author: HAWKINS, Justice, for the Court:

text:
    INTERNATIONAL HARVESTER COMPANY v. The PEOPLES BANK AND TRUST COMPANY.
    No. 52727.
    Supreme Court of Mississippi.
    Aug. 26, 1981.

      F. M. Bush, III, Thomas D. Murry, Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, for appellant.
    W. P. Mitchell, Mitchell, Eskridge, Voge, Clayton & Beasley, Tupelo, Gifford, Moore & Bolen, Booneville, for appellee.
    Before PATTERSON, LEE and HAWKINS, JJ.
   HAWKINS, Justice, for the Court:

International Harvester Company, a Delaware corporation, appeals from a judgment rendered against it by the Circuit Court of Prentiss County in favor of The Peoples Bank and Trust Company, a Mississippi banking corporation, in the amount of $9,915.44. We affirm.

Walden Corporation (Walden) was a business in Booneville engaged in making truck bodies and extending chassis on trucks. Its president was Mrs. Mamie Cain. On July 6, 1977, Walden transmitted to International Harvester Company (International) on Walden’s letterhead a Sales Proposal Contract in three copies, duly executed by Mrs. Cain, for the construction by Walden of two truck bodies for the total price of $12,-267.32, including tax. Delivery date thereon was specified as three to four weeks.

In the lower part of the form is the following printed language:

The above described truck bodies are to be used for demonstration purposes and are to be paid for in full no later than six (6) months from date of delivery.

Just below this, the instrument contains the following:

“ACCEPTED BY,” and following this is the handwritten signature of “R. A. Roy.” A written contract was thus entered into between these corporations.

Following this, on July 13, 1977, International transmitted to Walden its purchase order, executed by representatives of International, for 2 “Walden Truck Bodies Model # 3918 per your quotation of July 6,1977,” thereby authorizing Walden to proceed. There is further typed on the purchase order:

180 days deferred billing, or at such time as the chassis has been sold to a retail customer. The 180 days to start upon completion of the body and chassis installation.

At that time Walden had an outstanding indebtedness due The Peoples Bank and Trust Company (Peoples Bank) on a note in the initial amount of $67,000.00, dated March 1, 1976, and on which Peoples Bank noted thereon it had security agreements and a financing statement. Neither the security agreements securing this note nor the financing statement are a part of the record, and the property secured thereby is therefore not shown.

To fulfill its contract with International it was necessary for Walden to borrow $8,500.00 from Peoples Bank. On July 18, 1977, Mrs. Cain as president of Walden executed a promissory note to Peoples Bank in the amount of $8,500.00, due January 18, 1978, with interest at 10 percent. The note contains the following language:

Maker has deposited with Bank, as collateral for payment of this and any and all other liabilities ... the following property listed below . . . hereinafter called collateral....

Following this printed language is the typewritten notation:

Assignment of International Harvester Contract — Mr. Rob Roy, International Harvester Co., Tucker, GA. 30084. Contract Amount, $12,267.32.

Walden also on July 18, 1977, executed a security agreement to Peoples Bank on Mississippi Bankers Association Form 5, under which “Contract Rights” is checked, and beneath this paragraph is typed:

Assignment of Contract with International Harvester Company, 1726 Montreal Circle, Suite 18, Tucker, GA. 30084 in the amount of $12,267.32.

At the time Walden secured the loan from Peoples Bank, Mrs. Cain also delivered to Peoples Bank the executed Sales Proposal Contract of Walden and International, and Purchase Order issued by International. As to these two instruments, Mr. John Smith with Peoples Bank testified:

Q. How did these two documents get into your possession?
A. They were brought to me by Mrs. Mamie Cain who is associated with Walden Corporation.
Q. Did — when she brought them to you, did she take them back, or what happened?
A. No, sir, she left them with me and asked that we advance the funds with which she could obtain the materials to complete this job, and said that she had talked to International about assigning this to us and they were willing to do that.

On July 19, 1977, Mr. Smith wrote Mr. Roy the following letter:

Mr. Rod (sic) Roy
International Harvester Company
P. O. Box 2002
Tucker, Georgia 30084
Dear Mr. Roy:
Re: Walden Corporation
P. O. Box 226
Booneville, MS 38829
Your Purchase Order
DA586401
It is my understanding that Mrs. Cain, of Walden Corporation previously spoke with you about the fact that it would be necessary for her to use the contract between International Harvester Company and Walden Corporation for Walden Corporation to obtain the financing for the materials on the job. For such consideration, Mrs. Cain has assigned the interest of Walden Corporation in this contract to The Peoples Bank and Trust Company.
Therefore, we ask that any checks rendered to the Walden Corporation under this contract be made payable to both the Corporation and The Peoples Bank and Trust Company and mailed to the bank. Of course, since Walden Corporation will be named as a party to the payment order, it will be necessary that they be notified and endorse the item before it can be negotiated.
If it is permissible with your company, we would ask that you indicate your acceptance of this arrangement by signing in the space provided on the attached copy and returning it to us in the enclosed addressed postpaid envelope.
Sincerely yours,
/s/ John W. Smith
John W. Smith
Executive Vice President
and Manager
ACCEPTED Rob A. Rov
(signed)
Marketing Mgr. (handwritten)

This letter, showing it had been accepted by Mr. Roy as marketing manager was returned to Peoples Bank and received by it July 25,1977. The letter had been received by International July 21, 1977.

On November 15, 1977, International received from the Internal Revenue Service on Government Form 668-A (Rev. 3-77) a Notice of Levy, dated November 7, 1977, notifying International there was due and owing to the United States from Walden $71,952.75, in unpaid taxes. The tax assessment against Walden was October 3, 1977. This form contains the following language:

You are further notified that demand has been made upon the taxpayer for the above amount, and the taxpayer has neglected or refused to pay, and such amount is still due, owing, and unpaid. Accordingly, you are further notified that all property, rights to property, moneys, credits, and bank deposits now in your possession and belonging to this taxpayer (or for which you are obligated) and all sums of money or other obligations owing from you to this taxpayer, or on which there is a lien provided under Chapter 64, Internal Revenue Code, are hereby levied upon for satisfaction of the aforesaid tax plus all additions provided by law, and demand is hereby made upon you for the amount necessary to satisfy this tax liability or for such lesser sum as you may be indebted to this taxpayer, to be applied as a payment on this tax liability. Checks or money orders should be made payable to the Internal Revenue Service, (emphasis added)

The date of final completion of the truck bodies is not shown in the record. Walden finished one truck body, and substantially completed the other, but Walden apparently closed its plant, and the remaining truck body was completed by Truck Center, Inc., of Tupelo. The cost of completing the one truck body was $2,351.88, and International was submitted an invoice on Walden’s letterhead dated July 6, 1977, for the total amount of the two truck bodies, less $2,351.88 for completion of one body, leaving a balance due under the contract of $9,915.44. A dim copy of Truck Center’s invoice is in the record, and as best the Court can determine, it is dated March 14, 1978.

There is nothing in the record indicating whether or not International, upon receipt of the notice of levy on November 15, 1977, ever informed either the Internal Revenue Service of the previous assignment of the contract with Walden to Peoples Bank or Peoples Bank of the notice of levy served upon it.

It appears to the Court it would be quite unusual for these facts not to appear of record had International in fact informed either the Internal Revenue Service of the previous assignment, or Peoples Bank of the levy made upon it.

In any event, after taking full advantage of the delay in making payment as it was authorized under the contract with Walden, International on October 23, 1978, upon advice of its legal department issued its check to the Internal Revenue Service in the amount of $9,915.44, with the notation “To Pay Monies Due Walden Corp. In Compliance with Notice of Levy, Dated 11-7-77.”

Failing to receive any payment under the contract, Peoples Bank on January 26, 1979, instituted suit against International in the amount of $10,000.00, setting forth the above facts pertaining to the contract between Walden and International, and the assignment to Peoples Bank, and notice to and acceptance by International of the assignment to Peoples Bank of the contract.

International’s primary defense was an affirmative defense and plea in bar in its Answer that payment to the Internal Revenue Service pursuant to the levy upon International discharged International from any liability to Peoples Bank.

In a pre-trial hearing on a plea in bar documentary evidence was adduced together with the testimony of Mr. Charles Hesse, regional comptroller of International, and Mr. John W. Smith, vice-president of Peoples Bank. Following the hearing and argument of counsel, the trial court rendered the following succinct opinion:

Gentlemen, it appears to the Court that when the Defendant was served with the levy, it made a judgment that it had property “subject to levy” as the statute calls for, and thereafter paid the property into the IRS. Under the case cited by the Plaintiff, it is the opinion of the Court that International Harvester did not have any property at that time that was subject to levy, and it made its own judgment however they did, they thought about it a long time. I am surprised they didn’t come up with that theory, and some Mississippi cases have been cited by counsel appearing to substantiate that position, and it is the opinion of the court that the plea in bar is not well taken and will be denied.

The court then entered an order overruling the plea in bar. Thereafter the parties submitted the case to the trial court without a jury upon a stipulation of facts and the issues of law.

The trial court rendered judgment on June 17, 1980, against International and in favor of Peoples Bank in the amount of $9,915.44, from which this appeal has been taken by International.

Upon appeal International raises the same two issues as were before the circuit judge:

A. Whether, at the time it was served with notice of levy, International was in possession of property, rights to property, monies, credits or bank deposits belonging to Walden (or for which International was obligated) or any sums of money or other obligations owing from International to Walden.

B. Whether payment by International to Internal Revenue Service of $9,915.44 pursuant to notice of levy discharged International from any liability based upon its contract with Walden.

In view of the stipulation between the parties, these questions, embraced in an affirmative defense as a bar to the cause of action, constituted the only issues to be decided by the Circuit Court preliminary to rendering judgment. International carried the burden of proof on both the law and the facts to sustain this defense. Ricks Lumber Co., Inc. v. Natchez Steel and Pipe, Inc., 318 So.2d 883 (Miss.1975); Mississippi Code Annotated Section 11-7-59 (1972).

The circuit judge heard the case without a jury. This Court must affirm the judgment unless the trial court was manifestly wrong. Ellis v. Pellegrini, Inc., 163 Miss. 385, 141 So. 273 (1932); Seale-Lily Ice Cream Co. v. Buck, 195 Miss. 440, 15 So.2d 213 (1943); Miller v. Board of Sup’rs. of Lafayette County, 198 Miss. 320, 22 So.2d 372 (1945); Kimbrough v. Smith, 201 Miss. 202, 28 So.2d 850 (1947); Hall v. State ex rel. Waller, 247 Miss. 896, 157 So.2d 781 (1963).

On the question of whether International had any money or credits belonging to Walden at the time of the Internal Revenue Service levy on November 15, 1977, International argues that because the assignment to the Bank was collateral security for a loan, it was not an absolute assignment.

There was substantial evidence in this sparse record to support a finding by the trial court the assignment was unconditional and absolute, thus dissipating this contention. Certainly, insofar as International was informed the assignment was unconditional. The letter of July 19, 1977, from Peoples Bank to International carried no implication other than a complete assignment, with a direction for payment to be mailed to the bank. The mere fact Peoples Bank requested International to make the checks payable both to Walden and Peoples Bank did not necessarily lessen the import of the assignment. That was one method of keeping the records straight between the parties, insofar as payments made under this contract. There is nothing in the letter which states Walden made a collateral or conditional assignment. See Merchants & Farmers Bank of Meridian v. McClendon, 220 So.2d 815 (Miss.1969).

Furthermore, while the note executed to Peoples Bank was signed both by Walden and Mrs. Cain individually, neither Walden nor Mrs. Cain were made parties to the suit, either as plaintiffs or defendants, indicating an understanding the assignment was complete. 6A C.J.S. Assignments Section 82, on page 732 states:

Generally, the intention of the parties ascertained from the entire transaction, including conduct, determines whether the assignment is absolute or intended only as a collateral security, (emphasis added)

Aside from these considerations, even if the bank only held a security interest, at the hearing on the plea in bar, International carried the burden of proving a levy by the Internal Revenue Service on a tax lien superior to the interest of the bank. For its tax lien to take precedence over any security interest of the bank, it was incumbent upon the Internal Revenue Service to file notice of a tax lien upon the public records of the county of the principal business office of Walden as required by Section 6323(a), (f)(1) and (2) of the Internal Revenue Code. See also, Mertens, Laws of Federal Income Taxation, Volume 9, Section 54.42, at 107, 112; Mississippi Code Annotated Section 89-5-47 (1972); S. D’Antoni, Inc. v. Great Atlantic & Pac. Tea Co., Inc., 496 F.2d 1378 (5th Cir. 1974). International made no offer of proof of notice of the IRS tax lien being filed of public record at any time or any place.

While this case could be affirmed under the familiar appellate rule that a trial court will not be reversed unless manifestly wrong, the difficult questions raised by this case justify a more detailed inquiry into the relative positions of the parties on November 15, 1977, and obligations International had to the Internal Revenue Service and Peoples Bank.

It has long been held that a valid assignment of a debt or contract conveys the entire interest of the assignor to the assignee, and thereafter the assignor has no interest therein. In this State this has been held true, even when the debtor might not have notice of the assignment. See Schoolfield v. Hirsh, 71 Miss. 55, 14 So. 528 (1893).

6A C.J.S. Assignments, Section 81, pp. 728-729, states:

As a general rule, an assignee under a valid assignment generally takes priority over subsequent creditors of the assignor who had no lien on the subject .matter of the assignment at the time it was made, or over representatives of creditors, who stand in the assignor’s shoes and take subject to all equities against him.

6 Am.Jur.2d Assignments, Section 114, p. 196, states:

Where a debtor has notice of the assignment of the entire debt and acts upon it, the rights of the parties are fixed, and that assignment is superior to subsequent assignments or liens.

Prior to the adoption by Mississippi of the Uniform Commercial Code, the general law made no distinction between an assignment given as collateral security for a debt, and an unrestricted assignment, at least to the extent of the debt due by the assignor to the assignee. 6A C.J.S. Assignments, Section 73, pp. 710-712, states:

As a general rule, a valid and unqualified assignment operates to transfer to the assignee all the right, title, or interest of the assignor in the thing assigned, but not to confer upon the assignee any greater right or interest than that possessed by the assignor. It passes the whole right of the assignor, nothing remaining in him capable of being assigned, and the assignor has no further interest in the subject matter of the assignment.
The assignee is the owner whether the assignment is absolute or conditional, and, if the assignment is voidable at the option of the assignor, the assignee is the owner of the chose until such option is exercised.

Section 82 of this same authority, p. 730 states:

An assignment that is made as collateral security for a debt gives the assignee only a qualified interest in the assigned chose, commensurate with the debt or liability secured.. . . (emphasis added)

This same section further states, however, on page 732:

Before the debt secured is paid, the assignee is, to the extent of his interest, the owner of the collateral as against the assignor and creditors or others claiming under him ...

In Illinois Central Railroad Company v. Bryant and Shackleford, 70 Miss. 665, 12 So. 592 (1893), Cross, the railroad company employee, assigned $61 in wages to Bryant and Shackleford, who promptly gave notice to the depot agent in Water Valley. Two days following receipt of this notice, the railroad company answered a garnishment proceeding against it in Tennessee by creditors of Cross, admitting an indebtedness to Cross, and thereby having judgments rendered against it in Tennessee for the amount of the indebtedness due Cross, which the company paid. Bryant and Shackleford brought suit for the amount of the assigned wages, and the railroad’s defense was payment of the judgments in Tennessee. This Court held the company liable to Bryant and Shackleford.

The opinion concludes:

Those judgments (in Tennessee) are unassailable, but they were the product of the inexcusable negligence of the railway company’s officials in answering and acknowledging an indebtedness, in the Tennessee litigation, when, in fact, as the company knew, (if its officials had paid proper heed to the notice of Cross’ assignment to appellees of the claim now sued on) it had no funds of Cross’ in its hands, and was not indebted to him at all at the time of making its answer as garnishee.

Brown v. Yarbrough, 130 Miss. 715, 94 So. 887 (1923), held that an assignment of a deed of trust due by a debtor to the assign- or as collateral security for an indebtedness due by the assignor to the assignee vested the assignee with full legal title to the deed of trust.

In Ewin Engineering Corp. v. Deposit Guaranty Bank and Trust Co., 216 Miss. 410, 62 So.2d 572 (1953), this Court stated:

Where a person knows of an assignment and either incurs additional obligations to the assignor or makes payment to him, or other persons, in preference thereto, he cannot escape liability to the assignee.

See also, Fuller Const. Co. v. Allen Dredging Co., 162 Miss. 797, 140 So. 231 (1932).

International argues on this appeal Peoples Bank was owed no money by International under the contract with Walden, because the assignment was only given by Walden to the Bank as a collateral security. The sole case it cites in support of this proposition is Inter-Southern Life Ins. Co. v. Humphrey, 122 Miss. 579, 84 So. 625, (1920). The facts in that case were different from this case, and the other Mississippi cases herein cited, however, and likewise the legal question to be decided was different. In that case two insurance agents became indebted to one Mrs. Humphrey, and to secure the note they assigned as collateral security inter alia all their “claims and demands against the insurance company on account of renewal commissions accrued and thereafter to accrue . .. and all commissions accrued or accruing thereafter under or on account of said contract ...” were to be paid to Humphrey. The assignment further provided that in event of failure to pay the note Humphrey would have the right to sell the assigned claims and demands at public auction.

The insurance company’s contract with the agents contained a provision prohibiting assignment of commissions unless authorized in writing by the company in advance.

Apparently, no notice was given the insurance company of this assignment prior to default. Following default the executor of Humphrey’s estate filed a bill for discovery against the insurance company and for an accounting of money due the insurance agents. A demurrer to the bill was sustained on the ground the assignment was invalid because of the contractual proscription against assignment. On appeal this Court held the only rights given Humphrey under the assignment were to collect the renewal commissions and hold them as collateral to secure payment of the note, and the assignee did not become the real and unconditional owner, both legal and equitable, of the renewal commissions due under the agency contract. This Court further held the insurance agents had not disposed of their entire interest in the commissions by the assignment, but merely pledged them as collateral security, and retained in themselves the legal ownership.

This Court went on to hold that this particular assignment did not violate the terms of the contract between the insurance company and the agency, and was therefore enforceable.

In Merchants & Farmers Bank of Meridian v. McClendon, 220 So.2d 815 (Miss.1969) we suggested some of the language in Humphrey to have been overly broad and dicta. In McClendon we held an assignment given as collateral security also constituted an absolute assignment and violated the contractual provisions of the contract between the assignor subcontractor and prime contractor, and was invalid.

Likewise, in the instant case, even though initially given as collateral security for the note, the assignment was complete, only one contract was assigned, with notice to the debtor, who accepted its terms.

We do not believe it was the intention of the Court in Humphrey to hold the rights of an assignee under an assignment given as collateral security cannot be as firm and fixed as a complete or total assignment, at least to the extent of the debt due. As has been expressed in Alabama and Florida decisions:

When collateral is duly assigned as security for a debt, the assignee creditor acquires the title to the security which the assignor debtor cannot abridge. The latter merely enjoys an equity of redemption.

See Darling Shop of Birmingham v. Nelson Realty Company, 262 Ala. 495, 79 So.2d 793 (1954), and Travelers Ins. Co. v. Tallahassee Bank and Trust Co., 133 So.2d 463 (Fla.1961).

This brings us to a consideration of the rights of the Internal Revenue Service under its levy. Section 6321 of the Internal Revenue Code provides the taxpayer’s failure to pay any tax when due will result in a lien upon all property and rights belonging to the taxpayer.

It must first be borne in mind that when the Internal Revenue Service made its levy upon International it had no more right to any proceeds under the contract than the taxpayer Walden had. See Mertens, Law of Federal Income Taxation, Volume 9, Section 54.52, p. 172, note 31, and cases cited thereunder.

Two United States District Court cases in this State have held as a matter of law that assignees of building contract proceeds took precedence over a tax lien levied against the subcontractor assignor. In Hall v. United States, 258 F.Supp. 173 (S.D.Miss.1966), a paint supplier which had been assigned the proceeds of the paint subcontractor had superior rights to the IRS claiming under a tax lien, the Court stating:

It is unthinkable to this Court that this fund in this case under these facts could be said to belong in whole or in part to Martin (the subcontractor) and, therefore, be subject to his tax debt.

258 F.Supp. at 174.

Likewise in Monroe Banking & Trust Company v. Allen and United States, 286 F.Supp. 201 (N.D.Miss.1968) the lending bank which had been assigned as collateral security the proceeds of a painting and caulking subcontractor had superior rights to the proceeds over the IRS claiming under a tax lien. In this case the Court stated, “The position of the government is without any appeal... . ” 286 F.Supp. at 212. Further, “There being no property or rights to property remaining in Allen (the subcontractor) subsequent to the dates of the respective assignments, the government’s claim must fail.” Id. at 213.

It is thus clear that even if this were a collateral assignment, the assignment by Walden would have effectively conveyed Walden’s entire interest in the contract pri- or to the adoption of the Uniform Commercial Code on March 31,1968, in this state, at the very least to the full extent of the indebtedness due the bank, and Walden would have had no interest in the contract when the levy was made upon International.

As we have noted, this Court is faced with a sparse as well as ambiguous record on whether this was a collateral or unconditional assignment, from which the trial judge could have found either way. Since the original note and security agreement given by Walden to Peoples Bank initially evidences an assignment given as collateral security, however, for purposes of this portion of the opinion we will assume it was.

There is no question but a security interest was acquired by Peoples Bank in the Walden-International contract, and proceeds due Walden thereunder. A security agreement creating a security interest was signed by Walden as required by Mississippi Code Annotated Section 75-9-105(h) (1972): “(h) ‘Security agreement’ means an agreement which creates or provides for a security interest.”

The security interest created thereby likewise attached under the provisions of Mississippi Code Annotated Section 75-9-204 (1972): “(1) A security interest cannot attach until there is agreement . .. that it attach and value is given and the debtor has rights in the collateral.”

There only remains the question whether the security interest was perfected so as to protect the bank against subsequent lienholders or holders of security interests. Ordinarily, to perfect a security interest it is necessary for a filing statement to be filed of public record as required by Mississippi Code Annotated Sections 75-9-302, 75-9-401, 75-9-402 and 75-9-403 (1972).

This record does not inform the Court whether any financing statement was filed in connection with this loan, or the previous loan to Walden of $67,000 which could cover this loan as well.

International is in a very weak position to complain, however, because on the hearing of the plea in bar it failed to prove a levy superior to Peoples Bank, because as here-before noted there was no proof of any notice of lien being filed of public record prior to making the levy on International. Section 6321 of the Internal Revenue Code provides for a tax lien in favor of the government as stated above. Yet Section 6323 of the Internal Revenue Code, together with Mississippi Code Annotated Section 89-5-47 (1972) (dealing with places federal tax liens may be filed) required some public notice of this lien to be filed at the principal place of business of the taxpayer for the levy to be valid as against the bank. If no notice of lien was filed of public record, then the government, insofar as the bank was concerned, was no more than an unsecured creditor. See S. D’Antoni, Inc. v. Great Atlantic & Pac. Tea Co., Inc., 496 F.2d 1378 (5th Cir. 1974). Insofar as this record is concerned, this is not a ease of priority of filing, but no filing whatever of any notice.

Moreover, we have concluded in this case no filing statement was required to perfect the bank’s security interest in the contract. When the contract was assigned and delivered to the bank, and notice given to and accepted by International, this contract between Walden and International was an instrument within the definition of the code, and possession by the bank perfected the security interest of the bank.

Was this contract — delivered, assigned, and accepted by the debtor — an instrument within the definition of the code?

We quote the pertinent parts of Mississippi Code Annotated Section 75 — £ -105(g) (1972):

(g) “Instrument” means . . . any . . . writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary ... assignment.

The contract certainly was written. When executed, delivered and assigned to the bank, and its assignment accepted by International, it evidenced a right to the payment of money. It was no security agreement or lease. Finally, it most assuredly was of a type which in the ordinary course of business could be transferred by delivery with any necessary assignment.

We hold under the facts of this case this particular contract constituted an “instrument” within the meaning of the Code, and was such at the time the levy was made upon International November 15, 1977.

Mississippi Code Annotated Section 75-9-805 (1972) provides: “A security interest in letters of credit and advices of credit, goods, instruments ... may be perfected by the secured party’s taking possession of the collateral.” (emphasis supplied).

The bank therefore held a perfected security interest in this contract. The debt due by International under its contract with Walden on November 15, 1977, was the property, not of Walden, but of Peoples Bank, regardless of whether this .assignment is covered by the provisions of the Uniform Commercial Code or not.

Insofar as the position of the Internal Revenue Service was concerned this Court is inclined to agree with the expressions of the United States District Court in Hall v. United States, supra, that it was the bank’s money, after all, which gave rise to the fund, and it is unthinkable it should belong to the government; and in Monroe Banking & Trust Company v. Allen, supra, which stated that without bank financing, there would have been nothing of value in this contract, and “. . . the position of the government is without any appeal...” p. 212.

This leaves the final question: did payment to the Internal Revenue Service by International, pursuant to the levy made upon it, discharge International from any liability to Peoples Bank based upon its contract with Walden?

International ably argues on this point, first, it was in the position of those valiant members of the famous light brigade.

As to this first proposition, International cites Section 6331 of the Internal Revenue Code which provides for the levy to be made upon any assets of the taxpayer.

Also, Section 6332(a) sets forth the duty of a person in possession of assets of the delinquent taxpayer to surrender them to the Internal Revenue Service.

This same Section 6332(c)(1) and (2) provides for enforcement of the levy, and a penalty for violation of the levy by the person holding assets of the taxpayer.

In addition to arguing it had no choice but to honor the levy, International then argues that in honoring the levy, under Section 6332(d) it was discharged from any obligation under this debt, not only to Walden but to International as well.

We disagree with International’s first argument it had no choice but to honor the levy. As to the second argument, that payment discharged its entire obligation under the contract. Section 6332(d) specifically provides that any possessor of a taxpayer’s property surrendering the assets to the Internal Revenue Service shall only be discharged from any obligation or liability to the taxpayer. It expresses no statutory intent to discharge the holder of assets from liability to a third party who has been damaged by wrongful payment.

The first obligation International had when the levy was made upon it was to determine whether or not it had any property or rights, or any indebtedness due Walden. It not only was under no duty; indeed, it had no business whatever delivering third parties’ property to the government in response to the levy, because the government could rise no higher than the taxpayer.

Insofar as International had been informed, there had been a complete, unconditional assignment to Peoples Bank, which it had accepted. There is nothing in the letter from the bank to International of July 19, 1977, indicating other than a complete assignment. In such a posture, International could truthfully have responded to the government’s levy it had no property of Walden’s, and attached its copies of the contract, documents and the letter from the bank notifying International of the assignment.

It is inconceivable to this Court International could ever have labored under the misapprehension, especially in view of the advice of its own legal department, Peoples Bank did not own this indebtedness at the time of the November 15, 1977, levy. Even as a security device, and as a collateral assignment, basic research by International would have divulged this to have been a wrongful levy. It manifestly failed to read either the general or Mississippi authorities or Internal Revenue Service Regulations pertaining to definitions of a wrongful levy. Section 307.7426.1(b)(1) 1973-1974 Regúla-tions contains the following significant paragraph:

For purposes of this paragraph, a levy is wrongful against a person (other than the taxpayer against whom the assessment giving rise to the levy is made) if . . . (b) the levy is upon property in which the taxpayer had no interest at the time the lien arose or thereafter, or ... (d) the levy or sale pursuant to levy will or does effectively destroy or otherwise irreparably injure such person’s interest in the property which is senior to the Federal tax lien.

If International had any question whatever about the ownership of Peoples Bank in the indebtedness due under this contract, it had several courses of action. It received the notice on November 15, 1977. It paid the levy to the Internal Revenue Service on October 23, 1978:

First, it could have notified the Internal Revenue Service -of the assignment to Walden, and also notified the bank of the levy, and sought some amicable resolution of the matter. It had ample time to make inquiry and ascertain the respective positions of the parties, waiting almost a year from the time of the levy until payment.

If it received no satisfaction from the Internal Revenue Service or Peoples Bank, then International could have interpleaded the funds as was done by Hall in the case of Hall v. United States, supra. Further, as enumerated in the case of United States v. Trans-World Bank, 382 F.Supp. 1100, 1105 (D.C.Cal.1974), International could have in-terpleaded the funds in a United States District Court pursuant to Section 2410, Title 28, United States Code, or sought relief under Section 1346 of Title 28, United States Code.

As to its having no choice but make the payment, the position of International is without appeal to this Court. Insofar as this record shows, it did nothing after receipt of the levy which would have been of benefit to any of the parties except International. It did not inform Peoples Bank of the levy, which would have given the bank an opportunity to protect itself. It did not inform Internal Revenue Service, which, had it been informed, might very well have taken a different position as to the funds, for all this Court knows. We must accord to representatives of the Internal Revenue Service some sense of fair play, morality, and sense of justice. If in fact International made no mention to either Internal Revenue Service of the previous assignment, or to Peoples Bank of the levy, then it did an injustice to them both,

This record shows International thinking only of itself, taking full advantage of contractual rights to delay payment to the last possible day (and still some margin in its favor), waiting almost a year from the levy before making payment. It obviously recognized the levy did not enlarge any rights in the government to demand payment from it under the contract at an earlier date.

The authorities above cited, Illinois Central Railroad Company v. Bryant and Shackleford, 70 Miss. 665, 12 So. 592 (1893); Ewin Engineering Corp. v. Deposit Guaranty Bank and Trust Co., 216 Miss. 410, 62 So.2d 572 (1973); and Fuller Const. Co. v. Allen Dredging Co., 162 Miss. 797, 140 So. 231 (1932), agree that a debtor after notice of an assignment of the debt, and acceptance thereof by him, who pays the assignor or some third party other than the assignee, is liable to the assignee for the amount of the debt assigned. Elements of a tort may also be activated in conduct of this kind. See 86 C.J.S. Torts, Section 2-3; 74 Am. Jur.2d Torts, Section 23, 24.

There is nothing in the cases cited by International to suggest wrongful payment to the government under an Internal Revenue Service levy should create an exception to the rule, and we therefore hold the lower court was correct in rendering judgment in favor of Peoples Bank for the amount of the assigned debt.

One final point bears mention. International suggests to us that if in fact there was a wrongful levy, then Peoples Bank has a right of action to recover the funds from the government under the provisions of Section 7426(a) of the Internal Revenue Code. This code section provides a remedy against the government for a wrongful levy such as was made in this case.

Regrettably, International neglected to inform either this Court or Peoples Bank. This is a rather stale opportunity in view of Section 6532 of the Internal Revenue Code which indicates such suit by Peoples Bank would be limited to a filing date not exceeding nine months following the levy. See Dieckmann v. United States, 550 F.2d 622 (10th Cir. 1977).

As far as this record shows, Peoples Bank was already barred by Section 6532 by the time International paid the money to the Internal Revenue Service, and constitutes another reason for this Court’s disapproval of International’s conduct.

Perhaps International may wish to recover the funds it paid under a wrongful levy by the government. Nothing about this opinion shall be construed in prejudice of any right International has for the recovery of the money it paid the government.

The judgment of the circuit court is affirmed.

AFFIRMED.

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

      . In oral argument counsel did not know whether any of this relevant information was given to either the Internal Revenue Service or to Peoples Bank.

      . There is nothing in the declaration of Peoples Bank indicating that even when it filed suit it was aware International had paid the money under the contract to the Internal Revenue Service.

      . The provisions of Section 6321 are as follows:
      If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.

      . Section 6323. Validity and priority against certain persons
      (a) Purchases, holders of security interests, mechanic’s lienors, and judgment lien creditors. —The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic’s lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary or his delegate. (emphasis added)
      ******
      (f) Place for filing notice; form.—
      (1) Place for filing. — The notice referred to in subsection (a) shall be filed—
      (A) Under State laws.—
      ******
      (ii) Personal property. — In the case of personal property, whether tangible or intangible, in one office within the State (or the county, or other governmental subdivision), as designated by the laws of such State, in which the property subject to the lien is situated; or
      (B) With clerk of district court. — In the office of the clerk of the United States district court for the judicial district in which the property subject to the lien is situated, whenever the State has not by law designated one office which meets the requirements of subparagraph (A); or
      ******
      (2) Situs of property subject to lien. — For purposes of paragraphs (1) and (4), property shall be deemed to be situated—
      ******
      (B) Personal property. — In the case of personal property, whether tangible or intangible, at the residence of the taxpayer at the time the notice of lien is filed.
      For purposes of paragraph (2)(B), the residence of a corporation or partnership shall be deemed to be the place at which the principal executive office of the business is located, and the residence of a taxpayer whose residence is without the United States shall be deemed to be in the District of Columbia.

      . “Theirs not to make reply
      Theirs not to reason why.”
      Tennyson, “The Charge of the Light Brigade."

      . The pertinent provisions of Section 6331 are as follows:
      (a) Authority of Secretary or delegate. — If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property ... belonging to such person or on which there is a lien provided in this chapter for the payment of such tax.

      . (a) Requirement. — Except as otherwise provided in subsection (b), any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary or his delegate, surrender such property or rights (or discharge such obligation) to the Secretary or his delegate, except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process.

      . (c) Enforcement of levy.—
      (1) Extent of personal liability. — Any person who fails or refuses to surrender any property or rights to property, subject to levy, upon demand by the Secretary, shall be liable in his own person and estate to the United States in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of taxes for the collection of which such levy has been made, together with costs and interest on such sum at an annual rate established under Section 6621 from the date of such levy (or, in the case of a levy described in Section 6331(d)(3), from the date such person would otherwise have been obligated to pay over such amounts to the taxpayer). Any amount (other than costs) recovered under this paragraph shall be credited against the tax liability for the collection of which such levy was made.
      (2) Penalty for violation. — In addition to the personal liability imposed by paragraph (1), if any person required to surrender property or rights to property fails or refuses to surrender such property or rights to property without reasonable cause, such person shall be liable for a penalty equal to 50 percent of the amount recoverable under paragraph (1). No part of such penalty shall be credited against the tax liability for the collection of which such levy was made.

      .(d) Effect of honoring levy. — Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary or his delegate, surrenders such property or rights to property (or discharge such obligation) to the Secretary or his delegate (or who pays a liability under section (c)(1) shall be discharged from any obligation or liability to the delinquent taxpayer with respect to such property or rights to property arising from such surrender or payment....

      . (2) Example. The provisions of subpara-graph (1) of this paragraph may be illustrated by the following example:
      Example. On April 10, 1972, A makes a $10,000 loan to B which is partially secured by a $5,000 obligation owed to B by C. Under local law, A’s security interest in the obligation owed to B by C is protected against a subsequent judgment lien arising out of an unsecured obligation. Thus, under section 6323(h)(1), A’s security interest exists as of April 10, 1972, for purposes of determining priorities against a tax lien under section 6323. On April 17, 1972, an assessment of $6,000 is made against B with respect to his delinquent Federal tax liability. Thereafter, notice of lien is filed pursuant to section 6323(f) with respect to B’s delinquent tax liability. On July 10, 1972, a notice of levy is served upon C to reach the amount owed by him to B. C pays over the $5,000 obligation in satisfaction of the levy and, under local law, the obligation is discharged as to A. Because the levy effectively destroyed A’s senior security interest in the obligation owed to B by C, the levy is wrongful as to A for purposes of section 7426. Under these circumstances, the levy is wrongful with respect to A even if, under local law, A may have a cause of action in contract against B for the $10,000 loan or may have a cause of action in tort against C for the amount of the $5,000 payment which defeated A’s security interest in the obligation owed by C to B.

      . Of course, there is a possibility the Internal Revenue Service knew of the assignment prior to its levy, and in such event this knowledge might have subordinated its tax lien to the assignment even as unperfected collateral security under the Uniform Commercial Code. Mississippi Code Annotated Section 75-9-301 (1972). In view of our holding, however, we need not pursue this.

      . The provisions of Section 7426(a) are as follows:
      (a) Actions permitted.—
      (1) Wrongful levy. — If a levy has been made on property or property has been sold pursuant to a levy, any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in or lien on such property and that such property was wrongfully levied upon may bring a civil action against the United States in a district court of the United States. Such action may be brought without regard to whether such property has been surrendered to or sold by the Secretary or his delegate.


source: Caselaw Access Project

license: Public Domain

text:
    William C. MALONEY v. STATE of Mississippi.
    No. 52817.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
    Tommy McWilliams, Pascol J. Townsend, Jr., Townsend, McWilliams & Holladay, In-dianola, Jackson M. Brown, Starkville, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Oktibbeha County; Harvey Buck, Judge.

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

AFFIRMED.


text:
    Mrs. W. B. PASSONS, Widow and Dependent of W. B. Passons, Deceased. v. DELTA MILLWORK, INC., Self-Insured.
    No. 52867.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
    Betty B. Tucker, Pyles & Tucker, Jackson, for appellant.
    Dan McCullen, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

Before WALKER, P. J., and BROOM and LEE, JJ.

AFFIRMED.


text:
    Thomas HILL v. STATE of Mississippi.
    No. 52950.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
    Richard G. Jones, Barlow & Jones, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Hinds County; L. Breland Hilburn, Judge by assignment.

Before WALKER, BROOM and LEE, JJ.

AFFIRMED.


text:
    Wayne BUMPAS, et al. v. MAYOR & BOARD OF ALDERMEN OF the CITY OF CORINTH, Ms.
    No. 52855.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
    Phil R. Hinton, Wilson & Hinton, Corinth, for appellants.
    Smith, Downs, Ross, Trapp & Coleman, W. C. Sweat, Jr., Corinth, for appellee.
   Appeal from Circuit Court, Alcorn County; Ralph E. Payne, Judge.

Before WALKER, BROOM and LEE, JJ.

AFFIRMED.


text:
    Thelma JOHNSON v. GREEN ACRE FARMS & Employees Mutual Liability Ins. Co. of Wisconsin.
    No. 52840.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
    Jack A. Travis, Jr., Faye Murphree, Jackson, for appellant.
    Joseph T. Wilkins, III, McCoy, Wilkins, Noblin & Anderson, Jackson, for appellees.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Billy Joe BUCHANAN and Linda Buchanan v. STATE of Mississippi.
    No. 52938.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
    R. W. Boydstun, Jr., Louisville, for appellants.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    George WHITE v. STATE of Mississippi.
    No. 52948.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

John L. Clay, Jackson, for appellant.

Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.

Before PATTERSON, C. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Chris PRESTENBACH v. STATE of Mississippi.
    No. 52822.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
    Robert E. Farish, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before PATTERSON, C. J., and SUGG and BROOM, JJ.

AFFIRMED.

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


author: SMITH, Presiding Justice,

text:
    Angelo TOLBERT v. STATE of Mississippi.
    No. 52753.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
    Leon E. Provine, Grenada, for appellant.

      Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

Angelo Tolbert was indicted for armed robbery, tried upon that charge in the Circuit Court of Grenada County, convicted of robbery and sentenced to serve a term of ten years imprisonment. On appeal he assigns as error, requiring reversal:

(1) His alleged confession was improperly admitted;

(2) He was entitled to a directed verdict at the conclusion of the State’s case;

(3) The court should have granted a peremptory instruction of not guilty at the close of the trial;

(4) A special venire should have been granted;

(5) Motion for severance made by his co-defendant should have been denied.

At sometime near midnight on March 22-23, 1980, one Bates, owner and proprietor of the Shop-A-Lot, was robbed by two men, armed with a gun, of approximately $400.00. Bates reported the robbery to the police almost immediately. On information received, a warrant was issued for appellant Tolbert and another, Ervin McClain, Jr. Tolbert was picked up by the officers and served with a warrant. He was advised of his rights under Miranda, signed a waiver thereof and, according to the officers involved, voluntarily confessed his participation in the robbery. Bates testified that in the course of the robbery a gun had been jabbed in his side and that it “looked like” a shotgun.

Tolbert’s signed statement acknowledging his understanding and a waiver of his rights under Miranda was introduced in evidence without objection.

Tolbert made a motion to suppress the confession. Tolbert’s testimony as to how the confession was obtained was to the effect that the officers had threatened to have his parole revoked (Tolbert having been on parole as a result of a former conviction of burglary) and that he was coerced into signing the confession by this threat. On cross-examination Tolbert admitted that he understood his rights under Miranda and he acknowledged, seriatim, his understanding of each of them. He also admitted:

Q. Did they make you any promises if you signed this (the confession) what they would do?
A. No, they didn't make me no promises.

Tolbert’s assertion that he had signed the confession under duress was refuted by the testimony of the officers present. The motion to suppress was properly overruled and the confession allowed in evidence.

Tolbert challenges the sufficiency of the evidence to support his conviction.

The corpus delicti of the crime was fully established by the direct testimony of Bates, the victim, and Tolbert’s participation was established by his confession.

Tolbert’s defense was an alibi, that he had been engaged in a fight at a bar at about the time the robbery was said to have been committed. There was a lack of uniformity in the testimony of the witnesses as to the exact times involved. In this situation, the evidence presented a factual question for solution by the jury. The trial court correctly declined to direct a verdict at the conclusion of the State’s case and properly overruled Tolbert’s request for a peremptory instruction at the conclusion of the case. Submission of the case to the jury for a determination was proper. Bullock v. State, 391 So.2d 601 (Miss.1980), Cochran v. State, 278 So.2d 451 (Miss.1973), Warn v. State, 349 So.2d 1055 (Miss.1977).

Tolbert’s contention is that the State’s entire case against him consists in his alleged confession and that conviction in a criminal case may not rest solely upon the confession of the accused alone. In this case, however, the corpus delicti of the crime was fully established by the testimony of the victim, Bates, and this, together with the confession, supplied amply support for the jury’s verdict of guilty. Gross v. State, 191 Miss. 383, 2 So.2d 818 (1941).

Tolbert contends that the trial court erred in declining to provide a special ve-nire for the trial of his case. The circumstances attending this request were stated into the record by the trial judge:

[THE TRIAL JUDGE]:
In this cause Angelo C. Tolbert and Ervin McClain, Jr. were jointly .indicted on the charge of Armed Robbery. By entries in the Court’s State docket they were both arraigned on July 17,1980, and entered a plea of not guilty. From the docket, August 2 was set as the date for the trial. A lawyer was appointed for each defendant. Several motions have been filed in this case, and the Court has passed on those which have been called up by the movant. The file record shows that McClain did file a Motion for a Special Venire on his own behalf, but that motion has never been called up before the Court. McClains’ severance motion was called up this date, was confessed by the State, and sustained by this Court. Tolbert filed his Motion for a Special Venire, which the Court is now considering on this date, the trial date of this cause, it having been set forward from August 2nd and for August 13th — that is tomorrow.
Under the laws of this State persons charged with capital crimes and manslaughter are entitled to a special venire upon their requests. It is a waiveable right. The time for the Motion for a Special Venire to be called up and heard is on arraignment, and it is the duty of the Defendant and his counsel upon it being refused to continue to call the motion up before the Court until the trial is commenced, and to complain about the ruling of the Court thereafter, and motions for special venire are frequently called up after arraignment and granted, but in this case, in the case of this motion, the Defendant asked an impossibility for the law further requires that the special venire be selected, summonsed, and served and a return of the service delivered to the Defendant at least one full day prior to trial. This is 7:30 P.M. on the day before the trial setting, the Court having been involved in a trial all day, and the motion now being presented. The Court takes notice the the Defendant has been represented by counsel at least since arraignment, that this cause was set down for trial ten days ago. That although these defendants were jointly indicted each was provided with a lawyer with having each one represented individually. The Court is of the opinion that the failure to call up a Motion for a Special Venire for this cause is tantamount to a waiver of that right, it being called up on the day before the trial, and it being impossible for the Court to provide a special venire let alone provide a return a full day before the trial, and the Motion is overruled.

Manifestly, it would have been a physical impossibility on the eve of the trial to draw, summon and have in attendance a special venire in time for the trial the next morning. The court correctly declined to grant Tolbert’s request under the circumstances. Moreover, there is no assertion, and certainly nothing to indicate, that the jury which tried Tolbert was biased, prejudiced or unfair. Sharplin v. State, 357 So.2d 940 (Miss.1978), Porter v. State, 193 Miss. 774, 10 So.2d 377 (1942).

In Kendall v. State, 249 So.2d 657, 660 (Miss.1971) it was held:

There is no assertion or charge that the jury which tried the appellant was in any way biased or unfair, nor is it shown that appellant exhausted his peremptory challenges in empaneling the jury. All the United States Constitution (Sixth Amendment) or our State Constitution (Section 26) requires (that might affect the issue here) as to a jury in criminal cases is that it be “impartial.” [Emphasis added].

In the present case it is not shown whether Tolbert used all (or for that matter, any) of his peremptory challenges. See Tanner v. State, 190 So.2d 670 (Miss.1966) as to the requirement that a motion for a special venire must be made a reasonable time before trial and that the denial of such a motion will not be grounds for a reversal, unless the court “is satisfied that injustice resulted therefrom.”

The transcript of the proceedings discloses no prejudicial error occurred in Tolbert’s trial. The court reduced the charge against him from armed robbery to robbery and in the court’s instructions to the jury restricted the question of his guilt to that offense and it was of that offense that Tolbert was convicted. This cannot be said to have prejudiced Tolbert.

The conviction and sentence appealed from are affirmed.

AFFIRMED.

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


text:
    Fred D. RUFUS v. STATE of Mississippi.
    No. 52311.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
    Firnist J. Alexander, Jr., Brown, Alexander & Sanders, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P.J., and SUGG and BROOM, JJ.
   SMITH, Presiding Justice,

for the Court:

In this case Fred D. Rufus was convicted of armed robbery and sentenced to twenty-five years imprisonment, of which five years were suspended. He appeals, and has assigned for reversal several alleged errors.

We have examined each of these matters assigned and find that they do not find support in the record or otherwise are without merit.

Appellant elected not to testify, and the jury’s verdict finding him guilty is fully supported by evidence.

Only one assignment merits discussion. Prior to being brought to trial, appellant had entered a plea of guilty to the charge, and on his plea had been sentenced to serve twenty-five years imprisonment, with thirteen years suspended, a sentence less severe than that imposed following his trial and conviction. Rufus was allowed to withdraw his guilty plea and a trial ensued, resulting in his conviction and the imposition of the sentence from which the present appeal has been taken.

Rufus argues that his case falls within the proscription laid down by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In North Carolina v. Pearce, Pearce had been tried, convicted and sentenced and had obtained a reversal and remand on appeal. On retrial and conviction, the sentence imposed was harsher than that he had been given following his first trial. Unlike the defendant in the North Carolina case, Rufus, having entered a plea of guilty and having been sentenced, was allowed to withdraw his plea and was then tried and convicted. In Pearce, the court stated that while there exists no absolute constitutional bar to the imposition of a more severe sentence upon reconviction, due process does require that “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.”

When Rufus entered his plea of guilty the trial court imposed sentence without having heard the very considerable evidence later adduced against him at his trial which followed withdrawal of his guilty plea. The trial court commented:

I paid close attention to all the testimony during the trial and I would have to say that the impression I gained at the trial was a hundred and eighty degrees from the impression that the defendant had given me at the time the guilty plea was entered. In my opinion, this defendant was the instigator and moving force of the entire planned setup and carrying out of the armed robbery and, but for him, three individuals who had previously had no problem with the law are now convicted of armed robbery and have a heavy sentence hanging over their heads. I am convinced that the other two individuals just from their testimony clearly indicated and the guilty plea does reflect that a person has recognized his wrong and has turned himself around to a certain extent and has commenced his own rehabilitation. I won’t say that’s in every case but, in a case of first offenders, I think it deserves consideration.

The evidence at Rufus’ trial fully justified the judge’s conclusions and showed that Rufus had planned, instigated and been the ring leader in the crime. He had supplied the information (such as the fact that money was kept in the cooler rather than in the cash register) and had also advised as to the best time to commit the robbery, based upon knowledge gained by him when he had himself been an employee at Pasquale’s. His automobile was used in the robbery as well as a pistol belonging to his mother. After hearing all of this evidence concerning Rufus’ role in the robbery, the trial judge was, as he said, in a better position to determine an appropriate punishment than he had been when Rufus was sentenced on his plea of guilty.

To adopt the position of appellant would be no more nor less than to grant leave to an indicted defendant to play games with the court; he might plead guilty, be sentenced, then withdraw his plea and demand a trial, having thus made certain in advance that no matter how the trial might turn out or what aggravating circumstances might be developed by the evidence, no greater sentence could be imposed upon him in the event of conviction. We do not believe that such a result is within the scope of the rule laid down in Pearce.

We have concluded that this case materially differs from Pearce in its controlling particulars and that what was done here did not violate the rule laid down in Pearce or deprive Rufus of due process of law.

There being no reversible error disclosed by the record, the conviction and sentence should be and are affirmed.

AFFIRMED.

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


author:
MADDOX, Justice.
      TORBERT, Chief Justice

text:
    Norman Dennis PARKER and Maxine Parker v. Robert T. KING, The Mobile Infirmary, a corporation.
    79-951.
    Supreme Court of Alabama.
    May 1, 1981.
    Rehearing Denied July 24, 1981.
    Richard W. Bell, Pelham, and Jerry L. Hutcherson, Pascagoula, Miss., for appellants.
    W. Boyd Reeves of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee Dr. Robert T. King.
    James J. Duffy, Jr., Carroll H. Sullivan, and James J. Duffy, III of Inge, Twitty, Duffy & Prince, Mobile, for appellee The Mobile Infirmary.
   MADDOX, Justice.

This is an appeal from the trial court’s granting of summary judgment in favor of the defendants in a medical malpractice case arising out of a knee operation performed upon plaintiff-appellant Norman Dennis Parker by the defendant Dr. Robert T. King at the defendant hospital, Mobile Infirmary.

Plaintiffs-appellants Norman Dennis Parker and his wife, Maxine Parker, sought to recover damages against defendant Dr. King for his negligence or malpractice in rendering care to plaintiff Norman Dennis Parker. Appellant Norman Dennis Parker sought damages from Mobile Infirmary on the theory that Mobile Infirmary was negligent in allowing Dr. King to perform surgical procedures on its premises and for failure to provide competent medical care and treatment. Mrs. Parker claimed damages for loss of consortium.

Dr. King and Mobile Infirmary filed motions for summary judgment, supported by an affidavit by Dr. King that in his opinion, he was not guilty of any negligence. Defendants also filed a deposition of Dr. King in which Dr. King detailed the surgical procedures he performed and the treatment he had given to the plaintiff.

The motions for summary judgment by the doctor and the hospital were filed on different dates, and the trial court set the motions down for hearing on several occasions, and finally granted both motions. Plaintiffs asked the trial judge to reconsider his order, and he did set aside his previous orders granting summary judgment, but later entered orders granting both motions.

Appellants argue two points on appeal: (1) one that he had inadequate notice of the dates set for hearing the motions, and (2) that the movants failed to sustain their burden of showing that no genuine issue of fact existed in the case.

Because we hold that the granting of summary judgment was inappropriate, we need not address the first question of whether plaintiffs received adequate notice of the date set for the hearings on the motions. We do address the second issue, and agree with plaintiffs-appellants that the defendants failed to sustain their burden of proof to show they were entitled to summary judgment.

Plaintiffs’ theory of recovery was grounded upon their claim that “[t]he expected result of the surgery was the removal of the right medial meniscus cartilage contained in Parker’s right knee.” Appellants also claim that “[according to Dr. King’s operative notes concerning this surgery, the medial meniscus cartilage was entirely removed.”

In a counteraffidavit, Norman Dennis Parker stated:

My name is Norman D. Parker and I am the plaintiff in the case of PARKER VS. KING, Civil Action Number CV-79-000335, which is now pending in the Circuit Court of Mobile County, Alabama. On March 14, 1977, Dr. Robert T. King performed a surgical procedure on my right knee and the procedure was a right medial meniscectomy. After the operation, Dr. Robert King stated that all cartilage had been removed from my knee. I experienced additional pain and disability after the operation. Additional treatment was necessary by other physicians for the pain and disability. Those physicians found medial meniscus cartilage in my right knee. This was contrary to the statements of Dr. King and contrary to the medical reports that were written concerning my care and treatment at the Mobile Infirmary.
The fact that the hospital (Mobile Infirmary) allowed Dr. King to perform the surgical procedure and to indicate that all cartilage had been removed (when, in fact, it was not removed) did not provide me with competent medical care while in the Mobile Infirmary. The hospital allowed Dr. King to admit me to the hospital (Mobile Infirmary) and to treat me at the Mobile Infirmary when, in fact, he was not competent to do so, according to the records kept by the Mobile Infirmary.
I am still disabled at this date as the result of Dr. King’s negligence and as a result of the negligence of the Mobile Infirmary.

When Dr. King was deposed, plaintiffs’ counsel showed Dr. King an exhibit which purported to be a letter from an orthopedic surgeon, Dr. John P. Morse, who had examined Parker after he was discharged by Dr. King. In the letter, it was stated:

Examination shows that the patient has two scars of the knee. At the time of examining there is no effusion. There is some tenderness about the site of the scarring. The initial examination, however, does not reveal a definite click or other positive findings. As the patient has consistent complaints which are compatible with retained knee cartilage in the knee, it is felt that an arthrogram might be indicated. This was performed, showing a retained posterior horn and part of the anterior horn of the medial meniscus. Because of his symptomatolo-gy, and with the arthrogram findings, I have recommended the patient undergo repeat arthrotomy and meniscectomy of the right knee.

Dr. King was cross-examined about Dr. Morse’s letter:

Q Doctor, have you had an opportunity to read that letter of August 3, 1978?
A I have.
Q Do you know Dr. Morse?
A No, I do not.
Q Would you state whether or not your findings, clinically, were consistent with his comments made in what will be marked as Exhibit Four to your deposition?
A This is the letter of August 3rd, 1978?
Q That’s correct.
A All I can say is, I do not agree with his recommendations.

It is axiomatic that if there is a scintilla of evidence supporting the position of the party against whom the motion for summary judgment is made, summary judgment may not be granted. Ancora Corporation v. Miller Oil Purchasing Company, 361 So.2d 1008 (Ala.1978).

It has often been stated that summary judgments are not proper in negligence cases. Moore’s Federal Practice, Vol. 6, ¶ 56.17[42], p. 56-946. In Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 690, 691, 309 So.2d 818 (1975), this Court stated:

A plethora of federal cases say that the party moving for summary judgment must clearly establish that the other party could not recover under “any discernible circumstances.” Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir., 1973); Nyhus v. Travel Management Corp., 151 U.S.App.D.C. 269, 466 F.2d 440 (1972); Phoenix Savings and Loan, Inc. v. Aetna Casualty and Surety Co., 381 F.2d 245 (4th Cir., 1967). The moving papers of the defendant simply do not do that. There is certainly a possibility of a jury verdict for the plaintiff as the record stands now.
“(T)he record must negate the probability that evidence calling for a contrary result might be developed at the trial. If the pleadings, affidavits, and depositions available when the motion for summary judgment must be ruled on fail to resolve any relevant issue, summary judgment is premature.” Beech v. United States of America, 345 F.2d 872 (5th. Cir., 1965).
The defendant has not precluded the possibility, as a matter of law, that the plaintiff might not prove her case. The fact that she is perhaps unlikely to prevail at trial is not a standard to be applied. Jobson v. Henne, 355 F.2d 129 (2d Cir., 1966); National Screen Service Corp. v. Poster Exchange, Inc., 305 F.2d 647 (5th Cir., 1962). The judge need not believe the opposing party’s evidence in order to deny summary judgment. Nor must he feel that a jury would necessarily believe it. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944). The moving party is trying to show that there is no way whatsoever the other party could recover. Thus summary judgment can only be proper “where it is clear what the truth is.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). This is obviously another way of saying that there must not be a genuine issue as to any material fact. It is fairly obvious in this case that it is not yet clear “what the truth is.” Did Mrs. Folmar trip over protruding legs of display tables or did she not?
The federal courts have followed a general rule which frowns upon the granting of summary judgments in negligence cases. This is due to the supposed superi- or competence of a jury in applying a standard of reasonableness to a certain set of facts. Experience has borne out the fact that negligence actions almost always present some unresolved questions of fact.
“Because of the peculiarly elusive nature of the term ‘negligence’ and the necessity that the trier of facts pass upon the reasonableness of the conduct in all the circumstances in determining whether it constitutes negligence, it is the rare personal injury case which can be disposed of by summary judgment, even where the historical facts are concededly undisputed.” Gauck v. Meleski, 346 F.2d 433, 437 (5th Cir. 1965).

Even though the negligence claims here involve alleged medical malpractice, the movants have failed to establish that plaintiff could not recover under “any discernible circumstances.”

Each judgment of the trial court granting summary judgment in favor of the defendant, Dr. Robert T. King, and in favor of the Mobile Infirmary, a corporation, is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

JONES, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I concur specially because the majority opinion was not entirely clear to me as to the specific reasons summary judgment was not appropriate with respect to the defendant, Mobile Infirmary.

As to this defendant, I agree that summary judgment should not have been granted because defendant hospital did not factually negate the theories under which it could be subject to liability for this claim sounding in negligence.


author: MADDOX, Justice.

text:
    NATIONAL SECURITY FIRE & CASUALTY CO., a corporation, v. Oliver REEVES, et al.
    80-77.
    Supreme Court of Alabama.
    May 27, 1981.
    Rehearing Denied July 24, 1981.
    Jack W. Torbert and Howard B. Warren of Torbert, Turnbach & Warren, Gadsden, for appellant.
    John Baker and Beck & Beck, Fort Payne, for appellees.
   MADDOX, Justice.

This case involves a suit for breach of ¿n insurance contract. The contract on which the suit is predicated was issued by National Security Fire and Casualty Company to Lawton Bell on April 16, 1978. Subsequent to the issuance of the policy, Bell transferred a portion of the insured property to Oliver and Kathleen Reeves. After the transfer, the property was destroyed by fire.

The basic question in this case is whether the Reeveses are afforded coverage for the fire loss under the policy originally issued to Bell. From a judgment on a jury verdict for the plaintiffs, the company appeals.

Lawton Bell applied for and obtained a policy of insurance from National Security to cover, among other things, a poultry house located on his property. National Security issued the policy on April 16, 1978, insuring a number of items, including a 32' X 320' frame building with a metal roof occupied as a poultry house, against loss by fire. Bell prepaid the full annual premium for this insurance policy.

On June 23, 1978, Bell conveyed the chicken house and equipment, which were later destroyed, to the Reeveses. In conjunction with the conveyance the Reeveses executed a mortgage to Central Bank and a prior mortgage from Lawton Bell to Central Bank was satisfied or released by the bank.

It appears from the evidence that Oliver Reeves discussed the possible transfer of the insurance with John Roper, the agent who had handled the issuance of the policy to Lawton Bell. Although the evidence is in dispute, there is evidence, which the jury could have believed, that Roper told Oliver Reeves that such a transfer would be “no problem.” Further, a deposition taken of Mr. Roper contains evidence that this type transfer was fairly commonplace, and that in the case of a prepaid premium the transferee would owe no payment until the annual premium was again due.

In any event, the chicken house and equipment were destroyed by fire on November 25,1978. Lawton Bell reported the loss to the Wilkens Insurance Agency (the successor to the Roper Insurance Agency) and signed the property loss notice. The claim was rejected.

On April 25, 1979, Oliver and Kathleen Reeves, Lawton Bell and Central Bank filed suit against National Security Fire and Casualty Company for breach of the contract of insurance. On June 7, 1979, Bell was dismissed because he had no insurable interest in the property. On August 22, 1980, the case was submitted to a jury, which returned a verdict in the amount of $22,100 in favor of Oliver and Kathleen Reeves. Central Bank was not included in the verdict.

The issues in this case actually turn on whether or not John Roper had authority, actual or apparent, upon which Oliver Reeves could rely, sufficient to bind the company on the alleged transfer. It is apparent that the jury determined that Reeves did rely upon Roper’s statement that he could effectuate the transfer. Therefore, we turn now to the issue of whether Roper had or appeared to have authority on which the Reeveses could reasonably rely.

This Court has recently had the opportunity to decide a similar case. In Protective Life Insurance Company v. Atkins, 389 So.2d 117 (Ala.1981), this Court held that there was a relationship between the agent and the insurance company such that the insurance company could be bound by the representations of the agent made within his apparent authority. In the present case, John Roper made representations within his apparent authority, upon which, the jury believed, Oliver Reeves relied. These representations led the Reeveses to believe that the contract of insurance originally issued to Lawton Bell was transferred to them subsequent to their purchase of the insured property.

The fact that more than one structure was listed on the schedule of property insured is not significant, under the circumstances of this case. When Reeves talked to Roper about the property transfer, the reference by Reeves to Roper of the property involved was sufficiently specific that the jury could have concluded that Roper, following his ordinary business practices in matters involving a transfer of insurance, could have and should have effected the transfer.

Based upon this Court’s decision in Protective Life v. Atkins, we are of the opinion that the judgment of the trial court in favor of the Reeveses is due to be affirmed.

AFFIRMED.

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


text:
    Charles F. STANFORD, et al. v. James M. SHARP, et al.
    80-189.
    Supreme Court of Alabama.
    May 27, 1981.
    Rehearing Denied July 24, 1981.
    Bill Fite and Nelson Vinson of Vinson & Guyton, Hamilton, for appellants.
    L. E. Gosa of Young, Gosa & Brown, Vernon, for appellees.
   MADDOX, Justice.

This is an appeal from the judgment of the trial court quieting title to the oil and gas rights in the subject property in the appellees, defendants below.

On December 10, 1902, Susie M. Sharp acquired fee simple title in the property which is the subject of this action. The property is described as follows:

The E Vi of the NW A, Section 29, and 10 acres more or less in [the] NE corner of [the] NW Vi of [the] NW Vi, Sec. 29, T. 13, R. 14, being all east of the branch in [the] NE corner [of the] NW Vi of [the] NW Vi, the branch being the line. [The] S Vi of the SW Vi, Section 20, Township 13, Range 14 West. Containing 170 acres more or less.

On June 27, 1912, Susie M. Sharp conveyed to R. G. Hollis the following property:

The N Vi of [the] E Vi of [the] NW Vi, Sec. 29, and ten acres, more or less, in [the] NE corner of [the] NW Vi of [the] NW Vi, Sec. 29, T. 13, R. 14, being all east of the branch in [the] NE corner of [the] NW Vi of [the] NW Vi, the branch being the line, [and the] S Vi of [the] SW Vi, Sec. 20, T. 13, R. 14 West, containing one hundred and thirty acres more or less, oil and gass [sic] right reserved according to contract, given in 1910.

By a deed given in February, 1928, R. G. Hollis conveyed this and other property to H. J. Weeks without reference to the oil and gas rights. Weeks conveyed the property to M. L. Stanford on February 11, 1932.

The plaintiffs-appellants, Charles F. Stanford, Bessie Stanford, James M. Stanford, Jo Ann Rasbury and Mary Ruth Ethington, together with the cross-defendants, Nell Henly, Billie Stanford and Lillian Stanford, constitute all of the heirs at law of M. L. Stanford, who died intestate.

The defendants-appellees, James M. Sharp, Ruth B. Teal, Rob N. Miller, Jo Ann Ralston, Janet Barclay and John F. McCut-cheon, are the sole heirs of Susie M. Sharp.

The plaintiffs filed suit asking the court to find that the defendants have no right to, title to, interest in or encumbrance upon the subject property. The defendants answered and counterclaimed asking the court to quiet title in them.

The case was presented to the trial court on stipulated facts on July 14, 1980. On August 30, 1980, the trial court issued its decree finding that the term “oil and gass [sic] right reserved” was unambiguous, that the reference to the contract in 1910 did not render the reservation void and that the title to the oil and gas rights should be quieted in the defendants.

The appellants allege that the trial court erred in quieting title in the appellees on the basis of the reservation of the oil and gas rights in the 1912 deed from Susie M. Sharp to R. G. Hollis. We agree. While the trial judge was correct in his assessment that the language “oil and gass [sic] right reserved” is unambiguous, that is not the only language used in reference to the oil and gas rights; that language is followed by the phrase “according to contract, given in 1910.” This latter language makes the prior term ambiguous because it makes reference to the 1910 contract which we do not have before us; therefore, we cannot say whether the contract in 1910 would have reserved all or only a portion of the oil and gas rights on the subject property, nor can we say over what portion of that property the oil and gas reservation might operate.

In Sanford v. Alabama Power Co., 256 Ala. 280, 54 So.2d 629 (1951), there was almost the converse situation before this Court. In Sanford, the language in question was “with the exception of the F Montgomery mineral agreement, to wit all the mineral... . ” There, the language “with the exception of the F Montgomery mineral agreement” was held to be so vague as to render the phrase inoperative, but this Court held the rest of the language, “to wit all the mineral,” to be sufficiently clear as to remove the prior ambiguity and save the reservation of the mineral rights.

In the present case, without the qualifying phrase “according to contract, given in 1910,” the initial language “oil and gas right reserved” would be clear. There would be no question that what was intended was a reservation of all the oil and gas rights. The qualifying language’s reference to an uncertain contract, however, makes the former phrase less certain. In fact, the qualifying phrase makes the reservation vague, uncertain and, therefore, inoperative. Because the language of the reservation of oil and gas rights clause is ambiguous, it must be construed in favor of the grantee and against the grantor. Martin v. Knight, 290 Ala. 171, 275 So.2d 117 (1973). In other words, under the evidence of record before us, title to the property should have been quieted in the appellants instead of in the appellees; therefore, the judgment of the trial court is due to be reversed and the cause remanded.

REVERSED AND' REMANDED.

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


author: PER CURIAM. TORBERT, Chief Justice

text:
    Lawrence OLDEMOPPEN, and Margeret F. Oldemoppen, jointly and severally v. WALTHER BUILDERS, A Corporation, and William C. Walther, individually, jointly and severally.
    80-215.
    Supreme Court of Alabama.
    June 19, 1981.
    Rehearing Denied July 24, 1981.
    Charles C. Partin of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellants.
    No brief for appellees.
   PER CURIAM.

Affirmed. The adequacy of damages vel non assessed by a jury verdict and judgment entered thereon is not an available ground for relief under Rule 60(b), ARCP; thus, this post-judgment remedy may not be substituted for a motion for a new trial.

AFFIRMED.

MADDOX, JONES, and SHORES, JJ., concur.

TORBERT, C. J., and BEATTY, J., concur specially.

TORBERT, Chief Justice

(concurring specially).

Plaintiffs prevailed at trial, but were dissatisfied with the damages awarded. They did not file a timely motion for new trial; instead, they filed a Rule 60(b) motion alleging the inadequacy of the damages awarded. The motion was denied, and plaintiffs appealed from the judgment and from the denial of the 60(b) motion.

I concur in the view that the judgment must be affirmed because a Rule 60(b) motion cannot be substituted for a motion for new trial. Additionally, I note that where inadequacy of damages is claimed, appeal cannot be taken from the judgment. The matter must be presented to the trial court by way of a motion for new trial, which, if denied, becomes the basis for appeal. See, McGough v. Slaughter, 395 So.2d 972 (Ala.1981). Since plaintiffs did not raise the issue of inadequacy of damages in a motion for new trial, the issue is not properly before us.

BEATTY, J., concurs.


author: ALMON, Justice.

text:
    Shirley D. PARHAM v. Tom TAYLOR, d/b/a Taylor’s Beverages.
    79-699.
    Supreme Court of Alabama.
    July 17, 1981.
    Rehearing Denied Aug. 28, 1981.

      Joseph T. Conwell of Conwell & Conwell, Huntsville, for appellant.
    Daniel C. Boswell, Huntsville, for appel-lee.
   ALMON, Justice.

This case involves an action brought by an employee against her employer alleging that the employer failed to provide her with a safe place to work in that she was not adequately protected from the criminal acts of third persons. Summary judgment was granted for the defendant.

Shirley Parham was employed by Tom Taylor, d/b/a Taylor’s Beverages to serve as a clerk in his store which sold alcoholic beverages. The store is located in a lighted area on Memorial Parkway in the City of Huntsville, Alabama. Memorial Parkway is a main thoroughfare which is patrolled by the Huntsville police.

Shortly after 10:00 p. m. on May 4, 1979, a robbery occurred at Taylor’s Beverages and Shirley Parham was shot. She stated that she was standing by the beer cooler when a black male grabbed her by the arm and turned her around, and told her to give him the money. She told the offender, “You’re kidding, there is a police car across the street.” The offender shot her.

The affidavit of Judy Madison, a co-employee, was to the effect that she had discussed a previous robbery at Taylor’s Beverages with Shirley Parham and they had been instructed by the owner what to do in the event an attempted robbery occurred. It is not clear from the record exactly how many previous robberies or attempted robberies had occurred at this place of business.

The owner of Taylor’s Beverages stated in his affidavit that he had instructed Shirley concerning attempted robberies. He stated the instructions were to keep the cash register “thinned at all times” and to remain alert. Should anything suspicious occur, she should call the police. He told her not to resist, but to do as the robber requested.

In Count I of her complaint she alleged that as a proximate result of Taylor’s failure to provide a safe place to work she sustained injuries for which she claimed damages in the amount of $500,000.00. In Count II, Parham alleged she was due to be compensated for her injuries under the Workmen’s Compensation laws. The trial judge granted Taylor’s motion for summary judgment as to Count II when Taylor established by way of affidavit that he employed less than three persons and was therefore not subject to the Workmen’s Compensation Act. Parham then amended her complaint to include Count III wherein she alleged that

[b]y hiring said plaintiff, the defendant entered into an employment contract wherein he assumed duties of an employer as such under Alabama law and as such assumed the protection of his employees from adverse, criminal or civil action.

She further alleged that Taylor breached this contract when he failed to provide either a safe place to work or adequate means for Parham to protect herself from attack. Taylor moved for and was granted summary judgment on Count I and III.

We note at the outset that Parham’s brief is addressed solely to the question of Taylor’s liability under a negligence theory. Since Parham has not questioned the trial judge's grant of summary judgment on her contract claim, we need not address that issue.

Outside of the Workmen’s Compensation law this case seems to be one of first impression. Kelly v. Dupree, 376 So.2d 1371 (Ala.1979).

As a general rule, in the absence of special relationships or circumstances, a private person has no duty to protect another from a criminal attack by a third person. 10 A.L.R.3d 619.

Some cases recognize a special circumstance in instances of employment. See the leading case of Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140; 92 L.Ed. 73 (1947).

In Thoni Oil Magic Benzol Gas Stations, Inc. v. Johnson, 488 S.W.2d 355 (Ky.1972), the Kentucky Court of Appeals was presented with a situation very similar to the one presently before this Court. In that case, a gas station attendant was robbed and killed while working at night at a station located on a principal city thoroughfare patrolled hourly by city police. Addressing the issue of liability, the Court stated:

In the ordinary situation we indulge the assumption that people will obey the law rather than violate it. Thus, absent unusual circumstances, an employer need not anticipate injury to an employee through the criminal acts of third persons. In the ordinary situation an employer has no duty to provide police protection for employees. * * * *
In spite of police protection afforded by the state it is a fact of life that citizens are sometimes assaulted, beaten, robbed, raped or murdered at home, at work or on the streets. This is a problem which confronts all citizens equally and for which there is often no civil remedy.
With our opinion in Johnson v. Thoni Oil Magic Benzol Gas Stations, Inc., [467 S.W.2d 772 (Ky.1971)], we have joined the ranks of those jurisdictions which hold that in certain unusual circumstances an employer may have a civil liability to his employees for the criminal acts of third persons. We feel however that employers should not be saddled with such liability except in the most extraordinary and highly unusual circumstances.
When conditions of employment are such that they invite attack upon employees by creating highly unusual and unreasonable exposure to danger without the employment of reasonable protective measures there is justification for imposing liability upon the employer when injury results.
There is perhaps some exposure to the criminal acts of third persons in any employment but we recognize that the degree of exposure varies considerably from one type of employment to another. Thus the bookkeeper, the industrial worker, or the clerk in a mercantile establishment is probably less likely to be murdered on the job than is the policeman, the night watchman, the teller in a branch bank or the attendant at an all-night service station.
But even so, the employer of the night watchman, the bank teller, or the service station attendant is not the insurer of his safety from attack. Even in those occupations which ordinarily entail a substantial risk of exposure to criminal acts of third persons, we think liability should not attach to the employer unless it is clearly shown that the employer in some manner greatly and unreasonably increased that risk without taking reasonable precautions for the safety of the employee.
The determination of when the exposure to harm has been escalated to the point that liability will attach is difficult and each case must rest upon its own facts. We stress however that evidence of some potential danger or possibility of harm is not enough. It is only when the risk reaches the stage that injury to the employee is the likely or probable result of the condition of employment that liability attaches.

488 S.W.2d at 357 (citations omitted). The court then held that “as a matter of law the conditions of the employment were not so fraught with danger as to render a crime against the employee a likelihood or a probability and the issue should not have been submitted to the jury.” 488 S.W.2d at 358.

We agree with the rationale of the Thoni Oil case and reemphasize that an action such as this will not lie except in the most extreme ease where it is clearly shown that the employer in some manner, greatly and unreasonably, increased the risk to the employee without taking reasonable safety precautions.

Prom the cases we have reviewed it is clear that the defenses of contributory negligence and assumption of risk are available when appropriate.

Applying what we have said to the facts of this case we conclude that the employer is not liable as a matter of law and the trial court correctly granted summary judgment for the defendant. The judgment is affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.