author: SMITH, Presiding Justice, PATTERSON, Chief Justice, LEE, Justice, BOWLING, Justice,

text:
    Tillman WADFORD v. STATE of Mississippi.
    No. 51816.
    Supreme Court of Mississippi.
    July 9, 1980.

      Montgomery, Smith-Vaniz & Stater, C. R. Montgomery, Don McGraw, Burke C. Murphy, Jr., Canton, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, James W. Smith, Pearl, for appellee.
   SMITH, Presiding Justice,

for the Court.

Tillman Wadford was indicted for the murder of one Greg Coghlan. He was tried on that charge in the Circuit Court of Madison County, found guilty, and sentenced to life imprisonment.

On appeal, it is argued that the evidence was insufficient to support the conviction. The assignments dealing with this question are without merit. Several eyewitnesses testified that Wadford drew a pistol from his back pocket, pointed it at Coghlan and shot Coghlan in the head, killing him, at a time when Wadford was not in imminent danger, real or apparent, of suffering death or great bodily harm at the hands of Coghlan.

In Redwine v. State, 149 Miss. 741, 115 So. 889 (1928), the rule was stated:

In determining the propriety of the action of the trial court in refusing to direct a verdict of not guilty in this case, the evidence tending to prove appellant’s guilt must be considered most favorably for the state. Putting it differently, every material fact proven, either directly or by reasonable inference, tending to show appellant's guilt, must be taken as true. (Emphasis added).

See also Glass v. State, 278 So.2d 384 (Miss.1973).

It is undisputed that at the time he was killed by Wadford, Coghlan was unarmed. In the statement of facts in Wadford’s brief it is said, “The defendant, Wadford, contended that the shooting was accidental.” Wadford’s testimony at his trial makes it clear that this was a correct statement of Wadford’s defense.

The homicide took place immediately outside the door of “Club 43”.

Wadford, testifying as a witness in his own behalf, gave his version of the homicide, in the course of which he undertook to describe in detail the facts and circumstances.

According to Wadford’s testimony, as he and his wife and his wife’s sister walked out of the club door, Coghlan, who was standing outside with one or two others, addressed a vulgar sex proposition to the women. Wadford told Coghlan to “watch his damn mouth.” After the Wadford party had exited the club, it was decided that Wadford would go back in and tell “Junior” that they were leaving so that the latter would not be worried about them. The women preceded Wadford into the club and the “boys” (one of whom was Coghlan) again made the indecent proposal. Wad-ford reminded them that he had told them to “watch their mouth” and that the women were his wife and sister-in-law. Wadford said he told “them that if they wanted to fight that it would be fine with him.” At that point, Coghlan told Wadford that he, Coghlan, would whip his “damn ass” and Wadford said that he had responded that Coghlan would not. According to Wadford, Coghlan said he had “something” that would take care of Wadford and Wadford “backed up.” Wadford then left, went to his truck and armed himself with a pistol. He put the pistol in his back pocket.

Wadford said he did this for his protection and because the women were in the club and would have to pass Coghlan and the others when they came out. Having obtained his pistol, Wadford returned and “that’s when they started and had a hold of me. I pulled the gun to shoot in the air but the gun didn’t make it all the way up and shot him in the eye. I did not intend to kill the boy.” Wadford said that at no time during the evening did he have any intention at all of killing Greg Coghlan. He said that, when he drew the pistol, “some of them had their hands on me and there was kind of a scuffle.” Greg was rushing in as he, Wadford, was bringing up the gun to shoot in the air. Wadford continued, “I got my hand into my back pocket and pulled it (the pistol) out to shoot it in the air and the gun went off.” He said that he had the intention of shooting up in the air and scaring “them” off; that when he pulled the gun Coghlan was coming in front of him and the others were to the sides. He said that the gun didn’t made it up into the air because “they” had my arm. “I had my finger on the trigger and it (his arm) hit the man that I had been talking to.” Wadford said that it had been he who had suggested the fight after Coghlan had made the remark to the two women.

After giving the above testimony in support of his defense of “accident”, Wadford concluded his testimony on cross-examination as follows:

I pulled that gun and shot him in self-defense under the statement that he said he had something to take care of me, and that was in my mind, protecting myself at the time.
Q. But you never saw a thing?
A. Never saw a thing?
Q. Never saw a weapon of any kind?
A. No, sir.

This leads to Wadford’s final assignment of error. Wadford contends that the trial court’s action in refusing to grant a certain instruction requested by Wadford, that would have allowed the jury to find the homicide justified as having been committed in necessary self defense, was error.

Wadford’s testimony was directed specifically and in detail to establishing that the shooting had been unintentional and accidental. It is asserted in his brief that his defense was accidental slaying. This cannot be reconciled with a view that Wad-ford’s act in shooting Coghlan had been purposeful and done because there was a reasonable apprehension on Wadford’s part that it was necessary to do so in order to protect himself from grave bodily injury or death at Coghlan’s hands, the danger thereof being imminent and impending, and that shooting Coghlan had been necessary to prevent it.

Wadford said that when he drew his gun, he had his finger on the trigger intending to shoot in the air. At the time, he said, Coghlan was two or three feet away from him, coming toward him. When Wadford failed to get the gun up and “the gun went off” Wadford’s own testimony not only wholly failed to support the theory that he acted in necessary self defense but negates it in detail. Consequently, he was not entitled to an instruction submitting the theory of self defense to the jury. An instruction should not be given to a jury submitting a theory which is not supported by the evidence.

Wadford’s requested instruction, which would have submitted to the jury a theory of self defense falls squarely within the rule stated in Pittman v. State, 297 So.2d 888, 893 (Miss.1974). “Instructions should be given only if they are applicable to the facts developed in the case being tried.”

Wadford’s concluding statement on cross examination that he had “shot him in self defense”, while in itself incapable of creating a factual issue for the jury, made it necessary and proper for the state to request an instruction which was granted, setting out the circumstances which must be established by evidence to justify a homicide on the ground of self defense. This is not to suggest that, where a defendant is, on facts in evidence, entitled to a self defense instruction, the State may preempt the subject and cut him off by obtaining an instruction of its own setting forth the essential elements of that defense. The argument is now made that the State’s instruction should not have been given because it was “abstract”. It does not use the names of the parties. However, it is undisputed that there was only one “slayer”, Wadford, and only one “deceased”, Coghlan, and no apprehension of confusion could reasonably have been entertained on that account.

As pointed out previously, in the opening portion of the brief filed on behalf of Wad-ford, it was asserted that Wadford’s defense was that the shooting had been accidental. In addition to Wadford’s own testimony, other witnesses testified that Wad-ford had told them that he had intended to shoot in the air and had no intention of shooting Coghlan and that the homicide had been an accident.

The instruction requested by Wadford, which the trial judge declined to grant, was as follows:

The Court instructs the jury that the Defendant, Tillman Wadford, asserts that the killing of Greg Coghlan was a justifiable homicide because the Defendant’s act which caused the death of Greg Cogh-lan was committed by Tillman Wadford in the lawful defense of his own person where there was reasonable ground to apprehend a great personal injury and there was eminent danger of such design being accomplished. The killing of a human being is justified if the Defendant was acting in self defense because he had reasonable grounds to fear that Greg Coghlan would attempt to kill the Defendant or cause great bodily harm to the Defendant and that there was eminent danger of the injury occuring. If you find that a homicide is justifiable, it is not necessary that you believe that Tillman Wadford had no ill will or malice toward Greg Coghlan. (Emphasis added).

It is conceivable that there may be cases in which the defenses of accident and self defense are compatible and may be asserted together. However, in this case the facts related by Wadford are irreconcilably inconsistent with any view that Wadford had intentionally shot Coghlan at a time when he, Wadford, had any reasonable ground to apprehend grave personal injury or death at the hands of Coghlan.

The first sentence of the requested instruction is clearly misleading. This would have made it appear to the jury that the court was informing the jury that Wadford had testified (asserted) that Wadford’s act in killing Coghlan had been committed by Wadford in the lawful defense of his own person at a time when there was reasonable ground to apprehend imminent danger of death or great personal injury at Coghlan’s hands. This would have been incorrect as Wadford had not so testified. Moreover, while it begins by including in the fears to be apprehended by Wadford the fear of “death,” it continues by stating that the killing was justified if “there was reasonable ground to apprehend a great personal injury.” There is no requirement whatever in the instruction that, in order to sustain the theory of self defense, it was necessary that the jury find these facts from evidence.

Self defense is a legal concept which must be supported by evidence to be available to a defendant in a homicide case. The mere statement by a defendant that he killed his victim in “self defense” is wholly incapable by itself of raising a factual question requiring its submission to the jury. The plea of self defense must be supported by evidence of facts and circumstances from which the jury may conclude that a defendant was justified in having committed the homicide because he was, or had reasonable grounds to believe that he was, in imminent danger of suffering death or great bodily harm at the hands of the person killed. No such evidence appears in Wadford’s testimony or elsewhere in the record, notwithstanding the fact that he concluded his cross examination by saying he killed Coghlan in “self defense.”

The requested instruction would have put the court in the position of telling the jury that “Wadford asserts that the killing of Greg Coghlan was justifiable homicide because the defendant’s act which caused the death of Greg Coghlan was committed by Tillman Wadford in the lawful defense of his own person where there was reasonable ground to apprehend a grave personal injury and there was imminent danger of such design being accomplished,” when such was not the case.

This would not have been a correct statement. Wadford’s defense, as stated in his brief, and outlined in his testimony, was that the homicide had been accidental. Wadford’s own version of the killing was that he had unintentionally shot Coghlan and that the killing had been an accident. The legal concept of self defense in a homicide case is based upon justification of a purposeful killing because it was necessary to kill in order to save the killer from imminent danger of suffering death or grave bodily harm at the hands of the person killed. There was no evidence in this case capable of supporting a factual finding that Wadford had killed Coghlan under such circumstances. The court correctly declined to grant Wadford’s requested instruction.

It is interesting to note that the State requested and was granted an instruction submitting to the jury the question of whether the homicide had been manslaughter. This was properly based upon the nature of Wadford’s defense that he had drawn the gun intending to fire it in the air and that it had fired accidentally.

In support of his contention that the trial judge committed prejudicial error in declining to grant his requested instruction on self defense appellant cites Gandy v. State, 355 So.2d 1096 (Miss.1978), a culpable negligence case. The rule followed in Gan-dy is sound but it has no application to the facts in the present case. Also cited is Gambrell v. State, 92 Miss. 728, 46 So. 138 (1908), a case in which this Court refers to a general rule that where there is serious doubt in the law as to whether or not certain proof is permissible or a requested instruction should be given, ordinarily the doubt should be resolved in favor of the accused. The case now under consideration does not fulfill the requirements for application of the rule.

Other matters assigned as prejudicial error have been examined and carefully considered and are found to be without merit. The judgment appealed from is affirmed.

AFFIRMED.

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

PATTERSON, C. J., and LEE, J., specially concur.

BOWLING and WALKER, JJ., dissent.

PATTERSON, Chief Justice,

specially concurring:

The facts of this unfortunate homicide are amply stated in the majority and dissenting opinions, needing no clarification.

The cardinal issue before the court as developed by the majority and dissenting opinions is whether the defendant was entitled to an instruction on self-defense. I think this is not the issue because the jury was instructed on self-defense. Probably this needs some explanation.

The defendant argued that he accidentally killed Greg Coghlan, his assailant, while indulging the right of self-defense which was thrust upon him by the imminent likelihood of great bodily injury or death at the hands of Coghlan. In this unusual circumstance, I am of the opinion there is no present inconsistency between the plea of self-defense and the assertion of death by accident, but if there be an inconsistency between the two, it was resolved in the defendant’s favor because, as mentioned, the jury was instructed on self-defense as will be later shown.

It is of course true that an act in self-defense is intentional and responsive to urgent circumstances for one’s own safety. It is also true that an intentional course of action is inconsistent with a course of events initiated by an accident. But this is not to state that an intentional act cannot go awry because of an unforeseen accident. In either event, I am of the opinion the action of Coghlan and his associates immediately prior to Wadford’s firing the pistol would determine whether or not he was entitled to a self-defense instruction. I think the existence of the right of self-defense and not the manner in which it was carried out is the point. For this reason I do not concur in the majority opinion in its theory of inconsistency between a plea of self-defense and accident.

Neither is it my opinion, as stated in the dissent, that an act of self-defense mandates the killing of an aggressor. Surely, there are situations where the right of self-defense could be exercised by non-fatal means to the aggressor to avoid serious injury or death.

I am of the opinion, although it is academic, that the defendant was entitled to an instruction of self-defense because of the critical circumstances immediately prior to the fatal shot. In Craft v. State, 271 So.2d 735 (Miss.1973), a case concerning self-defense instructions, we stated:

It is a rare case indeed, and this is not one of them, in which it is proper to give an instruction to the jury cutting off the right of a defendant in a murder prosecution to defend himself. Under the facts in evidence the giving of either of the quoted instructions was fatally prejudicial and requires reversal of the conviction and a remand of the case for a new trial. . . . (271 So.2d at 736)

This is not the “rare case” in which the self-defense instruction should have been refused.

The question of who should have obtained the instruction, that is to say, the defendant, the prosecution or the court, is of little significance as long as the jury was properly instructed. The following instructions were given:

INSTRUCTION NO. S-3
The Court instructs the jury that to make a homicide justifiable on the grounds of self-defense, the danger to the slayer must be actual, present and urgent, or the slayer must have reasonable grounds to apprehend a design on the part of the deceased to kill him, or to do him some great bodily harm, and in addition to this, that there must be imminent danger of such design being accomplished; and hence, mere fear, apprehension or belief, however sincerely entertained by one person, that another designs to take his life or to do him some bodily harm, will not justify the former in taking the life of the latter. A party may have apprehension that his life is in danger, and believe the grounds of his apprehension just and reasonable, and yet he acts at his peril. He is not the final judge; the jury may determine the reasonableness of the ground upon which he acted.
INSTRUCTION NO. S-2
The Court instructs the jury that malice aforethought mentioned in the indictment in this case, does not have to exist in the mind of the slayer for any given length of time; and if at the very moment of the fatal shooting of Gregory Coghlan, the defendant, Tillman Wad-ford, did shoot said Gregory Coghlan with the deliberate design to take the life of Gregory Coghlan, and not in necessary self-defense, real or apparent, then it was as truly malice and the act was as truly murder as if the deliberate design had existed in the mind of the defendant for minutes, hours, days, weeks or even years.
INSTRUCTION NO. S-4
The Court instructs the jury that manslaughter by use of a deadly weapon, is the killing of a human being without malice, in the heat of passion, without authority of law and not in necessary self-defense; and if the jury believes from the evidence in this case beyond a reasonable doubt that the defendant, Tillman Wadford, so killed Gregory Coghlan, then you will find the defendant, Tillman Wadford, guilty of manslaughter.
INSTRUCTION NO. D-3
The Court instructs the jury that the killing of a human being is excusable homicide if you find from the evidence, if any, that the Defendant Tillman Wad-ford’s act which caused the death of Greg Coghlan was the result of an accident and misfortune, in the heat of passion, upon sudden and sufficient provocation, and if you further find that Greg Coghlan’s death was caused by an accident resulting from someone hitting Tillman Wadford’s arm as he attempted to shoot his gun up into the air, then the homicide is excusable (emphasis supplied).

I am of the opinion these instructions when read together properly apprised the jury of each defense the defendant asserted. If they erred, such inured in the defendant’s favor, leaving his present contentions without merit.

Moreover, the argument advanced upon the abstractness of the instruction does not constitute reversible error per se. Scales v. State, 289 So.2d 905, 908 (Miss.1974); Gilmer v. State, 271 So.2d 738, 740 (Miss.1973); and of course all instructions must be read together to determine their overall correctness. Shields v. State, 244 Miss. 543, 144 So.2d 786 (1972). In reading these instructions together we are impressed with the opening instruction of the court to the jury which admonished it in no uncertain terms to base its verdict upon the evidence that it had heard and in accord with further instructions of the court. If any of the cited instructions be abstract, then it is my opinion this was cured by the court’s instructions and has application because they must be read together.

I concur in the result of the majority opinion, but not in its reasoning. Overall, the evidence amply supports the jury verdict of murder. The instructions, which I do not think were erroneous, but if they were, erred in the defendant’s favor. I would affirm.

LEE, J., joins in this opinion.

LEE, Justice,

specially concurring:

I concur in the result of the majority opinion. I think the requested instruction on self-defense was erroneous as drawn and was correctly refused. I join the specially concurring opinion of Chief Justice Patterson.

BOWLING, Justice,

dissenting:

I respectfully dissent. In the first place, the majority opinion establishes the most unique and novel legal principle this writer can imagine — that is, if a person being attacked does not intend to kill his attacker, whatever acts he does to attempt to repel his attacker cannot be self defense. He has got to say that “I tried to kill him.” The majority mandates a killing rather than other evasive actions short of a homicide. I cannot accept this principle.

The impression is left in the majority opinion that the appellant in whatever he did was dealing with two or three “boys.” This is not correct. He was dealing with at least five grown persons, each of whom admittedly was intoxicated. The ages of three of those confronting appellant, as shown by the record, were 35, 34 and 22. The age of the deceased is not revealed in the record. At least two of the survivors of the gang had a prior criminal record. In addition, the deceased admittedly had shot his father, but the disposition of that action is not shown in the record. These were the “boys” implied by the majority opinion to have been harassed by appellant.

Rather than speculate on what the record shows to be appellant’s testimony regarding his version of what he did when confronted with the above described individuals, I necessarily will have to lengthen this opinion by actual quotes from the record. Appellant testified about the admitted vulgar and vile language of the deceased while surrounded by his friends at the doorway of the building that appellant, his eight-month pregnant wife and his sister-in-law were entering. The language itself was sufficient to upset any person with respect for himself and his family. Appellant’s testimony was that after realizing the situation he was faced with he placed the pistol in his pocket for protection in the event the situation got out of hand.

The following are direct excerpts from the record under which appellant’s attorney requested the instruction on self defense:

A. Well, we had been to a fish fry down at the John Deere place and we got through cooking there and we decided to ride out to the 43 Club, me and my brother, to dance and have a beer, so we proceeded on out there. Later, Peggy and Dorothy Sue came in and I walked up to them and asked them was they ready to go, and they said “yeah.” We walked out the door, I don’t know where they heard it or not, but I heard it, the boy asked them did they want to fuck and I told him, I said, “Man, watch your damn mouth.” So we went on out and I told Dorothy, I’m going back in and tell Junior that we are leaving where he wouldn’t worry about us. So Dorothy and them walked in ahead of me, and I locked my pickup and I was right behind them, and they asked them did they want to fuck again. That’s when I turned around and told Craig, I said, “I’ve asked y’all to watch your mouth,” I said, “That’s my wife and my sister-in-law,” and I also told ’em if they wanted to fight that was good with me. That’s when Craig made the statement that “We will whip your damn ass.” I said, “No, you will not.” And then he made the statement that he had something that would take care of me. So I backed off on them, I understand my wife and sister-in-law had went inside. They had to come back out. I had to go back in to get ’em to come out, so that’s when I unlocked my truck and put my gun in my pocket going under my protection. I knew I had to go in and get them and I had to come out.

Q. Okay.

A. And when I walked up to the door is when all of them started, they had aholt of me, I pulled the gun to shoot in the air, I did not intend to kill the boy. The gun didn’t make it all the way up and caught him in the eye.

Q. Okay, Mr. Wadford, at the time you pulled the pistol and everything, could you describe how close the four people were to you?

A. They were right on me.

Q. Were they within reaching distance?

A. Yes, sir.

Q. What, if anything, did you know of the individuals with reference to whether or not they were carrying weapons or had access to weapons?

A. Well, sir, when he told me he had something to take care of me I figured he had something.

Q. Any statement with reference to your wife or your sister-in-law?

A. Only that they asked them did they want to fuck.

Q. At any time during the course of the evening, just tell the jury what was in your mind at the time you drew that pistol?

A. It was in my mind, if they was intending to hurt me or kill me one, after he had made the statement he had a gun, he didn’t say he had a gun but he had something to take care of me, that it was in my attention that they had in their mind either hurting me or killing me.

Q. At the time you drew that pistol, do you recall if any of the four gentlemen had their hand on you?

A. It was a scuffle.

Q. Okay, where did, ah, were the four people right there with you?

A. Yes, sir.

Q. What if anything were they doing to you?

A. They had a holt of me. Greg rushed in as I was bringing the gun up, I was going to shoot in the air.

Q. They had what?

A. They had done humiliated my wife and stuff by asking them that.

Q. I see. And you felt that was justification at that point, is that right?

A. No, sir, I didn’t feel that that was justification but when he threatened that he had something to take care of me, then I figured in myself that I had the right to protect myself.

Q. You positive he said that?

A. Yes, sir.

Q. That’s why you said that, is that right? A. It is, he said he had something to take care of me.

Q. Okay. And did any of the other three ever say anything directly to you?

A. No, sir.

Q. They never threatened you?

A. They grabbed me.

Q. They grabbed you? All three of them?

A. They had a holt of me.

Q. Where did they have you?

A. Well, one on the other arm.

Q. Who had you on which arm?

A. I don’t know the people.

Q. Do you know which one had you where?

A. No, sir.

Q. They just all grabbed you?

A. Yes, sir.

Q. All right. Now, you’re standing there and all four of them rushed you and grabbed you?

A. Right.

Q. Now one of them had one arm, is that right?

A. Well, yes, sir, they had aholt of me.

Q. Where did the other two have you?

A. I don’t know sir, it was just hands and bodies on me is all I know.

Q. They were just on you?

A. Yes, sir.

Q. All three of them had you wrapped up?

A. Well, I didn’t have time to think to stop and count ’em, no, sir.

Q. . . . You managed to get your hand in your back pocket and get the gun out and you were going to shoot up in the air?

A. Right.

Q. Why didn’t you just start swinging?

A. Well, I had in my mind, he had done said he had something to take care of me—

Q. You hadn’t—

A. —-I did not know what they had, I didn’t have time to look—

Q. And you hadn’t seen a thing, had you?

A. I didn’t have time to look.

Q. You hadn’t seen a thing, had you?

A. I didn’t have time to look, sir.

Q. How long does it take to take a swing as compared to reaching for a pistol in your back pocket when three people got you surrounded?

A. Well, he had done told me he had something to take care of me. I didn’t know what they had.

Q. All right. Now where was Greg Cogh-lan when you pulled the gun?

A. He was coming in front of me.

Q. And the other three were holding you? A. They were on my sides, they had a holt of me.

Q. All right, and you got the gun up in the air?

A. It didn’t make it up, sir, they had my arm and it didn’t make it up.

Q. They had your arm?

A. Right, yes, sir. It didn’t make it all the way up but—

Q. How many people had your arm?

A. I don’t know, sir.

Q. You don’t know? Might have been all three of ’em?

A. Might have been.

As hereinbefore stated, the majority opinion is to the effect that under the circumstances set out above, appellant would have had to state that he intended to kill the deceased before being entitled to a self-defense instruction. Even the State recognized that such an instruction was proper as it requested one in abstract form. The reason the court did not grant appellant’s proposed instruction on this defense was that it had already granted an abstract self-defense instruction requested by the State, which instruction in no way tied in the defense with the evidence as hereinbe-fore related. The majority opinion criticizes the instruction submitted by appellant and states that the language was erroneous. As stated above, this was not the reason the instruction was refused. If the lower court had recognized appellant’s right to an instruction on his defense, it could have been amended prior to final approval.

Whether the jury would have agreed or not, the appellant, under our system, when he is on trial for his life, is entitled to present his defense to the jury. Craft v. State, 271 So.2d 735 (Miss.1973); Coleman v. State, 179 Miss. 661, 176 So. 714 (1937). I am not passing on appellant’s guilt or innocence, but am merely stating that in my opinion he is being denied the right to present his defense. The majority opinion holds that appellant was not entitled to the self-defense instruction even under the admitted situation facing him. In my opinion the error is compounded by the position that appellant — who attempted to avoid killing the deceased rather than shooting him with deliberate design to kill — cannot contend that his actions were taken while trying to defend himself. I cannot accept the legal principle that “self-defense” eliminates all actions other than purposeful killing.

To me there is no way to escape the conclusion that this Court has denied appellant his right to present his case to a jury, fully instructing that jury on appellant’s defense. I would reverse and give him a fair trial before a properly instructed jury.

WALKER, J., joins in this opinion.


source: Caselaw Access Project

author: SMITH, Presiding Justice,

license: Public Domain

text:
    Pearl Marie THRASH v. Jimmy Dale THRASH.
    No. 51953.
    Supreme Court of Mississippi.
    July 9, 1980.
    James B. Everett, Decatur, for appellant.
    Robert N. Brooks, Carthage, for appellee.
    Before SMITH, P. J., and BROOM and COFER, JJ.
   SMITH, Presiding Justice,

for the Court.

Pearl Marie Thrash has appealed from a decree of the Chancery Court of Leake County rejecting her attack upon a decree of that court in which her late husband, Jimmy Dale Thrash, was granted a divorce.

The circumstances of the case are unusual. The original litigation was begun by Pearl Marie Thrash, praying for a divorce from him on the ground of habitual cruel and inhuman treatment. Defendant, Jimmy Dale Thrash, answered and filed a cross-bill in which he prayed for a divorce from Pearl Marie Thrash upon similar grounds.

The case was fully tried, submitted to the chancellor for final decision, and by him taken under advisement.

On March 31, 1978 the chancellor determined all issues on the merits and rendered his decision by written opinion which he signed and filed with the clerk on April 1, 1978. The chancellor found that complainant, Pearl Marie Thrash, was not entitled to a divorce and held that Jimmy Dale Thrash was entitled to a divorce from her upon the grounds set forth in the cross-bill.

The solicitors for the respective parties were informed of the decision and a decree was drafted, approved by both solicitors, and forwarded to the chancellor for signature. This decree was duly received by the chancellor on April 8, 1978 and signed by him on that same date. However, the chancellor dated the decree April 10,1978, which was a Monday. On April 9, 1978 the chancellor received a telephone call from the solicitor for complainant by whom he was told that Jimmy Dale Thrash had been killed in an accident on Sunday, April 9, 1978.

On May 16, 1978 Pearl Marie Thrash filed a “Suggestion of Death and Motion to Dismiss”. The motion was based upon a theory that the decree, although signed on Saturday before Thrash’s death, bore date of Monday, a date subsequent thereto, and had not been filed. This motion was heard on March 7, 1979 by a different chancellor. The original chancellor testified that he had intended to file the decree with the clerk, whose office was in a different locality, on Monday, April 10, 1978. The chancellor who presided at the hearing of the “Suggestion of Death and Motion to Dismiss” rejected the motion to dismiss and ordered the decree of divorce theretofore signed by the chancellor to be entered nunc pro tunc, as of its true date of signing, April 8, 1978.

The present appeal does not challenge the decision of the case by the original chancellor on its merits in which Jimmy Dale Thrash was granted a divorce from Pearl Marie Thrash and she was denied a divorce from him. In brief, the position of the appellant is that the decree signed by the chancellor on April 8, 1978 and dated April 10, 1978, was without effect and is a nullity because Jimmy Dale Thrash had died on April 9, 1978 before the decree was filed with the clerk.

In Chapter 7 of Title 11, Mississippi Code Annotated section 11-7-1 (1972) provides:

Provisions applicable to all courts.
All things contained in this chapter, not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever.

In several cases this Court has applied the provisions of the chapter to proceedings in the chancery court, equating the chancellor, as trier of facts, with the jury, which is of course, in the circuit court, the trier of facts. One such case is People’s Bank In Liquidation v. Pennington, 137 Miss. 653, 102 So. 386 (1925), which construed section 11-7-125 which provides:

Nonsuit or dismissal — before jury retire from bar.
Every plaintiff desiring to suffer a nonsuit on trial shall be barred therefrom unless he do so before the jury retire to consider of its verdict.
[Mississippi Code Annotated section 11— 7-125 (1972)].

In ruling that the statute applied to cases in the chancery court, this Court said:

In the case of Adams v. Commercial Co., 113 Miss. 608, 74 So. 435, it was held that section 802 of the Code of 1906 (section 590, Hemingway’s Code), which gives to every plaintiff the right to suffer a nonsuit if he elects to do so, before the jury retire to consider its verdict, is likewise applicable to the right of a complainant in the chancery court, and that a complainant has the right to dismiss his bill at any time before the cause is submitted to the chancellor for a decision upon its merits; that this is an absolute right of the complainant, and no discretion is vested in the chancellor when timely application is made.
(137 Miss, at 674-675, 102 So. at 387).

At the conclusion of the divorce trial, when the case was submitted to the chancellor for a decision on its merits, Pearl Marie Thrash no longer had the prerogative of taking a nonsuit and, of course, at no time did she have the right to nonsuit the cross-bill filed against her by Jimmy Dale Thrash.

Section 11-7-25 of Chapter 7, Title 11, Mississippi Code Annotated (1972) provides, (among other things):

Where either party shall die between verdict and judgment, such death need not be suggested in abatement, but judgment may be entered as if both parties were living. .

Applying the same reasoning to the above section as this Court has applied to section 11-7-125, Mississippi Code Annotated (1972), in a case such as this, where the case has been fully tried and finally decided on its merits and nothing remains to be done except the entry of a decree, the decree would follow as if both parties were living.

One of the issues in the divorce suit dealt with the custody and support of the minor son of the parties. The question now raised, therefore, is inescapably crucial to the question of whether this child shall take the estate of his deceased father or whether the divorced wife shall take not only half of the estate as an heir but shall also enjoy the valuable rights and privileges which would be accorded her as a surviving widow.

In an annotation appearing in 104 A.L.R. 654, 664 (1936) appears the following:

The general rule, so far as a general rule may be deduced from the few cases falling within this subdivision, is that, if the facts justifying the entry of a decree were adjudicated during the lifetime of the parties to a divorce action, so that a decree was rendered or could or should have been rendered thereon immediately, but for some reason was not entered as such on the judgment record, the death of one of the parties to the action subsequently to the rendition thereof, but before it is in fact entered upon the record, does not prevent the entry of a decree nunc pro tunc to take effect as of a time prior to the death of the party. Re Cook (1888) 77 Cal. 220, 17 P. 923, 19 P. 431, 1 L.R.A. 567, 11 Am.St.Rep. 267; Tikalsky v. Tikalsky (1926) 166 Minn. 468, 208 N.W. 180; Hoyt v. Hoyt (1926) 98 N.J.Eq. 426, 131 A. 127; Rush v. Rush (1896) 97 Tenn. 279. See Schneider v. Grimes (1923) 156 Minn. 25, 193 N.W. 942 (sustaining the entry of a decree nunc pro tunc in so far as it affected property rights); Kimball v. Kimball (1862) 44 N.H. 122, 82 Am.Dec. 194. But if no such final adjudication was made during the lifetime of the parties, a decree nunc pro tunc may not be entered after the death of one of the parties, to take effect as of a prior date. Young v. Young (1901) 165 Mo. 624, 65 S.W. 1016, 88 Am.St.Rep. 440; Swan v. Harrison (1865) 2 Coldw. (Tenn.) 534.
(Emphasis added).

In Berkenfield v. Jacobs, 83 So.2d 265 (Fla.1955) the Florida Court dealt with a case in which the factual question was significantly analogous to that in the case now under consideration.

In Berkenfield, as here, the wife had sought a divorce from her husband who filed a cross-complaint. Having heard the testimony relative to the issues posed by the pleadings the chancellor decided the case in the husband’s favor. A final decree was signed June 21, 1954 and afterwards, between 10:08 and 11:35 of the morning, the husband died in the chancellor’s chambers. The decree was filed with the clerk at 10:16 on the morning of that day and recorded the next day. On appeal it was contended by the wife that the decree could not become effective until it had been recorded and that, therefore, she was a widow of her deceased former husband. It was pointed out that the differences between the parties in “material considerations” is to be measured by the worth of the husband’s estate and that no sentiment could be involved as each had sought to be freed from the other. The chancellor held that the decree had not become effective because the husband had died before the decree was recorded and set it aside and dismissed the case.

The Florida Supreme Court, in reversing, held that recordation of a final decree is a procedural and ministerial act, that a decree when recorded is but evidence of judicial action already taken and that a failure to perform the act of recording may be remedied by an order nunc pro tunc. The Florida Court held that the judicial labor had ended with the signing of the decree, and concluded that when the clerk recorded it had no effect upon the decision of the chancellor dissolving the union.

See also Becker v. King, 307 So.2d 855 (Fla.App.1975) which was a divorce case in which a decree was entered following a complete trial and determination of the issues, but after the death of one of the parties. In Becker v. King, supra, the Florida Court said:

Once a court of record has jurisdiction of the cause and the parties and all the evidence has been presented, the cause is then ripe for judgment and the court is not thereafter deprived, by the death of a party, of its inherent power to render a decision or judgment and may do so in the interest of justice by a judgment nunc pro tunc as of the time of submission.
Nunc pro tunc means “now for then” and when applied to the entry of a legal order or judgment it normally does not refer to a new or fresh (de novo) decision, as when a decision is made after the death of a party, but relates to a ruling or action actually previously made or done but concerning which for some reason the record thereof is defective or omitted. The later record making does not itself have a retroactive effect but it constitutes the later evidence of a prior effectual act.
(307 So.2d at 858-859).

Although courts in some other states have reached different conclusions, the majority of courts in which the question has arisen seem to have adopted a similar line of reasoning, that the decree is valid between the parties once the cause has been adjudicated, even though the decree is not final (for appeal purposes) until entered by the clerk. See Cornell v. Cornell, 7 N.Y.2d 164, 196 N.Y.S.2d 98, 164 N.E.2d 395 (1959); Becker v. King, 307 So.2d 855 (Fla.App. 1975); Tuttle v. Tuttle, 89 N.H. 219, 196 A. 624 (1938); Freeman on Judgments, § 135 at 254 (5th Ed.1925).

Two decisions of this Court are cited as supporting the view of Pearl Marie Thrash, appellant. Of these, Jackson v. Schwartz, 240 So.2d 60 (Miss.1970) relates exclusively, as is apparent upon the face of the opinion, with establishing a uniform rule to be used in computing the time within which it is necessary to take an appeal, and holds, that for this purpose, the computation shall begin when the decree or judgment is recorded.

In the other case cited by appellant, Pittman v. Pittman, 375 So.2d 415 (Miss.1979) this Court dealt with a divorce suit in which the wife had been the successful complainant. The chancellor heard the case and took it under advisement for “final disposition and a final decree in vacation.” Afterward, the chancellor wrote a letter to the solicitors asking that a decree be prepared in accordance with instructions set out in his letter. There was no formal adjudication of the issues in writing, signed by the chancellor and filed with the clerk of the court as in the case here. In Pittman, some three weeks after receiving the letter, a decree was prepared and mailed to the chancellor. This decree was signed by the chancellor and filed on October 27,1978. In the meantime, the successful litigant, Ella Mae Pittman, had died on October 17, 1978.

This Court held, on the facts of the case, that the death of the party prior to the entering of the decree had rendered moot the question on divorce, stating that “all issues in the case were incidental to the divorce and the contest and the entire case died with the complainant.”

We have concluded that Pittman is clearly distinguishable from the present case on its facts.

Here, inescapably and unavoidably, substantial property rights would be affected by the setting aside of the decree and would result in the divorced wife succeeding to all of the rights of a surviving widow and heir to the detriment of the surviving child. The final adjudication of the issues in this case was completed during the lifetime of the successful litigant, and such formal written adjudication in writing, signed by the chancellor, was on file with the clerk of the court. This was not the case in Pittman. As a matter of fact, the final decree also was signed by the chancellor prior to the husband’s death, and his intention to file it on Monday, a date after the death, could not have the effect of rendering it a nullity. It does not appear that the provisions of Mississippi Code Annotated section 11-7-25 (1972) were cited to the court in Pittman or were relied upon by the complaining party. We have concluded that, in the absence of some special circumstances such as would cause a miscarriage of justice by so doing, the provisions of that section apply in a case such as this, the death of the husband having occurred long after the formal decision of all issues by the trier of facts. To hold otherwise, we think, would work a manifest miscarriage of justice. The decree appealed from, upholding the divorce decree as of April 8, 1978, will be affirmed.

AFFIRMED.

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


text:
    Walter CHAPMAN v. MASONITE CORPORATION.
    No. 51892.
    Supreme Court of Mississippi.
    July 16, 1980.
    H. C. Moynihan, Laurel, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, B. Stevens Hazard, Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

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

AFFIRMED.


text:
    Marshall D. MARTIN v. Wyvone L. MARTIN.
    No. 52025.
    Supreme Court of Mississippi.
    July 16, 1980.
    Eugene Sexton Berry, Jr., Jackson, for appellant.
    Watkins & Eager, Richard F. Scruggs, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

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

AFFIRMED.


author: BEATTY, Justice. JONES, Justice

text:
    John J. PAPASTEFAN and Linda M. Papastefan v. B & L CONSTRUCTION CO., INC. OF MOBILE, a corp.
    78-549.
    Supreme Court of Alabama.
    May 9, 1980.
    Rehearing Denied July 7, 1980.
    Michael A. Figures, Mobile, for appellants.
    Jerry A. McDowell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
   BEATTY, Justice.

This is the second time the same parties have come before this Court. Plaintiffs John and Linda Papastefan brought suit in 1976 against defendant B & L Construction Company, alleging fraud in connection with plaintiffs’ purchase of a house and residential property from defendant in 1973. Plaintiffs alleged, in essence, that defendant knew of existing underground springs on the property which would cause uncontrollable flooding and render the land unsuitable for residential habitation, and concealed these facts from plaintiffs.

Plaintiffs first noticed the wet area in question during their negotiations with defendant in November-December, 1972. Plaintiffs testified that defendant explained that it had been raining heavily during this period and that a drain would be installed and the area would dry up. Plaintiffs purchased and moved into their home in early 1973. For the next year, they experienced periodic flooding which would come with a heavy rainfall, but which would disappear as the rain stopped. In March, 1974, plaintiffs noticed that their drain had broken. At this time, plaintiffs employed Cain Eaton to make repairs in order to correct the problem. Plaintiffs testified that as a result of Eaton’s work they learned that the water was coming from a spring, but they did not know at that time from where it emanated or that it was a running spring. They thought it was “trapped” water. Through Eaton’s efforts, the property remained dry for about a year, but then the water appeared again. Mr. Papastefan testified that the water problem, when it recurred in early 1975, was much worse than it had been previously; for example, in February or March of 1975, Mr. Papastefan stepped into a flower bed outside his house and sank halfway up to his knees in mud. Mr. Eaton was again called to install additional drains, and he and Mr. Papastefan discovered about six streams of water running underneath the land. The work done by Mr. Eaton in 1975 temporarily improved the condition of the property, but in late December of 1975 or early January of 1976, the flooding became unmanageable. The Papastefans then consulted an attorney, and this suit for fraud was filed several months later, on June 8, 1976.

On the first appeal of this case, Papastefan v. B & L Construction Co., Inc., 356 So.2d 158 (Ala.1978), plaintiffs appealed the trial court’s grant of defendant’s motion for summary judgment given on the ground that the applicable statute of limitations had expired. We reversed, holding that there existed a genuine issue for trial as to whether more than one year had elapsed from the time plaintiffs had discovered the alleged fraud, or should have discovered it, to the time of filing suit, thereby precluding summary judgment on the limitations issue. Upon remand to the trial court, plaintiffs put on their case in chief, after which the defendant’s motion for a directed verdict was granted. Plaintiffs again appeal.

On this second appeal, both sides again argue in brief the limitations issue. The Supreme Court is not barred from reexamination of a previous ruling upon a subsequent appeal of the same case. Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974); City of Fairhope v. Town of Daphne, 286 Ala. 470, 241 So.2d 887 (1970). Code of 1975, § 12-2-13 (formerly Tit. 13, § 28, Code of 1940), states in part:

The supreme court, in deciding each case when there is a conflict between its existing opinion and any former ruling in the case, must be governed by what, in its opinion, at that time is law, without any regard to such former ruling on the law by it; . .

Section 12-2-13 abrogates the common law rule that principles decided and rulings made on appeal, however erroneous, are the “law of the ease” and govern the appellate court on a subsequent appeal in the same case. Stoudenmire v. De Bardelaben, 85 Ala. 85, 4 So. 723 (1888); Moulton v. Reid, 54 Ala. 320 (1875). Of course, if, upon re-examination, the Supreme Court determines that its previous ruling is sound, the former decision will be reaffirmed. City of Fairhope, supra; Norville v. Seeberg, 205 Ala. 96, 87 So. 164 (1920). After examining the evidence in this case we have concluded that the trial court was correct in granting defendant’s motion for a directed verdict at the conclusion of plaintiffs’ case. We accordingly affirm.

Under Code of 1975, § 6-2-39, an action for fraud is subject to a one-year statute of limitations. A claim for fraud does not accrue until “the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his action.” See Code of 1975, § 6-2-3. The “fact constituting the fraud” is deemed to have been discovered when it ought to have been discovered; that is, at the time of the discovery of facts which would provoke inquiry by a person of ordinary prudence and which, if followed up, would have led to the discovery of the fraud. See Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 281 So.2d 636 (1973). Because the statute of limitations was raised as a defense by B & L in this case, it was incumbent upon plaintiffs to prove that their cause of action accrued within the period of the bar. See Cities Service Oil Co. v. Griffin, 357 So.2d 333 (Ala.1978). After reviewing the record, we have found not a scintilla of evidence that plaintiffs discovered the alleged fraud perpetrated on them after June 8, 1975 (i. e., one year before suit was filed). On the contrary, the record discloses undisputed evidence that in early 1975, at the latest, plaintiffs were aware of facts sufficient to have put reasonably prudent persons on inquiry, which would have enabled them to learn of the alleged fraud had they exercised proper diligence.

Plaintiffs’ claim of fraud necessarily depends upon defendant’s alleged failure to disclose to them that the land upon which their house is located was permeated by a network of underground springs. The subject of our inquiry is thus when plaintiffs knew, or in the exercise of reasonable prudence, should have known, that they had been deceived about the presence of the serious water problem on their lot.

The record reveals uncontradicted evidence that plaintiffs were aware of a “wet spot” in their yard when they moved into their house in January, 1973. In April of 1973, in a list of defects submitted to defendant, plaintiffs complained that “[t]he spring or whatever at the foot of the lot causes a perpetual mud hole and a real mess. The water bubbles up from the ground. If a drain was put in, then there is something very seriously wrong. . . . ” In 1974, as the result of Mr. Eaton’s entrenching endeavors, plaintiffs discovered “springs of water” under their lot. When the problem became worse than ever in February or March of 1975, after Mr. Pa-pastefan “stepped in the flowerbed and sank up — halfway up to the knee,” Mr. Eaton was again called. He and Mr. Papaste-fan then discovered a number of additional streams under the property and yet, even after this discovery, plaintiffs did not file suit until June of 1976, some fourteen months later. The undisputed fact that the Papastefans were aware, for several years, of the springs underneath their property and of the increasing difficulty caused by the subsurface springs, was sufficient to entitle the trial court to direct a verdict in favor of defendant on the ground of the running of the one-year statute of limitations. As a result, the judgment of the trial court must be, and is, affirmed.

AFFIRMED.

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

MADDOX, FAULKNER, JONES and SHORES, JJ., dissent.

JONES, Justice

(dissenting):

I respectfully dissent. I would hold, consistent with this Court’s prior holding on the first appeal, that the record supports an issue of fact appropriate for jury consideration; therefore, I would reverse the trial Court’s judgment granting Defendant’s motion for directed verdict and remand the cause for new trial.

Accepting the majority’s description of the facts and statements concerning the propriety of this Court’s re-examination of previous rulings upon subsequent appeals of the same case, I move on to an analysis of the evidence and application of the law to that evidence.

Defendant B & L Construction Company contends as it did on the first appeal that the facts are undisputed that Plaintiffs knew of the existence of the underground springs on their land as early as April, 1973, when they submitted a list of defects to Defendant which, among other things, referred to “[t]he spring or whatever at the foot of the lot . . . .” Defendant contends, therefore, that the one-year statute of limitations for fraud, under § 6-2-39, Code 1975, had long since expired when suit was brought in 1976, even taking into account the statute’s “saving clause,” by which the statute is tolled until discovery of facts constituting the fraud or discovery of facts which would provoke inquiry in the mind of a reasonable and prudent person which, if followed up, would lead to discovery of the fraud. § 6-2-3, Code 1975; Johnson v. Shenandoah Life Insurance Co., 291 Ala. 389, 281 So.2d 636 (1973).

If the fraud alleged in this case consisted merely of the presence of underground springs on Plaintiffs’ land, Defendant would be correct in its assertion that the statute of limitations has expired on Plaintiffs’ claim. Defendant, however, misconstrues the nature of the fraud alleged here. It is not the existence per se of underground springs which is alleged to be the material fact misrepresented, or concealed, by Defendants; it is, rather, the likelihood, or probability, that the presence of these springs would subject the land to uncontrolled flooding that is alleged by Plaintiffs to be the basis of their action for fraud. Viewed from this perspective, there exists a genuine issue of fact as to when Plaintiffs discovered, or ought to have discovered, the fraud alleged herein.

In the recent case of Seybold v. Magnolia Land Company, 376 So.2d 1083 (Ala.1979), we reaffirmed the proposition that, by virtue of the very nature and purpose of the saving clause where the statute is raised as a bar to a claim, a question is necessarily raised as to the diligence of the party bringing the claim. Seybold, supra, at 1086. In that case, the purchaser of two lots brought suit for breach of contract and fraud, alleging that the vendor/defendant had failed to perform its promise to maintain and repair the access road leading to the lots. We held that plaintiff, by waiting some ten years before filing suit, had allowed the statute of limitations to lapse on his claim both in tort and in contract. In Seybold, plaintiff knew all he needed to know regarding his claim against the defendant when he first made demand for performance only a few weeks after the promise was allegedly given, and defendant failed either to comply or to induce plaintiff to delay action. When plaintiff in Seybold finally initiated suit, some ten years later, he had no greater knowledge of the relevant facts necessary to his claim than he possessed within the first year after making the purchase. The plaintiff’s lack of diligence in pursuing his claim in Seybold caused the claim to lapse.

In the instant case, however, the matter of Plaintiffs’ diligence, or lack thereof, is more appropriately a question of fact for determination by the trier of fact. In addition to their early knowledge of the existence of the springs, Plaintiffs’ attempts to control the periodic flooding from 1973 through late 1975 might suggest to the trier of fact, if not discovery of the fraud itself, then discovery, perhaps, of sufficient facts, which had they been pursued would have led to discovery of the alleged fraud. On the other hand, it appears equally plausible that the temporary success achieved by Plaintiffs in controlling the flooding might be viewed by the trier of fact in this case as having tolled the statute throughout this period. As already noted, it is not the existence of the springs, or even the flooding, per se which is the basis for Plaintiffs’ cause of action; rather, it is the extent of the problem which, according to Plaintiffs, became uncontrollable only in late 1975 and thus sufficient to apprise Plaintiffs for the first time of Defendant’s suppression of material facts upon which Plaintiffs’ claim is based.

Contrary to the majority I find the Plaintiffs’ evidence was sufficient to raise a reasonable inference in support of their position that their discovery of the alleged fraud occurred within twelve months next preceding the filing of their claim. Woods v. Westbrook, 356 So.2d 153 (Ala.1978). Therefore, I would reaffirm our previous holding that a genuine issue of fact exists on the limitations issue which should be resolved by the trier of fact — in this case, the jury.

MADDOX, FAULKNER and SHORES, JJ., concur.


author: ALMON, Justice.

text:
    Susie McGHEE v. PARAMOUNT LIFE INSURANCE COMPANY.
    78-651.
    Supreme Court of Alabama.
    July 7, 1980.

      Richard A. Lawrence of Fuller & Lawrence, Montgomery, for appellant.
    Charles M. Crook of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellee.
   ALMON, Justice.

This case involves a dispute over whether an insurance company is bound by its agent’s alleged oral statements which contradict insurance application provisions. From an order granting defendant’s motion for summary judgment, plaintiff appeals.

On or about November 13,1975, Miss Lois Garnett, an agent of Paramount Life Insurance Company, visited the plaintiff, Susie McGhee, to discuss insurance coverage. Garnett had previously talked with Mrs. McGhee’s husband concerning insurance. The McGhees were interested in obtaining a cancer insurance policy. Garnett offered to sell them a policy which also contained an accidental death provision. It would pay fifteen thousand dollars on the accidental death of either McGhee. Mrs. McGhee signed her husband’s name to the insurance application and gave Garnett a check for $9.50 as first payment on the policy.

In her deposition, Mrs. McGhee states that Garnett told her that there would be a waiting period for cancer coverage but that the accidental death portion of the policy would be effective immediately. However, both the application she signed and the receipt she received contain provisions to the contrary. The application states:

I hereby certify that I understand that the insurance applied for herein becomes effective upon the policy issue date and not on the date of application. I further certify that I understand that the premium is due on the policy issue date and thereafter as indicated below. I hereby further certify that the above is true and correct to the best of my knowledge.
The receipt reads as follows:
RECEIPT
Received from_the sum of $9.50 as the premium for _ under a proposed policy to be issued on the basis of an application to Paramount Life Insurance Company of Little Rock, Arkansas, subject to the terms and conditions of said application and any policy issued by the Company on the basis thereof. It is agreed that should the application not be approved by the Company, the applicant shall accept a return of the above premium upon surrender of the receipt to the Company.

Mrs. McGhee also testified that she did not read the application prior to her signing it, nor did she read the receipt.

Mrs. McGhee’s husband died the next day from accidental causes. She asserts that shortly after his death, a Mrs. Charles Griggs visited her, representing himself as supervisor and district manager of Paramount Life Insurance Company. She claims he told her that Paramount taught its agents that the accidental death portion of the policy became effective upon receipt by the agent of the premium.

Paramount refused to pay Mrs. McGhee and returned her check of $9.50.

Suit was brought by Mrs. McGhee claiming that the accidental death portion of the policy was in effect at the time of her husband’s death which would entitle her to the policy amount. Paramount moved for summary judgment, contending that it had not acted upon the McGhee insurance application and that no policy of insurance had been issued on her husband’s life. A copy of the insurance application and receipt given Mrs. McGhee were attached to the motion. In opposition to this motion, the deposition and affidavit of Mrs. McGhee and the affidavit of Myrtle Reeves were submitted to the court.

From an order granting Paramount’s motion for summary judgment, McGhee appeals.

Generally, in the absence of stipulations to the contrary, the insurance risk commences with the completion of the insurance contract, whether that be effected by approval of the application, payment of the first premium or the delivery of the policy. Mutual Savings Life Ins. Co. v. Osborne, 245 Ala. 15, 15 So.2d 173 (1943); National Life & Accident Ins. Co., 220 Ala. 314, 124 So. 886 (1929).

In considering what effect an application for insurance would have insofar as the completion of the insurance contract is concerned, this Court has stated in Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175 (1919), that:

An application for insurance is a mere proposal on the part of the applicant. When the insurer signifies acceptance of it to the “proposer,” the minds of the parties meet and the contract is made. [Citations omitted.] The acceptance must be signified by some act or acts agreed upon by the parties, or from which the law raises the presumption of acceptance. [Citations omitted.]

203 Ala. at 148. See also, Liberty Nat. Life Ins. Co. v. Smith, 356 So.2d 646 (Ala.1978); Life Ins. Co. of Georgia v. Miller, 292 Ala. 525, 296 So.2d 900 (1974).

The terms contained in both the application and receipt are clear and unambiguous. The application states that the policy does not become effective until the policy issue date. The receipt states that the issuance of the proposed policy depends upon approval of the application by Paramount. As the premium was paid with the application, this payment was subject to the conditions stated in the receipt, which refer to and adopt the conditions stated in the application, and the insurance thus becomes effective only when these conditions have been fulfilled. See Ivie v. International Life Ins. Co., 217 Ala. 559, 117 So. 176 (1928).

McGhee contends that summary judgment was nevertheless inappropriate because there still exists a genuine issue of material fact, as to whether Garnett had the authority to bind Paramount to immediate coverage notwithstanding contrary provisions in the application.

The general rule concerning the authority of an insurance agent to bind his company to an oral contract is stated in 43 Am.Jur.2d Insurance § 206 (1969), as being:

The authority of an insurance agent to bind his company by oral contracts may be limited by restrictions in the application. If the application for insurance stipulates that the insurer incurs no liability until the policy is issued and delivered, there can be no recovery in the absence of such issuing and delivery even though the first premium is paid and the agent who solicits the insurance assures the applicant that it will go into effect at once.

Alabama, however, recognizes a distinction between an agent who merely solicits insurance customers for his company and a general agent. A soliciting agent has no power to change stipulations in a contract of insurance. This distinction was clearly stated in Liberty National Life Ins. Co. v. Staggs, 242 Ala. 363, 6 So.2d 432 (1942):

We have recognized the general rule that an agent whose authority is limited to soliciting insurance, delivering policies and collecting premiums has no power to change stipulations in a contract of insurance: that to do so he must either be a general agent or be specially so authorized or his course of dealing to that extent have been ratified expressly or impliedly.

242 Ala. at 364, 6 So.2d at 433.

The test to determine whether a person is a general agent or merely a soliciting agent is whether the agent has the power to bind the insurer to the agent’s contract of insurance or to issue policies or to accept risks. If an agent has the actual authority to do these things, he is considered a general agent and may bind his insurance company by oral contract, or by waiving certain policy or application provisions. Fidelity & Casualty of New York v. Thomas, 315 F.Supp. 89 (M.D.Ala.1970). Furthermore:

An agent who is, by certain limitations, less than a general agent may bind his principal as though he were a general agent by apparent authority. While an agent’s powers can be limited, and such limitations be binding as between the company and the agent, this could not affect third persons relying upon his apparent authority without notice of his limitations. [Citations omitted.]

Hartford Accident & Indemnity Co. v. Oglesby, 293 Ala. 620, 308 So.2d 695 (1975).

We find summary judgment to have been improvidently granted. The record is bereft of any evidence which would establish, as a matter of law, that Garnett was merely a soliciting agent. McGhee has submitted her own affidavit and the affidavit of Myrtle Reeves in opposition to defendant’s motion for summary judgment. Myrtle Reeves, in her affidavit, states:

. I bought a cancer and accidental death policy from Mrs. Lois Gar-nett with Paramount Life Ins. Co. I purchased the policy before Bobby McGhee died. The policy was identical to that purchased by Susie McGhee. At the time I purchased the policy, Mrs. Garnett told me that it would go into effect as soon as she received the premium. I gave her a check at the same time I filled out the application.

Mrs. McGhee’s affidavit asserts that Charles Griggs, who represented himself as district manager of Paramount Life, told her that:

The Paramount Life Ins. Co. taught its agents at training sessions that the accidental death portion of the policy became effective when the agent received the premium. He said he could not understand why the company has refused to pay.

Whether Garnett had the authority to orally waive the application provision is a question of fact for jury determination. As stated in 3 Couch on Insurance 2d, § 16:68:

Whether or not an insurance company has clothed its agent with apparent authority to act for it in a given matter is for the jury, where the evidence with respect to determining facts is conflicting. Where previous acts done by an insurance agent with the acquiescence of the insurer are relied upon to establish apparent authority of the agent to do a particular act, the prior act shown as evidence must be of the same kind and character as the act with which it is sought to charge the principal.

The judgment is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.

TORBERT, C. J., and EMBRY, J., dissent.