author: GUIDRY, Judge.

text:
    Eza S. ROZAS, Plaintiff-Appellant, v. LA. HOSPITAL SERVICE, INC. et al., Defendants-Appellees.
    No. 8785.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    Guglielmo & Lopez, James C. Lopez, Opelousas, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

Plaintiff, Eza S. Rozas, instituted this action against the defendant, Louisiana Hospital Service, Inc., (Blue Cross of Louisiana and/or Louisiana Health Service and Indemnity Company), to recover certain hospital and medical insurance benefits as well as penalties and attorney’s fees. Defendant answered plaintiff’s petition generally denying liability and alleging that certain exclusionary riders, made a part of plaintiff’s insurance policy issued by defendant, excluded coverage of plaintiff’s illness. The trial court concluded that plaintiff was not entitled to such insurance benefits since the aforesaid riders were made a part of the policy in dispute and plaintiff suffered from an illness specifically excluded from coverage by such riders. Plaintiff appeals from that judgment.

FACTS

On October 2, 1979, plaintiff experienced a severe headache and dizziness. She immediately consulted with her long-time family physician, Dr. Charles Aswell. Dr. Aswell examined plaintiff, conducted an initial diagnostic procedure known as a lumbar puncture, and thereafter transferred Mrs. Rozas to Our Lady of Lourdes Hospital in Lafayette, Louisiana. Upon her arrival at the hospital emergency room, Mrs. Rozas was examined by Dr. Stephen I. Goldware, a neurosurgeon. Dr. Goldware’s examination revealed that plaintiff was neurologically normal, although she had a stiff neck and her blood pressure was “sky high”. Dr. Goldware diagnosed plaintiff’s problem as a brain hemorrhage. He subsequently ordered that an arteriogram be conducted as well as a CT Scan. The aforesaid diagnostic procedures revealed two aneurysms on plaintiff’s right internal carotid artery, and also, a large right-sided blood clot in the temporal area. On October 5, 1979, Dr. Goldware removed the blood clot from plaintiff’s brain. Thereafter, plaintiff remained in the hospital until discharged on December 9, 1979.

Dr. Goldware’s bill for surgery, evaluation, and admission was submitted for payment to the defendant on October 10, 1979. Thereafter, on January 31, 1980, the defendant received documents reflecting the hospital portion of plaintiff’s medical expenses. The defendant paid the bill submitted by Dr. Goldware, however, rejected payment of the hospital invoice based upon the aforesaid exclusionary provisions. This suit followed.

At trial the parties stipulated that the plaintiff was insured by defendant and that the policy introduced into evidence by both parties was in full force and effect at the time of plaintiff’s illness. Although the standard form policy issued to plaintiff provides insurance benefits for certain hospital and medical expenses including medical and hospital expenses resulting from surgery for “intercranial aneurysm; intercranial approach”, the record reflects that two exclusionary riders were physically attached to plaintiff’s application for insurance which was placed inside the policy along with various endorsements pertaining to the insurance agreement existing between the parties. The aforesaid riders provided as follows:

“IT IS AGREED that the above Contract, including all riders and endorsements, if any, to which this Rider is attached, shall provide no benefits from the above Effective Date for care or treatment rendered to:
ROZAS. EZA S.
for the following illness(s) and/or conditions), including conditions resulting therefrom:
Any disease of cerebro-vascular system: treatment for and complications therefrom
“IT IS AGREED that the above Contract, including all riders and endorsements, if any, to which this Rider is attached, shall provide no benefits from the above Effective Date for care or treatment rendered to:
ROZAS. EZA S.
for the following illness(s) and/or condition(s), including conditions resulting therefrom:
Abnormal blood pressure: treatment for and complications therefrom

The issues presented on appeal are:

(1) Did the trial court err in concluding that the riders excluding coverage were a part of the policy although not physically attached to the same?

(2) Did the trial court err in concluding that plaintiff’s illness was a disease of the cerebro-vascular system?

(3) Did the trial court err in failing to conclude that the policy at issue was ambiguous, and therefore, should be construed in favor of the plaintiff?

(4) Did the trial court err in failing to conclude that payment by defendant of Dr. Goldware’s bill for services rendered constitutes an admission of liability on part of the defendant, and thus, estops the defendant from refusing to pay the hospital portion of plaintiff’s medical expenses?

(5) Did the trial court err in failing to award penalties and attorney’s fees to plaintiff?

Plaintiff contends that the riders allegedly made a part of the insurance policy in dispute are of no effect in excluding coverage since the riders were not physically attached to the policy. In support of her argument, plaintiff refers this court to the case of Spain v. Travelers Insurance Co., 332 So.2d 827 (La.1976). Although a literal reading of the decision in Spain seems to lend support to appellant’s argument, our Supreme Court in the later case of Johnson v. Occidental Life Insurance Co. of California, 368 So.2d 1032 (La.1979) indicated clearly that a rider, to be effective, need not necessarily be physically attached to the policy through staples, glue, paper clips or the like but rather the intent of the statutes (LSA-R.S. 22:618 and 22:628) requires that to be effective the insured must be in possession at all times of the entire evidence of the insurance contract. In Johnson, the Supreme Court stated:

“The lower courts’ determination that the placement of the application in the jacket along with the certificate of insurance was an insufficient attachment for purposes of this statute was based upon decisions of this court dealing with the ‘entire contract policy’ statutes. In our view the lower courts erred in concluding that this jurisprudence stands for the proposition that under La.R.S. 22:618 an application must be physically attached to the policy through staples, glue, paper clips, or the like.
In Spain v. Travelers Insurance Co., 332 So.2d 827 (La.1976) the question before this court was whether, under La. R.S. 22:628, an exclusionary clause in a primary policy would apply to an excess policy by virtue of a clause in the latter which stated that ‘The provisions of the immediate underlying policy are incorporated as a part of this policy . . . ’. Thus, this case did not present a question concerning what mode of attachment would be sufficient but instead dealt with the question of whether the doctrine of incorporation by reference was applicable. In rejecting this notion, this court discussed various statutes in the insurance code, one being La.R.S. 22:618, which require that applications, by-laws or other instruments be attached to the policy to be effective. The salutary purpose of these statutes is that the insured during his lifetime, and the beneficiary after the death of the insured, shall have in their possession at all times the entire evidence of the insurance contract.”

In commenting on the intent of LSA-R.S. 22:618, the Johnson court further stated:

“The statute requires that the application be ‘attached to or otherwise made a part of the policy.’ A major principle of statutory construction is that courts should interpret statutes in such a manner as to avoid unintended or absurd results. State v. Booth, 347 So.2d 241 (La.1977); Hayes v. Orleans Parish School Board, 256 La. 677, 237 So.2d 681 (1970); Smith v. Town of Vinton, 209 La. 587, 25 So.2d 237 (1946). By placement of the application containing the decedent’s name and other essential data inside of the certificate cover in a sleeve provided for that purpose, the application was attached to or otherwise made a part of the certificate within the meaning of the statute. The purpose of the statute, to assure that the insured is in possession of the entire contract, was unquestionably fulfilled. ...”

The record in the present case reflects that the riders in dispute were stapled to Mrs. Rozas’ application for insurance coverage which was placed inside of the policy along with various endorsements pertaining to the insurance agreement existing between the parties. In addition we note that the policy introduced into evidence was obtained from plaintiff’s counsel who presumably obtained the same from the plaintiff. Obviously, plaintiff had in her possession at all times the entire evidence of the insurance contract. To conclude that the riders attached to plaintiff’s insurance application and placed with the policy should have no effect simply because the same was not attached to the policy by staples, paper clips, or glue would constitute an absurd and unintended result of statutory interpretation and would be clearly contrary to the holding in Johnson, supra. Thus, we conclude that in the present case, the purpose of the statute, as stated in Johnson, supra, was unequivocally fulfilled.

Plaintiff next contends that Mrs. Rozas’ illness was unrelated to any “disease of the cerebro-vascular system; treatment for and complications therefrom;” and/or not attributable to “abnormal blood pressure; treatment for and complications therefrom”, as provided in the exclusionary riders made a part of the insurance contract existing between the parties. We disagree. The medical testimony introduced at trial overwhelmingly establishes that the condition from which Mrs. Rozas suffered is considered a “disease of the cerebro-vascular system or complication therefrom” such as to exclude coverage under the policy in effect at the time of plaintiff’s illness.

Dr. Charles Aswell, plaintiff’s family physician for over thirty years, testified that in 1965 plaintiff suffered a similar subarach-noid hemorrhage which required surgical removal. Further, Aswell stated that he has treated plaintiff for mild hypertension since 1975, although he indicated that plaintiff’s hypertensive condition has been effectively controlled by moderate medication and a proper diet. Aswell testified that upon examining Mrs. Rozas on October 2, 1979, he tentatively diagnosed her problem as a subarachnoid hemorrhage located at the base of the brain. When questioned regarding how he might classify plaintiff’s problem, Dr. Aswell stated that plaintiff’s illness was a complication of a disease of the cerebro-vascular system.

Dr. Stephen I. Goldware, the neurosurgeon who operated on plaintiff, testified that the cerebro-vascular system is composed of the blood vessels of the brain. He stated that, in his opinion, plaintiff sustained a hypertensive hemorrhage in the brain. Dr. Goldware further stated that the hemorrhage emanated from the cereb-ro-vascular system. In this regard, Dr. Goldware indicated that the hemorrhage came from a blood vessel or vascular structure, that burst, and thus, allowed blood to collect in the brain.

In addition to Dr. Aswell and Dr. Gold-ware, defendant presented two medical experts who testified regarding the classification of plaintiff’s illness. Dr. Michael Carey, a professor of neuro-surgery at L.S.U. Medical School, testified that a disease of the cerebro-vascular system is when there is either abnormal structure or abnormal function of the blood vessels of the brain. Dr. Carey stated that after reviewing the plaintiff’s medical records, it was his opinion that an intracerebral hemorrhage such as suffered by plaintiff resulted from a failure within the cerebral vascular system. Further, Dr. Carey indicated that such bleeding was an abnormal condition or disease of the cerebro-vascular system. Dr. Philip Castro and Dr. Edward Comer, medical consultants employed full-time by the defendant company, stated that they authorized the denial of coverage of plaintiff’s illness because the diagnosis and the procedure employed to correct plaintiff’s condition clearly indicated that plaintiff’s illness involved the blood vessels leading to, entering, and sustaining the cerebro-vascular system of the brain. Both doctors stated that the basis for rejection of plaintiff’s claim was the rider pertaining to and excluding coverage for “disease of the cereb-ro-vascular system; treatment for and complications therefrom”.

Our review of the record reveals no medical evidence controverting the factual conclusion of the trial court that Mrs. Rozas’ illness was a disease of the cerebro-vascular system. Thus, we discern no clear error on the part of the trial court in so finding. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir. 1975).

Plaintiff next contends that the insurance contract issued to her is ambiguous by virtue of the provisions of the original policy and the modification of the same by the exclusionary riders. As we understand plaintiff’s argument, she asserts that there is ambiguity because the original policy, absent modification, provided coverage to plaintiff for her illness, whereas the exclusionary riders, agreed upon and made a part of the insurance contract at the time of execution, preclude such coverage. It is universally recognized that insurers may vary, modify, or restrict the coverage provided by a standard form insurance policy by use of endorsements, riders, or other documents attached to such contract so long as such attachments do not conflict with statutory law or public policy. In Stacy v. Petty, 362 So.2d 810 (La.App. 3rd Cir. 1978), our court stated:

“It is well settled that an insurance policy is a contract between the insured and insurer, and as such has the effect of law on the parties. LSA-C.C. art. 1901; Fontenot v. New York Life Insurance Co., 357 So.2d 1185 (La.App. 3rd Cir. 1978, writ refused); Southern States Masonry Company, Inc. v. Mission Insurance Company, 353 So.2d 307 (La.App. 1st Cir. 1977, writ refused); Cormaek v. Prudential Insurance Company of America, 259 So.2d 340 (La.App. 4th Cir. 1972, writ refused). It is equally well settled that in the absence of a conflict with statutory law or public policy, insurers may by unambiguous and clearly noticeable provisions limit their liability and impose reasonable conditions upon their obligations. Such provisions must be given effect as written. Oceanonics, Inc. v. Petroleum Distributing Company, 292 So.2d 190 (La.1974); Fontenot v. New York Life Insurance Co., supra.”

We conclude that the defendant, by virtue of the exclusionary riders made a part of the insurance contract between the parties, merely limited its liability via unambiguous, clearly noticeable, and reasonable provisions which are not in conflict with statutory law or public policy. Thus, we find no clear error on the part of the trial court in its conclusion that the policy at issue was unambiguous.

Plaintiff next asserts that payment by the defendant of Dr. Goldware’s bill for services rendered estops the defendant from denying liability for plaintiff’s additional medical and hospital expenses. We disagree. Evidence in the record clearly indicates that Dr. Goldware’s bill was paid as a result of clerical error. However, in any event, such payment would not estop Blue Cross to now refuse payment of medical expenses and hospital costs on the basis of the exclusionary riders.

As noted, plaintiff argues that payment by the defendant company of the bill submitted by Dr. Goldware for surgery, evaluation, and admission constitutes an admission of liability on the part of the defendant and estops the defendant from denying liability for plaintiff’s hospital expenses arising out of the same illness.

Application of the doctrine of equitable estoppel arises when one by his actions, or by his silence when he ought to speak, induces another to believe certain facts, and the other relies on these facts to his prejudice. See LeDoux v. Old Republic Life Insurance Company, 233 So.2d 731 (La.App. 3rd Cir. 1970), writ refused, 236 So.2d 501 (La.1970). The erroneous payment of Dr. Goldware’s bill occurred after plaintiff became indebted to him and to the hospital for services rendered in connection with plaintiff’s illness. Thus, plaintiff cannot validly argue that she incurred such hospital expenses in reliance on defendant’s error in paying the physician’s bill contrary to the exclusionary riders precluding such payment. In addition, equitable estoppel cannot be used to enlarge or extend coverage of an insurance policy beyond that set forth in the insurance agreement. See Smith v. Republic National Life Insurance Co., 335 So.2d 739 (La.App. 2d Cir. 1976), writ denied, 338 So.2d 706 (La.1976); Hunter v. Office of Health Services, Etc., 385 So.2d 928 (La.App. 2d Cir. 1980), writ denied, 393 So.2d 737 (La.1980).

Since we have concluded that the policy in full force and effect at the time of plaintiff’s illness excluded coverage for the same, we need not address plaintiff’s final demand for penalties and attorney’s fees since defendant’s refusal to pay insurance benefits to Mrs. Rozas was not arbitrary or capricious, but rather, fully in keeping with the contract existing between the parties.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff, Mrs. Eza S. Rozas.

AFFIRMED.


source: Caselaw Access Project

author: HAWKINS, Justice, for the Court.

license: Public Domain

text:
    Cleveland Sedgie MORGAN, et al. v. Pat L. SAULS, Etc.
    No. 53031.
    Supreme Court of Mississippi.
    March 10, 1982.
    Rehearing Denied May 19, 1982.
    Robert G. Turnage, Monticello, James R. Davis, Columbia, for appellants.
    Thomas W. Tyner, Aultman & Aultman, Marcia C. McMahan, McMahan & McMa-han, Hattiesburg, for appellee.
    Before SUGG, WALKER and HAWKINS, JJ.
   HAWKINS, Justice, for the Court.

Morgantown is a rural community in Marion County, Mississippi. Cleveland Sed-gie Morgan, the 81 year old father of five grown children, has lived there over 70 years. His front yard, enclosed by a metal cyclone fence, borders the north side of highway 587, a two-lane asphalt road. Facing his home on the other side of the highway is a country store, owned and operated by his son.

Over the years Mr. Morgan had been harassed from time to time by motor vehicles racing past his house at late hours of the night. On one occasion, someone shot into his home, and several times he had called law enforcement officials.

Around 1:00 a. m. on Sunday, September 23, 1979, Mr. Morgan was awakened by someone honking a car horn. Having gone to his front yard to investigate, Mr. Morgan spotted the car about 100 yards away, and began walking down the road toward it. The lights were flashing, and the horn continued to blow for about ten minutes. Mr. Morgan then started back to call the sheriff, and as he was stepping off the asphalt into his yard, the car sped past him. According to Mr. Morgan, it missed him by only six inches.

After this happened, Mr. Morgan picked up his shotgun that he had put down in his yard, and crossed the street to check the fire station and washerteria. In the mean time, the car had turned around and sped past him again.

Mr. Morgan returned to his yard and stood by a bush behind the cyclone fence. As the car drove past again, Mr. Morgan testified that he heard one occupant ask, “Where did the S.O.B. go?”, to which another replied, “Yonder he is.” The car proceeded to make a U-turn, and when it was in the middle of the road, Mr. Morgan shot, killing two youths, Charles Scott Sauls (age 17) and Donald Rex Morgan (age 18). Sauls died immediately, and Morgan died two days later.

Morgan was driving and Sauls was on the passenger side of the front seat. Shirley Leon Morgan, the younger brother of Donald Rex Morgan, was riding in the back seat.

Leon Morgan testified that his brother Rex had borrowed another brother’s car the previous evening to go to a ballgame. After the game, Sauls accompanied the Morgans to Morgantown to see a young lady. They began blowing the horn at her home. There was no response to their horn blowing, so they left. He did not recall seeing Mr. Morgan or making any threats against him and said they had turned around without leaving Morgantown because Sauls wanted to throw a beer bottle at a dog he had seen. After turning toward Morgan-town, they saw the dog. They were in the process of turning again in the middle of the road when the shot was fired by Mr. Morgan from his yard.

Young Morgan testified that he and his brother had smoked some marijuana during the night, and that his brother and Sauls had drunk some beer. As to whether this resulted in any of them being intoxicated or drug affected is not shown in the record.

Mr. Morgan was tried in the Circuit Court of Marion County and acquitted of the homicide of one of the boys.

Following September 22, 1979, certain deeds that had been executed prior to this date by Mr. Morgan to his children were filed of public record. He also executed additional conveyances which were likewise recorded in the office of the Chancery Clerk of Marion County.

The two fathers of Morgan and Sauls, as administrators of their respective estates and as representatives of all the heirs-at-law of the two youths, filed a joint bill of complaint in the Chancery Court of Marion County to set the deeds aside as fraudulent conveyances, and for a money judgment against Mr. Morgan. The complaint stated that Mr. Morgan had maliciously, willfully, wantonly, and negligently, and in complete disregard of human life, slain the young men. Mr. Morgan, as well as the grantees in the deeds executed by him, were the named defendants.

The Chancellor found all deeds to be fraudulent conveyances, and set them aside as “fraudulent, void and no effect.” He further awarded the heirs of the Morgan youth money damages in the amount of $240,000 and the heirs-at-law of Sauls $185,-000.

From this final decree, all defendants have appealed.

The only two issues raised, which we need to discuss, are the sufficiency of the evidence as to (1) finding Mr. Morgan to have negligently shot the youths, and (2) setting aside the deeds as fraudulent conveyances.

LIABILITY

This is a tragic case. One can understand the frustration experienced by Mr. Morgan. The death of these boys also arouses deep sympathy. It was for the Chancellor to decide under the facts of the case whether Mr. Morgan shot these youths in self defense or whether it was a negligent act. As an appellate court, we are bound by the Chancellor’s finding of fact, unless he was manifestly wrong. In this case, the Chancellor had abundant evidence to find that the killing was not done in necessary self defense, but was negligent. Mr. Morgan stated he did not intend to kill anybody, but wanted only to frighten them away. Yet he did kill two human beings in a single blast of his shotgun. Whether trespasses were committed against Mr. Morgan that night is disputed, but conceding that they were, the wages of the boys’ transgressions was not death.

The Chancellor, therefore, was not in error in finding Mr. Morgan liable for negligently killing Sauls and Morgan. The amount of damages awarded the complainants is not contested on this appeal.

VALIDITY OF DEEDS

Nine conveyances executed by Mr. Morgan were contested by the complainants:

1.A mineral deed from C. S. Morgan to his wife Audrey M. Morgan, dated September 27, 1979, acknowledged the same date before a notary, filed for record in the chancery clerk’s office of Marion County, September 28, 1979, and recorded in book 798, page 57. This deed is Exhibit “A” to the bill of complaint, and Exhibit 2 in evidence.

2. A warranty deed from C. S. Morgan and his wife, Audrey M. Morgan, to El-dridge L. Morgan, their son, dated August 28, 1975, acknowledged before a notary the same date, filed for record September 26, 1979, and recorded in book 785, page 103. This deed is Exhibit “B” to the bill, and Exhibit 3 in evidence.

3. A warranty deed from C. S. Morgan and his wife Audrey M. Morgan, to Rivers Morgan May, their daughter, dated May 2, 1975, acknowledged before a notary the same date, filed for record September 25, 1979, and recorded in book 785, page 100. This deed is Exhibit “C” to the bill, and Exhibit 4 in evidence.

4. A warranty deed from C. S. Morgan and his wife, Audrey M. Morgan, to Opal V. Morgan, their daughter, dated May 2, 1975, acknowledged before a notary the same date, filed for record September 26, 1979, and recorded in book 785, page 104. This deed is Exhibit “D” to the bill, and Exhibit 5 in evidence. In this conveyance the grantors reserved a life estate in themselves, subject to being voided at the option of the grantee in the event either of the grantors died and subsequent thereto the survivor remarried.

5. A warranty deed from C. S. Morgan and his wife, Audrey M. Morgan, to W. E. May, Feldon Morgan and Eldridge Morgan, dated September 26, 1979, filed for record September 27, 1979, and recorded in book 785, page 113. This deed is Exhibit “E” to the bill, and Exhibit 6 in evidence. The deed provides for the assumption by grantees of the outstanding indebtedness secured by a deed of trust of record due Columbia Bank.

6. A warranty deed from C. S. Morgan and his wife, Audrey M. Morgan, to Feldon Morgan (40% interest), Rivers M. May (30% interest), and John K. Morgan (30% interest), dated October 12,1979, filed for record October 12, 1979, and recorded in book 785, page 289. This deed is Exhibit “F” to the bill, and Exhibit 7 in evidence.

7. A warranty deed from C. S. Morgan and his wife, Audrey M. Morgan, to Feldon Morgan (40% interest), Rivers M. May (30% interest), and John K. Morgan (30% interest), dated on some date in September, acknowledged before a notary September 27, and filed for record September 28, 1979, in book 785, page 133. This deed is Exhibit “G” to the bill, and Exhibit 8 in evidence.

8. A warranty deed from C. S. Morgan and his wife, Audrey M. Morgan, to El-dridge L. Morgan, their son, dated October 16, 1979, and filed for record October 17, 1979, in book 785, page 397. This deed is Exhibit “H” to the bill, and Exhibit 9 in evidence.

9. A warranty deed from C. S. Morgan and Audrey M. Morgan to Feldon Morgan, dated October 16,1979, and filed for record October 17, 1979, in book 785, page 399. This deed is Exhibit “I” to the bill, and Exhibit 10 in evidence. It recites that it is to replace a deed made to Feldon Morgan in 1975 which was misplaced or lost. The original deed, which this deed replaced, was located prior to trial and introduced in evidence as Exhibit 36. The original deed named as grantees Feldon Morgan and his wife Kathleen P. Morgan. This deed is dated May 2, 1975, and acknowledged the same date.

In Allred v. Nesmith, 245 Miss. 376, 149 So.2d 29 (1963), this Court held the victim was a creditor of a tort-feasor, and entitled to the benefit of the statute prohibiting conveyances to defraud creditors, presently Miss.Code Ann. § 15-3-3 (Supp.1981). In so holding, we overruled two previous cases which indicate otherwise, and reverted to our original holding in McInnis v. Wiscassett Mills, 78 Miss. 52, 28 So. 725 (1900).

All the deeds in this case were without monetary consideration, and were voluntary conveyances, with the exception of the deed from Mr. and Mrs. Morgan to May (their son-in-law) and two sons, Feldon and El-dridge, dated September 26, 1979, in which the grantees assumed an outstanding indebtedness to Columbia Bank (Deed Number 5 herein). Only one deed, the mineral deed, was to Mrs. Morgan. Four of the deeds were signed, executed and delivered prior to September 22,1979, but not recorded before this date. The remaining five were executed and filed for public record following September 1979.

This entire lawsuit was brought on one theory: the conveyances were made to defraud the claimants. No other basis for the bill was pled or presented to the Chancellor for consideration as authority to cancel or set aside the deeds.

The statutory authority for this lawsuit is contained in three Mississippi statutes: Miss.Code Ann. § 15-3-3 (Supp.1981) defining voluntary conveyances subject to being set aside; Miss.Code Ann. § 15-3-5 (1972) setting the limits upon such a claim; and Miss.Code Ann. § 11-5-75 (1972) giving chancery courts jurisdiction over cases to set aside fraudulent conveyances.

Our sole consideration on this appeal is whether any of the conveyances fall within the prohibition of these statutes.

After Mr. Morgan had executed all the deeds set forth in the bill of complaint, he was insolvent. A recitation of further evidence from the record is unnecessary to support the Chancellor in setting aside and cancelling as fraudulent the following deeds:

(a) The mineral deed from C. S. Morgan to his wife, Audrey M. Morgan dated September 27, 1979.

(b) The warranty deed from C. S. Morgan and wife Audrey M. Morgan to Feldon Morgan, Rivers M. May and John K. Morgan dated October 12, 1979.

(c) The warranty deed from C. S. Morgan and wife Audrey M. Morgan to Feldon M. Morgan, Rivers M. May and John K. Morgan acknowledged September 27, 1979.

(d) The warranty deed from C. S. Morgan and wife Audrey M. Morgan to El-dridge M. Morgan dated October 16, 1979.

All of these deeds were executed following September 22, 1979, and, of course, recorded following that date. These conveyances clearly fell within the proscription of Blount v. Blount, 231 Miss. 398, 95 So.2d 545 (1957); Odom v. Luehr, 226 Miss. 661, 85 So.2d 218 (1956); Reed v. Lavecchia, 187 Miss. 413, 193 So. 439 (1940); Robinson v. McShane, 163 Miss. 626, 140 So. 725 (1932); and Golden v. Goode, 76 Miss. 400, 24 So. 906 (1898).

Moreover, the mineral deed from Morgan to his wife was clearly invalid under Miss.Code Ann. § 93-3-9 (1972).

As to the four deeds which were executed prior to September 22, 1979, an entirely different question is presented. The record is clear and undisputed that the deeds were signed, acknowledged and delivered to the grantees several years before September 22, 1979. We are therefore faced with the narrow question of whether these four deeds, signed, notarized and delivered prior to September 22, 1979, should have been cancelled and set aside as fraudulent conveyances, absent proof of possession.

We must hold that the chancellor erred at this point. The pertinent portions of Miss. Code Ann. § 15-3-5 (1972) read as follows:

Section 15-3-3 shall not extend to any estate or interest in any lands ... which shall be upon good consideration and bona fide lawfully conveyed ... to any person . . . nor shall it in any case extend to creditors whose debts were contracted after such fraudulent act, unless made with intent to defraud them, and though a conveyance or contract be decreed void as to prior creditors, it shall not, on that account, be void as to subsequent creditors or purchasers.

(emphasis added). Clearly the deeds were not executed with the intent to defraud the heirs of Sauls and Morgan. Appellees must therefore fail in their claim to set them aside as fraudulent conveyances, which was the only reason pleaded or asserted before the chancellor to set them aside. See Prestidge v. Cooper, 54 Miss. 74 (1876); Hilliard v. Cagle, 46 Miss. 309 (1872); Bullitt, Miller & Co. v. Taylor & Richardson, 34 Miss. 708, 69 Am.Dec. 412 (1858); Wells v. Treadwell, 28 Miss. 717 (1855).

Appellees argue for the first time on appeal that these deeds were invalid under the Miss.Code Ann. §§ 89-5-1 and 89-5-3 (1972) recording statutes. They argue that since they were “creditors” prior to recordation, they are protected. Unfortunately for them, they did not plead these statutes. The chancellor was never called upon to decide, and there is nothing in his decree which does decide the question of whether appellees were “creditors” prior to recording these deeds under these statutes. Their entire case, as stated, was based upon the fraudulent conveyance statutes.

Moreover, §§ 89-5-1 and 89-5-3 do not deal as severely with unrecorded conveyances to persons other than a spouse, as does § 93-3-9. Had these conveyances been to Mrs. Morgan, a different question would be before us. Sections 89-5-1 and 89-5-3 state the conveyance shall not be valid against a “creditor” without recordation, while § 93-3-9 states the conveyance shall not be valid against “any third person” without recordation. Manifestly, the legislature intended a more stringent application of the rule when a spouse is grantee, otherwise there would have been no necessity for enactment of § 93-3-9. Sections 89-5-1 and 89-5-3 apply to a deed involving a spouse as well as to any other person. And, in the cases involving unrecorded transfers between spouses this Court has held § 93-3-9 protects general creditors who became such prior to recordation of the conveyance. (See cases cited in footnote 3 above). To be protected under §§ 89-5-1 and 89-5-3, however, we have construed “creditor” to mean a lien creditor.

In Loughbridge & Bogan v. Bowland, 52 Miss. 546, 558-59 (1876), we stated:

But the statute has been construed to mean creditors who have obtained a specific right against the property, such as a lien by attachment and judgment.
Before the creditor can object to the conveyance he must have a right to proceed against the specific land for satisfaction of his debt.
* * * * * *
The statute may receive this paraphrase: A purchaser must record his deed at his peril, for if he does not it shall be void as to that creditor of the vendor who acquires a lien on the property before he gets notice of the sale.

Further, in Laurel Oil & Fertilizer Co. v. Horne, 101 Miss. 629, 57 So. 624, suggestion of error 58 So. 652 (1911), this Court took occasion to state in both the original opinion and on suggestion of error that the word “creditors” in the statute means only those who have obtained a lien, and that an unrecorded conveyance is good as against a general creditor.

There remains but one conveyance, the warranty deed from Mr. and Mrs. Morgan to May, Feldon and Eldridge Morgan, dated September 26,1979, and in which the grantees assume the outstanding indebtedness due Columbia Bank.

The recorded circumstances of the background on this conveyance are murky. Mr. Morgan did not testify in this case, and the court overruled a motion for a continuance because of his inability to appear in court. While no assignment of error was made concerning this ruling, the defendants were deprived of an opportunity to develop the circumstances of ownership of this property. Far from satisfactory or complete records of payments made by these three grantees were introduced. Also, one of the exhibits would indicate that Mr. Morgan bought this property as a constructive trustee, at least in part for these three grantees. This exhibit in Mr. Morgan’s handwriting is not explained, but would indicate that he intended when the land was purchased that by each of the grantees paying $8,000 each, they would own an undivided one-sixth interest each in the land, and records were introduced showing payments by these subsequent grantees.

As to this one deed, therefore, we reverse for the chancellor’s consideration and decision on whether an enforceable trust existed between Mr. Morgan and his son-in-law and two sons, and if so, whether it is entitled to protection. Further, if no trust existed, or is not entitled to recognition in this action, then, the chancellor should determine whether these grantees should be reimbursed from any sale of the property to the extent of their payments on the note and deed of trust against the land, plus lawful interest.

The final decree of the chancery court is therefore:

AFFIRMED, on all monetary damages awarded appellees against appellant Cleveland Sedgie Morgan, and in setting aside as fraudulent conveyances the following deeds:

(a) The mineral deed from C. S. Morgan to his wife, Audrey M. Morgan dated September 27, 1979.
(b) The warranty deed from C. S. Morgan and wife Audrey M. Morgan to Feldon Morgan, Rivers M. May, and John K. Morgan dated October 12, 1979.
(c) The warranty deed from C. S. Morgan and wife Audrey M. Morgan to Fel-don M. Morgan, Rivers M. May and John K. Morgan acknowledged September 27, 1979.
(d) The warranty deed from C. S. Morgan and wife Audrey M. Morgan to Eldridge L. Morgan dated October 16, 1979.

REVERSED AND RENDERED on that portion of the final decree cancelling and setting aside the following deeds:

(a)Deed from C. S. Morgan and wife to Eldridge L. Morgan, dated August 28, 1975.
(b) Deed from C. S. Morgan and wife to Rivers Morgan May, dated May 2, 1975.
(c) Deed from C. S. Morgan and wife to Opal V. Morgan, dated May 2, 1975.
(d) Deed from C. S. Morgan and wife to Feldon Morgan and wife Kathleen P. Morgan, dated May 2, 1975. This deed was misplaced and substituted by a new conveyance executed October 16, 1979.

REVERSED AND REMANDED for rehearing in accordance with this opinion as to the deed from Mr. and Mrs. Morgan to May, Feldon and Eldridge Morgan, dated September 26, 1979, and in which the grantees assume the outstanding indebtedness due Columbia Bank.

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

BROOM and DAN M. LEE, JJ., took no part.

APPENDIX

§ 15-3-3. Fraudulent conveyances, judgments, loans and the like.

Every gift, grant, or conveyance of lands, tenements, or hereditaments, goods or chattels, or of any rent, common or other profit or charge out of the same, by writing or otherwise, and every bond, suit, judgment, or execution had or made and contrived of malice, fraud, covin, collusion, or guile, to the intent or purpose to delay, hinder, or defraud creditors of their just and lawful actions, suits, debts, accounts, damages, penalties, or forfeitures, or to defraud or deceive those who shall purchase the same lands, tenements, or hereditaments, or any rent, profit, or commodity out of them, shall be deemed and taken only as against the person or persons, his, her, or their heirs, successors, executors, administrators, or assigns, and every of them whose debts, suits, demands, estates, or interests by such guileful and covinous devices and practices shall or might be in any wise disturbed, hindered, delayed, or defrauded, to be clearly and utterly void; any pretense, color, feigned consideration, expressing of use, or any other matter or thing to the contrary notwithstanding.

Moreover, if any conveyance be of goods or chattels, and be not on consideration deemed valuable in law, it shall be taken to be fraudulent within this section, unless the same be by will duly proved and recorded, or by writing acknowledged or proved, and such writing, if the same be for real estate, shall be acknowledged or proved and filed for record in the county where the land conveyed is situated, and, if for personal property, then in the county where the donee shall reside or the property shall be. The proof or acknowledgment in either case shall be taken or made and certified in the same manner as conveyances of lands and tenements are by law directed to be acknowledged or proved, unless, in the case of personal property, possession shall really and bona fide remain with the donee.

And in like manner, where any loan of goods or chattels shall be pretended to have been made to any person, the possession thereof having remained with said person or with those claiming under him for the space of three years without demand made and pursued by due course of law on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of a use of property by way of condition, reversion, remainder, or otherwise in goods or chattels, the possession thereof having remained in another or those claiming under him for a space of three years without demand made and pursued by due course of law on the part of the one making such pretended reservation or limitation, the same shall be taken to be fraudulent within this statute as to the creditors and purchasers of the persons so remaining in possession, and the absolute property shall be deemed to be with the possession, unless such loan, reservation, or limitation were declared by will or by writing, proved or acknowledged, and filed for record.

§ 15-3-5. Fraudulent conveyances, judgments, loans and the like — exceptions.

Section 15-3-3 shall not extend to any estate or interest in any lands, goods or chattels, or any rents, common, or profit out of the same, which shall be upon good consideration and bona fide lawfully conveyed or assured to any person or persons, bodies-politic or corporate, nor shall it in any case extend to creditors whose debts were contracted after such fraudulent act, unless made with intent to defraud them, and though a conveyance or contract be decreed void as to prior creditors, it shall not, on that account, be void as to subsequent creditors or purchasers.

§ 11-5-75. Creditors may attack fraudulent conveyances.

The chancery court shall have jurisdiction of bills exhibited by creditors who have not obtained judgments at law, or, having judgments, have not had executions returned unsatisfied, whether their debts be due or not, to set aside fraudulent conveyances of property, or other devices resorted to for the purpose of hindering, delaying or defrauding creditors; and may subject the property to the satisfaction of the demands of such creditors as if complainants had judgments and execution thereon returned “no property found.” Upon such a bill, a writ of sequestration or injunction, or both, may be issued upon like terms and conditions as such writs may be issued in other cases, and subject to such proceedings and provisions thereafter as are applicable in other cases of such writs; and the chancellor of the proper district shall have power and authority to grant orders for receivers, in same manner as if the creditor had recovered judgment and had execution returned “no property found.” The creditor in such case shall have a lien upon the property described therein from the filing of his bill, except as against bona fide purchasers before the service of process upon the defendant in such bill.

      . The Mclnnis case would appear to hold a tort claimant is not a creditor until he files suit:
      We reject as unsound the proposition advanced by appellees that complainant, whose claim rested on tort, could not come within the protection of the statute of frauds. In determining who is a creditor, the statute must be liberally construed, and it protects, at least as against actual fraud, one who, at the time of the conveyance, is suing the grantor in an action of tort. Bump on Fraud. Con., 493.
      78 Miss, at 55, 28 So. at 726 (emphasis added).
      In this case the bill of complaint was filed December 18, 1979, but we do not believe this distinction between a tort creditor and a contract creditor affects our decision in this case. Clearly as to all deeds executed after September 22, 1979, with the possible exception of the deed that had an encumbrance (noted later in opinion), the chancellor had abundant evidence to find specific intent to defraud subsequent creditors.

      . The above statutes are set forth in full in the appendix to this opinion.

      . The pertinent portions of this statute read as follows:
      The transfer or conveyance of .. . lands .. . between husband and wife, shall not be valid as against any third person, unless the transfer or conveyance be in writing and acknowledged and filed for record as a mortgage or deed of trust is required to be. Possession of the property shall not be equivalent to filing the writing for record, but, to affect third persons, the writing must be filed for record,
      (emphasis added).
      Under our holdings in Hudson v. Allen, 313 So.2d 401 (Miss.1975); McCrory v. Donald, 119 Miss. 256, 80 So. 643 (1918); and Gregory, Stagg & Co. v. Dodds, 60 Miss. 549 (1882), a conveyance to a spouse which is recorded post creditor relationship with a third party is invalid as to the creditor, whether conveyed in good faith, or not.

      . The deeds executed prior to September 22, 1979, are as follows:
      (a) deed from C. S. Morgan and wife to El-dridge L. Morgan, dated August 28, 1975;
      (b) deed from C. S. Morgan and wife to Rivers Morgan May, dated May 2, 1975;
      (c) deed from C. S. Morgan and wife to Opal V. Morgan, dated May 2, 1975; and
      (d) deed from C. S. Morgan and wife to Fel-don Morgan and wife Kathleen P. Morgan, dated May 2, 1975. This deed was misplaced and substituted by a new conveyance executed October 16, 1979. It is Exhibit “I” to the bill.

      . Had the grantees gone into open possession of the land conveyed to them they would have been protected, in any event, even though their deeds were not recorded of public record until after September 22, 1979. Gulf Refining Co. v. Travis, 201 Miss. 336, 29 So.2d 100, suggestion of error 30 So.2d 398 (1947). The record is silent on whether any of these grantees went into possession of the land following delivery of their deeds. Since the attorneys representing the defendants did not see fit to offer any proof of possession of the land by the grantees following execution of the deeds, we must assume they did not take possession.


text:
    Judith PRESTWOOD v. Boriece HAMBRICK.
    No. 53156.
    Supreme Court of Mississippi.
    April 21, 1982.
    Rehearing Denied May 19, 1982.
    Montgomery, Smith-Vaniz & Stater, William R. Collins, C. R. Montgomery, Canton, for appellant.
    Lee B. Agnew, Robert A. Crawford, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

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

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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


author: SUGG, Presiding Justice,

text:
    F. L. CAPPAERT v. DeEtte JUNKER.
    No. 53352.
    Supreme Court of Mississippi.
    April 21, 1982.
    Rehearing Denied May 19, 1982.
    Ramsey, Bodron, Robinson, Andrews & Yoste, H. M. Yoste, Jr., Vicksburg, for appellant.
    Teller, Chaney & Rector, Landman Teller, Jr., Vicksburg, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   SUGG, Presiding Justice,

for the Court:

The narrow question in this case is whether an exculpatory provision in a residential lease is void as being against public policy. The lessor sought to immunize himself against damages caused by his negligence in maintaining a common area on the leased premises.

Appellee leased an apartment from appellant in the Pecan Ridge Apartment complex which, at the time of the trial consisted of six completed buildings with each building containing twelve apartments. Appellee’s apartment was upstairs and she and the tenants in two other apartments used a common stairway for access to their apartments. Appellee slipped, fell on the stairway, was injured, and sued appellant for negligently maintaining the stairway. Ap-pellee recovered a judgment against appellant for $20,000.

Appellee’s lease contained the following exculpatory provisions:

The lessor shall not be liable to Lessee, or to Lessee’s employees, patrons and visitors, or to any other person for any damage to person or property caused by any act, omission or neglect of Lessor or any other tenant of said demised premises, and Lessee agrees to hold Lessor harmless from all claims for any such damage, whether the injury occurs on or off the leased premises.
Lessee assumes responsibility for the condition of the premises. Lessor will not be responsible for damage caused by leaks in the roof, by bursting of pipes by freezing or otherwise, or any vices or defects of the leased property, or the consequences thereof, except in case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having received written notice from Lessee of such defects and the damage caused thereby. Should Lessee fail to promptly so notify Lessor, in writing, of any such defects, Lessee will become responsible for any damage resulting to Lessor or other parties.

Appellant attempted to introduce the lease containing the exculpatory provisions in evidence, but the trial judge refused to admit it into evidence holding that exculpatory provisions in residential leases are void as against public policy.

Leases are considered as a conveyance of the property for a specified period of time. Hurst v. English, 357 So.2d 132 (Miss.1978); Standard Fruit & Steamship Co. v. Putnam, 290 So.2d 612 (Miss.1974); Rich v. Swalm, 161 Miss. 505, 137 So. 325 (1931); Crowell v. N. O. and N. E. R. R. Co., 61 Miss. 631 (1884). Since a lease is considered as a conveyance of an interest in land, the common law doctrine of caveat emptor applies between the lessor and the lessee. In Jones v. Millsaps, 71 Miss. 10, 14 So. 440 (1893) this Court recognized the common law rule and concluded there was no implied covenant of fitness in a commercial lease in the following language:

This line of decisions rests upon sound reason. The general rule is firmly established that no implied covenant for repairs can be raised against the lessor. The lessee cannot invoke an implied covenant of the landlord that the leased premises are fit and suitable for the lessee’s business or use. The intending tenant must use his own faculties, and judge for himself if the premises he desires to lease are in repair and are suitable for his use. If he wishes to protect himself against the hazards of subsequently occurring accidents or defects requiring repairs, he must do so by proper covenants in his contract of lease. He takes his leased premises for better or for worse, as an ancient authority aptly characterizes his taking. (71 Miss, at 18, 14 So. at 441)

The rule has been applied consistently to commercial leases and has been extended to residential leases. Loflin v. Thornton, 394 So.2d 905 (Miss.1981); Kassis v. Perronne, 209 So.2d 444 (Miss.1968); Turnipseed v. McGee, 236 Miss. 159, 109 So.2d 551 (1959).

However, a significant exception with regard to common areas or approaches under the control of the lessor has been recognized in our cases. In Hiller v. Wiley, 192 Miss. 488, 6 So.2d 317 (1942) the exception was first stated in the following language:

[T]he testimony . .. discloses that the property occupied by the appellee as a tenant was a double house; that is, part thereof was leased to another tenant; but there was a common approach, and a single set of front steps available for use by all tenants and by the landlord. Under these circumstances it is clear that the landlord, not only for convenience but of necessity, retained control over, and hence responsibility for the reasonable upkeep of, the steps, and is liable for a failure to use reasonable care to keep them reasonably safe. (192 Miss, at 492, 6 So.2d at 317)

Accord: Turnipseed v. McGee, 236 Miss. 159, 109 So.2d 551 (1959).

The following is firmly established by the above cases. A lessee takes lease premises as he finds them with no implied covenant of fitness. Lessor is not obligated to make repairs to leased premises. In leases involving residential property leased to multiple tenants, the lessor, with respect to common areas, has the duty to use reasonable care to keep the common areas reasonably safe and is liable for damages for failure to perform the duty.

In determining whether contracts should be invalidated on the ground that they violate public policy, we have held that this should not be done unless the contract is prohibited by the Constitution, a statute, or condemned by some decision of the courts construing the subject matter. This was expressed in State ex rel Knox v. Hines Lbr. Co., 150 Miss. 1, 115 So. 598 (1928) in the following language:

The power to invalidate contracts or agreements on the ground that they violate public policy is far reaching and easily abused, and this court is committed to the doctrine that the public policy of the state must be found in its constitution and statutes, “and when they have not directly spoken, then in the decisions of the courts and the constant practice of the government officials.” U. S. v. Trans-Missouri Freight Ass’n, 166 U.S. [290 at] 340, 17 S.Ct. [540 at] 559, 41 L.Ed. 1007. In the case of Orrell v. Bay Manufacturing Co., 83 Miss. 800, 36 So. 561, 70 L.R.A. 881, in discussing the question of public policy, the court said:
“The inference clearly to be drawn from the cases last cited and the authorities on which they are based is this, that contracts are not in violation of the public policy of the government unless either prohibited by express terms or the fair implication of a statute, or condemned by some decision of the courts construing the subject-matter....” (150 Miss, at 48, 115 So. at 605)

In Illinois Central Railroad Co. v. Harris, 108 Miss. 574, 67 So. 54 (1914) this Court held a contract between a railroad company and its employees void because it violated public policy. The railroad company required its employees to sign a contract which released the company from every conceivable act of negligence of any other employee of the company before one could secure employment with the company. In declaring the contract void the Court stated:

We adopt the reasoning of Judge Smith in Little Rock R. R. Co. v. Eubanks, 48 Ark. 460, 468, 3 S.W. 808, 810 (3 Am.St. Rep. 245), when he said:

“But surely the state has an interest in the lives and limbs of all its citizens. Laborers for hire constitute a numerous and meritorious class in every community. And it is for the welfare of society that their employers shall not be permitted, under the guise of enforcing contract rights, to abdicate their duties to them. The consequence would be that every railway company and every owner of a factory, mill, or mine would make it a condition precedent to the employment of labor that the laborer should release all right of action for injuries sustained in the course of the service, whether by the employer’s negligence or otherwise. The natural tendency of this would be to relax the employer’s carefulness in those matters of which he has the ordering and control, such as the supplying of machinery and materials, and thus increase the perils of occupations which are hazardous, even when well managed. And the final outcome would be to fill the country with disabled men and paupers, whose support would become a charge upon the counties or upon public charity.” (108 Miss, at 579, 67 So. at 56)

Furthermore, we held in Western Union Tel. Co. v. Bassett, 111 Miss. 468, 71 So. 750 (1916), that exculpatory provisions in common carrier contracts are void as against public policy.

The narrow question pertaining to the exculpatory provision in the lease contract in this case is one of first impression in Mississippi. In a recent annotation, Validity of Exculpatory Clause in Lease Exempting' Lessor From Liability, 49 A.L.R.3rd 321 (1972) exculpatory clauses have been upheld in many states on the theory that freedom to contract is the dominant public policy, and since the contracts relate to the private business of the parties, they are not a matter of public concern. However, at least four states by statute, seven states and the District of Columbia by judicial decision, have declared exculpatory clauses void as against public policy under the facts developed in those cases.

The rationale of the jurisdictions which have held exculpatory clauses in residential leases void as against public policy is perhaps best expressed in McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093 (1971). The Court stated:

It is safe to say, however, that there is no true majority rule. There are only numerous conflicting decisions, decisions concerned with contracts of indemnity, cases relating to property damage under business leases, and a disposition of the courts to emasculate such exculpatory clauses by means of strict construction .... From this one can reasonably infer that even though such clauses are recognized by some courts, a great number have regarded them with disfavor.
Furthermore, one must ignore present day realities to say that such an exculpatory clause, which relieves a lessor of liability for personal injuries caused by its own negligence, is purely a “personal and private affair” and “not a matter of public interest.”
We no longer live in an era of the occasional rental of rooms in a private home or over the corner grocery. In the relatively short span of 30 years the public’s use of rental units in this state has expanded dramatically. In the past 10 years alone, in the state of Washington, there has been an increase of over 77,000 rental units. It takes no imagination to see that a business which once had a minor impact upon the living habits of the citizenry has developed into a major commercial enterprise directly touching the lives of hundreds of thousands of people who depend upon it for shelter.
Thus, we are not faced merely with the theoretical duty of construing a provision in an isolated contract specifically bargained for by one landlord and one tenant as a purely private affair.” Considered realistically, we are asked to construe an exculpatory clause, the generalized use of which may have an impact upon thousands of potential tenants.
Under these circumstances it cannot be said that such exculpatory clauses are “purely a private affair” or that they are “not a matter of public interest.” The real question is whether we should sanction a technique of immunizing lessors of residential units within a multi-family dwelling complex, from liability for personal injuries sustained by a tenant, which injuries result from the lessor’s own negligence in maintaining the “common areas”; particularly when the tech-ñique employed destroys the concept of negligence and the standard of affirmative duty imposed upon the landlord for protection of the tenant.
An exculpatory clause of the type here involved contravenes long established common law rules of tort liability that exist in the landlord-tenant relationship. As so employed, it offends the public policy of the state and will not be enforced by the courts. It makes little sense for us to insist, on the one hand, that a workman have a safe place in which to work, but on the other hand, to deny him a reasonably safe place in which to live. (486 P.2d at 1096, 1097)

In this case appellant had the duty to maintain the common area in a reasonably safe condition and his duty had been imposed on appellant and other lessors in the cases of Hiller and Turnipseed. In some of the cases from other jurisdictions upholding the validity of exculpatory clauses, the clauses did not deal with any common law or statutory duty of the lessor to maintain the premises in a reasonably safe condition. However, this case involves a positive duty on the part of the appellant as lessor to maintain the common area in a reasonably safe condition.

We therefore hold that the exculpatory clause, insofar as it seeks to immunize appellant against damages caused by his negligence in maintaining the common area on the leased premises, namely, the stairway in question, is void as against public policy. We express no opinion as to the validity of the exculpatory provisions as they pertain to the apartment leased by appellee, because the question of the validity of the exculpatory provisions pertaining to the apartment is not before the Court.

Although not cited in any of the briefs, we note our recent case of Smith v. Smith, 375 So.2d 1041 (Miss.1979), in which we held that the exculpatory clause in that lease was not void as against public policy. In that case appellant was the assignee of the original lessee in a commercial lease contract covering a building in a shopping center. Appellant sued appellee, the lessor, for damages to merchandise and fixtures and for cost of removal from the premises on order of the appellees before the end of the contract term. The order to move resulted from appellant’s persistent requests that the roof be repaired. Appellant alleged that the damages were caused by a leak in the roof which was not repaired by the appellee after notice was given. There was no common law duty on the part of the appellee to maintain the roof. In holding the exculpatory provision in the lease valid, we noted that it represented a division of the risk involved, fully understandable because the landlord reserved no control over the type and value of the inventory of the tenant. The present case is entirely different from Smith because, in the present case the lessor was under a duty to maintain the common area. In Smith the lessor was not under any common law duty to maintain the roof, so the exculpatory clause did not deal with any common law or statutory duty of the lessor. We therefore distinguish Smith from the case under consideration, and affirm.

AFFIRMED.

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

      . Illinois, Maryland, Massachusetts and New York.

      . Tenants’ Council of Tiber Island-Carrollsburg Square v. DeFranceaux, 305 F.Supp. 560 (D.C.1969); Kinkaid v. Avis Rent-a-Car Systems, 281 So.2d 223 (Fla.App.1973); Old Town Development Co. v. Langford, 349 N.E.2d 744 (Ind.App.1976); Papakalos v. Shaka, 91 N.H. 265, 18 A.2d 377 (1941); Kuzmiak v. Brookchester, Inc., 33 N.J.Super. 575, 111 A.2d 425 (1955); Crowell v. Housing Authority of the City of Dallas, 495 S.W.2d 887 (Texas 1973); McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093 (1971); College Mobile Home Park and Sales, Inc. v. Hoffmann, 72 Wis.2d 514, 241 N.W.2d 174 (1976).


text:
    In the Matter of the Last Will and Testament of Nan M. FRANCIS, Deceased: W. L. Holmes, Jr. Administrator; Lee J. Ball, Harold Schilling and Charles Wilkinson v. Gene FRANCIS, et al.
    No. 53149.
    Supreme Court of Mississippi.
    April 21, 1982.
    Rehearing Denied May 19, 1982.

      James H. C. Thomas, Jr., Hattiesburg, for appellant.
    Finch, Wicht & Doleac, M. Ronald Doleac, Dan R. Wise, Zachary & Zachary, Dave A. Matison, III, Hattiesburg, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   SUGG, Presiding Justice,

for the Court:

Appellants filed a petition on September 10, 1980 to set aside a decree of the Forrest County Chancery Court rendered on January 2, 1973. The 1973 decree modified a former decree which approved the final account in the Estate of Nan M. Francis and construed her will. The petition named seventeen respondents, one was the administrator of the estate, and the remaining sixteen were the nieces and nephews of decedent who were devisees and legatees under the will.

Four of the nieces and nephews filed special demurrers, three other nieces and nephews filed special appearances and nine did not file any pleadings.

The trial court sustained the special demurrers. We do not address the demurrers because this case must be reversed and remanded for the reason that no process was obtained on nine of the respondents. Where there are several defendants, a case is not ready for trial until ready as to all of the defendants.

In Robbins, et al. v. Berry, 209 Miss. 422, 47 So.2d 846 (1950) we held:

Since the Lion Oil Company is shown by the pleadings to be vitally concerned in the title of the Van Zandts, on which its title depends, it was a necessary party to the cause, but has never had its day in court. We cannot know what, if any, defense it may have, but the cause should not have been heard without due and proper notice to it, and the decree cannot stand in view of its absence. The bill was not dismissed as to it; and no explanation of the failure to serve process on it appears in the record.
This matter was dealt with by us in the case of Dorsey et al. v. Sullivan, 199 Miss. 602, 24 So. (2d) 852. That case involved a final decree, it is true, but the same principle governs both final and interlocutory decrees, such as the one involved here. The rule is set out in Section 556, Griffith’s Mississippi Chancery Practice, as follows: “Where there are several defendants, the cause is not ready for trial as to one, until ready as to all of the defendants,” citing Kelly v. Brooks, 57 Miss. 225, 227, and Hunt v. Walker, 40 Miss. 590. The question was also before us in the case of Khoury et al. v. Saik, 203 Miss. 155, 33 So. (2d) 616, 618. In our opinion there, we said: “Griffith’s Mississippi Chancery Practice, Sec. 624, p. 713, announces the rule to be that: ‘It is error to proceed to final decree where one defendant has not been served with process and is not dismissed, or where the suit is not ready for final hearing as to all of the parties, ... ’ And, we have announced that a court of equity will not proceed to a final decree as to any defendant until the cause is triable as to all defendants. Dorsey et al. v. Sullivan, 199 Miss. 602, 24 So. (2d) 852. And, we have, furthermore, held that where the decree is void as to one of the necessary parties, it will be vacated as to all. Moore v. Summerville, 80 Miss. 323, 31 So. 793, rehearing denied 80 Miss. 323, 32 So. 294" It will be borne in mind that the decree in the case at bar was, in effect, final as to all issues except the accounting, since it undertook finally to adjudicate the main issue of title. (209 Miss, at 425, 426, 47 So.2d at 848).

The trial court should not have heard the special demurrers because the case was not ready for trial as to nine of the respondents who made no appearance and on whom the attempted service of process was void. The fact that the ruling of the trial court on the demurrers resulted in the dismissal of the petition does not take the case out of the operation of the rule because when the trial court considered the special demurrers, the case was not in a posture to proceed against the nine defendants who had not been served with process as next discussed.

Appellants attempted to obtain process on fifteen of the defendants by publication under the provisions of section 13-3-19 Mississippi Code Annotated (1972). In support of process by publication, appellants alleged:

That process should be had on all heirs of Nan M. Francis, deceased, and the Administrator in this Cause, being W. L. Holmes, Jr. of Forrest County, Mississippi, Administrator and the following heirs: Dora Francis James, of Jefferson County, Texas; Sybil Francis Lancaster of King County, Washington; Georgia Francis Whitelaw of Harris County, Texas; Francis James of Jefferson County, Texas; Virginia Borke of Hot Springs, Arkansas; Bobby Lancaster of King County, Washington; Don Francis of Sparten-burg County, South Carolina; Ann Hubbard Gaddis of Bexar County, Texas; Iris Hubbard Mol of Centre County, Pennsylvania; Jimmy Hubbard of Suffolk County, Massachusetts; Jim Al Whitelaw, of Harris County, Texas; Reid Scott White-law of Harris County, Texas; Gene Francis of Caddo County, Oklahoma; Marion Francis Frelander of Galveston County, Texas; Pat Francis of Caddo County, Oklahoma, and Karl Francis of Forrest County, Mississippi, where summons should be had on those in this jurisdiction named above and at their last known address after diligent search and inquiry, as non-residents in Chancery as provided by law.

We have held in numerous cases that when publication of process is resorted to in lieu of personal summons to bring nonresidents before the court, the statute must be strictly complied with. Mosby v. Gandy, 375 So.2d 1024 (Miss.1979); McDuff v. McDuff, 252 Miss. 459, 173 So.2d 419 (1965); Rice, et al v. McMullen, 207 Miss. 706, 43 So.2d 195 (1949); Burns v. Burns, 133 Miss. 485, 97 So. 814 (1923). The allegations contained in the petition did not give the post office and street address of the nonresidents but simply referred to the nonresidents as being of a named county in another state. The averments were totally insufficient to support publication for process against the nine respondents who did not make a voluntary appearance.

We therefore notice plain error and reverse and remand to the trial court for further proceedings. Appeal costs are taxed equally between appellants and ap-pellees.

REVERSED AND REMANDED.

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


text:
    GLOBAL CONTRACTING, INC. v. Ophelia MOORE, et al.
    No. 53176.
    Supreme Court of Mississippi.
    April 28, 1982.
    Roy 0. Parker & Asso., Nora J. Hall, Tupelo, for appellant.
    Mitchell, Eskridge, Voge, Clayton & Beasley, Jeremy J. Eskridge, Tupelo, Fla-vous L. Hutchinson, Mississippi State, for appellees.
   Appeal from Chancery Court, Lee County; Fred P. Wright, Chancellor.

Before SUGG, P. J., and ROY NOBLE LEE, and DAN M. LEE, JJ.

AFFIRMED.


text:
    W. M. HENSON v. SCRIBNER EQUIPMENT CO., INC., et al.
    No. 53483.
    Supreme Court of Mississippi.
    April 28, 1982.
    Coleman & Phipps, David L. Coleman, Corinth, for appellant.
    Smith, Downs, Ross, Trapp & Coleman, Wendell H. Trapp, Jr., Corinth, for appel-lees.
   Appeal from Chancery Court, Alcorn County; James E. Bost, Chancellor.

Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    FORD MOTOR CO. v. Edward NIXON.
    No. 53139.
    Supreme Court of Mississippi.
    April 28, 1982.
    Eaton, Cottrell, Galloway & Lang, John Edgar Johnson, III, Gulfport, for appellant.
    Smith, Smith, Tate, Stuart & Cruthird, G. Gerald Cruthird, Picayune, for appellee.
   Appeal from Circuit Court, Pearl River County; Stanton Hall, Judge.

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

AFFIRMED.


text:
    Troy FOWLER v. STATE of Mississippi.
    No. 53373.
    Supreme Court of Mississippi.
    April 28, 1982.
    Russell & Russell, Frank A. Russell, Fulton, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge.

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

AFFIRMED.


text:
    In re ESTATE OF Julian A. BROWNE, Dec’d. Mary Browne GANDY, et al. v. HOLMES COUNTY BANK & TRUST CO., etc.
    No. 53464.
    Supreme Court of Mississippi.
    April 28, 1982.
    Brewer, Deaton, Evans & Bowman, Billy B. Bowman, Greenwood, for appellants.
    Barrett, Barrett & Barrett, John W. (Don) Barrett, Lexington, for appellees.
   Appeal from Chancery Court, Holmes County; E. G. Cortright, Chancellor.

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

AFFIRMED.


author: ROY NOBLE LEE, Justice,

text:
    Larry LUMPKIN v. STATE of Mississippi.
    No. 53165.
    Supreme Court of Mississippi.
    May 5, 1982.
    Rehearing Denied May 19, 1982.

      William Sebastian Moore, William Bruce McKinley, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROY NOBLE LEE and HAWKINS, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Larry Lumpkin was convicted in the Circuit Court of Oktibbeha County, Honorable Harvey Buck, presiding, on a charge of receiving stolen property. The trial judge sentenced him to serve a term of four (4) years with the Mississippi Department of Corrections, and Lumpkin has appealed here.

I.

Was the verdict of the jury against the overwhelming weight of the evidence?

During the latter part of April, 1980, the home of Mrs. Martha Fort, deceased, was burglarized and among the articles stolen were three (3) pieces of antique furniture. The burglary was reported to the Lowndes County Sheriff’s Office and an investigation was conducted.

The evidence for the State indicated that during the last part of April, 1980, appellant’s wife, Cheryl Lumpkin, received a telephone call from an unidentified male, who inquired whether she would be interested in purchasing some antique furniture. The caller also spoke with appellant and told him that he wanted one hundred dollars ($100.00) for the furniture. After some negotiation, the man delivered the furniture to appellant’s home and was paid seventy-five dollars ($75.00) for it. The furniture was stored on appellant’s carport and was partially concealed by other articles.

Subsequently, appellant, or his wife, contacted Mrs. Dot Foster and Mrs. Ellen Bates in an attempt to sell the furniture to them. Mrs. Bates eventually paid appellant two hundred fifty dollars ($250.00) for all three pieces of the furniture.

On May 15, 1980, the Sheriff of Lowndes County discovered that Mrs. Bates and Mrs. Foster had the furniture in their possession and he seized same and later arrested appellant. When he was arrested, appellant told the sheriff that a man from North or South Carolina came to his home and sold the furniture to him for $100.00 and that the man told him the furniture was from an estate sale. In August of 1980, appellant told the sheriff that he had gotten the furniture from one Jackie Fulgham and identified him from a group of photographs. Jackie and Bobby Fulgham were first cousins of appellant’s wife.

According to Mrs. Judy Loftin, appellant said that he didn’t want the furniture to stay in town and she could buy it for her daughter who lived out of town. Appellant was asked by Mrs. Bates whether or not the furniture was stolen, and he told her that “something was wrong with the furniture.”

In Brown v. State, 281 So.2d 924 (Miss.1973), the Court said:

If a person has knowledge from facts and circumstances which should convince a reasonable person that property has been stolen, in such situation the rule is that in a legal sense he knew the property was stolen. Pettus v. State, 200 Miss. 397, 410, 27 So.2d 536, 540 (1946). [281 So.2d at 926].

On the largely uncontradicted evidence in the record, and in view of the evidence stated hereinabove, there was a guilt issue for the jury, the verdict of the jury was not contrary to the weight of the evidence and was supported by the evidence. Warn v. State, 349 So.2d 1055 (Miss.1977).

II.

Did the lower court err in granting Instruction S-2A for the State?

The Instruction S-2A follows:

The Court instructs the Jury that if you find from the evidence in this case beyond a reasonable doubt that the defendant, Larry Lumpkin, did on or about May 5, 1980, unlawfully, wilfully, and feloniously buy or receive a Victorian marble top coffee table, a Victorian console table with a marble top, and a Victorian wash stand with a marble top and back splash, which had a total value in excess of $100.00, when he knew that this property had been feloniously taken away from the estate of Mrs. Martha Fort, then you shall find the defendant guilty as charged.

The appellant first contends that the above instruction constitutes reversible error because it assumes as true principal facts in issue, and cites Eubanks v. State, 227 Miss. 162, 85 So.2d 805 (1956), and Church v. State, 288 So.2d 855 (Miss.1974).

In Eubanks, the lower court granted a number of faulty instructions for the State. The instruction similar to the one sub judice was held to be erroneous because it assumed as true principal facts in issue. We distinguish the instructions there and in the present case because the principal part of that instruction stated “. .. the said Clyde Eubanks well knowing the said automobile tires to have been recently stolen and carried away as aforesaid at the time he wilfully, unlawfully and feloniously bought or obtained said automobile tires .... ” [227 Miss, at 169, 85 So.2d at 806]. The latter phrase peremptorily told the jury that Eubanks wilfully, unlawfully and felo-niously bought or obtained the stolen property. In Church, the instruction omitted the finding that the jury must believe beyond reasonable doubt “from the evidence.” The instruction otherwise was virtually identical to the one condemned in Eubanks. Church was reversed on the basis of the holding in Eubanks.

We are concerned with the statement in Eubanks following:

We do not think that the clause, “if they believe from the evidence beyond a reasonable doubt”, at the beginning of this instruction, can be said to qualify all of the succeeding statements, either grammatically or in common sense. Marble v. State, 1943, 195 Miss. 386, 15 So.2d 693 is in point. [227 Miss, at 169-170, 85 So.2d at 806].

The instruction in the case sub judice tracked the indictment and required the jury to believe that appellant knew the property had been feloniously taken. All the other elements of the offense—(1) that appellant received the furniture, (2) that it was feloniously stolen, and (3) that the value of the furniture was in excess of $100.00 —were uncontradicted in the record. The only real issue was whether or not appellant knew that the property had been feloniously taken.

The court granted Instruction C-40 [See Appendix I], which submitted the elements of the crime to the jury under three headings, and Instruction D-3 [See Appendix II], which expressly related to the issue of whether or not the jury had a reasonable doubt that appellant knew or had reasonable grounds to believe the property had been stolen.

If Instruction S-2A should not have been granted, the fault of it was cured by Instructions C-40 and D-3, and, reading all instructions together, no prejudice resulted to the appellant.

We note that the objection by appellant to Instruction S-2A was not made on the ground that it assumed certain facts in evidence, which is now briefed and argued. Under the rules and decisions of this Court, error on that ground was waived by the appellant. Meyer v. State, 309 So.2d 161 (Miss.1975); Entrican v. State, 309 So.2d 851 (Miss.1975).

The appellant next argues that the Instruction S-2A constitutes reversible error because it did not properly state the law, that the evidence was circumstantial as to appellant’s guilt and should have contained the phrase “to the exclusion of every other reasonable hypothesis than that of guilt.”

As stated, all the elements of the alleged crime were uncontradicted, except that of knowingly receiving stolen property. The record reflects the following:

(1) Appellant and his wife testified that an unidentified male person telephoned about the property and left it on the Lump-kin porch.

(2) Mrs. Lumpkin testified that an unidentified man came to the door and she paid him $75.00 for the property, but she couldn’t see or describe him.

(3) Appellant told Mrs. Judy Loftin that he didn’t want the furniture to stay in town and she could buy it for her daughter who lived out of town.

(4) Appellant told Mrs. Loftin that he did not want her to store the furniture on her carport; that when Mrs. Loftin asked him if the furniture had been stolen, appellant told her he couldn’t be sure but he was afraid there was something wrong with the furniture; that if he couldn’t sell it soon, he would have to get it out of his house; that, if Mrs. Loftin didn’t buy it or get it out of town, he would either have to get it out of town or would have to burn it.

Much of the evidence relating to knowledge by appellant that the property had been stolen was presented to the jury as direct evidence and, therefore, the circumstantial evidence rule does not apply. Further, the appellant did not request an instruction on circumstantial evidence, and the degree of proof required in such case, nor did he object to any instruction for the lack of submitting the burden of proof in a purely circumstantial evidence case.

The granting of Instruction S-2A was not reversible error.

III.

Did the lower court err in instructing the jury that appellant was accused of buying or receiving stolen property when the indictment charged appellant with only receiving stolen property?

The indictment charges the appellant with receiving stolen goods, knowing the same to have been stolen. Instruction S-2A was amended, without objection, to insert the words “or buy.” The following colloquy transpired between the court and counsel for appellant, concerning Instruction D-3, which was amended with approval by appellant’s counsel:

Mr. J. Brown:
Your Honor, if that’s the only objection to the instruction, we don’t mind inserting that, and will amend it.
THE COURT:
Bought and knowingly received?
Mr. J. Brown:
Bought—excuse me, knowingly received or bought I believe is what the D/A wants to do.
* * * * * *
THE COURT:
I’ve already amended it to show knowingly received or bought. We’ll have to also say after Larry Lumpkin in the last paragraph, “that the defendant, Larry Lumpkin, bought or received the property.”
Mr. J. Brown:
That’s fine, your Honor.

In view of the approval of appellant’s counsel stated herein, appellant cannot now be heard to complain of the instruction. There is no merit in the assignment of error.

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

AFFIRMED.

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

APPENDIX I

INSTRUCTION C-40

The Defendant, LARRY LUMPKIN, has been charged by an indictment with the crime of receiving stolen property for having bought or received the property which had been feloniously taken, knowing that the property had been so taken.

If you find from the evidence in this case beyond a reasonable doubt that

I.

A Victorian Marble Top Coffee Table, a Victorian Console Table with a Marble Top, and a Victorian Wash Stand with a Marble Top and Back Splash, and

II.

That the above listed property had been feloniously taken and carried away from the estate of Mrs. Martha Fort, and on or about May 5, 1980, the Defendant, LARRY LUMPKIN, bought or received the property in any manner or on any consideration, and

III.

That the Defendant knew or had good reason to believe from the facts and circumstances in evidence that the property had been feloniously taken.

Then you shall find the Defendant “guilty” of receiving stolen property.

If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the Defendant “NOT GUILTY.”

APPENDIX II

INSTRUCTION D-3

The Court instructs the Jury that in order to convict the State must prove beyond all reasonable doubt that the Defendant, LARRY LUMPKIN, knowingly received or bought the Victorian Marble Top Coffee Table, Victorian Console Table with Marble Top, and Victorian Wash Stand with Marble Top and Back Splash.

The word knowing means if a person has information which should convince him the property has been stolen or which should lead a reasonable man to believe that property has been stolen.

The Court instruct the Jury that if you find that the Defendant, LARRY LUMP-KIN, bought or received the property alleged to have been stolen but there is a reasonable doubt in your mind as to whether he knowingly received stolen property then it is your sworn duty to find him “NOT GUILTY.”