author: SUGG, Justice, for the Court:

text:
    The STATE of Mississippi ex rel. A. F. SUMMER, Attorney General, and W. Hampton King, Auditor of Public Accounts, for the Use and Benefit of Alcorn County, Mississippi v. H. L. DENTON et al.
    No. 51766.
    Supreme Court of Mississippi.
    March 19, 1980.
    Rehearing Denied May 7, 1980.

      A. F. Summer, Atty. Gen. by R. Lloyd Arnold and J. Stephen Wright, Sp. Asst. Attys. Gen., Jackson, for appellant.
    Fisher & Sharp, William L. Sharp, Smith, Downs, Ross, Trapp & Coleman, Orma R. Smith, Jr., Corinth, for appellees.
    Before SMITH, SUGG and BOWLING, JJ..
   SUGG, Justice, for the Court:

The principal questions presented by this appeal are: (1) Are members of a board of supervisors personally liable for county funds paid to relatives of one of the supervisors in violation of the nepotism statute where the county does not suffer any actual loss because of such unlawful expenditure? (2) Are members of a board of supervisors and their sureties liable for penal damages for paying county funds to relatives of a member of the board of supervisors in violation of the nepotism statute? The answer to the first question is no, and to the second, yes.

The Auditor of Public Accounts and the Attorney General of the State of Mississippi filed suit in the name of the State for the use and benefit of Alcorn County, against past and present members of the Board of Supervisors of Alcorn County and their sureties to recover county funds paid to relatives of a member of the board of supervisors. The complaint also requested the court to assess penal damages against the supervisors and their sureties for paying county funds in violation of the nepotism statute.

During the trial of the case the many facts were stipulated by the parties. Some of the stipulated facts follow.

1. The family of Mickey Jones and Benny Jones bid once a year for the right to haul gravel for Alcorn County. As titular head of the Jones family, Johnny Jones, father of Mickey Jones and Benny Jones, bid for the right to haul gravel for Alcorn County. A number of bids were received annually for the right to haul gravel for Alcorn County. The Jones family bid was accepted.

2. Under this arrangement Mickey Jones and Benny Jones hauled gravel for Alcorn County and were paid individually for their efforts. The gravel hauled by the Jones brothers was used in repairing existing public roads in Alcorn County. They were paid for hauling gravel from Alcorn County public funds and the gravel hauled by them was placed on and became a fixed part of the public roads of Alcorn County.

3. The Jones brothers were subject to county control in hauling gravel in that they were told: (a) where to get the gravel for hauling; (b) where to take it after receiving it; (c) when approximately to have it available; and (d) where to dump the gravel when they arrived at the public road for which the gravel was intended. The gravel was hauled in trucks belonging to the Jones family, and they were paid the bid price for the gravel they hauled.

4. For hauling gravel for Alcorn County, the Jones brothers were paid $4,492 from November, 1974, to January 5, 1976, and $5,910.04 from January 5, 1976 through June, 1977. The Jones brothers are nephews by marriage of D. C. Mathis who was a member of the Board of Supervisors of Alcorn County during the period which was the subject matter of the suit. The Jones brothers are related to D. C. Mathis within the third degree by marriage as computed by the civil law.

5. Each supervisor, except J. W. Morton, knew of the relationship between Mathis and the Jones brothers.

6. Complainants had no evidence that any of the supervisors received any individual personal gain from the county funds paid Mickey Jones and Benny Jones and none of the supervisors voted against contracting with the Jones brothers for hauling gravel for the county.

In addition to the stipulations noted above, the evidence shows that all funds received by the Jones brothers went into the family partnership account.

In support of their position on the first question stated in the opening paragraph of this opinion, complainants argue that the supervisors are liable for the county funds paid to the Jones brothers because the payments were made in violation of one of our nepotism statutes, section 19-13-3 Mississippi Code Annotated (Supp.1979), and recovery for such expenditures is authorized by section 19-13-37 Mississippi Code Annotated (Supp.1979). These statutes provide:

19-13-3.

For the performance of any work or for the furnishing of any supplies or materials, it shall be unlawful for any member of the board of supervisors of any county, or any road commissioner of any county or road district whatsoever of any county in this state, to knowingly vote to let any contract to or for the employment by contract, or otherwise, of any relative of any member of the board of supervisors, or any relative of such road commissioner, by blood or marriage within the third degree, computed by the civil law.
However, the prohibition of this section or of any other law against employment of kinsmen shall not apply to any person (a) who shall have been previously employed in the same capacity as the proposed employment on a continuing basis for at least one (1) year prior to the election of the kinsman to the board of supervisors or otherwise as the employing authority and (b) whose continued employment shall have been approved by a majority of the board or other employing authority as shown by resolution spread upon the minutes of the board of such authority.
SOURCES: Laws, 1972, ch. 452, § 1, eff from and after passage (approved May 5, 1972).
19-13-37.
(1) If a board of supervisors shall appropriate any money to an object not authorized by law, the members of the board who did not vote against the appropriation shall be liable personally for such sum of money, to be recovered by suit in the name of the county, or in the name of any person who is a taxpayer suing for the use of the county, and such taxpayer shall be liable for costs in such case.
The individual members of all boards of supervisors, boards of trustees and directors of public water supply districts and all other special service districts, created and existing under the laws of the State of Mississippi, causing any public funds to be expended, any contract made or let, any payment made on any contract or any purchase made, or any payment made, in any manner whatsoever, contrary to or without complying with any statute of the State of Mississippi, regulating or prescribing the manner in which such contracts shall be let, payment on any contract made, purchase made, or any other payment or expenditure made, shall be liable, individually, and upon their official bond, for compensatory damages, in such sum up to the full amount of such contract, purchase, expenditure or payment, as will fully and completely compensate and repay such public funds for any actual loss caused by such unlawful expenditure.
(2) In addition to the foregoing provision, for any violation of any statute of the State of Mississippi prescribing the manner in which contracts shall be let, purchases made, expenditure or payment made, any public official who shall substantially depart from the statutory method of letting contracts, making payments thereon, making purchases or expending public funds shall be liable, individually and on his official bond, for penal damages in such amount as may be assessed by any court of competent jurisdiction, up to the sum of five thousand dollars ($5,000.00).
(3) Any sum recovered under the provisions hereof shall be credited to the account from which such unlawful expenditure was made.
SOURCES: Laws, 1974, ch. 444, §§ 1-3, eff from and after passage (approved March 26, 1974).

Before section 19-13-37 was amended in 1974 it consisted only of the first paragraph of section (1). Liability of supervisors for wrongful or irregular appropriations of public funds under the statute was first addressed by the Court in Paxton v. Baum, 59 Miss. 531 (1882). In that case taxpayers of Warren County filed suit for the use of the county against A. J. Arthur, supervisor for the First District, and J. F. Baum and others, sureties upon his official bond. A demurrer was filed on three grounds. One of the grounds of demurrer was that nearly all of the appropriations alleged as breaches were not “to objects not authorized by law.” The Court stated:

The question is as to the interpretation of the expression “object not authorized by law.” The objects to which money in the county treasury may be appropriated are designated by law, and it is not legally appropriable to any other purposes. If it is appropriated by the board of supervisors to some other object than is authorized by law, members are liable personally for it, unless they voted against such appropriation. It is for money appropriated to something for which the law does not permit it to be appropriated at all, in any way or under any circumstances, that members are personally liable. It is for a diversion of money from its legitimate objects, and not for appropriation to a proper object, although in an irregular or unauthorized manner, that liability is imposed on members personally. It is what the money is appropriated to, and not how it is applied, that furnishes the test of personal liability for it. “Object” signifies the thing aimed at, the end sought to be accomplished. If this is not the true interpretation of the language mentioned, members of the boards of supervisors would be liable personally for every mistake or error of judgment or of information as to facts whereby money was appropriated even to proper objects, if not appropriated in strict accordance with law as to every circumstance attending it. Either members of the boards of supervisors are personally liable for every appropriation not made in strict conformity to law, or they are not liable except for a diversion of public money from authorized objects and its appropriation to such as are not authorized. The objects to which the boards may appropriate money are designated by law, and may be known to them; and, in all cases of doubt, they may resolve the doubt against the appropriation, and avoid risk of liability; and it may be supposed that for appropriations to objects not authorized by law, it was intended to make members of the boards of supervisors personally liable. But, in view of the well-settled rule of the common law that for errors or mistakes a public officer acting judicially or quasi judicially is not liable, it could not have been the purpose of the legislature to make members of boards of supervisors personally liable for errors or mistakes as to how to act in matters committed to such boards by law, and as to objects for which an appropriation of money is authorized to be made by them. It is when they disregard the law as to the objects to which it has devoted the public money and divert it to some object to which the law has not devoted it, that personal liability attaches. (59 Miss, at 536, 537).

On suggestion of error the Court noted there was no allegation of corruption in the declaration but judicial officers of all grades are liable for their corrupt judgments. The Court then held that supervisors in passing upon claims against the county are acting as judicial officers and stated:

But we cannot ignore the fact that supervisors, in the discharge of many of their functions, are judicial officers, and especially so in adjudicating upon the validity of claims against the county. A law which would make them personally liable for every erroneous judgment rendered, if constitutional, could certainly have the effect of preventing any solvent man from accepting the office, or of becoming the surety of those who did. (59 Miss, at 539).

The Court concluded its opinion with these words:

Manifestly it is impossible, after we pass the point of corruption, to draw any line other than that laid down by us, namely, liability where the subject-matter of the appropriation is beyond the jurisdiction of the board; non-liability where the object is within the jurisdiction, but there has been a mistaken exercise of legal power. Within this limit, every case must depend upon its own facts. (59 Miss, at 540).

The principles announced in Paxton v. Baum have been followed without exception and without judicial erosion of the principle laid down to this date. One of the latest cases following the principles enunciated in Paxton is Entriean v. King, 289 So.2d 913 (Miss.1974). The case was decided on January 28, 1974 and in it we suggested that, if the legislature intended to impose personal liability in eases such as this, the statute should be amended to effect this purpose. We stated:

No loss was suffered by Lincoln County and all of the expenditures were devoted to objects clearly authorized by law and the Legislature has not enacted any statute imposing personal liability in cases such as this. We are forced, therefore, to conclude that no such liability exists. The Legislature may, if it should see fit to do so, impose personal liability in such a case, merely by inserting in section 9118-15 a provision similar to that appearing in section 9118-10. But unless and until this is done, the statute must be construed as written.
But, under the circumstances of this case and for the reasons stated in this opinion, we are forced to conclude that the Legislature has not seen fit to impose personal liability and therefore, under the decisions of this Court the common law rule that no such liability exists must prevail. (289 So.2d at 917, 918).

The legislature responded to Entriean and amended section 19-13-37 by Chapter 444 Mississippi General Laws of 1974; effective March 26, 1974, so that the statute now reads as set forth above. Section (1) of the amended statute imposes liability on members of all boards of supervisors and other public officials for any actual loss arising from unlawful expenditures as delineated in section (1).

Under section 19-13-3 payment of county funds to the Jones brothers for hauling gravel was illegal because of their relationship to one of the supervisors within the degree proscribed by the statute; however, this fact standing alone does not subject the supervisor to personal liability for the unlawful expenditure. The amended statute imposes personal liability for compensatory damages only in cases where an actual loss occurs because of the unlawful expenditure. In this case the gravel hauled by the Jones brothers was delivered to Alcorn County, was placed on the roads of Alcorn County, and no loss to the county was shown. We therefore conclude, under the facts in this case, that the supervisors were not personally liable for compensatory damages for county funds paid the Jones brothers in violation of the nepotism statute.

Section (2) of the amended statute (19-13-37) deals with the second question stated in the opening paragraph of this opinion. It makes the supervisors and their sureties subject to penal damages for substantially departing from the statutory method of letting contracts, making payments thereon, making purchases, or expending public funds. Unlike the compensatory damage paragraph of the statute, this paragraph does not require a showing of actual loss as a condition precedent to recovering penal damages.

All of the county funds paid to the Jones brothers were in violation of the nepotism statute (19-13-3) and thus unlawful. This constituted a substantial departure from the statutory method of letting contracts, making payments thereon, and expending public funds as contemplated by the amended statute. We hold the supervisors and their sureties are liable for penal damages under 19-13-37(2). We therefore reverse and remand for imposition of penal damages in accord with the statute.

Complainants also argue that the supervisors are liable under section 19-13-37 because their actions in this case were a substantial departure from the statutory method of making payments on contracts as set forth in Section 19-13-15 Mississippi Code Annotated (Supp.1979), which provides in part:

The board of supervisors shall never make a payment to any contractor for building or repairing a bridge, or for doing any work on a public road, public building or other public work, where the contract price exceeds two hundred dollars ($200.00) but is less than one thousand dollars ($1,000.00), without first having the same inspected and accepted by a committee, and having the certificate of the committee, under oath filed and entered on the minutes of the board. Such committee shall be appointed by the board of supervisors for that purpose and shall consist of at least two (2) members of the board of other districts than the one in which the work is done.

We are of the opinion that the contractor referred to in section 19-13-15 refers to the successful bidder on bids let under section 19-3-9 Mississippi Code Annotated (Supp. 1979) where bids are based on plans and specifications on file with the clerk of the board of supervisors. We do not think the term “contractor” refers to individuals who perform minor tasks in the day to day maintenance of the public roads of a county-

The bid of the Jones family was to haul gravel and dump it on the roads of Alcorn County. The stipulation shows that the Jones family was subject to county control in hauling gravel because they were told where to obtain the gravel, where to take it after receiving it, when to have it available, and where to dump it. In some instances a small amount of gravel would be dumped to fill a pothole in the road. The Attorney General was of the opinion that if one load of gravel was sufficient to complete a project (fill a pothole) the statute applied and it would be the duty of the board of supervisors to appoint a committee to inspect that pothole. Such construction would require the inspectors appointed by the board of supervisors to follow each gravel truck and inspect every pothole or rut filled on county roads. Certainly, the legislature never intended to impose a burden of this magnitude upon the board of supervisors. Accordingly, we hold that, under the facts in this case, section 19-13 — 15 has no application and the supervisors were not guilty of a substantial departure from the statutory method of making payments on contracts.

An additional question requires discussion. This is whether the defendants established a “good faith” defense under section 7-5-25 Mississippi Code Annotated (1972). Before the first bid was awarded to Johnny Jones, the father of Mickey Jones and Benny Jones, to haul gravel for Alcorn County, H. L. Denton, Supervisor of the First District, raised the question of the legality of the Jones family hauling gravel because of their relationship to D. C. Mathis, member of the Board of Supervisors. Denton requested the attorney for the Board of Supervisors to obtain an opinion from the Attorney General. The attorney for the board testified that sometime in November, 1974, he called the Attorney General’s office in response to the request of Mr. Den-ton to ascertain if the board could legally enter into a contract with the Jones family for hauling gravel. He did not remember who he talked with in the Attorney General’s office but said that the person indicated, “That we shouldn’t be concerned with it and from that point on, I wasn’t and gave no further thought to it until three years later when the issue arose again.”

On July 19, 1977, after all payments had been made to the Jones brothers, the attorney requested an opinion from the Attorney General, and on July 22, 1977, received the following opinion:

Attorney General Summer has received your letter of July 19, and assigned it to me for research and reply, your letter stating:

“I would appreciate your opinion as to the law relevant to the following facts: D. C. Mathis, a member of the Alcorn County Board of Supervisors, and Johnnie Jones, a vendor of Alcorn County, married sisters. The sons of Johnnie Jones are also vendors of Al-corn County. There is no blood relationship between any of the parties, merely a relationship by marriage. The following question is the specific point which we would appreciate your immediate attention to due to urgent circumstances.
“Do the facts as related above concerning the relationship by marriage constitute a violation of the Nepotism Statutes of the State of Mississippi.” The applicable Nepotism Statute is Sec-

tion 19-13-3, Mississippi Code (1972) which reads:

“For the performance of any work or for the furnishing of any supplies or materials, it shall be unlawful for any member of the board of supervisors of any county, or any road commissioner of any county or road district whatsoever of any county in this state, to knowingly vote to let any contract to or for the employment by contract, or otherwise, of any relative of any member of the board of supervisors, or any relative of such road commissioner by blood or marriage within the third degree, computed by the civil law.”

The fact that two men had married sisters does not create any relationship between those two men within the prohibition of the Nepotism Statute. Mrs. Jones is Mr. Mathis’ sister-in-law but that does not make Mr. Jones Mr. Mathis’ brother-in-law so as to establish a nepotism relationship prohibited between those related “by blood or marriage with the third degree, computed by the civil law” as above set out.

Section 7-5-25 Mississippi Code Annotated (1972) provides that the Attorney General shall give his opinion in writing to certain officials of the State of Mississippi, including attorneys for the boards of supervisors. The section provides:

When any officer, board, commission, department, or person authorized by this section to require such written opinion of the attorney general shall have done so and shall have stated all the facts to govern such opinion, and the attorney general has prepared and delivered a legal opinion with reference thereto, there shall be no liability, civil or criminal, accruing to or against any such officer, board, commission, department or person who, in good faith, follows the direction of such opinion and acts in accordance therewith unless a court of competent jurisdiction, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without any substantial support. No opinion shall be given or considered if said opinion is given after suit is filed or prosecution begun.
SOURCES: Codes, 1892, § 183; 1906, § 189; Hemmingway’s, 1917, § 3477; 1930, § 3663; 1942, § 3834; Laws, 1930, ch. 154; 1940, ch. 249.

It is noted that the written opinion does _ not refer to the relationship of Mickey and Benny Jones but only responds with reference to the relationship of their father, Johnny Jones, to D. C. Mathis.

The Attorney General testified that the opinion did not refer to the children of Johnny Jones because the letter requesting the opinion did not state that the two sons were also the sons of Johnny Jones’ present wife. The Attorney General observed that they could have been sons by a previous marriage so, not having any of that information in the letter, the question was answered solely with respect to Johnny Jones. He also stated that it was the practice of the Attorney General’s office to answer questions as “we perceive the question” and then, if the question is not fully answered, another request is made and an answer given. It was not the practice of his office to volunteer an answer to a question not specifically asked. The opinion did not discuss the relationship which existed between the Jones brothers and Supervisor Mathis. The Jones brothers, together with their father, Johnny Jones, were the partners in a family partnership and all funds received by the Jones brothers for hauling gravel went into the family partnership account.

Section 7-5-25 requires opinions of the Attorney General to be in writing and in this case none was requested or given until after all payments were made to the Jones family. The statute makes no provision for an oral opinion of the Attorney General and parties may not rely on the good faith defense provided in the statute based on an oral opinion from the Attorney General. Furthermore, the opinion does not support a good faith defense because it does not refer to the relationship which existed between the Jones brothers and Supervisor Mathis.

A former Attorney General issued an opinion on August 9, 1940, covering the nepotism statute in question in this case. Opinions of the Attorney General 1939-1941, page 94. In this written opinion the Attorney General stated that the board of supervisors cannot award a contract to a person related to a member of the board or to the county road commissioner within the degree proscribed by statute even though such relative is the lowest responsible bidder. We find no opinion following 1940 which changes the above ruling of the Attorney General and none has been cited. We are therefore of the opinion that the defendants did not establish a good faith defense under section 7-5-25 protecting them from the assessment of penal damages in this case.

Section 7-5-25 provides that opinions of the Attorney General may be determined to be manifestly wrong by a court of competent jurisdiction. Although not necessary for a decision in this case, we deem it advisable to determine whether the opinion of July 22, 1977, is manifestly wrong in holding that Johnny Jones is not related to D. C. Mathis by virtue of the fact they married sisters. This question needs to be answered for the future guidance of supervisors so they can know if a contract violates the nepotism statute.

We have never addressed the question of whether men who marry sisters are related by marriage. The Supreme Court of Louisiana considered this question in the case of State v. Foster, 112 La. 533, 36 So. 554 (1904), when it was construing its statute on judges recusing themselves in cases before them. The statute provided: “Fourth —his being father-in-law, son-in-law, or brother-in-law of one of the parties.” In the Louisiana case the presiding judge re-cused himself on the ground that he and one of the parties were brothers-in-law because they had married sisters and the Supreme Court concurred in this finding. We also note that one definition of brothers-in-law according to Webster’s International Dictionary (3rd Ed.) is, “broadly, the husband of one’s spouse’s sister.” This is simply another way of saying that men who have married sisters are brothers-in-law.

We recognize there is authority to the contrary in other jurisdictions, but believe that the sounder rule is that men who marry sisters are brothers-in-law and are related within the second degree by marriage. Section 165 of the Mississippi Constitution of 1890 requires judges to recuse themselves in cases where the parties or either of them shall be connected with him by affinity or consanguinity. Certainly, we would not hold that a judge could preside over a trial where he and one of the parties had married sisters, without the consent of the judge and the parties.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION TO ASSESS PENAL DAMAGES AGAINST THE DEFENDANTS.

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


source: Caselaw Access Project

author: COFER, Justice, for the Court:

license: Public Domain

text:
    Don BENNETT v. UNITED PARCEL SERVICE and Liberty Mutual Insurance Company.
    No. 51761.
    Supreme Court of Mississippi.
    April 2, 1980.
    Rehearing Denied May 7, 1980.
    Walker, Brookins & Walker, John L. Walker, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, James F. Steel, Jackson, for appellees.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   COFER, Justice, for the Court:

This cause is here on appeal from a decision of the Circuit Court of the First Judicial District of Hinds County, Mississippi, reversing, in substantial part, the Mississippi Workmen’s Compensation Commission. Don Bennett, the employee, is appellant, and United Parcel Service, the employer, and Liberty Mutual Insurance Company, the employer’s insurance carrier, are the appellees and cross appellants.

On April 18, 1975, appellant, who had been appellee United Parcel Service’s employee since 1971, fell from a step on the employer’s van while unloading a parcel which he was delivering. He suffered a back injury involving a low lumbar vertebra and a high sacrum vertebra in his spine.

On April 22, 1975, he was examined by Dr. McCraney, who treated him several times thereafter. Dr. McCraney earlier considered that appellant had aggravated or exacerbated a pre-existing spondylolysis, defined as the dissolution of a vertebra, which had resulted in a spondylolisthesis, described as the “forward displacement of one vertebra over another, usually of the fifth lumbar over the body of the sacrum, or of the fourth lumbar over the fifth.” Dorland, W. A., American Illustrated Medical Dictionary (22nd ed. 1951).

Neither Dr. McCraney nor Dr. Derian, who examined the employee some six months after the fall, could make a conclusive finding that the result of the fall was an aggravation of a pre-existing infirmity or that it was caused initially by the fall. Each of these specialists admitted that only by examination of an x-ray taken before the fall (which seems to be non-existent) could a conclusive finding be made as to whether the infirmity pre-existed the fall. Dr. McCraney was of the opinion from his first examination, that the condition pre-ex-isted the fall and injury and was aggravated by it, an opinion at which he arrived from his familiarity with such cases and his examination of the employee and x-rays of him. He conveyed this information to the employer in a letter dated April 28, 1975.

In Dr. McCraney’s first deposition, taken on April 12,1976, he was confronted with a letter he had written on January 9, 1976, wherein he had expressed the opinion that the employee had reached maximum medical recovery on December 30, 1975.

After the hearing in several segments, the Administrative Judge entered an order on August 31, 1976, with findings, among others, that the employee had not then reached maximum medical improvement; that he had been temporarily and totally disabled from the fall from April 18,1975 to November 17, 1975, (date when he went to work for another employer); that he was in need of further treatment and possibly surgery; and that it was then too early to determine his permanent disability, wage earning capacity, and related matters.

The employee requested a review by the full commission, assigning as grounds for the request, his claimed errors, in finding that maximum medical recovery had not taken place; in finding that decision on the permanency of his disability and of his wage earning capacity would be premature; and in his failure to find that the employee had sustained a 47.58 per cent permanent disability and/or loss of wage earning capacity.

The full commission, in an order dated May 23, 1977, found maximum medical recovery had not taken place, and until such maximum medical recovery or until he shall have regained part or all of his former wage earning ability, he would be paid on the basis of temporary partial disability.

From the commission’s determination ap-pellees appealed to the circuit court, but, on their motion, the appeal was dismissed with prejudice on October 13, 1977.

On December 9, 1977, appellees moved the commission to reopen the cause for further testimony, exhibiting a copy of a letter from Dr. McCraney dated November 28, 1977, stating that the employee reached maximum medical recovery on December 30, 1975.

The commission reopened and referred the case to the administrative judge for further proof on the ground of mistake as to whether maximum medical recovery had been attained, and, if so, when, and as to whether the employee suffers any resulting disability.

Further hearing was had, largely consisting of another deposition of Dr. McCraney, and a stipulation, contents of which do not bear upon the issues here, after which the administrative judge, in an order dated June 6, 1978, found that the employee reached maximum medical recovery on December 30, 1975; that he suffered a permanent partial disability of five percent to his body as a whole; that he had a pre-existing condition responsible for 80 percent of . the loss of his wage earning capacity, and that his direct loss of wage earning capacity amounted to $24 per week, and that he be paid $16 per week for 450 weeks.

The employee sought and obtained a review by the full commission, attacking the administrative judge’s findings.

The commission reviewed the record, and amended the order from which the appeal was taken as to the formula used to arrive at the amount of the award, affirming his findings, however, as to the date of maximum medical recovery and as to the pre-ex-isting condition, and as to the application of a 20 percent loss of earning ability attributable to the April 18, 1975, fall after attributing 80 percent thereof to the pre-exist-ing condition.

This order is dated March 6,1979. Therefrom, the employee appealed to the circuit court, where, on June 18, 1979, the circuit court rendered an opinion which was made a part of its order dated June 27, 1979.

The court held that the May 23, 1977, order of the commission was the law of the case and governed from then on and agreed with the administrative judge and the commission in their findings as to the employee’s pre-existing infirmity, but held that the record does not furnish sufficient factual basis for application of apportionment. The court remanded the case to the commission for further consideration of maximum medical recovery in accordance with the law of the case, and for a more definitive determination of what the pre-existing condition is, if it exists, and whether apportionment is proper in the case.

Appellant has assigned five errors:

I. The circuit court erred in affirming the finding of the Workmen’s Compensation Commission that claimant had a preexisting condition of bilateral spondyloly-sis and spondylolisthesis of L-5 on S-l since said finding of the Commission was contrary to the “law of the case” herein and not based upon substantial evidence.

II. The circuit court after correctly holding that the “law of the case” is applicable herein and correctly reversing the finding of the commission as to claimant’s date of maximum medical recovery, committed error by remanding to the commission for determination of the date on which claimant reached maximum medical recovery. Instead, the circuit court should have found that under the “law of the case” herein, claimant has failed to reach maximum medical recovery.

III. The circuit court correctly reversed the finding of the commission that apportionment is not applicable herein; however, this circuit court committed error by remanding to the commission to determine what type of pre-existing condition, if any, from which claimant suffered and whether claimant’s pre-existing condition, if any, was of such a nature that apportionment should apply. Instead, the circuit court should have found that claimant did not suffer from a preexisting condition and apportionment was therefore not applicable.

IV. The circuit court erred since it failed to order the appellees to pay unto claimant permanent partial disability payments in the amount of $75.37 weekly.

V. The circuit court erred in remanding to the commission the issues of preexisting condition and apportionment since the record herein shows that apportionment is not applicable since claimant prior to sustaining his accidental injury of April 18,1975, had “functional ability” as to his back and claimant’s pre-existing condition, if any, was congenital in nature.

The employer and the carrier assigned an error on cross appeal:

The circuit court erred in reversing the full commission’s apportionment of permanent partial benefits due the appellant and cross-appellee, Don Bennett.

An initial argument of appellant, the employee, is that the trier of fact, the commission, was bound to its May 23, 1977, findings as to appellant’s maximum medical recovery, and that, instead of remanding the case to the commission for further inquiry into the date of maximum medical recovery, the court should have found, under the law of the case, that there had been no maximum medical recovery, and further that the court should have found that appellant had no pre-existing condition, and therefore, apportionment is not applicable.

Considerable detail has been set out herein in order to afford a clear view of the threshold issue as to the bearing of the May 23, 1977, order of the commission. Appellant relies upon Consumer Discount Store v. Warren, 221 So.2d 112 (Miss.1969), a workmen’s compensation case, wherein it was. held that an earlier decision of this Court was the law of the case in its remand for further testimony, if any, on an issue, and there was no further testimony.

We do not consider that the principle of law of the case or res judicata applies here.

Mississippi Code Annotated, section 71-3-53 (1972), authorizes the commission, on its own initiative, or upon application of any party in interest, to review a compensation case to inquire as to whether there has been a change in conditions or if there was a mistake in a determination of fact. As pointed out by Mr. Dunn in his Mississippi Workmen’s Compensation, section 336, (2d ed. 1967), the commission has continuing jurisdiction, within limits, to reopen a case in the doing of which it will not be reversed unless its discretion has been abused.

While here it is apparent that the commission based its determination to reopen upon Dr. McCraney’s letter of November 28, 1977, as noticed above, we do not consider his conclusion therein contained to be newly discovered evidence. He had been cross examined about this December 30, 1975, date when maximum medical recovery had been reached, and Dr. Derian, who examined appellant one time, October 23, 1975, testified that by the date of that examination appellant had attained maximum medical recovery. The record thus established the injection of the question of his recovery into the earlier hearings upon which the administrative judge made his order of August 31, 1977. Finding in these orders that maximum medical recovery had not been reached the commission could easily have based its decision to reopen on the record earlier made, without resorting to Dr. McCraney’s letter dated November 28, 1977. A determination of that question was one for the trier of fact, and, whether based exclusively on the record made prior to the May 23, 1977, order or upon that testimony plus that given by Dr. McCraney in his second deposition, we cannot say the decision was erroneous, or that, prior to the decision now before this Court, the commission abused its sound discretion in reopening for review of the inquiry as to whether, and if so when, maximum medical recovery had been made.

The order of May 23, 1977, upon which appellant relies as the law of the case, found maximum medical recovery had not been attained, that there was remaining then temporary partial disability for which compensation was ordered made, subject to adjustment, and that medical expenses thereafter incurred would be paid. Appel-lees argue with plausibility that this order anticipated further examination into its contents.

We conclude that there was sufficient proof in the record substantially supporting the finding now before us as to maximum medical recovery; that it was a question of fact for the commission’s decision, and that, in the review which led to that decision, the commission soundly exercised the discretion vested in it.

It is argued by appellant that the commission, by its May 23, 1977, order, found that appellant’s condition—spondylo-lysis and spondylolisthesis—resulted from the April 18, 1975, fall, and that its later finding that there was the pre-existing infirmity is contrary to, and not permitted by, the earlier findings which are the law of the case.

We do not believe that the order of the commission dated May 23, 1977, or the administrative judge’s order reviewed by the commission in its May 23,1977, order, made findings as to the injury which precluded their findings and judgments now before us as to pre-existing infirmity and apportionment because of such pre-existing conditions.

Section 71-3-7, Mississippi Code Annotated (1972), governs apportionments between the injury and a pre-existing malady: While it does not preclude an early determination of a contributing pre-existing infirmity, it only requires that there be no application of apportionment until maximum medical recovery shall have been reached.

Section 71-3-7 provides in part:

Where a preexisting physical handicap, disease, or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this paragraph, would be payable shall be reduced by that proportion which such preexisting physical handicap, disease, or lesion contributed to the production of the results following the injury.

The words “results following the injury” in the above quotation were examined in Sanders v. Walker Construction Co., 251 Miss. 352, 169 So.2d 803 (1964), and this Court said as to them:

The noun, “results”, is defined as “a synoptic publication of the outcome of related competitive events.” Webster’s Third New International Dictionary, page 1937 (1961).
Such “results following the injury” cannot be determined until hospitalization and such surgical or medical treatment, or both, have been concluded, and competent medical authority is in position to say that these services have been rendered in accordance with good medicine. Thus, it is only at that time that the commission can reasonably entertain the question of an apportionment.
Consequently, at that time, if, on a hearing, the commission is satisfied and can reasonably determine from the evidence, confirmed by medical finding, the proportion of the handicap, disease or lesion to the production of the results following the injury, it then becomes its duty to do so. In the meantime, from the date of the accidental injury, the employer and its insurer must pay to the claimant the weekly wage benefit, as required by the statute, beginning on the fourteenth day following the injury until the order of apportionment has been made. Any other construction would be unreasonable and nullify the salutory provisions of the Act. Since the Legislature did not provide that the apportionment be made at an earlier date, it is evident that it had no such intention. (251 Miss, at 362, 363, 169 So.2d at 807).

The commission’s order of May 23, 1977, in effect until changed after the subsequent hearing, found that maximum medical recovery had not been reached. Therefore, although a finding that there was a contributing pre-existing malady might have been made, the Commission may not be found in default for its failure to make the finding earlier.

The administrative judge, in his order dated June 6, 1978, found that appellant had a pre-existing condition of bilateral spondylolysis and spondylolisthesis, and that this pre-existing condition contributed 80 percent of the loss of wage earning capacity of appellant. These findings were affirmed on review by the commission.

Whether this spinal condition pre-existed the fall of April 18,1975, and was aggravated by it, or whether it was caused by that fall was not free of difficulty to Drs. Derian and McCraney. Dr. McCraney called into play his experience with such troubles, x-rays of appellant, and his study of appellant’s condition, from which he arrived at the definite opinion that the infirmity preexisted and contributed to the results of the April 18,1975, injury. While he did not call them “findings” as the term “medical findings” is used in section 71-3-7, his opinions amount to medical findings in his testimony.

The finding of the pre-existing infirmity is based upon substantial, although not conclusive, evidence; is clearly and definitely set forth in the findings of the administrative judge and affirmed by the commission, and we see no need for a remand to the Commission.

Next in this consideration is the inquiry, answered in the affirmative by the commission, as to whether the pre-existing condition, aggravated by the fall of appellant, was a “material contributing factor in the results following injury,” requiring apportionment of the compensation payable to appellant. The administrative judge and the commission were of the opinion that it was such a condition. We agree.

The circuit court erred in finding that the pre-existing condition, whatever it was from the record, was not an apportionable one. The court quoted from Evans v. Continental Grain Company, 372 So.2d 265 (Miss.1979), to the effect that a degenerative condition normally accompanying age is not a pre-existing condition within the meaning of the apportionment statute.

The condition of the vertebra comes within the apportionment provision of “physical handicap, disease, or lesion,” established by medical findings, and was properly considered and evaluated for purposes of apportionment.

In Gray v. Poloron Products of Mississippi, 347 So.2d 363 (Miss.1977), the appellee employed the defense, among others, that pre-existing injury materially contributed to appellant’s injury results, and there was proof that a spondylolysis condition may have existed in appellant’s spine. A judgment unfavorable to the appellant was reversed and rendered, and the cause was remanded “for the purpose of determining questions of total disability, permanent partial disability, if any, and apportionment, if any.” (347 So.2d at 366).

Thus, we conclude that the commission correctly determined the date of maximum medical recovery (after hearings on review warranted under the law); correctly and sufficiently clearly found the pre-existing-condition which was aggravated or exacerbated by the fall; that apportionment was proper under the statute, and was correct.

The commission’s order here on appeal is found to be correct, and the circuit court erred in its reversal thereof.

The circuit court is reversed and the commission’s order is reinstated.

REVERSED AND ORDER OF COMMISSION REINSTATED.

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


author: WALKER, Justice, for the Court:

text:
    Boriece HAMBRICK v. Mrs. Judith PRESTWOOD.
    No. 51744.
    Supreme Court of Mississippi.
    April 2, 1980.
    Rehearing Denied May 7, 1980.

      Lee B. Agnew, Sr., Robert A. Crawford, Jackson, for appellant.
    W. E. Gore, Jr., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   WALKER, Justice, for the Court:

This appeal is from a decree of the Chancery Court of the First Judicial District of Hinds County, Mississippi, wherein the lower court ordered appellant, Boriece Ham-brick, to continue paying appellee, Mrs. Judith Hambrick Prestwood, $175.00 per month child support for their two minor children; pay $2,696.00 as reimbursement to Mrs. Prestwood for children’s medical expenses paid by her; pay $1,250.00 to Mrs. Prestwood for attorney’s fees incurred; pay the sum of $10,887.36 for back child support, and upon enrollment of Cynthia Ham-brick at Mississippi State University that Mr. Hambrick pay all necessary cost, such as tuition, matriculation fee, etc., directly to the college, in advance so long as she attends and maintains average grades' and until she graduates, unless she becomes emancipated, marries or reaches twenty-one years of age before graduation.

The parties herein were divorced by decree dated November 1, 1966. Under the terms of the original decree, the appellee was awarded a divorce but the appellant was given the right of reasonable visitation with his two minor children and ordered to pay $135.00 per month child support.

On October 10, 1970, a decree was entered modifying the original decree and increasing the child support to $175.00 per month and making certain changes in the visitation rights afforded to appellant.

After the filing of other petitions to modify and answers thereto, an agreed order was entered on October 14, 1974, wherein Hambrick and Prestwood were given the opportunity to voluntarily present themselves to the Jackson Mental Health Center for consultation services and Mrs. Prest-wood was also ordered and directed to take her two minor children to the center for consultation services.

Since that date, a multitude of motions and petitions have been filed in this cause, and the pleadings, etc. consume 286 pages of the record, which now brings us to the present controversy.

On December 28, 1978, the appellee, Mrs. Prestwood, filed a petition to modify and for reimbursement for medical expenses and a petition for citation for contempt. Mrs. Prestwood alleged inter alia that she had been required to expend her own funds for medical treatment for the minor children; that Cynthia desired to attend Mississippi State University in September of 1979, and that appellant should be required to pay her tuition, travel expenses, necessary clothing and other incidental expenses. She further alleged that appellant was in arrears in child support and she also asked for attorney’s fees.

In his answer filed on March 20, 1979, appellant filed a cross-petition to modify and prayed that the lower court discontinue any monetary payments to Mrs. Prestwood for the children of the parties, or in the alternative to make any monetary payment to the children contingent upon said children sharing, respectively, their society, love, affection, companionship and services with appellant in a reasonable and normal manner.

It is uncontradicted that Hambrick has not enjoyed visitation privileges with either his son, who was seventeen years of age at the time of the hearing, or his daughter, who was nineteen years of age at the time of the hearing, since 1974.

It is also uncontradicted that of twenty-nine attempts in the year prior to Ham-brick’s last attempt to visit the children, the daughter did not ever go with him, while the son went with him only five times.

It is also uncontradicted that Hambrick ceased making child support payments in March of 1974, when the children refused to visit with him.

Prior to this time, in 1973, Mrs. Prest-wood was found to be in contempt df court for refusing to require the daughter, Cynthia, to visit Hambrick and was sentenced to serve fourteen days in jail for such contempt. However, on appeal, this Court was of the opinion that there was insufficient proof to show, beyond a reasonable doubt, that Mrs. Prestwood had willfully refused to abide by the court decree and set aside the judgment of contempt and sentence. See Prestwood v. Hambrick, 308 So.2d 82 (Miss.1975). However, there is a strong inference to be drawn from the voluminous pleadings and the record of this cause, that Mrs. Prestwood, though, perhaps, not in contempt, is not free of fault for the attitude of the children toward their father and the undesirable situation that exists.

In the opinion rendered below by the learned chancellor, he said, inter alia:

This Court is of the opinion that any further attempts to visit said children [after January, 1974] would have been in vain, they both having testified that they did not want to go with their father. The question then arises should Hambrick be required to pay child support under such circumstances and should he be held jn contempt of court for his failure to make back payments as formerly ordered by [the] court when he has not had the privilege of visiting with his children.

The • chancellor correctly held that the past due installments of child support became vested as they became due and that they could not thereafter be reduced. Rubisoff v. Rubisoff, 242 Miss. 225, 133 So.2d 534 (1961). He also correctly held that the facts of this case would not bring it within the holding of Williams v. Williams, 167 Miss. 115, 148 So. 358, 88 A.L.R. 197 (1933), which held that the ex-wife was not entitled to invoke the aid of the court to collect past due alimony until she had complied with the decree permitting the ex-husband to visit the children in her custody, basing its ruling on the equitable maxim that, “He who seeks equity, must do equity,” nor does this case come within the holding of Cole v. Hood, 371 So.2d 861 (Miss.1979), where this Court refused the aid of the courts to the mother who was attempting to collect past due child support payments where the mother had hidden and secreted the children for several years to prevent the father from seeing them. In that case, the Court invoked the age old maxim that, “He who comes into equity must come with clean hands.”

As to the unpaid medical expenses, Hambrick argues in his brief that he had insurance which would have paid the bills if they had been submitted to him timely. However, this is not supported by the record. We would point out, however, that where a party is required to pay medical expenses for which he has insurance coverage, the bills must be submitted to him promptly for payment so that he may then submit them to his insurance company. Failure to promptly submit the bills within the period of time required by the policy may bar recovery by the party claiming them.

The most serious problem presented by this case is whether Mr. Hambrick should be required to continue supporting Cynthia, who was nineteen years of age at the time of the hearing below, had finished high school, was attending Hinds Jr. College, making good grades, and desiring to go on to college and study electronic engineering.

Cynthia has been employed and earned $460.00 per month, which she was free to use as she pleased.

The problem concerning Cynthia is that she, by her own testimony, has not had any contact with her father for six or seven years and does not want to have any contact with him. She says that she dislikes him, categorizing it close to “hate.” She told the court that there was no arrangement that could be made [that would satisfy her] for her to visit her father. When she applied for admission to Hinds Jr. College, she did not list Hambrick as her father, but listed her parents as Mr. and Mrs. J. T. Prestwood.

There is nothing in this record that would justify Cynthia’s attitude toward her father. Although there is no direct proof that Mrs. Prestwood has alienated the affection of the children from their father, the history of this case strongly infers that she has contributed to the problems and allowed the situation to deteriorate.

In Pass v. Pass, 238 Miss. 449, 458, 118 So.2d 769, 773 (1960), this Court said:

[W]e hold that where the minor child is worthy of and qualified for a college education and shows an aptitude therefor it is the primary duty of the father, if in reason financially able to do so, to provide funds for the college education of his minor child in the custody of the mother, where the mother and father are divorced and living apart. (Emphasis added).

The duty of a father to send a child to college, under the circumstances of this case, is not absolute. It is dependent, not only on the child’s aptitude and qualifications for college, but on whether the child’s behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him. Sending children to college is expensive and can cause much sacrifice on the part of parents. It cannot ordinarily be demanded, but must be earned by children through respect for their parents, love, affection and appreciation of parental efforts, none of which are present in this instance.

From the time that she was twelve years of age, Cynthia has shown no love, affection, appreciation or consideration for her father. As early as 1974, when told that the court had ordered that she visit her father, she replied, “I’m still not going.”

Under the unfortunate circumstances of this case, we are of the opinion that the father should be relieved of any further obligations to support or educate this nineteen-year-old young lady. In doing so, we are not unmindful of the fact that she earned $460.00 per month in the past and is capable, if she so desires, to continue her education at her own expense.

We continue to adhere to the holding in Pass v. Pass, supra, but this case demonstrates that no rule of law is or should be completely inflexible. The facts of some cases require exceptional treatment and this is one of those. We have simply tried to balance the rights and obligations of a parent with the rights and obligations of his nineteen-year-old daughter.

We do not disturb the order of the chancellor with reference to child support for the son who is under eighteen years of age.

The decree of the chancery court is affirmed as to the order that Boriece Ham-brick pay Mrs. Judith Hambrick Prestwood $2,696.00 as reimbursement for medical expenses; $1,250.00 for attorney fees; $10,-887.36 child support in arrears, but is reversed as to the requirement that Hambrick pay college expenses of Cynthia Hambrick or further child support for her. Child support payments are reduced from $175.00 per month to $87.50.

AFFIRMED IN PART; MODIFIED IN PART; REVERSED IN PART AND RENDERED.

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


text:
    Rose Smith LEACH, on Behalf of Linda Smith et al. v. Rozella WALKER and James Walker.
    No. 51793.
    Supreme Court of Mississippi.
    April 2, 1980.
    Rehearing Denied May 7, 1980.
    Laurel G. Weir, Philadelphia, for appellant.
    Leon Mangum, Decatur, for appellee.
   Appeal from Chancery Court, Newton County; Osborn Guyton Idom, Chancellor.

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

AFFIRMED.


text:
    Jessie BRUCE, Jr., et ux. v. KIMBROUGH INVESTMENT COMPANY.
    No. 51702.
    Supreme Court of Mississippi.
    April 9, 1980.
    Rehearing Denied May 7, 1980.
    Dyer, Dyer & Dyer, Gaines S. Dyer, Greenville, Cleve McDowell, Drew, for appellants.
    Swain & Swain, Walter B. Swain, Jr., Greenville, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

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

AFFIRMED.


text:
    James HINTON et ux. and Virgil Spears v. Olen BOSWELL and Dewanda Boswell.
    No. 51797.
    Supreme Court of Mississippi.
    April 9, 1980.
    Rehearing Denied May 7, 1980.
    Laurel G. Weir, Philadelphia, for appellants.
    Lewis, Booker & Lewis, Thomas L. Booker, J. Max Kilpatrick, Philadelphia, for ap-pellees.
   Appeal from Chancery Court, Neshoba County; Edward C. Prisock, Chancellor.

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

AFFIRMED.


text:
    Frank HORVATH v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Forest Housing Authority.
    No. 51799.
    Supreme Court of Mississippi.
    April 9, 1980.
    Rehearing Denied May 7, 1980.
    Richard L. Stradley, Walnut Grove, for appellant.
    Fred J. Lotterhos, Jackson, for appellees.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

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

AFFIRMED.


text:
    Jacqueline Smith HUDSON v. STATE of Mississippi.
    No. 51577.
    Supreme Court of Mississippi.
    April 9, 1980.
    Rehearing Denied May 7, 1980.
    Roy Pitts, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from County Court, Lauderdale County; H. C. Mike Watkins, Judge.

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

AFFIRMED.

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


text:
    EMPLOYERS INSURANCE OF WAUSAU v. J. F. WEEMS.
    No. 51783.
    Supreme Court of Mississippi.
    April 16, 1980.
    Rehearing Denied May 7, 1980.

      Bobby J. Garraway, Lumberton, for appellant.
    Leon Mangum, Decatur, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   PATTERSON, Chief Justice, for the court:

The Employers Insurance of Wausau appeals from an order of the Chancery Court of Newton County sustaining a general demurrer to its bill of complaint. Wausau sought specific performance of a provision of an insurance contract authorizing inspection of Weems’ business records to determine the premium to be paid for workmen’s compensation coverage. We find the bill states a cause of action and reverse and remand for further proceedings.

The parties drafted their contract to peg the premium charged to the potential liability of Weems to “employees” within the meaning of the Workmen’s Compensation Law. Weems in the course of his business dealt with pulp haulers, a class of laborers whose status, whether as “employees” or “independent contractors,” depends on a number of factors, not limited to the payroll, .under our decisions, see Brown v. L. A. Penn & Son, 227 So.2d 470 (Miss.1969); Brown v. E. L. Bruce Co., 253 Miss. 1, 175 So.2d 151(5) (1965); Boyd v. Crosby Lbr. & Mfg. Co., 250 Miss. 433, 166 So.2d 106 (1964). The parties included the following provision in their contract to facilitate ready review of those factors bearing upon the extent of potential liability and hence upon the proper premium to be charged:

The company . . . shall . be permitted to examine . . . the insured’s payroll records, general ledger, disbursements, vouchers, contracts, tax reports and all other books, documents and records of any . . . kind at any reasonable time during the policy period . as far as they . . . tend to show . . . the amount of remuneration or other premium basis, or relate to the subject matter of this insurance.

Wausau, appending to its bill the contract containing this provision, alleged that Weems refused it access to any business records other than the payroll, and that the law courts provided no plain, adequate, speedy and efficient remedy, because only further inspection could reveal the premium to be charged for the policy coverage. In sustaining Weems’ general demurrer, the chancellor viewed the bill as a request for an objectless “fishing expedition” into private aspects of Weems’ business having no relation to insurance coverage. He reasoned, erroneously, that “workmen’s compensation insurance ... is based solely on the payroll. . . . ”

A general demurrer simply tests the legal sufficiency of facts well pleaded and taken as true on the face of the bill of complaint. Griffith, Mississippi Chancery Practice (2d Ed. 1950), § 291 at 275. Here, we have expansive rights of inspection granted by a private contract of insurance appended to a bill plainly alleging that Weems blocked inspection. We do not find the contract unconscionable, nor unreasonable in view of the uncertainty of Wausau’s potential liability to third party claimants under the Workmen’s Compensation Law. The parties’ agreed method of calculating the premium to be charged by Wausau for coverage of the pulp haulers dealing with Weems also appears reasonable as it relates the premium charged to the carrier’s exposure to compensation awards. We are of the opinion that the bill stated a cause of action sufficient to withstand the general demurrer.

REVERSED AND REMANDED.

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


text:
    Ricky Allen BAUGH v. Leroy HOBBS, Sheriff of Harrison County.
    No. 51835.
    Supreme Court of Mississippi.
    April 23, 1980.
    Lawrence Semski, Sekul, Hornsby, Wallace & Teel, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

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

AFFIRMED.


text:
    SLEDGE TELEPHONE COMPANY, INC. v. MISSISSIPPI PUBLIC SERVICE COMMISSION.
    No. 51784.
    Supreme Court of Mississippi.
    April 23, 1980.
    Creekmore & Creekmore, James H, Creekmore, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Bennett E. Smith, Asst. Atty. Gen., Jackson, Richard G. Noble, Crosthwait, Terney, Noble & East-land, Indianola, for appellee.
   Appeal from Chancery Court, Sunflower County; Willard L. Mcllwain, Chancellor,.

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

REVERSED AND REMANDED TO THE COMMISSION FOR FURTHER PROCEEDINGS NOT INCONSISTENT HEREWITH.

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


text:
    AMERICA’S FOUNDATION v. XEROX CORPORATION.
    No. 51825.
    Supreme Court of Mississippi.
    April 23, 1980.
    Rehearing Denied May 7, 1980.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

Richard Barrett, Jackson, for appellant.

Thomas, Price, Alston, Jones & Davis, Thomas W. Tardy, III, Jackson, for appel-lee.

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

AFFIRMED.


text:
    Eddie Ray HILL v. STATE of Mississippi.
    No. 51774.
    Supreme Court of Mississippi.
    April 23, 1980.
    Alford, Mars, Thomas & Kilgore, Herman Alford, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

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

AFFIRMED.


text:
    Karen Michelle PEARSON v. Phillip Bryce CLARK.
    No. 51811.
    Supreme Court of Mississippi.
    April 23, 1980.
    J. W. Kellum, Sumner, for appellant.
    Luckett, Luckett, Luckett & Thompson, Kay Farese Luckett, Clarksdale, for appel-lee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice, for the Court:

Appellant, Karen Michelle Pearson, appeals from the Order of the Chancery Court of Tallahatchie County allowing Phillip Bryce Clark periodic visitation with their 16-month old son, Terry Vaughan Pearson.

The facts and circumstances of this case are unusual. Karen and Phillip, when they were 15 years old, began to live together as husband and wife in a trailer located on Karen’s parents’ homeplace. They held themselves out in the community as husband and wife. Karen’s parents and Phillip’s parents thought that they were married. They tried to get married several times, going to Greenwood, Clarksdale, and Marks, Mississippi, for a marriage license, but were refused a license because of their age.

After over three years of living together, Karen became pregnant with Phillip’s child. When Karen was about six weeks pregnant, they separated. Although Phillip had requested Karen to let him know when the child was born, she did not do so and the child was born on December 18, 1977. When Phillip found out, he went to the Clarksdale hospital, but Karen had already left. Despite many attempts by Phillip to see his son, Karen refused to let either Phillip or his mother see him.

On February 13,1978, Karen filed a Petition for Adjudication of Paternity under the provisions of Mississippi Code Annotated, sections 93-9-1 et seq., (1972). In her petition, she stated under oath that Phillip Bryce Clark was the father of Terry. She prayed: that Phillip Bryce Clark be adjudged to be the father, that he be ordered to pay all expenses “from or incident to the mother’s pregnancy and birth of said child”, ordered to pay a reasonable attorney’s fee for her attorney, and ordered to pay monthly support for Terry. Phillip not only did not contest her petition but also admitted all averments of the petition.

On May 10, 1978, the Chancellor entered an Order of Filiation, adjudicating: that Phillip Bryce Clark was the father of Terry Vaughan Pearson, that Phillip pay Karen $681 as expenses incident to her pregnancy and birth of Terry, that he pay Karen $150 for her solicitor’s fee, and that Phillip pay Karen $100 per month for the support of their son, Terry. The Chancellor also decreed that “said child shall inherit from Phillip Bryce Clark as a natural child of the father under the statutes of descent, and distribution.” Phillip has paid all sums adjudged against him, including the $100 per month support for Terry.

After a hearing on Phillip’s petition for visitation rights, the Chancellor entered an order on May 18, 1979, establishing such rights. Phillip was granted visitation rights with his minor son on alternate weekends beginning at 1:00 p. m. on Saturday and ending at 6:00 p. m. on Sunday, the visitation to be in the home of Phillip’s parents where Karen was required to deliver the child. Phillip was also granted a 5-day visitation period during his regular vacation, and also visitation privileges from 2:00 p. m. on Christmas Day until 6:00 p. m. on December 26th of each year. Phillip was also ordered to pay a $200 attorney’s fee for Karen’s attorney.

The appellant’s three assignments of error concern this one issue: Did the Chancellor err in granting visitation rights to the father of an illegitimate child?

This Court is of the opinion that, under the peculiar facts of this case, the Chancellor reached the right decision in granting visitation rights to the father, Phillip Clark. The record reflects the interest, support and concern this father has for his child. We feel that the best interests and welfare of Terry will be promoted by allowing him to be with both parents and to have the continued love, support and concern of both parents.

The Supreme Court of the United States spoke recently on this subject, in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), and Stanley v. State of Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). In Caban, in striking down a New York statute, the Court said:

“The effect of New York’s classification is to discriminate against unwed fathers even when their identity is known and they have manifested a significant paternal interest in the child. The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned, judgment as to the fate of their children.” 441 U.S. at 394, 99 S.Ct. at 1769, 60 L.Ed.2d at 308.

In Taylor v. Taylor, 295 So.2d 494 (La. App.1974), and Mixon v. Mize, 198 So.2d 373 (Fla.App.1967), visitation rights were granted an unwed father with his illegitimate child where the father had shown an interest in and support of his child and where such visits would not be detrimental to the child’s welfare.

The evidence of Phillip’s love, concern, interest and support of his son, Terry, being undisputed, we feel that the Chancellor reached the right decision in this case and his judgment is affirmed.

The appellant has asked that appel-lee be required to pay an additional fee for the services of her attorney in this Court. Her request is denied. This is not a proper case for the allowance of an additional attorney’s fee. The mother, in her appeal, is seeking to keep the father from ever seeing or visiting with his child, even though the father has shown his love, concern and interest in his son, and has willingly paid all sums decreed for his support.

The decree is affirmed, and the motion for additional attorney’s fee in this Court is denied.

AFFIRMED.

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


author: EMBRY, Justice. FAULKNER, Justice TORBERT, Chief Justice

text:
    Memnon TIERCE, II v. APS COMPANY and Campus Apartments Company.
    78-231.
    Supreme Court of Alabama.
    Nov. 2, 1979.
    Rehearing Denied March 28, 1980.
    Jule R. Herbert, Jr., Colin A. Barrett of Lee, Barrett & Mullins, Tuscaloosa, for appellant.
    Robert B. Harwood, Jr., Tuscaloosa, for appellees.
   EMBRY, Justice.

T.his is an appeal from a final decree permanently enjoining appellant/defendant, Memnon Tierce, II from foreclosing a mortgage on certain property because of a prior sale of that property by appel-lee/plaintiff APS Company, to the other appellee/plaintiff Campus Apartments Company. We reverse.

APS Company is a partnership composed of three persons: C. H. Armstrong, A. W. Patton, Jr., and Alonzo J. Strickland, III. In May of 1975, APS entered into a contract, styled a Bond for Title, with Tierce. In the contract Tierce agreed to sell a certain 24 unit apartment complex to APS for the sum of $159,221.80. According to the terms of the contract, Tierce would retain title to the real estate until the principal due under the agreement was reduced to $155,000. When the principal was so reduced Tierce was required, under the terms of the contract, to execute a warranty deed to APS and to retain a purchase money mortgage interest in the property, accepting APS’s note and mortgage for the balance due. The promissory note for the balance was to be on the same terms regarding interest rate and repayment schedule as those contained in the Bond for Title. The Bond for Title, or contract, also contained language to the effect that APS would not transfer or assign the contract or any rights therein and would not lease or otherwise transfer possession of the premises, the subject of this suit, without the written consent of Tierce.

APS did in fact reduce the principal to $155,000 and requested Tierce to perform as agreed. APS’s lawyer prepared, and submitted to Tierce, a mortgage and deed for him to accept. Tierce rejected the proposed mortgage on the grounds that it gave APS rights not granted in the original contract and was inconsistent with it. APS’s attorney prepared another mortgage, which Tierce accepted. This second mortgage, which the three partners of APS executed, contained the following “due on sale” clause:

“Debtor shall be in default under this agreement upon the happening of any one of the following events or conditions:
♦ * * * * *
“4. Upon the substantial damage, waste, danger or misuse, sale or encumbrance of or to Property. [Emphasis added.]
******
“Upon such default Mortgagee may, at his option declare all obligations secured hereby immediately due and payable. * * * tt

Subsequent to the execution of the deed and mortgage, APS sold the premises to appellee/plaintiff Campus Apartments Company, a partnership composed of Alonzo J. Strickland, III, and David C. Smither-man. Campus Apartments agreed to assume the mortgage held by Tierce. APS did not notify Tierce of the transfer, nor did it attempt to obtain Tierce’s consent to it.

Tierce accepted two checks from Smither-man for mortgage payments. Tierce then inquired of APS about the identity of Smitherman. He was then informed of the transfer of the property to Campus Apartments. The tendency of the evidence is that Tierce communicated to APS that he would accept the transfer if Campus Apartments agreed to pay a higher interest rate.

Campus Apartments refused to pay a higher interest rate, whereupon, Tierce gave, through counsel, written notice to APS of its default and his declaration that APS’s obligations secured by the mortgage were immediately due and payable. Subsequent to delivery of this notice, APS and Campus Apartments instituted suit against Tierce asking, inter alia, the court to declare that APS had not defaulted and to enjoin Tierce from foreclosing. Tierce counterclaimed for a judicial foreclosure.

A trial on the merits was had at which APS’s attorney, who had provided the mortgage instruments, testified he did not know the form he used contained a “due on sale” clause and that APS had not requested that such a clause be contained in the instrument.

The trial court expressly determined the following: (1) the “due on sale” clause was not openly stated and bargained for; (2) the conveyance to Campus Apartments by APS did not endanger Tierce’s security; (3) the conveyance to Campus Apartments was not a default; and (4) Tierce’s purpose in exercising its option to accelerate payment by foreclosure was to obtain an increased interest rate. Based on these findings, the trial court permanently enjoined Tierce from foreclosing on the mortgage in question for the reason of the conveyance to Campus Apartments. This appeal ensued.

The determinative issue on this appeal is whether a “due on sale” clause is per se invalid, unless a separate consideration has been given for it, when the mortgagee’s primary purpose for accelerating payment is to obtain a higher interest rate. We find in the negative as to that issue and, therefore, reverse.

In 1907, this court expressly held in Tidwell v. Wittmeir, 150 Ala. 253, 43 So. 782 (1907), that “due on sale” clauses are enforceable. Justice Anderson stated in that opinion:

“The other phase of the amendment is doubtless intended to test the right of the mortgagee to claim that all of the installments became due upon a sale of the property by the mortgagor to the complainant. The mortgage clearly provides that all of the installments should become due in case of a sale of the property. Counsel contend that this is an unreasonable condition in the mortgage, as the complainant would lose interest by paying all of the debt before some of the payments became due under the original terms of the mortgage. This clause was put in the mortgage for a purpose, and the parties thereto were bound by it. It is not within the power of this court to make contracts for parties. The complainant was not only chargeable with notice as to the character of the mortgage on the land he was buying, but the deed conveying the land to him recited the existence of the mortgage and he purchased the land subject to said mortgage. He knew that, the very moment the mortgagor conveyed him the land, all of the installments fell due under the express terms of the mortgage. He was not compelled to buy the land, and, after doing so subject to the mortgage, he is in no position to complain of a clause contained therein.” 150 Ala. at 258, 43 So. at 783.

This holding in Tidwell has never been altered or reversed.

However, in 1977, the Court of Civil Appeals decided the case of First Southern Federal Sav. & Loan Ass’n of Mobile v. Britton, 345 So.2d 300 (Ala.Civ.App.1977). In that case the appellate court stated that Tidwell was the governing authority in Alabama, then decided the case contrary to Tidwell, asserting, however, its holding not to be contrary to that case. Despite this statement in Britton, the language used in the decision is contrary to the language used in Tidwell.

In Tidwell, this court clearly stated that it would not attempt to rewrite contracts for the parties. It was made clear that “due on sale” clauses were enforceable. The holding was not conditioned on the intent of the mortgagee when enforcing the clause.

In Britton, the Court of Civil Appeals held, in effect, that the court must look to the purposes of the lender in enforcing “due on sale” clauses. The appellate court in Britton indicated that “due on sale” clauses would be enforceable if the lender’s enforcement of such a clause was based on a legitimate business purpose; however, the purpose of forcing an acceptance of an increased interest rate from persons attempting to assume mortgages was held not to be a valid business purpose. Hence, “due on sale” clauses would not be enforceable in such situations; in essence, that mortgagees could not enforce “due on sale” clauses, if the motive was to obtain an increased interest rate from a buyer, unless the clause had been expressly and separately bargained for.

We find the holding in Britton in error. Clearly the holding in Britton is not the majority rule in the United States. See generally Annotation, Acceleration Clause — Transfer of Property, 69 A.L.R.3d 713 (1976). We do, however, recognize that some courts have decided cases as Britton was decided. See, e. g. Mutual Federal Savings & Loan Association v. Wisconsin Wire Works, 58 Wis.2d 99, 205 N.W.2d 762 (1973). See also 69 A.L.R.3d 713, § 13(c). We further recognize that “due on sale” clauses are not enforceable in every situation since mortgage foreclosure is generally an equitable matter; thus a court of equity might refuse to foreclose a mortgage when an acceleration of the due date for payment of the note secured by it would render the acceleration unconscionable, and the result would be inequitable and unjust.

We cannot, however, agree that the desire of a lender to terminate loans upon transfers, due to rising interest rates, is not a valid business purpose, thus rendering a “due on sale” clause unconscionable and unenforceable when such desire is the primary purpose for acceleration. With the tremendous rise in interest rates, lenders are forced to try to obtain higher interest rates because they are forced to pay higher interest in order to obtain funds for lending. We find the Tennessee Supreme Court concisely summarizing the rationale behind our holding in Gunther v. White, 489 S.W.2d 529 (Tenn.1973):

“Finally analyzed, the situation here is simply that appellants can sell their property at a higher price if they can sell it at the lower interest rate. The appellees under their contract have the right to insist upon the repayment of their loan in the event of sale, so that they can relend the money at an increased interest rate, and so maintain their supply of lending money, at the level of their present cost of such money. In this situation, equity should not depart from the law which requires it to enforce valid contracts and strike down the acceleration option simply because its exercise will let the appel-lees, not the appellants, make the profit on the interest rate occasioned by the increased cost of money.” 489 S.W.2d at 532.

In this case there was no evidence it would be unconscionable for Tierce to foreclose on the mortgage which APS had freely executed. In fact, APS’s own attorney prepared the mortgage instrument. It is clear that the trial court’s decree is erroneous as a matter of law, therefore, must be reversed.

For the reasons assigned, the judgment is due to be, and is hereby, reversed and remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH and ALMON, JJ., concur.

FAULKNER, J., concurs specially.

FAULKNER, Justice

(concurring specially):

I concur in the majority opinion authored by Mr. Justice Embry because there are no facts shown here that render the invocation of the “due on sale clause” unconscionable.

ON APPLICATION FOR REHEARING

TORBERT, Chief Justice

(dissenting).

A majority of this Court has denied application for rehearing in this case. I originally voted with the majority to reverse and remand the decision of the Tuscaloosa Circuit Court permanently enjoining Tierce from foreclosing on the mortgage in question for the reason of the conveyance to Campus Apartments. I concurred with the original majority opinion because I agreed with the holding that the “due on sale” clause is not per se invalid. I am still committed to that proposition of law. Both parties filed excellent briefs on application for rehearing and upon further study and reflection, I am now convinced that rehearing should be granted.

The traditional and customary purpose of the “due on sale” clause has been to protect against impairment of the lender’s security. The trial court specifically held that Tierce had adequate security and that the conveyance from APS Company to Campus Apartments Company did not endanger the security. The trial court further specifically held that the defendant’s purpose in threatening to exercise the option of accelerated payment by foreclosure was to force an acceptance of an increase in the interest rate. A majority of this Court has rewritten the agreement between the parties in the instant case and the meaning of the “due on sale” clause in many other existing agreements so that that clause may legally be used for the hidden purpose, not within the contemplation of the parties when they signed the agreement, of allowing the mortgagee upon default to condition his acceptance of a transferee of the mortgagor, upon the transferee’s agreement to pay a higher rate of interest than the interest agreed to in the contract. I would hold that the parties may, if they so desire, contract that the “due on sale” clause may be used as a device by the mortgagee to obtain a higher rate of interest upon the mortgagor’s transfer of his property. The contract in the instant case provides: “Upon such default [sale or encumbrance] mortgagee may at his option declare all obligations secured hereby immediately due and payable.” The contract does not provide that the mortgagee may at his option upon such default (i. e., sale of the property) condition his acceptance of the transferee upon the transferee’s agreement to pay a higher rate of interest than the interest originally agreed to. A majority of this Court would allow one party to a contract to unilaterally change the provisions of that contract, or at least give new meanings to old terms with well settled meanings. I would honor the party’s right to contract and give effect to their agreement as it appears in the contract.

In the order permanently enjoining Mem-non Tierce, II, from foreclosing on the APS mortgage because of the conveyance from APS to Campus Apartments, the trial court made the following findings of fact:

1. That the mortgage from APS Company to the Defendant, Memnon Tierce, II, did contain a due-on-sale clause, but that the said due-on-sale clause was not openly stated and bargained for from the inception of the mortgage.
2. . [T]here has been no waste of the property; and that the Defendant, Memnon Tierce, II, has adequate security and is adequately protected as to the indebtedness due him secured by the mortgage, and the Court finds that the conveyance did not endanger the security or increase the Defendant’s anticipated risk.
4. That the Defendant’s purpose in threatening to exercise the option of accelerating payment by foreclosure was to force an acceptance of an increase of the interest rate tor the remainder of the term and as a means to advance the financial interest of the Defendant, and the Court is of the opinion that the threat of acceleration was not due to an increase of the risk to the Defendant or jeopardy to Defendant’s security. [Emphasis added.]

The holding of the trial court, ore tenus, as to those findings of fact should not be reversed unless plainly erroneous. Baptist Foundation of Alabama v. Penn, 295 Ala. 122, 324 So.2d 766 (1976). The findings are supported by the evidence, and are not palpably erroneous. When the findings of fact are applied to the only pronouncement of the appellate courts of this state (First Southern Federal Savings and Loan Association of Mobile v. Britton, 345 So.2d 300 (Ala.Civ.App.1977)) on the narrow issue presented, the conclusion that the trial court must be affirmed is inescapable.

The question dispositive of this case is: Whether a “due-on-sale” clause may be used by a mortgagee to force a higher rate of interest on the transferee of the mortgagor by threatening foreclosure, where such use was not stated in the contract, where the clause was not openly bargained for, and where the conveyance did not endanger the mortgagee’s security. I would answer that question in the negative and hold that the “due-on-sale” clause gives the mortgagee the right to approve or reject the assumption but not the right to condition approval of the assumption only at a greater rate of interest unless the contract specifically provides otherwise. The "due-on-sale” clauses have traditionally been used as a device to protect against impairment of the mortgagee’s security, not as a device to insure that the contract interest rate keeps up with spiralling inflation.

The basic unfairness which results from sanctioning the use of a “due-on-sale” clause to accomplish the hidden purpose of raising interest rates is set forth with simplicity and clarity in a student comment in the Arkansas Law Review:

No doubt an argument can be made that a risk from which the lender should be protected is rising interest rates. The point is, however, that history and custom indicate that consent has never been denied unless the transferee or purchaser was a bad credit risk or a change in the possessory interest would endanger the security interest. Moreover, public policy has heretofore always preferred the free alienability of property over that of the freedom of contract.
In circumspection, therefore, the enforcement of “due-on-sale” clauses should correspond with the expectations of the parties at the execution of the agreement. If the lender wants to extend control over the property so that the lending rate can be renegotiated, a clear statement of such intent should be evident. Otherwise, lenders should be held to traditional notions of what circumstances justify denial of consent, namely possession or assumption which jeopardizes the lender’s security interest. [Footnotes omitted^]

Note, “Mortgages — A Catalogue and Critique on the Role of Equity in the Enforcement of Modern Day ‘Due-on-Sale’ Clauses,” 26 Ark.L.Rev. 485 (1973) (emphasis added).

I recognize that the courts of other jurisdictions are split on this issue but I believe the best analysis of this problem is contained in the well-reasoned opinion of our own Court of Civil Appeals in First Southern Federal Savings and Loan Association of Mobile v. Britton, 345 So.2d 300 (Ala.Civ. App.1977):

The purpose of the clause is to insure that the party originally bargained with and upon whose economic and financial situation and reputation money was loaned, credit extended and risk of repayment assumed, will remain as owner and in possession of the security. There can be no question but that the risk of waste, failure of maintenance and resultant deterioration in the property may be greatly increased by sale to one of whom the mortgagee knows nothing. The lending of money is a personal matter between lender and borrower. It cannot be said that the conditioning of the continuation of the relationship upon the retention of the ownership of the property standing as security for the debt is unreasonable or inequitable.
However, in this case, it is openly stated that the purpose of threatening to exercise the option, of accelerating payment was to force an acceptance of an increase of the rate of interest for the remainder of the term of the mortgage. There is no indication that acceleration was due to the increase of risk or jeopardy to the security. The purpose of the clause was not being served by the threatened acceleration but the unrelated financial interest of the lender was the reason for the acceleration.
The terms of the clause give no indication that an interest of the mortgagee other than the protection of its security is to provide the reason for exercising the option to accelerate. We do not consider the right to exercise the option to be an arbitrary one. Such right is dependent upon the sale producing a threat to a legitimate interest of the mortgagee sought to be protected by the clause. Such legitimate interests are the protection and preserving of the security from waste and depreciation and the guarding against the moral risks or the reasonable possibility of having to resort to the security after default. [Citation omitted.]
We do not say that the mortgagee may not specifically contract for the option to accelerate in the event of sale unless the purchaser agrees to payment of increased interest up to the current rate at time of assumption of the unpaid mortgage balance. We do hold that such purpose may not be hidden behind a clause which is assumed to only provide protection for the security. If the clause is to be used to advance the financial interest of the lender through requirement of payment of a penalty or an increase in interest rate, such purpose must be openly stated and bargained for from the inception of the contract. If the condition for the approval of a sale may be hidden and be other than for the protection of the historical interest of the mortgagee, the mortgagor will be at the mercy of the mortgagee. It is therefore the opinion of this court that under the stipulation before the trial court, appellant had no justification for refusing consent to the transfer. The due-on-sale clause appearing in this mortgage may not be used as an instrument to require an increase in interest rate nor for collecting a penalty in order to prevent acceleration and foreclosure. We consider this holding not to be contrary to the . decision of the Supreme Court in Tidwell v. Wittmeier, supra.

First Southern Federal Savings and Loan Association of Mobile v. Britton, 345 So.2d 300, 303-304 (Ala.Civ.App.1977) (emphasis added).

In the instant case the trial court held: (1) The foreclosure based on the “due-on-sale” clause was not necessary to protect the lender’s security because the conveyance did not impair the lender’s security, and (2) the hidden purpose of the lender in using the “due-on-sale” clause to effectuate a foreclosure was to obtain a higher rate of interest. I would hold that the “due-on-sale” clause may be used only in accord with the parties' expectations for the purpose traditionally, historically, and customarily ascribed to that clause, i. e., protection against impairment of the lender’s security. If the parties wish to condition the mortgagor’s right to transfer his property on acceptance of a higher rate of interest to be paid to the mortgagee, they should so provide, explicitly, in the contract.

MADDOX' and SHORES, JJ., concur.

      . It is true that this Court held “due-on-sale” clauses enforceable, Tidwell v. Wittmeier, 150 Ala. 253, 43 So. 782 (1907), but that case did not hold that such clauses may be used to force on the transferee of the mortgagor a higher rate of interest than that agreed upon by the parties to the contract.

      . First Southern Federal Savings and Loan Association of Mobile v. Britton, 345 So.2d 300 (Ala.Civ.App. 1977); Annot., 69 A.L.R.3rd 713 at 728 (1976).

      . See cases cited in exhaustive Annot., 69 A.L.R.3rd 713 (1976).