and the easement have so changed the character of the land as to extinguish the restrictive covenants.

Plaintiffs concede the land is subject to the Corps’ easement and the Corps may enter all the property subject to the easement to either deposit or remove spoil. However, plaintiffs contend that because the easement affects only the south half of the lots, the Corps has no legal right to enter from the north half or to use the entrance road and Gulf Road in transporting the sand. They contend the Corps would be required to remove the spoil by way of the Gulf; for example, by barge.

We have no occasion here to hold that the Corps is operating outside the terms of the easement granted it. Since the Corps is not conducting the activity that question is not before us. We do hold, however, that the Corps’ easement did not devolve to defendants. The easement was granted to the Corps, not to defendants, and defendants may not claim any rights under it.

Defendants are therefore left with the sole contention that the easement and dredging operations have so changed the character of the land as to make defendants’ activity a reasonable use of the property and extinguish the restrictive covenant. We cannot agree. There was testimony which indicated the Corps had dredged only five times from 1970 to 1978, and, that when it did dredge, it did not use the type equipment used by defendants when excavating. There were no dump trucks, no noise, no vibration, no odor, no sand strewn over all the property, and no deterioration of the roads, as the evidence discloses was the case when defendants excavated. In fact, when the Corps dredged, spoil from Perdido Pass was forced by water through pipes onto the beach; the water drained back into the Gulf leaving white sand behind. The activity of the Corps and that of defendants are quite different. The Corps’ activity was, and is, permitted by a valid easement. Defendants’ was not. The Corps’ activity was intermittent; defendants’ in comparison, was continuous.

The trial court, in this case, heard the evidence ore tenus and made a personal inspection of the excavation site. There is evidence to support its decree and it will not be reversed. Baldwin and Laney, supra. There was evidence that this area was principally a recreational community; that defendants were using heavy equipment, with accompanying noise and vibrations which prevented residents from sleeping; that there was a noxious odor emitted by the diesel operated equipment used in the excavation activity which could be smelled inside plaintiffs’ homes; that sand was kicked up and blown by the wind onto the adjacent lots; that sand blew off the trucks when they left the excavation pit; that Gulf Road and the entrance road from the state highway were deteriorating severely because of the heavy equipment using them; that the trucks sometimes blocked the roads and prevented residents from using them; that the activity was continuous from April to August; that the activity was conducted from as early as 7:00 A.M. to as late as 7:00 P.M.; and that defendants’ activity interfered with plaintiffs’ enjoyment of their property and with their view of the Gulf. In the face of this evidence, we cannot say the trial court’s holding that defendants’ activity was a private nuisance, and that it violated the restrictive covenant, was clearly erroneous or manifestly unjust.

Defendants contend the trial court erred in failing to apply the comparative injury rule to find there was not a nuisance. As is well known, the comparative injury rule employs a balancing test to weigh the injury that may accrue to one or to the other of the parties, and to the public, by granting or refusing the injunction. Pritchett v. Wade, 261 Ala. 156, 73 So.2d 533 (1954). Defendants contend the service they are providing to the public at large (saving tax money the Corps would have to spend to do exactly what defendants are doing) and the detriment to them from enjoining their activity outweigh any detriment to plaintiffs.

However, plaintiffs correctly rebut this argument by pointing out that the comparative injury rule does not arise until after there has been a finding that a nuisance exists. Once the trier of fact determines that a nuisance does indeed exist, a balancing test must be employed to determine whether injunction is a proper remedy. The comparative injury rule is not employed, as defendants suggest, to determine whether a nuisance does, in fact, exist.

For the foregoing reasons, the judgment below is due to be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON, SHORES and EMBRY, JJ„ concur.