author: GUIDRY, Judge.

text:
    Norma P. WRIGHT, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al., Defendants-Appellees.
    No. 83-323.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Kenneth Pitre, Eunice, for plaintiff-appellant.
    McBride & Foret, Glynn Rozas, ■ Lafayette, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

Norma P. Wright filed this suit against William F. Bailey and State Farm Mutual Automobile Insurance Company (hereafter State Farm) for damages arising out of a June 7, 1980 automobile collision. State Farm was made a defendant both as Bailey’s liability insurer and as plaintiff’s uninsured or underinsured motorist carrier. The defendants answered by general denial with pleas of contributory negligence requesting a trial by jury on all issues. After trial on the merits, the jury returned a general verdict, with nine for and three against, in favor of defendants and against plaintiff. On December 10, 1982, the trial judge signed a judgment in accordance with the verdict of the jury. Thereafter, plaintiff timely filed a motion for a judgment notwithstanding the verdict and in the alternative a motion for a new trial pursuant to LSA-C.C.P. Art. 1810.1 which were both denied by the trial judge on December 24, 1982. Plaintiff appeals both from the judgment and from the denial of his motions for judgment notwithstanding the verdict and for a new trial. Defendants neither appeal nor answer the appeal.

Plaintiff raises the following issues on appeal:

(1) Did the jury err in failing to find that the defendant was negligent, which negligence caused the accident and/or in finding that the plaintiff was negligent, which negligence contributed to the accident and did the trial judge err in failing to grant plaintiffs motion for judgment NOV?
(2) Did the trial judge commit reversible error in failing to recharge the jury?
(3) Did the trial judge commit reversible error in failing to grant plaintiffs motion for a new trial?

FACTS

The accident occurred about noon on June 7, 1980, on U.S. Highway 167 in St. Landry Parish, about 11 miles west of Opelousas in open country. The highway at that point is a black-topped, two-lane, straight, level road, which runs east and west and which is not intersected by a public road at any point in that vicinity. The two lanes of traffic are divided by white dashing lines, indicating that passing is permitted in both lanes.

Immediately prior to the time of the accident, the plaintiff, Norma Wright, was operating a Datsun, heading west on U.S. Highway 167 toward Ville Platte, accompanied by her son, Michael Wright. Ahead of her, also traveling west, was a Ford pickup truck, owned and operated by William F. Bailey, the defendant. Mr. Bailey was returning from the drag races in Opelousas, accompanied by a friend, David Guidry, heading toward another friend’s house located on the south side of Highway 167. As he approached the private driveway of his friend’s house, he attempted to make a left turn. While he was in the process of making that turn, the left rear portion of his truck was struck by the front of the Wright automobile.

DEFENDANT’S NEGLIGENCE AND/OR PLAINTIFF’S CONTRIBUTORY NEGLIGENCE

The rules relating to contributory negligence govern this cause of action. Since the jury was asked to return only a general verdict, the record does not disclose with particularity the findings of the jury in concluding that the defendant was not liable. The plaintiff therefore contends that the jury was clearly wrong in either finding that the defendant was not guilty of negligence which caused the accident and/or in finding that plaintiff was guilty of negligence which contributed to the accident, and that the trial judge similarly erred in failing to grant his motion for a judgment notwithstanding the verdict.

The testimony of plaintiff and her son as to how the accident occurred differs materially from the account of the accident given by defendant and his passenger. They were the only witnesses to the accident available to testify at trial. The report of the investigating officer made a part of the record is of little or no probative value as he was not a witness to the accident.

Plaintiff and her son’s testimony is to the effect that she had been following a truck pulling a small shrimp boat, which was swerving, for quite a while and decided to pass. After one oncoming car passed, she checked the left for oncoming traffic and finding it clear, proceeded to pass the vehicle pulling the boat. She was traveling at about 40 to 45 miles per hour and was entirely in the left lane, approximately even with the shrimp boat when her son noticed defendant’s turn signal and hollered “watch it”. She then slammed on her brakes but was unable to avoid the accident. They contend that the truck pulling the boat was the only vehicle separating plaintiff’s vehicle from that of defendant’s and that the point of impact was entirely within the left lane of traffic.

The defendant and his passenger, Mr. Guidry, testified to the effect that there was an additional vehicle separating the vehicles of the parties, i.e., an unidentified vehicle between plaintiffs car and the truck pulling the shrimp boat. They testified that defendant was stopped with his left turn signal on, waiting for oncoming traffic to clear before starting his turn. After the oncoming traffic had passed, immediately before commencing the left turn, defendant looked to the rear and observed that the left lane was also clear of passing traffic. They contend that the truck was almost completely into the driveway at the point of impact.

It is axiomatic that a left turn movement is characterized as a dangerous maneuver, not to be undertaken until the motorist ascertains that it can be made in safety. LSA-R.S. 32:104.

“There is no presumption, however, that the driver of a left turning vehicle is guilty of negligence. Both a left turning vehicle and a passing vehicle are charged with an exceptional duty of care. Whether there has been a breach of duty on the part of either must be proved.”

Natchitoches Motor Company, Ltd. v. Travelers Insurance Company, 372 So.2d 811 (La.App. 3rd Cir.1979).'

In order to reverse, we would have to determine that the record established sole negligence on the part of defendant Bailey by a fair preponderance of the evidence. This we are unable to do. Depending on the jury’s resolution of the conflicting evidence, which particularly involves the credibility of the witnesses, the record could reasonably support a conclusion either that defendant was free of negligence or that plaintiff was guilty of some degree of negligence which contributed to the accident.

Even accepting plaintiffs account of the accident, it is clear that Mrs. Wright was not keeping a proper lookout as it was her 14-year-old son who first observed defendant’s turn signal. Furthermore, even if the defendant had not come to a complete stop, he clearly had decelerated to a low speed prepatory to making the left turn. This should have put plaintiff on notice that a change of course of a preceding vehicle was indicated and that the safe completion of the passing maneuver was endangered. Finding no clear error in the jury’s verdict, we similarly find no error in the trial judge’s denial of plaintiff’s motion for judgment notwithstanding the verdict.

FAILURE TO RECHARGE THE JURY

After the trial judge charged the jury with instructions including special instructions requested by plaintiff, the jury retired for deliberation. The plaintiff did not object to the instructions. During deliberations, the jury requested that they be sent the statute on left turns, which request was denied by the trial judge. The jury then returned to open court and the foreperson advised the court that they had reached a verdict. After the jury was polled, it was determined that only seven jurors had concurred in the verdict. The jury was advised that a concurrence of nine was required for a verdict.

At this point, counsel for plaintiff requested that the judge recharge the jury on the standard of care of left turning motorists, which request was denied by the trial judge on the basis that the jury did not request that it be recharged.

Plaintiff contends that these circumstances indicate that the jury’s factual findings were not made pursuant to a clear understanding of the applicable law and that the charge initially given by the judge must be deemed insufficient, and plaintiff therefore requests that the case be remanded to the trial court for a new trial.

Plaintiff’s contention that the jury’s factual findings were not made pursuant to a clear understanding of the applicable law is pure speculation. Equally without merit is plaintiff’s contention that the trial judge’s initial charge must be deemed insufficient.

As aforestated, plaintiff did not object to the initial charges given by the judge. “A party may not assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically. the matter to which he objects and the grounds of his objection.” LSA-C.C.P. Art. 1793. The cases cited by plaintiff are inapposite as they deal with the trial judge’s duty to charge the jury pursuant to LSA-C.C.P. Art. 1791, where timely objection was made.

MOTION FOR NEW TRIAL

At the hearing on the motion for new trial, plaintiff asserted that he was entitled to a new trial pursuant to LSA-C.C.P. Art. 1814 due to the improper behavior of the jury. In support thereof he sought to introduce, over defendant’s objection, an affidavit from a juror. The affidavit was to the effect that she had switched her vote at the request of the other jurors when the jury remained deadlocked, despite her personal feelings. The trial judge allowed a proffer of the affidavit and denied the motion.

The general rule is that affidavits or other testimony of jurors are inadmissible to impeach their own verdict. Lachney v. Jones, 373 So.2d 595 (La.App. 3rd Cir.1979); Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3rd Cir.1977). Plaintiff, however, contends that the affidavit is introduced to ascertain whether the juror responded truthfully on voir dire and not to impeach the jury verdict, relying on Rains v. Diamond M. Co., 396 So.2d 306 (La.App. 3rd Cir.1981), writ denied, 399 So.2d 623. Both the substance of the affidavit and the fact that voir dire questions and responses are not made a part of the appeal record indicate that this argument is meritless. We find that this case falls under the general rule, that the affidavit was inadmissible and that the motion for new trial was properly denied.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: LOBRANO, Judge. GARRISON, Judge,

license: Public Domain

text:
    STATE of Louisiana v. L.C. BRADLEY, Jr.
    No. KA-1068.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1984.

      Harry P. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for State.
    Dwight M. Doskey, Orleans Indigent Defender Program, New Orleans, for defendant.
    Before REDMANN, GARRISON and LOBRANO, JJ.
   LOBRANO, Judge.

Defendant, L.C. Bradley, Jr. brings the instant appeal seeking reversal of the trial court’s revocation of his probation. A defendant has no right to appeal a revocation of his probation. State v. Manuel, 349 So.2d 882 (La.1977); State v. Haynes, 255 La. 52, 229 So.2d 697 (1969); State v. Bruno, 253 La. 669, 219 So.2d 490 (1969); La.C. Cr.P. Arts. 912 and 912.1. Such a ruling, however, can be reviewed by the Court under its supervisory jurisdiction. Accordingly, rather than dismiss the matter in toto, we shall treat the “appeal” as an application for writs.

In 1980 defendant was convicted of simple burglary. At that time he received three years at hard labor, but the sentence was suspended and he was placed on active probation for five years. On March 4, 1983 a revocation hearing took place wherein the trial court revoked defendant’s probation and reinstituted the original sentence of three years at hard labor. The trial court reasons for said ruling are based on the fact that defendant had been arrested on November 30, 1982 for carrying a concealed weapon, to wit: a .38 caliber revolver. Although the charges against defendant for that offense were not accepted by the District Attorney’s office, the lower court was satisfied that defendant was in fact in possession of this weapon on the day of his arrest. Defendant alleges that the reason for his having the weapon was because he broke up a fight and took the gun away from one of the participants so as to prevent someone from getting hurt. This is in direct contradiction to the evidence presented by the arresting officer who stated defendant attempted to conceal the weapon under his coat. The officer further testified that defendant told him he had the weapon because "... he was not going to get hurt.” This was in reference to a threat defendant received from someone.

We find no error in the ruling of the trial court. The fact remains that defendant, a convicted felon, was in possession of a weapon in violation of his probation. Although there is some evidence concerning an occurrence on December 8, 1982 wherein defendant was present when a companion was arrested for drug possession, we find it unnecessary to consider the facts of that situation since the November 30th occurrence is sufficient to sustain the revocation.

Finally, it may be noted that notwithstanding the supreme court’s “exclusive supervisory jurisdiction ... of all criminal writ applications relating to convictions and sentences imposed prior to July 1, 1982,” La. Const. Art. 5 Sec. 5(E), we have jurisdiction because the decision of which defendant seeks review is not his pre-1982 conviction or sentence but the .1983 revocation of his probation.

Accordingly writs are denied.

GARRISON, Judge,

dissenting.

I find no application for writs in this case. Therefore, I cannot concur in a “denial of writs.” I would, however, join in a dismissal of the appeal in this appeal. See: State v. Kevin Berry, 445 So.2d 763, 4th Cir. Ct. of Appeal # KA-1276/1277 January 12, 1984.


author: DOUCET, Judge.

text:
    Jeraldean WILLIAMS, Plaintiff-Appellant, v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, Bobby E. Rush, Brian S. Rush, & Aetna Casualty and Surety Company, Defendants-Appellees.
    No. 83-195.
    Court of Appeals of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Writ Denied April 13, 1984.
    Manard, Schoenberger & Ryan, Marc L. Popkin, New Orleans, for plaintiff-appellant.
    John Hoychick, Rayville, for defendants-appellees.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOUCET, Judge.

Plaintiff, Jeraldean Williams, brought action against defendant, Louisiana Farm Bureau Mutual Insurance Company, seeking to stack bodily injury limits of automobile policies. The trial court rendered judgment in favor of defendant Farm Bureau and denied excess coverage to the plaintiff under any or all of the Farm Bureau policies. From this judgment the plaintiff appeals.

On or about November 12, 1980 a collision occurred between a 1979 Chevrolet pickup truck driven by Brian Rush but owned by his father, Bobby E. Rush, and another vehicle driven by Jeraldean Williams, the plaintiff. Williams filed suit naming several defendants. The liability of Brian Rush was admitted as to the damages Williams suffered as a result of the accident.

Williams subsequently settled with all parties except for Farm Bureau, defendant-appellee. Only a partial settlement was reached with Farm Bureau who admitted coverage under the particular policy issued to Bobby E. Rush and covering the 1979 Chevrolet pickup truck. Williams consequently received the maximum policy limits of $10,000..

Farm Bureau also insured Bobby E. Rush under three other separate liability policies, each of which respectively covered a 1977 Chevrolet, a 1980 Yamaha Motorcycle, and a 1979 Pontiac. Each of these policies maintained maximum bodily injury coverage of $10,000. Since the damages of the plaintiff were greater than the $10,000 she received, she claimed that she should be allowed to “stack” the bodily injury limits of the three policies covering the three other cars and thus require Farm Bureau to pay her an additional $30,000. The trial court denied the excess coverage to the plaintiff under any or all of the Farm Bureau policies. From this judgment the plaintiff appeals.

The issue presented on appeal is whether the three policies covering the 1977 Chevrolet, the 1980 Yamaha Motorcycle and the 1979 Pontiac should provide excess coverage for the loss sustained by Williams in her collision with the 1979 Chevrolet pickup truck. The clause on which the plaintiff relies and which is found in each of the policies reads as follows:

“2, Other Insurance
Coverages A, B, D, and E. If the insured h.as other insurance against a loss covered by this policy, the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to “temporary substitute automobiles” or “use of other automobiles” shall be excess insurance over any other valid and collectible insurance. However, if the insured has more than one automobile insured in this company, then only one policy will become excess.”

This type of “other insurance” clause has not been interpreted to provide coverage but rather to pro rate among policies when there are multiple insurance policies already providing coverage. Dudley v. State Farm Mutual Automobile Ins. Co., 255 So.2d 462 (La.App. 1st Cir.1971). Coverage must, therefore, be established before the provision can apply.

In Cole v. State Farm Mutual Automobile Ins. Co., 427 So.2d 522 (La.App. 3rd Cir.1983), in view of the “other insurance” provisions in the policies, we did not find coverage in a situation in which parties asked to stack medical payments coverages of automobile policies covering two automobiles which were not involved in the accident giving rise to their injuries. In the same fashion, the policy covering the 1977 Chevrolet, or 1980 Yamaha Motorcycle, or the 1979 Pontiac should not provide coverage for the loss sustained in an accident in which the particular car was not involved.

Not only the “other insurance” clause but also the coverage provisions of the policies indicate that stacking is not appropriate in this situation. The coverage provisions refer to bodily injury “sustained by accident and arising out of the ownership, maintenance, or use of the automobile.” The “automobile” is defined as the motor vehicle described in the policy, a temporary substitute vehicle or a non-owned automobile. Since the 1979 Chevrolet pickup truck is not described in the policies, is not a “temporary substitute vehicle”, and is not a “non-owned automobile”, the policies issued for the 1977 Chevrolet, the 1980 Yamaha Motorcycle, and the 1979 Pontiac do not provide coverage for the losses sustained in an accident involving that vehicle. Since these three other policies are not applicable, Williams cannot “stack” their bodily injury limits.

For the above and foregoing reasons, the trial court’s decision is affirmed. Costs are assessed against plaintiff-appellant.

AFFIRMED.


text:
    Phillip P. KARAM, Plaintiff-Appellant, v. Murphy ASHWORTH and Delta Timber Company, Defendants-Appellees.
    No. 83-320.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      James D. Davis, Alexandria, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOUCET, Judge.

Phillip P. Karam, plaintiff-appellant, brought this suit against Murphy Ash-Worth and Delta Timber Company, defendants-appellees, seeking worker’s compensation benefits. Karam has perfected this appeal from a judgment of the trial court dismissing his claim. We affirm.

The sole issue of this appeal is whether or not the trial court erred in holding that Karam had failed to prove that a work related accident or injury caused an impairment or disability.

The Supreme Court set forth the applicable legal principles governing the burden of proof necessary to establish a work-related injury in West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979) as follows:

In a workman’s compensation suit, the employee must establish the work-accident causing the injury by a preponderance of the evidence — i.e., ‘the testimony, as a whole, must show that more probably than (not) the employment accident caused the disability.’ Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347, 349 (La.1974). The causal relationship may be inferred when there is proof of an accident and an ensuing disability without an intervening cause. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).
In evaluating the evidence, the trier of fact should accept as true the uncontra-dicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record easting suspicion on the reliability of this testimony. Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967); Farley v. Ryan Stevedoring Co., 238 La. 1048, 117 So.2d 587 (1960); Bonanno v. Decedue, 186 La. 1041, 173 So. 756 (1937).

Karam contends that the trial court erred in failing to take into account the total testimony in the case which proves more probably than not that a work com-pensable accident occurred which disabled him.

Karam alleges that while cutting timber his left knee was injured when it struck by a limb. Karam was an employee of Ash-worth and Delta at the time of the alleged accident. When the alleged accident occurred, Karam was alone.

Although, as a general rule, such uncontradicted testimony should be accepted as true, such principle is true only if there is “absence of circumstances” in the record casting suspicion on the reliability of this testimony. West v. Bayou Vista Manor, Inc., supra.

The trial court concluded that Kar-am had lied before to draw unemployment compensation. Further, the trial court found that Karam’s testimony was contradicted. Karam said that he had no trouble before this incident with his knee. The Veterans Administration Hospital records in Pineville contradicted that statement. In 1976, Karam went to the hospital complaining of knee problems. Further, Ricky Henry, Karam’s friend, said that on the first day that he went to work for Karam, he complained about his knee. Karam said that his leg was swollen after the incident and that he was off three or four days. Several witnesses, particularly a Mr. Alfred Ware, testified that Karam came back to work the next day. Finally, the court concluded that a limb might have popped back on Karam’s knee but was not convinced that Karam was disabled from this incident anymore than he was before he went to work there.

An appellate court may not disturb a trial court’s evaluations of credibility and factual determination unless the record reveals that the trial court’s decision is manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). After reviewing the entire record, we cannot say that the trial court’s decision is clearly wrong. In fact, based on the .totality of the evidence, the decision seems clearly right.

For the above and foregoing reasons, the judgment of the trial court is affirmed at Phillip P. Karam’s, plaintiff-appellant, cost.

AFFIRMED.


author: DAN M. LEE, Justice,

text:
    PROTECTIVE SERVICE LIFE INSURANCE COMPANY v. Alvin CARTER, D/B/A Carter Funeral Home and Valley Life Insurance Company.
    No. 53968.
    Supreme Court of Mississippi.
    Nov. 30, 1983.
    Rehearing Denied Feb. 15, 1984.

      Erwin C. Ward, David M. Robinson, Sten-nett, Wilkinson & Ward, Jackson, Dewitt Hicks, Gholson, Hicks & Nichols, Columbus, for appellant.
    Bennie L. Turner, Walker & Turner, A.M. Edwards, Jr., Edwards, Storey & Helveston, West Point, for appellee.
    Before BROOM, P.J., and HAWKINS and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Clay County pursuant to Mississippi Code Annotated section 11-1-17 (1972) which allowed an appeal to be taken directly to this Court upon the trial court’s failure to enter a final decree within six months after a matter is taken under advisement or deferment. This case was taken under advisement by the chancellor on March 16, 1981, and no final decree was issued. On March 2, 1982, the required filings for an appeal were made by Protective Service Life (PSL), who took the status of an appellant against whom an adverse decree had been rendered. Beall v. Beall, 310 So.2d 706 (Miss.1975).

On June 2, 1982, this Court decided the case of Glenn v. Herring, 415 So.2d 695 (Miss.1982), which promulgated Rule 47 of the Supreme Court Rules and abrogated Mississippi Code Annotated section 11-1-17 (1972). Rule 47 replaces the appeal procedure of the statute with the right to apply to this Court for a writ of mandamus to compel a trial judge to render a decision on a matter taken under advisement or deferred. Prior to our ruling in Glenn, the chancellor lost jurisdiction to render a decree in a matter once appeal was perfected pursuant to Mississippi Code Annotated § 11-1-17 (1972). Riley v. Richardson, 258 So.2d 419 (Miss.1972). This Court has long applied the principle that if there has been a change, alteration or repeal of the law applicable to the rights of the parties, after rendition of the original judgment, and pending the appeal, the case must be heard and decided in the appellate court according to the prior existing law. Musgrove v. Vicksburg and Nashville Railroad Company, 50 Miss. 677, 682 (1874). Therefore we must apply the law as stated in Riley. Doing so, we find first that the chancellor had no jurisdiction to render a decree in this matter. Second, the decree which was entered is simply attached to the record and not a part of it. There being no valid decree, we are not required to find the chancellor manifestly wrong.

We find that Protective Service Life pled tortious interference with a contractual right, not fraud and misrepresentation. Therefore, only a preponderance of the evidence is required to support this cause of action, not clear and convincing evidence as is the standard in cases of fraud. This Court recognizes that a wrongful or a malicious interference with the formation of a contract or the right to pursue a lawful business, calling, trade or occupation, generally constitutes a tort. Irby v. Citizens National Bank of Meridian, 239 Miss. 64, 121 So.2d 118 (1960); Bailey v. Richards, 236 Miss. 523, 111 So.2d 402 (1959). In Irby, this Court quoted 30 Am.Jur. Interference, §§ 43-53, 55, setting forth what was required to show a wrongful or malicious interference with the business relations (contracts) of another:

It is essential both to aver and prove the defendant’s knowledge of the contract in question. Such knowledge is not pleaded sufficiently by a mere allegation that he maliciously prevented performance of the contract. A prima facie case of wrongful interference with a contract is made out if it is alleged (1) that the acts were intentional and willful; (2) that they were calculated to cause damage to the plaintiffs in their lawful business; (3) that they were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice); and (4) that actual damage and loss resulted.

239 Miss, at 67, 121 So.2d at 119.

We find that the Irby requirements for proof of malicious interference with business relations of another have been adequately established. Indeed it was stipulated that Carter Funeral Home (CFH) had not complied with Mississippi Insurance Commission’s regulation (i.e., Sec. 7, Subsection 3, infra) governing the replacement of insurance such as we have in this case. The proof is overwhelming that there was tortious interference with appellants (PSL) contractual rights and a finding to the contrary or adversely, would be manifestly wrong.

FACTS

The business or trade in question resulted from a meeting between James F. Robinson, President of PSL, and Alvin Carter, proprietor of Carter Funeral Home (CFH). It was agreed that PSL would underwrite the effort to “build a debit” in the Clay County area around West Point, Mississippi. CFH served primarily the black community of Clay County. The arrangement between PSL and CFH was beneficial to Carter since his funeral home would be named the beneficiary of most of the policies or the proceeds of those policies would be used toward payment of burial services rendered by his funeral home.

PSL desired to have an agent in West Point, Mississippi, who was already a resident there and licensed to sell life insurance. Carter recommended Rev. Henry Gladney to be PSL’s general agent in the Clay County area and Carter furnished an office, rent free, in the Carter Funeral Home. Since Rev. Gladney was to be strictly on commission at first, Carter supplemented his salary for the first six months of his employment with PSL.

In order to facilitate sale of the PSL policies in the Clay County black community, CHF agents who were already collecting monthly premiums on Class A burial policies were to ride with PSL agents, show them the debit route, and assist them in their efforts to sell, and, later, collect monthly premiums for PSL. A seminar was held in Houston, Mississippi, at PSL’s expense to familiarize Carter and CFH’s agents with the PSL policy. No attempt was made to license the CFH agents since they were not to actually write any policies. Carter received no commission from the sale of PSL policies. His benefit was that the insured would name Carter Funeral Home beneficiary of the policy. PSL began selling life insurance in the Clay County area pursuant to the arrangement made between itself and CHF in 1977.

Dr. Lincoln Ragsdale, President of Valley Life Insurance Company (VL) testified that he first met Alvin Carter at a convention in Greenwood, Mississippi, in 1978. Dr. Ragsdale said that he presented a VL policy to Carter at that time for the latter’s inspection. On March 23, 1979, Alvin Carter signed a general agency agreement with VL. Dr. Ragsdale acknowledged that he made several trips to Mississippi between March and July of 1979, but he could not specify how many times he might have visited Alvin Carter.

Rev. Henry Gladney, the person recommended by Alvin Carter to serve as PSL’s agent in the Clay County area, testified that he was informed by Alvin Carter of a contract which Carter had signed in order to become general agent for VL sometime between March and May, 1979. Rev. Glad-ney referred in his testimony to meetings where Dr. Lincoln Ragsdale and Alvin Carter discussed the sale of VL policies. At one such meeting Rev. Gladney agreed to write insurance for VL on commission so long as the work did not interfere with PSL policies already in force. Later, Dr. Rags-dale, Alvin Carter, Tommy Free and Rev. Gladney met at Carter Funeral Home to discuss slowly switching over all PSL policies to VL policies. They decided this could best be accomplished by allowing the PSL policies to lapse because lapsed business would be anyone’s and would not require notice to PSL. Rev. Gladney stated that he objected because the plan was not legal but was assured by Dr. Ragsdale that it would be all right if the plan were carried out slowly. Alvin Carter was said to have stated that his attorneys had advised him that if a customer chose to purchase one policy and cancel another, then there was nothing anyone could do about it. It was agreed at that time that Rev. Gladney would not participate in the plan.

Between July and September of 1979, Alvin Carter and Several CFH agents obtained life insurance licenses. Marilyn Bell, secretary and bookkeeper for CFH, testified that she had obtained a license to sell life insurance in July of 1979. In her deposition which she acknowledged, she stated that she transferred several policies from PSL to VL upon direction of Alvin Carter and Dr. Ragsdale. She recalled seeing Dr. Ragsdale at CFH’s offices several times in. early 1979.

Lou Birda Box, a resident of West Point, Mississippi, testified that her PSL policy was changed to a VL policy. She stated that a Mrs. Drane, an agent for CFH came to her home and took her PSL policy away. This was later replaced by a VL policy. She stated that Rev. Gladney continued to collect the monthly premium for this policy.

Rev. Gladney testified that delinquent accounts began to appear in October, 1979, and that there was a dramatic increase in delinquencies between that time and February, 1980. He also described a part of the plan outlined by Dr. Ragsdale to encourage PSL policy holders to' “switch-over” voluntarily to VL policies since this would look better from a legal standpoint. It appears that this plan resulted in some of the delinquencies referred to by Rev. Gladney.

It also appears that some of the accounts became delinquent because of a delay in sending premium payments from the point of collection at Carter Funeral Home to PSL in Jackson, Mississippi. There was no explanation in the record as to why these premium payments were held by Carter Funeral Home. Though PSL agents who came to investigate the sudden lapse of so many PSL policies did instruct Alvin Carter, Mrs. Bell and others to no longer send premium payments to Rev. Gladney, the record shows that this instruction was not given until February, 1980. The premium payments found to be held by Carter Funeral Home were made prior to that time. The record also shows that upon audit of Rev. Gladney’s record by PSL’s agents, approximately $1900.00 in premiums had been paid by the policyholders but not forwarded to PSL. The entire amount was turned over to PSL agents over a period of two weeks by Carter Funeral Home.

There was testimony which shows that there was hostility between PSL’s agents and Alvin Carter. It is not contradicted that Carter threatened to have the PSL agents arrested if they tried to speak with policyholders in the community in order to ascertain the reason why their policies lapsed even though they had paid their premiums. Once the automatic lapse notices from PSL had issued in the community for non-payment of premiums, Alvin Carter went on his weekly radio broadcast to disavow his association with PSL, causing further confusion.

There was testimony by several witnesses who were confused as to what was going on at the time and who either allowed their PSL policies to be changed to VL policies or did not question the process for fear that they were no longer covered by the PSL policy for future funeral services to be rendered by Alvin Carter and CFH.

Unfair competition practices in the insurance industry are regulated by the Commissioner of Insurance in Mississippi. Mississippi Code Annotated section 83-5-33 (1972). The unfair competition practice in question in this case is referred to as “twisting” in insurance vernacular. The Blacks Law Dictionary, 5th Ed. defines the term as follows:

Colloquially, in insurance, the misrepresentation or misstatements of fact or incomplete comparison of policies to induce the insured to give up a policy in one company for the purpose of taking insurance in another.

Mississippi Code Annotated section 83-5-35(a) (1972) states in its final clause, “[Mjaking any misrepresentation to any policyholder insured in any company for the purpose of inducing or tending to induce such policyholder to lapse, forfeit, or surrender his insurance” is an unfair trade practice. If such an unfair competitive practice is found to have occurred, Mississippi Code Annotated section 83-5-37 (1972) says that the Commissioner of Insurance shall have the power to examine and investigate into the affairs of every person engaged in the business of insurance in this state in order to determine whether such person has been or is engaged in any unfair method of competition or in any unfair or deceptive act. There is no provision in the statutes for a cause of action or damages based upon this type of activity. Instead, the cause of action arises in common law. The right of one to benefit from his contractual arrangements is a property right which shall be protected. Cranford v. Shelton, 378 So.2d 652 (Miss.1980); Southwest Drug Co. v. Howard Bros. Pharmacy, 320 So.2d 776 (Miss.1975).

The Mississippi Insurance Commission has promulgated regulations covering the activities of insurance agencies. Of particular importance to the ease at bar is the Life Insurance Replacement Regulation. That regulation reads in part as follows:

Section 3, Definition of Replacement
“Replacement” means any transaction in which new life insurance, including annuity contracts, is to be purchased, and it is known or should be known to the proposing agent, or to the proposing insurer if there is no agent, that by reason of such transaction existing life insurance has been or is to be:
(A)Lapsed, forfeited, surrendered or otherwise terminated; ...
⅜ * He # $ s¡c
Section 6, Duties of Agents
(A) Each agent shall submit to the replacing insurer with or as part of each application for life insurance:
(1) A statement signed by the applicant as to whether or not such insurance will replace existing life insurance; and
(2) A signed statement as to whether or not the agent knows replacement is or may be involved in the transaction.
* * * * * *
Section 7, Duties of Replacing Insurers
Each replacing insurer shall:
(A) Inform its field representatives of the requirements of this regulation;
(B) Require with or as part of each completed application for life insurance: (1) a statement signed by the applicant as to whether or not such insurance will replace existing life insurance; and
(2) A statement signed by the agent as to whether or not he or she knows replacement is or may be involved in the transaction.
(C) Where a replacement is involved:
(3) Send to the existing insurer a written communication that includes the name of the insured and the identification information with respect to the existing life insurance to be replaced that it obtained pursuant to section 7(C)(1) within five working days of the date the application is received at its home or regional office, or the date its policy is issued, whichever is sooner.

Mississippi Insurance Commission Reg. 81-001.

It does not appear from the record that this regulation was complied with by Alvin Carter or any of his agents at the time VL policies were written. Dr. Lincoln Rangs-dale testified that he had no idea the regulation existed. It is clear that no notice was given PSL by Alvin Carter or VL that the latter was replacing PSL policies with VL policies. It also plainly appears from the exhibits accompanying this record that information found on PSL policies was copied verbatim onto VL policies. This resulted in some policyholders being listed as the same age on their VL policy as they were on their PSL policy, regardless of the fact that the VL policy was purchased from two to three years later. Carter Funeral Home and VL agree on appeal that PSL had adequately shown (1) that there were wrong ages of insureds on VL policies, (2) no notice was sent to PSL as required by the insurance regulation and (3) VL’s and CFH’s agents did not tell PSL policyholders above vested rights in their PSL policies. It is their contention that these facts do not in and of themselves constitute fraud and misrepresentation required for proof of “twisting.” As stated before, fraud and misrepresentation are not the issue in this case.

We find that the evidence amply supports a finding of liability. Indeed appel-lees stipulated that the insurance regulation governing insurance (Sec. (7) sub-section (3), supra) was violated.

On the measure of damages, however, from this record it appears that Carter might very well have accomplished the same result in a few months time by employing perfectly lawful means. Whether PSL had any business in the West Point— Houston area seems to have been almost totally dependent on the will and pleasure of Carter.

Upon retrial the parties may fully develop what damages should be allowed under well established principles of proving damages.

We, therefore, reverse and render on liability and remand this cause for a determination of damages.

REVERSED AND REMANDED.

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

ROY NOBLE LEE and PRATHER, JJ., not participating.


text:
    Thomas M. BOUTWELL v. Randy BLACKLIDGE, Alex Ware & Jones & Ware, Inc.
    No. 54596.
    Supreme Court of Mississippi.
    Jan. 25, 1984.
    Halat & Sherry, Albert Sidney Johnston, Jr., Albert Sidney Johnston, III, Biloxi, for appellant.
    Joe Sam Owen, Blackwell, Owen & Galloway, Gulfport, for appellees.
   Appeal from Circuit Court, Harrison County; Kosta Vlahos, Judge.

Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.

WALKER and BROOM, P.JJ., ROY NOBLE LEE, BOWLING, DAN M. LEE and PRATHER, JJ., concur.


author: BOWLING, Justice,

text:
    Lethel JOSHUA v. STATE of Mississippi.
    No. 54511.
    Supreme Court of Mississippi.
    Jan. 25, 1984.
    Hermel Johnson, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee:
    Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.
   BOWLING, Justice,

for the Court:

Appellant was tried and convicted in the Circuit Court of the Second Judicial District of Hinds County. As hereinafter discussed, we can only surmise with a reasonable degree of assurance regarding the crime for which he was indicted and convicted. The indictment was fatally defective, the error was fully preserved and we are mandated to reverse and remand the cause for proper indictment.

It is elemental that every person accused of a crime has the legal right to be informed properly of the charges under which he is to be tried. The cause grew out of a purported altercation that occurred on the night of July 31, 1981, near Utica, Mississippi, on Highway 18. According to the record appellant was driving a van owned and operated by him and occupied by three other persons. The vehicle was stopped by a member of the Mississippi Highway Patrol. The testimony is conflicting as to what occurred. We recite only that pertaining to the reason the cause is being reversed and remanded. The state’s evidence was to the effect that appellant at one time struck the officer with his fist; there was a tussle or altercation on the edge of the roadway during which the officer’s revolver fell from its holster; the appellant picked up the revolver. According to the patrolman, the revolver was pointed at him and a threat was made to shoot him. The officer fled from the scene. The testimony of the defense was that certain actions occurred at the scene but there was no effort to shoot the officer and no assault made on the officer.

We point out the above brief statement to emphasize that the state’s evidence tended to show a number of overt acts committed by appellant.

Appellant evidently was indicted under the terms of Mississippi Code Annotated, Section 97-3-7(2) (1974). This section provides penalties for “aggravated assault”. It was passed into law under Chapter 458 of the Laws of 1974. Although the code section was not mentioned in the indictment, it is clear, as stated above, that the charge was intended to come within the provisions of the above numbered code section which provides as follows:

§ 97-3-7. Simple assault; aggravated assault.
(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (l) year or in the penitentiary for not more than twenty (20) years. Provided, however, a person convicted of aggravated assault upon a law enforcement officer or fireman while such law enforcement officer or fireman is acting within the scope of his duty and office shall be punished by a fine of not more than five thousand dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both.

The indictment under which appellant was charged read as follows:

The Grand Jurors for the State of Mississippi, taken from the body of good and lawful persons of the Second Judicial District of Hinds County, in the State of Mississippi, elected, impaneled, sworn, and charged to inquire in and for said District, County and State aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present: That Lethel Joshua a/k/a Josh in said District, County and State on the 31st day of July, A.D.1981, did, with intent, wilfully, unlawfully and feloniously attempt to cause serious bodily injury to the body of Dennis Wayne Abel who was then and there a duly appointed and presently acting law enforcement officer, to-wit: a sworn officer of the Mississippi State Highway Patrol, being then and there engaged in the performance of said law enforcement officer’s official duties, he/she the said Lethel Joshua a/k/a Josh then acting knowingly and recklessly under circumstances manifesting extreme indifference to the value of human life.

It is noted that the only charge in the indictment is that the appellant did “attempt to cause serious bodily injury....” Prior to trial appellant filed a motion to quash the indictment alleging that it did not set out any overt acts allegedly committed by appellant in making his attempt or any other facts, sufficient to inform appellant of the acts he did under his attempt to commit a crime.

In a number of cases we clearly have set forth the requisites of an indictment under a charge of an attempt to perform a criminal act. In Bucklew v. State, 206 So.2d 200 (Miss.1968), we held that our statutory law requires proof of an overt act in order to sustain a conviction of an attempt to commit a crime. See also, Jackson v. State, 420 So.2d 1045 (Miss.1982); Ford v. State, 218 So.2d 731 (Miss.1969); State v. Burton, 145 Miss. 821, 111 So. 300 (1927); and Stapleton v. State, 130 Miss. 737, 95 So. 86 (1923).

In Burchfield v. State, 277 So.2d 623 (Miss.1973), we stated as follows:

It has long been the law of this land that an accused person has a constitutional right to be informed of the nature and material elements of the accusation filed against him. All the authorities are to the effect that an indictment, to be sufficient upon which a conviction may stand, must set forth the constituent elements of a criminal offense. Each and every material fact and essential ingredient of the offense must be with precision and certainty set forth.
(277 So.2d at 625) If the offense is fully and clearly defined in the statute, an indictment in the language of the statute is sufficient; otherwise, the indictment should charge the offense by the use of additional words that clearly set forth every element necessary to constitute the crime.

In Jackson, supra, we stated:

(420 So.2d at 1046).

In Stapleton, supra, we stated:

The statute [intent statute] is of course in general terms, and while ordinarily an indictment may follow the language of the statute, this is not true where the statute does not define particular acts which make the offense, but leaves to the circumstance of the case the proof of one of many possible acts which would go to make up the offense.
(95 So. at 87).

In addition to our prior cases regarding the necessity of informing the accused in the indictment of the acts he is accused of doing that comprise the “attempt”, we note rule 2.05 of the Mississippi Uniform Criminal Rules of Circuit Court Practice. This rule requires that the indictment “shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him.” Referring to the quoted section under which appellant obviously was attempted to be indicted, the section merely states that “[A] person is guilty of aggravated assault, if he (a) attempts to cause serious bodily injury to another or causes such injury purposely, knowingly or recklessly under such circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm...” As stated at the outset, one of the several possible overt acts was testimony that at least during part of the time involved in the incident, appellant had the patrolman’s gun in his hand pointed at the patrolman. In addition to this, there was testimony that prior to that time, the appellant struck the patrolman with his fists. He was in turn struck with the patrolman’s flashlight and an altercation occurred prior to the time of the gun incident. The only weapon mentioned in the above code section is a “deadly weapon.” The activities allegedly entered into by appellant and the patrolman included several activities other than pointing a deadly weapon. None of these, including a deadly weapon, were set out in the indictment.

As stated previously, appellant, prior to trial, filed his motion to quash the indictment. He did not file a demurrer under the provisions of MCA § 99-7-21 (1972). We have held, however, that a demurrer is necessary only when there is a formal defect in the indictment that can be amended and does not apply when the indictment defect is substantive. (Maxie v. State, 330 So.2d 277 (Miss.1976)). Here in the case sub judice the Court was fully informed of the indictment’s defect by appellant’s motion to quash. We hold that the indictment was substantially defective in that it did not set out any alleged overt act whatsoever regarding appellant’s attempt to cause bodily.harm to the patrolman. Appellant, as hereinbefore discussed, was constitutionally entitled to be advised of the overt act or acts comprising his attempt. It is therefore necessary under the law that we reverse and remand the cause for proper indictment and trial thereunder.

REVERSED AND REMANDED.

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


text:
    Judy Clara Carter WOOTEN, Karla Jeanne Wooten, By Her Mother and Next Friend, Judy Clara Carter Wooten and Carl Edward Wooten, Jr., By His Mother and Next Friend, Judy Clara Carter Wooten v. YAZOO VALLEY ELECTRIC POWER ASSOCIATION.
    No. 54109.
    Supreme Court of Mississippi.
    Feb. 1, 1984.
    Dean Andrews, Jr., Ramsey, Bodron, Robinson, Andrews & Yoste, Vicksburg, for appellant.
    James A. Becker, Jr., Steven D. Orlan-sky, Watkins & Eager, Jackson, for appel-lee.
   Appeal from Circuit Court, Warren County; John W. Prewitt, Sr., Judge.

Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.


text:
    Robert W. VAUGHN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 54355.
    Supreme Court of Mississippi.
    Feb. 1, 1984.
    Michael L. Cordell, Miller, Dean & Cor-dell, Greenville, for appellant.
    Philip B. Terney, Robertshaw & Meri-deth, Greenville, for appellee.
    Before BROOM, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

The principal question involved in this appeal is the time for the six-year statute of limitations to begin running on a claim under the uninsured motorist provision of an automobile policy. The case originated in the Circuit Court of Washington County and the appeal is from a summary judgment rendered by that court dismissing the appellant’s (plaintiff below) cause of action for recovery under his personal policy on his personal car. A brief review of the history of this unusual case is necessary. This review is based on the allegations of the complaint filed in the present cause and this Court’s judicial notice of its records, opinions and mandates in the causes hereinafter discussed, which causes directly related to the present appeal.

The motor vehicle accident giving rise to the cause occurred on November 9, 1970. It was a one-car accident in which plaintiff’s son Michael Eric was an occupant. An original dispute arose, which dispute is-not material here, as to whether young Vaughn was a passenger or the driver.

The motor vehicle was owned by W.H. McGarrah. He and Mrs. McGarrah were divorced. Mr. McGarrah purchased the car, retaining title in himself and purchased a policy of automobile insurance covering this car with State Farm Mutual Automobile Insurance Company. McGarrah then turned the vehicle over to his former wife to be used by their 16-year-old daughter. On the night' of the accident, the daughter had driven the car to a recreational activity where she met with young Vaughn and another young man named James Creely.

Appellant here Robert W. Vaughn, the father, brought suit against James Creely contending that Creely was the driver of the McGarrah vehicle and was guilty of negligence causing injuries and resulting medical expenses to young Vaughn and loss of services to appellant father. The jury believed appellant’s version of the accident and returned a verdict on July 23, 1975, in favor of appellant in the sum of $9,048.17. Creely, by State Farm, under a reservation of rights agreement, appealed the judgment to this Court. The cause was affirmed by this Court on May 11, 1977, [Creely v. Vaughn, 345 So.2d 1040 (Miss.1977)].

Meanwhile, as there was no supersedeas bond filed, Vaughn on October 20, 1975, filed a suggestion of writ of garnishment in the Circuit Court of Washington County against State Farm. The insurance company defended the garnishment proceeding contending that James Creely was not an insured under the omnibus clause of the automobile policy that covered the McGar-rah car. The trial court agreed with State Farm and dismissed Vaughn’s garnishment action. Vaughn appealed to this Court and the lower court’s action in its dismissal was affirmed by this Court on May 31, 1978. [Vaughn v. State Farm Mutual Automobile Ins. Co., 359 So.2d 339 (Miss.1978)] This Court, in a divided decision, held that Creely was a remote permittee to such an extent that he was not protected under the omnibus clause of the policy.

On July 21, 1982, the present cause was filed in the Circuit Court of Washington County. As already shown, it so happened that Mr. Vaughn, as well as McGarrah, had his principal automobile insurance with State Farm and there was an uninsured motorist provision in said policy with limits of $5,000 under each claim. Vaughn contended that State Farm, under his uninsured motorist provision, owed the policy limits under the original judgment as Creely had finally been determined to be uninsured. Attached to the complaint were copies of the pleadings in the former court proceedings.

State Farm answered and in addition to other answers and affirmative defenses propounded the affirmative defense that Vaughn’s claim filed on July 21, 1982, was barred by the six-year statute of limitations that admittedly applied. It was contended by State Farm that the limitation period began to run on November 9, 1970, the date the motor vehicle accident occurred. It is readily seen that if this contention is correct, more than six years passed prior to the filing of the present suit on July 21, 1982. The trial judge agreed with State Farm and sustained its request for summary judgment.

The issue in the cause therefore is whether the statute of limitations began to run on November 9, 1970, or October 20, 1975, [the date appellee answered the garnishment proceeding and for the first time contended that Creely was uninsured under its policy] or on May 31, 1978, when this Court affirmed the lower court’s judgment dismissing the garnishment proceeding.

The parties admit that the applicable statute of limitations here is the six-year period. The question is when did the six-year period start, or asked differently, when did the cause of action legally accrue. Appellee contends that it accrued at the time the collision occurred on November 9, 1970. Appellant contends it accrued when Creely legally became an uninsured motorist.

Historically, this Court and others when faced with the interpretation of a beginning point under statutes of limitation are confronted with a new or unusual set of facts that have to be interpreted along with the limitation period. We held in Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So.2d 344 (1943), that:

Citation from neither judicial decision nor lexicon is needed to support the view that a cause of action “accrues” when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested.

See also: Boydstun v. Pearson, 239 Miss. 479,123 So.2d 621 (1960); Rankin v. Mark, 238 Miss. 858, 120 So.2d 435 (1960); Aultman v. Kelly, 236 Miss. 1, 109 So.2d 344 (1959).

In Boydstun, supra, we held that a cause of action must be complete before it can be said to have “accrued.” Appellee cites the cases of Harthcock v. State Farm Mutual Auto Ins. Co., 248 So.2d 456 (Miss.1971); Farned v. Aetna Casualty & Surety Co., 263 So.2d 790 (Miss.1972); and Hodges v. Canal Insurance Co., 223 So.2d 630 (Miss.1969). These cases authorized a direct action suit against a carrier under the aggrieved person’s uninsured motorist provisions of his policy and clarified that a prior suit against the uninsured motorist is not required. It is not necessary to disturb those opinions in the ease sub judice.

The situation before us is readily seen and recognized. The decision that disposes of this question is that Creely was not finally adjudged to be an uninsured motorist until this Court affirmed the lower court’s decision on May 31, 1978. Until that time, there was merely an appealable decision of the circuit court agreeing with State Farm that the policy of insurance admittedly in force on the McGarrah car did not cover Creely. Creely was not uninsured until this Court said so on May 21, 1978. The cause of action with which we presently are concerned, could not accrue as long as the uninsured motorist question had not been decided. As we stated in Forman, supra, and in Boydstun, supra, appellant’s cause of action against appellee, after a final conclusion that Creely was not an “insured” under the McGarrah policy, did not accrue until that time occurred, as the cause of action was not complete and viable. Appellee had a legal right to do what it did; that is, litigate the cause through this Court two different times pri- or to the present appeal before finally contending that Creely was not its insured. To hold that appellee can get away with these legal rights and thereby bar appellant’s legal rights would be against all justice. As we stated at the outset, in finally holding here regarding the beginning of the limitation period, we do not have to overrule or modify any prior cases. This is simply a case with unusual facts that are fitted into the law as already pronounced by this Court.

It might be well to stop and make what is probably a foolish reminder that State Farm had the coverage both on the Vaughn and McGarrah vehicles. The same law would apply, of course, had different companies been involved. Undisputedly, Vaughn, after a determination that Creely was uninsured, had a direct action suit against his motor vehicle carrier, State Farm.

It is undisputed, as alleged in the complaint and as shown by the prior cases in this Court, that there was a policy of insurance covering the car operated by Creely when the collision occurred on November 9, 1970. According to the declaration and undisputed factual history as shown by this Court’s records and the pleadings here, ap-pellee defended under its McGarrah car policy the suit against Creely, contending that Creely was not the driver but that young Vaughn was acting in that capacity. For the first time, appellee at the time it answered the garnishment proceeding on October 20, 1975, contended that the omnibus clause of the policy admittedly covering the vehicle did not cover Creely personally as he was a second permittee. [Vaughn v. State Farm Mutual Ins. Co., 359 So.2d 339 (Miss.1978) ].

It is readily seen that had appellant been forced to file the present suit, prior to the contention in the garnishment proceeding, the status of the cases would have been upsetting to the Court procedure, to say the least. If such a suit had been filed one day after the collision, an untriable suit would have been pending before the Court for approximately five years.

We therefore hold that appellant’s cause of action did not accrue until May 31, 1978, when this Court issued its opinion affirming the trial court’s judgment that Creely was not insured under the McGarrah policy. Appellant had the six-year limitation period to file his uninsured motorist’s claim subsequent to the date of this Court’s final decision.

REVERSED AND REMANDED.

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

       Mississippi Code Annotated Section 83-11-101 (1972).


author: ROY NOBLE LEE, Justice,

text:
    William Thomas SMITH v. STATE of Mississippi.
    No. 54723.
    Supreme Court of Mississippi.
    Feb. 1, 1984.

      Charles “Bo” Little, Pontotoc, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

William Thomas Smith was convicted in the Circuit Court of Pontotoc County, Honorable Fred Wicker, presiding, on five counts of armed robbery and, pursuant to the jury verdict of guilty agreeing that Smith be sentenced to life in the state penitentiary on each count, the lower court so sentenced Smith, the sentences to run concurrently. Smith has appealed to this Court and assigns ten errors in the trial below.

On August 30,1981, appellant, wearing a mask and armed vrith a six-shot pump shotgun, entered the Pleasant Grove Baptist Church in Pontotoc County, during the Sunday morning worship service, and began to threaten and vilify the congregation. Appellant ordered members to pass before him and drop their money and other valuables on the floor. He threatened that he could kill six people, since his shotgun was fully loaded. As a result of his actions, members of the congregation were frightened and terrified, and began to comply with appellant’s orders.

Rev. Leroy Crouch, pastor of the church, had been slowly inching his way toward appellant and he lunged and grabbed appellant’s arms. Immediately, several men in the congregation ran forward and appellant was disarmed, subdued, bound, and blindfolded. His mask was removed and the sheriff was called. Appellant was subsequently identified as William Thomas Smith. He was incarcerated and bond was fixed at $25,000.

I.

Did the lower court err in refusing to accept appellant’s guilty plea to Count II of the indictment in # 8772?

The indictment in Cause No. 8771, the case sub judice, charged appellant with five counts of armed robbery. The indictment in cause no. 8772 charged Smith with one count of attempted kidnapping and one count of disturbing a worship service. The appellant attempted to enter a guilty plea to Count II of the indictment in No. 8772 and contends that he constructively entered a guilty plea thereto and contends that he was placed in jeopardy insofar as the present cause is concerned.

The court did not conduct a hearing to determine whether or not the proposed plea was understood, free and voluntary. The prosecuting attorney moved to nol-pros Count II of indictment No. 8772, which was sustained by the lower court.

Appellant does not show how or why double jeopardy will apply in a situation such as presents itself here. Under these circumstances the principle stated in Ramseur v. State, 368 So.2d 842 (Miss.1979) applies.

However, we are of the opinion that no double jeopardy issue exists and that there is no merit in this assignment. Hughes v. State, 401 So.2d 1100 (Miss.1981); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

II.

Did the lower court err in declining to grant appellant a change of venue?

On a motion for change of venue, the State introduced five witnesses and the appellant introduced seven witnesses, including himself. The substance of the State’s evidence was that appellant could obtain a fair trial from an unprejudiced and unbiased jury in Pontotoc County, while that of the appellant was to the contrary. Fourteen newspaper articles relating to the incident were introduced in the record.

The appellant cites Seals v. State, 208 Miss. 236, 44 So.2d 61 (1950), to the effect that witnesses of the State testified that they believed appellant could get a fair trial because of the good people in Pontotoc County. That type testimony was disapproved in Seals. However, the State’s witnesses each testified that they knew of no prejudice against appellant in the public mind and, in their judgment, appellant could obtain a fair and unbiased trial in the county. The sheriff of Pontotoc County testified that he had talked to at least seventy-five people in the county in an effort to determine whether or not there was prejudice against appellant and whether or not he could obtain a fair trial, and, as a result of his investigation, it was his opinion that appellant could obtain a fair trial in the county.

On conflicting evidence, the trial judge determined that appellant could receive a fair trial in Pontotoc County from an unprejudiced and unbiased jury, and we cannot say that he abused his discretion in overruling the motion for change of venue. Tubbs v. State, 402 So.2d 830 (Miss.1981); Myers v. State, 268 So.2d 353 (Miss.1972).

III.

Did the lower court err in refusing to appoint another attorney to assist court-appointed counsel in the trial of the cause?

Appellant contends that Mississippi Code Annotated § 99-15-17 (Supp.1982) requires that, in a capital case, two attorneys be appointed to represent an indigent defendant. However, the section provides that in a capital case, two attorneys may be appointed to represent an indigent defendant. It does not mandate that two attorneys be appointed. The constitution sets forth no such requirement for the appointment of attorneys for indigents. Bell v. Watkins, 692 F.2d 999, 1009 (5th Cir.1982).

IV.

Did the lower court err in declining to grant a directed verdict of not guilty for the appellant?

Appellant has cited no authority in support of this assignment, and the rule that an assignment will not be considered where no authority is cited could be applied. Dozier v. State, 247 Miss. 850, 157 So.2d 798 (1963); Ramseur v. State, supra.

However, we are of the opinion that there is no merit in the assignment. Mississippi Code Annotated Section 97-3-79 (Supp.1983) provides that “Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of rob-bery_” The indictment charged appellant with the attempt to commit the crime of robbery on five individuals in the congregation by five counts.

Appellant was addressing everyone in the church when he demanded that personal valuables be brought down the aisle and placed in front of him, and he was waving and pointing the shotgun all around the church sanctorium. The individual victims named in the indictment had started to comply or intended to comply with the demand for their valuables. The charge was properly stated and supported by the evidence.

V.

Did the lower court err in granting State’s Instruction No. 9 over objection of appellant?

The Instruction S-9 follows:

If a defendant, when sober, is capable of distinguishing between right and wrong, and the defendant voluntarily deprives himself of the ability to distinguish between right and wrong by reason of becoming intoxicated and commits an offense while in that condition, he is criminally responsible for such acts. Therefore, if you find from the evidence in this case beyond a reasonable doubt that the defendant, William Thomas, Smith, was capable of distinguishing between right and wrong at the time of the alleged offense and that he voluntarily deprived himself of the ability to distinguish between right and wrong .by becoming intoxicated, and while in that condition committed the offense of Armed Robbery, then he is criminally responsible for that act, and in such event you should find the defendant guilty as charged.

McDaniel v. State, 356 So.2d 1151 (Miss.1978), clarified the law with reference to criminal responsibility of an accused who voluntarily intoxicated himself and committed a crime, then claimed that he lacked specific intent to commit the crime because of hiá intoxication. The Court said:

A majority of the justices participating in this decision having concurred in the views expressed herein, we hereby adopt the following rule: If a defendant, when sober, is capable of distinguishing right and wrong, and the defendant voluntarily deprives himself of the ability to distinguish between right and wrong by reason of becoming intoxicated and commits an offense while in that condition, he is criminally responsible for such acts.
This is a proper case in which to adopt the foregqing rule because McDaniel’s sole defense was that he was so intoxicated that he was not able to distinguish between right and wrong; therefore, all cases listed in the appendix authorizing submission to a jury the question of voluntary intoxication as a defense in specific intent offenses are hereby overruled insofar as they conflict with the rule announced herein. 356 So.2d at 1161.

In Lee v. State, 403 So.2d 132 (Miss.1981), the question presented itself again, and Justice Hawkins wrote for the Court:

The McDaniel rule presents “submission to a jury the question of voluntary intoxication as a defense in specific intent offenses.” 356 So.2d at 1161. An amplified restatement of the rule is: a defendant, capable of distinguishing between right and wrong when sober, is not entitled to an instruction submitting to the jury his inability to form the specific intent to commit an offense because of his voluntary intoxication at the time the offense was committed. The rule was followed in Harris [v. State, 386 So.2d 393 (Miss.1980) ] supra.
We hasten to add that voluntary intoxication is not a substitute for intent. Trial courts must remember that the purpose of the McDaniel rule is to remove voluntary intoxication as a defense, not to provide an affirmative instruction for the state which might mislead a jury into thinking that it is not necessary to prove intent, when intent is a requisite ingredient of the offense. 403 So.2d at 134.

The McDaniel court did not limit the question of voluntary intoxication to instructions either for the State or the accused. The rule is simply and clearly stated therein and means that, if a person, when sober, is capable of distinguishing right and wrong and voluntarily intoxicates or drugs himself to the extent that he does not know or understand his actions, e.g., steals, robs, or murders, he is responsible and he may be convicted and sentenced for the crime.

In order that there may be no misunderstanding among the bench and the bar, we reaffirm McDaniel v. State, supra.

VI. — VII.

Did the court err in refusing Defendant’s Instruction D-9?

Did the court err in refusing appellant’s Instruction D-10?

The instructions deal with prescription medication at the time of the robbery (Librium). The record does not indicate that any physician prescribed amounts of alcohol for appellant. Instruction D-4 which was granted, covers the question of specific intent.

Instruction D-10 relates to voluntary intoxication as a defense and is controlled by McDaniel v. State, supra. The amount of alcohol consumed is really of no consequence.

VIII.

Did the lower court err in refusing to grant appellant’s Instructions D-13, D-14 and D-15 which would permit the jury to find the defendant guilty of lesser offense?

As stated before, the indictment simply charges five counts of armed robbery against five separate individuals and there is no lesser-included offense involved. The lower court correctly refused those instructions.

IX.

Did the lower court err in refusing to grant appellant’s motion to set aside the verdict of the jury on the ground that one or more of the jurors were personally interested in the outcome of the case?

This assignment is the subject of the State’s cross-appeal. A hearing was held January 7, 1983, on the motion to set aside the jury verdict on the ground that one or more of the jurors were personally interested in the outcome of the case. At the time the motion was filed, appellant had perfected his appeal to the Mississippi Supreme Court and the lower court was without jurisdiction to hear the motion. See Depreo v. State, 407 So.2d 102 (Miss.1981).

Therefore, this assignment is without foundation and as to that question, the cross-appeal is sustained.

X.

Did the lower court err in failing to grant appellant’s motion for a new trial?

All questions covered by the motion for a new trial have been decided hereinbefore and the motion was properly and correctly overruled.

AFFIRMED ON DIRECT APPEAL; CROSS-APPEAL SUSTAINED AS TO ASSIGNMENT IX.

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

      . The Court attached an appendix to the opinion of Justice Sugg covering 23 cases from 1844 to 1974 which involved the question of voluntary intoxication as a defense in specific intent cases and which were overruled, if in conflict with the rule announced in McDaniel.


text:
    Alden R. MORAN v. Regina Stanford NECAISE.
    No. 54703.
    Supreme Court of Mississippi.
    Feb. 8, 1984.
    Billy R. Gibson, Bay St. Louis, Pete H. Carrubba, Dukes, Carrubba & Dukes, Gulf-port, for appellant.
    Herbert J. Stelly, Sr., Gulfport, for appel-lee.
   Appeal from Circuit Court, Hancock County; J. Ruble Griffin, Judge.

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

AFFIRMED.


text:
    Wendell SHEFFIELD v. STATE of Mississippi.
    No. 54685.
    Supreme Court of Mississippi.
    Feb. 8, 1984.
    Jimmy D. Shelton, Tupelo, for appellant.
    Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lee County; Thomas J. Gardner, III, Judge.

Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.

PATTERSON, C.J., BROOM, P.J., and HAWKINS, PRATHER and ROBERTSON, JJ., concur.

DAN M. LEE, J., not participating.


text:
    Honor Tyrone WELLS v. STATE of Mississippi.
    No. 54731.
    Supreme Court of Mississippi.
    Feb. 8, 1984.
    Thomas M. Fortner, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.

PATTERSON, C.J., BROOM, P.J., and HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


author: EMBRY, Justice.

text:
    Norman B. YOUNG as Executor of the Estate of Joe Young, deceased v. Raymond V. BRYAN as Administrator of the Estate of Jewel Bryan Young, deceased.
    81-1050.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    Rehearing Denied Jan. 20, 1984.

      Benjamin H. Kilborn and Grey Redditt, Jr., Mobile, for appellant.
    James B. Rossler of Stout & Roebuck, Mobile, for appellee.
   EMBRY, Justice.

This is a wrongful death action.

It is undisputed that the late Joe Young shot and killed his wife, the late Jewel Bryan Young, and then committed suicide.

Their bodies were discovered by Raymond Victor Bryan, the Administrator of the Estate of his mother, Jewel Bryan Young and, in that capacity, the plaintiff in this action against Norman B. Young, Executor of the Last Will and Testament of Joe Young, deceased.

There were no eye-witnesses to the incident. However, a suicide note was discovered in Joe Young’s real estate office, located immediately behind the Young’s home:

‘ Double Branch
“January 18th, 1978
“I have apparently lost the love of my wife, Jewel, and we have made some agreements for divorce. She is such a fine person and I love her so deeply that the heartbreak is more than I can endure. Please forgive me Lord.
“Deliver the papers in the brown sacks to my lawyer Ben Kilborn. They are in regard to property investments and he will know how to handle them.
“The names of my two sons is on the attached sheet. Give me a plain burial with private attendance of family only.
“/s/Joe Young”

Bryan filed suit seeking $500,000 damages for the wrongful death of his mother, alleging that Joe Young wrongfully took her life by shooting her. Norman B. Young, as executor, answered with a general denial and a special plea of insanity. A jury trial resulted in a verdict in favor of Bryan for $500,000. Young appeals from the judgment entered on that verdict.

A number of issues are presented by Young on appeal; dispositive are the issues whether the trial court erred by allowing Bryan to inject evidence and argument regarding Young’s wealth into the case and whether it erred by allowing argument which misled the jury to award compensatory rather than punitive damages. Young contends the cumulative effect of such evidence allowed by the trial court was prejudicial. Specific evidentiary errors he notes are as follows:

I.

Raymond V. Bryan, decedent’s son, was allowed, over objection, to draw a diagram showing defendant’s house on a hill with a lake and the legend “Double Branch Estates.”

II.

The trial court allowed the testimony of Raymond V. Bryan about the contents of a brown paper bag Bryan found beside Young’s suicide note. The bag contained deeds and insurance policies.

III.

Counsel for Bryan, over objection, was allowed to ask defendant’s expert witness:

“Q. And were you aware of the fact that there was a large brown grocery bag there that had all of the deeds put together in one section, and all of the mortgages put together in one section and all the promissory notes ... (inaudible, both Mr. Hess and Mr. Kilborn start talking at once.) ... and the business papers were put together in an orderly neat manner?
“MR. KILBORN: Objection, Judge, he’s been talking about things of value of which there is no evidence at all.
“THE COURT: Overruled.
“MR. KILBORN: Except. Move for a mistrial.
“THE COURT: Motion denied.”

IV.

During final argument, counsel for Bryan was allowed, over objection, to argue:

“MR. HESS: Did he have the right to do it? We cannot try him. He has removed himself effectively from the justice of our criminal courts. We are trying the only thing the law leaves to us to try which is his estate. His estate that he so carefully organized the insurance papers about. His estate that he had all the deeds put together in one section.
“MR. KILBORN: Again, your Honor, I make the same objection. That’s- improper evidence and I move for a mistrial. He’s referring to the wealth or lack of of the Defendant.
“MR. HESS: This is referring to his mental abilities at the time, his planning.
“THE COURT: Objection overruled, motion denied.
“MR. KILBORN: We except.”

Also during final argument, counsel for Bryan was allowed, over objection, to argue:

“MR. HESS: What about the living victims that he left? The children and family of his wife. He killed his wife. He deprived them of the company of their mother. Now these were not children that lived afar. These were not children that visited occasionally. These were not children that had moved hundreds of miles away.
“MR. KILBORN: Your Honor, I object. ...
“MR. HESS: And in one case, this young man here .... ”
• “MR. KILBORN: Wait, wait, Mr. Hess. I object to the argument as being improper, Your Honor, insofar as he’s told ’em he deprived them of their mother and what-not, and the companionship as being improper. It’s an improper element of damages and I move ....
“MR. HESS: I’m not arguing damages now, I’m arguing liability.
“THE COURT: I don’t recall any evidence of that.
“MR. HESS: This young man visited with his mother on almost a daily basis. Worked a short distance away. Uh-
“THE COURT: All right. Objection overruled.
“MR. KILBORN: Exception. Do we have it on the record, Ms. Reporter?
“COURT REPORTER: Yes, sir.
“MR. KILBORN: We except. And again move for a mistrial.
“THE COURT: Motion denied.
“MR. KILBORN: Except.”

We will discuss these alleged errors by the trial court in the order above presented.

I.

In response to Young’s objection to the admission of a diagram showing Young’s house, driveway and his real estate office, counsel for Bryan stated:

“It’s not my intention to dwell on the size of it or anything. I want to establish the house, just the layout of how he got in the house, where he found the body and where the office was in relation to the house.”

It is a well-established rule of evidence in Alabama that a diagram or drawing may be used by a witness to clarify his testimony. See James v. Mizell, 289 Ala. 84, 90, 265 So.2d 866, 871 (1972); Crocker v. Lee, 261 Ala. 439, 445-46, 74 So.2d 429, 435 (1954); Southern Cement Co. v. Patterson, 271 Ala. 128, 135, 122 So.2d 386, 391 (1960). Further, “[t]he use of a blackboard for the purpose of illustrating testimony is within the sound judicial discretion of the trial court.” Payne v. Jones, 284 Ala. 196, 201, 224 So.2d 230, 234 (1969).

We cannot fault the trial court for allowing Bryan to use the diagram to explain his testimony.

II.

Issues two and three deal with evidence introduced regarding the contents of the brown paper bag found beside the desk upon which the suicide note lay.

As to both of these issues Young argues that evidence that the documents in the bag were in order and seemed to be grouped together, coupled with evidence that the office and home were not in any disarray, is relevant to Young’s mental state. He argues this is probative regarding Young’s rational thought and behavior just prior to the homicide-suicide incident.

It is well-settled in Alabama that where there is an issue of mental capacity, a wide range of evidence is allowable. See: Watts v. State, 282 Ala. 245, 210 So.2d 805 (1968); and Barbour v. State, 262 Ala. 297, 78 So.2d 328 (1954).

Therefore, we hold the above evidence was admissible as probative of Joe Young’s mental competence.

III.

Appellant argues that evidence of the wealth of Joe Young’s estate was again brought up in plaintiff’s closing argument when it was stated: “We are trying the only thing the law leaves to us to try which is his estate. His estate that he so carefully organized the insurance papers about. His estate that he had all the deeds put together in one section.” The contention is that prejudice to defendant was compounded when plaintiff was allowed to argue: “What about the living victims that he left?”

Appellant Norman Young contends these arguments were advanced for the sole purpose of prejudicing the estate of Joe Young by improperly introducing its wealth to the jury, and thereby encouraging the jury to award damages based upon elements not proper to be considered in the fixing of the amount of punitive damages.

We think it clear that both statements by counsel for Bryan during final arguments were improper. Recently, this court, in Horton v. Continental Volkswagen, Inc., 382 So.2d 551 (Ala.1980), reversed the trial court for error occurring when the following statement was made by defense counsel during statement:

“ ‘Now, we expect the evidence to show, ladies and gentlemen of the jury, that Continental Volkswagen, a small private domestic corporation owned by Mr. William R. Alford — ’ ”

382 So.2d at 552.

This court opined that statement was an improper injection into the case of defendant’s modest financial status:

“The trial court was incorrect in overruling these objections because the remarks necessarily contain the aspects of wealth (and therefore a net worth.) ... Because this statement was prejudicial and not eradicated, the cause must be, and is, reversed and remanded.”

382 So.2d at 552.

Remarks made by counsel for plaintiff in this case were much more prejudicial than that made in Horton. Here, counsel’s statement during final argument as to defendant’s estate had the effect of bringing in as evidence details regarding assets of the estate which had previously been admitted for other, permissible reasons, in a totally different context. Suddenly, evidence that defendant’s estate held a number of deeds and insurance policies became relevant to the jury for a purpose other than determining the mental state of Joe Young when he killed Jewel Bryan Young.

As to plaintiff’s argument regarding the losses suffered by Jewel Young’s family as a result of her death, it is axiomatic that the only damages recoverable under Alabama’s Wrongful Death Statute, § 6-5-410, Code 1975, are punitive in nature. See Estes Health Care Centers, Inc. v. Bannerman, 411 So.2d 109 (Ala.1982); Board of Trustees of University of Ala. v. Harrell, 43 Ala.App. 258, 188 So.2d 555 (1965); and Hardin v. Sellers, 270 Ala. 156, 117 So.2d 383 (1960).

We note, regarding both improper arguments in the instant case, that the trial court overruled an objection by counsel for Young and gave the jury no curative instructions. When an improper argument is made and the trial judge overrules an objection and fails to instruct the jury as to that impropriety or direct that the argument is to be disregarded, “the test upon appeal is not that the argument did unlawfully influence the jury, but whether it might have done so.” Williams v. City of Anniston, 257 Ala. 191, 193, 58 So.2d 115, 117 (1952). See also Estis Trucking Co. v. Hammond, 387 So.2d 768 (Ala.1980), and Alabama Farm Bureau Mutual Casualty Insurance Co. v. Humphrey, 54 Ala.App. 343, 308 So.2d 255 (1975).

Bryan contends that, because of the trial court’s subsequent instructions to the jury, Norman Young could not have been prejudiced. He, Bryan, contends the trial court’s final oral instructions to the jury, prior to and after it had begun its deliberations, cured any error. A portion of the trial court’s oral charge to the jury was as follows:

“Now if the Plaintiff is entitled to recover, the damages in this case are a little bit different from the damages in an ordinary case. In a suit of this type where the damages are for wrongful death, the damages which you should award if your verdict be for the Plaintiff are punitive damages and not compensatory. Damages in this type of action are imposed entirely for the preservation of human life and as a deterrent to others to prevent similar wrongs in the future. The amount of damages should be directly related to the wrongdoing on the part of the deceased, Joe Young. In assessing damages you should not consider the monetary value of the life of the deceased, Jewel Young, for damages in this type of action are, as I said, not compensatory. They’re entirely punitive. And they’re not intended to compensate the Plaintiff for any financial or pecuniary loss on account of the death of Jewel Young.
“Your verdict should not be based upon sympathy, prejudice, passion or bias, but should be directly related to culpability of Joe Young and the degree or the character and the degree of the wrong as shown by the evidence in the case and the necessity of preventing similar wrongs in the future.”

Following this charge, and following a question asked by a juror, the trial judge stated:

“You must concern yourself, if the verdict should be for the Plaintiff, with the culpability of the Defendant and the necessity of preventing similar wrongs in the future.”

The above instructions to the jury in no wise refer to the impropriety of prior statements by counsel for the plaintiff regarding the estate of the defendant or the losses suffered by the family of Jewel Bryan Young as a result of her death. The trial court should have, at the time the remarks were made, promptly noted to the jury that counsel had departed from legitimate argument. We do not think the oral charge regarding the nature of punitive damages eradicated from the minds of the jurors the improper and highly prejudicial statements made during final argument. In any event, we cannot say the argument did not influence the jury, and if it could have, we are duty bound to reverse.

After careful review of the entire record, we conclude the judgment below must be reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.