author: DAN M. LEE, Justice, for the Court: WALKER, Presiding Justice,

text:
    James Odell McLAMB v. STATE of Mississippi.
    Misc. No. 1495-A.
    Supreme Court of Mississippi.
    Sept. 5, 1984.

      James Odell McLamb, pro se.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
   DAN M. LEE, Justice, for the Court:

ON MOTION FOR LEAVE TO FILE MOTION TO VACATE HABITUAL CRIMINAL SENTENCE IN FORMA PAUPERIS

James McLamb is an inmate at the Mississippi State penitentiary. Convicted of armed robbery and sentenced as an habitual offender under § 99-19-83 Miss. Code Ann. (Supp.1983), 410 So.2d 1318, McLamb is serving a sentence of life without the possibility of parole, probation, reduction or suspension of sentence. McLamb’s two prior convictions were for the crimes of breaking and entering and larceny. The sole issue raised by McLamb’s motion is whether § 99-19-83 allows an habitual offender to be sentenced to life imprisonment where the only crime of violence in the defendant’s record is the one for which he is currently being sentenced. McLamb contends that the violent crime contemplated by the statute must be one of the prior convictions and that he was therefore erroneously sentenced. We agree.

Section 99-19-83 reads as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Admittedly, the wording of this statute is inartful to say the least; however, application of everyday rules of grammatical construction assist us in our interpretation. The introductory clause of the statute (“Every person convicted in this state of a felony ... ”) assumes that the immediate crime for which the defendant is being sentenced is a felony. The statute then sets forth the predicate necessary to be established before enhanced sentencing is appropriate. That predicate requires at least two previous felony convictions which arise out of separate incidents at different times. The defendant must also have been sentenced to and have actually served separate terms of at least one year in a penal institution. Furthermore, one or more of the felonies for which the defendant was previously convicted “shall have been” a crime of violence. The term “shall have been” is in the past tense and necessarily refers to a prior felony.

Section 99-19-81 Miss.Code Ann. (Supp. 1983), the companion statute to § 99-19-83, establishes a mandatory maximum sentence for defendants whose criminal records .evince that they have been twice previously convicted and sentenced only. It does not require that the sentences have been served. If these two statutes are considered in pari materia, as we think they must, the intention of the legislature becomes clear. Our lawmakers have mandated that before a defendant may be sentenced under § 99-19-83 to life imprisonment without the possibility of probation, parole, or sentence reduction, it must be proven that the defendant has been convicted, sentenced and served time for the commission of at least two prior felonies, one of which was a crime of violence. Without that predicate sentencing under § 99-19-83 is inappropriate as this statute requires the most severe punishment the state may impose short of death.

The second reason that we interpret § 99-19-83 to mean that the crime of violence must be one of the prior felonies is simply a matter of the long standing rule that penal statutes are to be interpreted strictly against the state and construed liberally in favor of the accused. Where a statute is patently ambiguous, it must be interpreted in favor of the accused. State v. Russell, 358 So.2d 409 (Miss.1978); Carter v. State, 334 So.2d 376 (Miss.1976); Walton v. State, 219 Miss. 72, 68 So.2d 87 (1953); Terry v. State, 172 Miss. 303, 160 So. 574 (1935). Furthermore, the oft cited rule in Grillis v. State, 196 Miss. 576, 17 So.2d 525 (1944) has perfect application to the instant controversy: when there is substantial doubt as to which of the two (statutes) is to be applied, the case will be referred to the statute which imposes the lesser punishment. In the instant case the statute which imposes the lesser punishment is § 99-19-81, an enhanced punishment statute applicable to those who have been twice previously convicted and sentenced but who have not served at least one year of those sentences.

Finally, there is a third and more compelling reason to interpret this statute as we do. That reason is that we have already done so and to interpret the statute in any other manner would be inconsistent and disruptive to our state’s judicial system. In Wilson v. State, 395 So.2d 957 (Miss. 1981), we addressed and interpreted the habitual criminal statute as follows:

Most serious is the argument that the defendant had a constitutional right to a jury trial on the issue of whether he was an habitual criminal for having had two prior felony convictions. When the state rested its case as to the assault on the law officer, the court stated that the jury would not be permitted to hear anything regarding the two prior felony convictions. After a guilty verdict, the court would then hear evidence and make the determination as to enhanced punishment under §§ 99-3-7(2) and 99-19-83, supra. The former code section defines the crime of aggravated assault upon a law officer. The latter section provides for a sentence of life imprisonment if one has been convicted of having two prior felony convictions, one of which is a crime of violence for which such person served one year in a penal institution. (Emphasis added).

395 So.2d at 959.

More recently, in Taylor v. State, 426 So.2d 775 (Miss.1983), we again interpreted § 99-19-83 and held:

There are two habitual offender statutes, which follow:
Mississippi Code Annotated § 99-19-81 (Supp.1981)
Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Mississippi Code Annotated § 99-19-83 (Supp.1981)

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
Under the first statute, when a person is charged as a habitual offender, and the proof sustains the charge, upon conviction, he shall be sentenced to the maximum term of imprisonment provided by the criminal statute under which he was indicted, without parole or probation. Under the second statute, upon conviction, the accused, when charged that he previously was convicted of two (2) felonies, one of which constituted a crime of violence, and that he actually served one year or more on each sentence, shall be sentenced to life imprisonment without parole or probation. (Emphasis added.)

426 So.2d at 779.

We therefore hold that in order to be sentenced under § 99-19-83 an individual must have committed two prior felonies one of which was violent and have been sentenced and served terms of at least one year on each of those prior felonies. Because McLamb had not been convicted of any prior violent felonies, we are compelled to grant this motion for leave to file motion to vacate habitual criminal sentence in for-ma pauperis.

MOTION FOR LEAVE TO FILE MOTION TO VACATE HABITUAL CRIMINAL SENTENCE IN FORMA PAUPERIS GRANTED.

PATTERSON, C.J., and BOWLING, PRATHER and SULLIVAN, JJ., concur.

WALKER and ROY NOBLE LEE, P.JJ., and ROBERTSON, J., dissent.

HAWKINS, J., not participating.

WALKER, Presiding Justice,

dissenting:

ON MOTION FOR LEAVE TO FILE MOTION TO VACATE HABITUAL CRIMINAL SENTENCE IN FORMA PAUPERIS

McLamb, the petitioner, is an inmate at the Mississippi State Penitentiary at Parch-man. By virtue of Mississippi Code Annotated section 99-19-83 (Supp.1983), he is under a sentence of life without the possibility of parole, probation, reduction or suspension of sentence. McLamb’s last conviction resulting in his present sentence was for the crime of armed robbery. His two prior convictions were for the crimes of breaking and entering and larceny. He argues on this petition that he was erroneously sentenced as a habitual offender under section 99-19-83. His contention is that this section mandates one of the two prior convictions be a crime of violence before he can be sentenced as a habitual offender to life without probation, parole, reduction, or suspension of sentence.

Section 99-19-83 provides as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

It is clear from a reading of the above statute that the phrase which provides “and where any one (1) of such felonies shall have been a crime of violence ...” refers to the crime for which defendant was on trial, armed robbery, as well as the two prior convictions.

Leaving out the irrelevant parts to this discussion, the statute would read thusly:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony ..., and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. (Emphasis added)

Therefore, since one of the three felonies was a crime of violence, i.e., armed robbery, the appellant was properly sentenced as a habitual offender without benefit of parole, probation, reduction or suspension of sentence.

In my opinion, the motion for leave to file motion to vacate habitual criminal sentence in forma pauperis should be overruled.

ROY NOBLE LEE, P.J., and ROBERTSON, J., join this dissent.


source: Caselaw Access Project

license: Public Domain

text:
    Ella Mae BOURN, et al. v. TOMLINSON INTEREST, INC., et al.
    No. 54752.
    Supreme Court of Mississippi, En Banc.
    Sept. 5, 1984.
    Davis Hall Smith, Jackson, for appellant.

      Donald B. Patterson, Brookhaven, J.A. Jennings, E.E. Laird, III, Gerald, Brand, Watters, Cox & Hemleben, Jackson, for appellee.
   WALKER, Presiding Justice, for the Court:

The petition for rehearing is sustained, the former opinion withdrawn and this opinion substituted therefor.

That portion of the first opinion dealing with the appeal on the merits is adopted unchanged and appears herein as Part I of this opinion.

Part II of this opinion deals with the petition for rehearing.

The petition for rehearing deals with this Court’s reversal of the lower court for overruling the appellants’ motion to amend their pleadings after the chancellor had ruled on motions filed by the plaintiffs and defendants for summary judgment.

PART I

Ella Mae Bourn, Willie Fay Bourn Thomas, Irby Jean Bourn Adkins, W.C. and Hazel H. Letchworth, plaintiffs, have appealed from a summary judgment of the Lawrence County Chancery Court in favor of the defendants Tomlinson Interests, Inc., a Texas corporation, C.T. Carden, Darrell M. Fink, Louisiana residents, and David B. Dale, Alan Berry, and David L. Perkins, Mississippi residents.

We find the chancellor was correct in entering a summary judgment on the issue raised by the pleadings and affirm on such finding.

On July 14, 1938 Homer Buckley owned real property in Lawrence County. On that date he and his wife executed a mineral deed, entitled, however, “Mineral Right and Royalty Transfer” to one Keith Kelly, in which they conveyed and warranted to the grantee an undivided one-half Qh) interest in the minerals of the realty.

On November 4, 1939 Buckley and his wife executed a mineral deed to Mrs. N.B. Dale of “an undivided fifteen-sixteenths (16/i6) interest in, to and of all oil, gas, and other minerals” on the remaining realty owned by Buckley. This latter deed also reserved to the grantors a one-sixteenth (Vie) “royalty interest.” The final paragraph contained a general warranty of title.

Plaintiffs are the successors in title to the Buckleys. On May 9, 1982 some 42 years after the Buckleys executed the mineral deed to Mrs. Dale, and there was a producing well on the realty, plaintiffs filed a complaint for an injunction against the defendants, the successors in titles to Mrs. Dale, and the well operator. The complaint alleged plaintiffs owned an undivided one-sixteenth (Vie) royalty interest in the realty, conveyed in the Dale deed, but the defendants refused to recognize their ownership and refused to pay them any royalty. The suit was for an accounting, and an injunction requiring cessation of production until plaintiffs had been paid all due them on royalties, and thereafter a decree requiring payment of one-sixteenth (Vie) royalty.

The chancellor sustained a motion to dismiss under Rule 12(b) of our Mississippi Rules because the complaint failed to state a cause of action, and granted plaintiffs right to amend their complaint.

An amended complaint was filed under Rule 57, seeking a declaratory judgment construing the Dale deed. ,

Other motions were filed, but the matter next came before the chancellor on motion for summary judgment by defendants and plaintiffs.

The only issue which either side attempted to present to the chancellor was whether the Buckleys, who owned only an undivided one-half (V2) interest in the minerals and conveyed by general warranty an undivided fifteen-sixteenths (15/ie) interest in the minerals could, in the same instrument, reserve an undivided one-sixteenth (Vie) royalty interest.

The chancellor correctly ruled that the attempted reservation of an undivided one-sixteenth (Vis) royalty interest was ineffective. Buckley only owned an undivided one-half (½) interest in the minerals when the second deed was made. As the chancellor pointed out, if the reservation of the one-sixteenth (Vie) royalty interest were given effect, Mrs. Dale would have, gained nothing from the deed. No error was committed in this ruling. When a grantor conveys by warranty a greater mineral interest than he actually owns, any attempted reservation will first be applied to the overextended fraction of the interest. See Brannon v. Varnado, 234 Miss. 466, 106 So.2d 386 (1958).

PART II

As stated earlier, both the plaintiffs and defendants made motions for summary judgment on which the chancellor based his ruling. However, after the chancellor announced that he was sustaining the defendants’ motion for summary judgment, counsel for plaintiffs, appellants here, made an ore tenus motion to amend their pleadings to “Reform the Instrument.”

It should be pointed out that the plaintiffs had amended their pleading earlier.

It is true that Rule 15, MRCP, Paragraph a, provides in part that “... leave (to amend) shall be freely given when justice so requires.” In construing our rules, we look for guidance to the federal cases since the MRCP were patterned after the Federal Rules of Procedure. Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984); Brown v. Credit Center, Inc., 444 So.2d 358, 364 fn. 1 (Miss.1983). In the case of Glesenkamp v. Nationwide Mutual Ins. Co., 71 F.R.D. 1 (N.D.Cal.1974), affd, 540 F.2d 458 (9th Cir.1976), that Court said:

The liberal amendment policy of the Federal Rules was not intended to allow a party to circumvent the effects of summary judgment by amending the complaint every time a termination of the action threatens. The time must arrive in every case when the plaintiff must demonstrate that there is a genuine issue for trial or have summary judgment entered against him.

71 F.R.D. 4.

Rule 56 requires that the party opposing the motion for summary judgment be diligent in presenting his opposition to the trial court. Brown v. Credit Center, Inc., 444 So.2d 358, 364 (Miss.1983). By no stretch of the imagination can it be said that appellants were diligent.

When the appellants, plaintiffs below, filed their original complaint and when they filed their amendment thereto, they had full knowledge of all of the facts and any new theory of recovery was either known or should have been known to them at the time the complaint and amendment were filed. Moreover, it was incumbent upon them to show a lack of knowledge of facts on which a new cause of action might be based which they failed to do. County of Marin v. United States, 150 F. Supp. 619, 623 (N.D.Cal.1957), 356 U.S. 412, 78 S.Ct. 880, 2 L.Ed.2d 879 (1958) (Reversed on other grounds).

In the final analysis, we come to our scope of review of an order denying a motion for leave to amend under Rule 15. Such motions are addressed to the sound discretion of the trial judge. 3 Moore’s Federal Practice (2d ed. 1984) § 15.08[4]; 6 Wright and Miller, Federal Practice and Procedure (1971) § 1484. We have authority to reverse only where we are convinced that the trial judge abused his discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). In this case we are not so convinced.

A majority of the Court is now of the opinion that the chancellor did not err in overruling the appellants, plaintiffs below, motion to amend their pleadings after he had announced that he was sustaining motion for summary judgment. Therefore, the judgment of the lower court should be and is hereby affirmed.

AFFIRMED.

ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

DAN M. LEE, J., dissents.

PATTERSON, C.J., not participating.

      . Between the time of execution of the two mineral deeds, the Buckleys had conveyed a portion of the land to a third party. The second mineral deed also has a vague and confusing description as to that part of the conveyance in the Southeast Quarter of the Southwest Quarter. It recites "... and SE ¼ of SW ¼ less 11 acres better described as West half of Southwest Sec. 24. Tp. 6, Range 20.” We are not called upon to pass upon the validity of this particular description, however.


text:
    INDIANA LUMBERMEN’S MUTUAL INSURANCE COMPANY v. CURTIS MATHES MANUFACTURING COMPANY & Bill Huff d/b/a Wink Radio & T.V. Service.
    No. 55025.
    Supreme Court of Mississippi.
    Sept. 12, 1984.

      Stephen L. Beach, Beach, Luckett & Ross, George M. Arthur, Jackson, for appellant.
    Thomas M. Murphree, Jr., Watkins & Eager, John H. Downey, Downey & Brown, Jackson, for appellee.
    Before BOWLING, DAN M. LEE and PRATHER, JJ., and SUGG, Retired Supreme Court Justice.
   SUGG, Retired Supreme Court Justice, for the court:

Three questions are presented by this appeal.

I. Did the trial judge abuse his discretion when he entered a final judgment and certified it under Rule 54(b) for one defendant in an action against multiple defendants?

II. Did the trial judge err when he held that the suit against Huff was barred by the six year statute of limitations, Section 15-1-49, Mississippi Code Annotated (1972)?

III. When final judgment was not entered as to one defendant in a multiple party action, should the appeal be dismissed as to such defendant?

I.

On May 4, 1983, Indiana Lumbermens Mutual Insurance Company (hereafter ILM) filed suit in the Circuit Court of the First Judicial District of Hinds County against Curtis Mathes and Bill Huff. On May 9, Huff filed his answer and asserted as his first defense that plaintiffs cause of action was barred by the six year statute of limitations. On the same day Huff filed a motion for judgment on the pleadings and dismissal of the defendant. After due notice Circuit Judge Reuben Anderson rendered judgment as follows:

This cause this day came on for hearing on the motion of the Defendant Bill Huff seeking judgment on the pleadings and dismissal of said Defendant; and the Court, having heard and considered said motion and argument of counsel, is of the opinion that this action is barred by the applicable Statute of Limitations and that the Defendant Bill Huff is entitled to be finally dismissed, and the Court determining that there is no just reason for delay and being of the opinion that said Defendant is entitled to final judgment at this time;
IT IS THEREFORE ORDERED AND ADJUDGED that the Defendant Bill Huff be, and he is hereby, finally dismissed with his costs, that final judgment is hereby rendered in favor of the Defendant Bill Huff as provided by Rule 54(b), Mississippi Rules of Civil Procedure, and that the Plaintiff do have and recover nothing of or from the Defendant Bill Huff by this suit.

The final judgment was rendered under the provisions of Rule 54(b), Mississippi Rules of Civil Procedure, which is the same as Federal Rule 54(b). The Rule provides:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

In cases involving multiple parties, a trial judge is authorized to enter a final judgment when it terminates the case as to one or more of the parties. When a trial judge makes an expressed determination that there is no just reason for delay and enters a final judgment, that judgment is released for appellate consideration. 10 Wright & Miller, § 2659, p. 97. This authority should be exercised cautiously in the interest of sound judicial administration in order to preserve the established judicial policy against piecemeal appeals. CurtissWright Corporation v. General Electric Company, 446 U.S. 1, 8, 100 S.Ct. 1460, 1465, 64 L.Ed.2d 1, 11 (1980); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 438, 76 S.Ct. 895, 899, 901, 100 L.Ed. 1297 (1956); Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 450, n. 5, 76 S.Ct. 904, 907, n. 5, 100 L.Ed. 1311 (1956).

In Sears, Roebuck & Co., supra, the court described the district court as a dispatcher and said it was permitted to determine, in the first instance, the appropriate time when each final decision upon “one or more but less than all” of the claims in a multiple claims action is ready for appeal. It has also held that because of the trial court’s familiarity with the case, this decision rests in the discretion of the district judge. However, the trial court’s order is always subject to reversal for an abuse of discretion. Curtiss-Wright Corporation, supra. Although these cases involve multiple claims, the principle applies to multiple party cases.

The term “certification” does not appear in the rule, but is used in cases, comments and treatises discussing Rule 54 and sometimes creates the inference that certification requires a separate order by a trial judge. Certification may be by a separate order, but a final judgment is certified and released for appeal in the sound discretion of the trial judge “upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” The final judgment in this case meets the requirements of Rule 54(b) for “certification.”

On appeal, a 54(b) final judgment may be reviewed and reversed if this Court finds the trial judge abused his discretion in entering the final judgment. We now look at the facts of the case under consideration to determine if the trial judge abused his discretion by holding there was no just reason for delay and Huff was entitled to a final judgment.

ILM alleged that Luther and Bertha Beall sent their television set to Huff on November 19, 1976, to be repaired. When the set was returned to them on December 1, 1976, it caught fire and damaged the Bealls’ house. The Bealls’ insurer, ILM, paid a fire loss of $12,890.53 on January 31, 1977. On October 31, 1977, the Bealls executed a release and subrogation receipt to ILM which filed its complaint on May 4, 1983.

ILM alleged that the television set was purchased October 7, 1970, by the Bealls from the House of Television & Appliances, not from Huff who repaired it. ILM sought recovery from Huff alleging Huff was negligent for failing to use reasonable care in repairing the television set.

The case against Curtis Mathes is on entirely different grounds. The negligence charges against Curtis Mathes are the usual charges present in products liability cases; namely, negligence in the design, manufacture and testing of the set, failure to warn, and breach of warranty. The charges of negligence against the two defendants are on different theories and are unrelated. When the trial judge granted Huff’s motion for judgment on the pleadings under Rule 12(c), there was no reason for Huff to be kept in the case. We hold the trial judge correctly entered final judgment and certified the case as authorized by Rule 54(b).

II.

The second question presented by this appeal is whether the suit against Huff was barred by the six year statute of limitations, Section 15-1-49, Mississippi Code Annotated, (1972). ILM contends its cause of action did not accrue until October 31, 1977, when it obtained the right to sue in its own name. ILM alleged the television set was returned to their insured on December 1, 1976, and caught fire on that date and damaged their insureds’ house. ILM did not file suit within six years after December 1, 1976.

We find no Mississippi cases addressing this question, but appellant forthrightly cites an ALR annotation entitled, “When does statute of limitations begin to run upon an action by subrogated insurer against third party tort feasor.” 91 A.L. R.3d 844. This annotation deals with the precise question presented to us and states:

While a subrogated insurer frequently contends that its action against the third-party tort feasor who allegedly caused the damage or injury for which the insurer had to recompense its insured did not accrue, and the statute of limitations did not begin to run thereon, until the insurer had made the payments required under its insurance contract, courts have held, generally that such a contention was without merit.
91 A.L.R.2d 850.

Cases from twelve states are cited which support the view that the statute of limitations begins to run on such actions at the same time that the statute of limitations would have begun to run on the insured’s action against the third party tort feasor. The reason offered in support of the view expressed in these cases is that a subrogat-ed insurer stands in the shoes of its insured, and takes no rights other than those that the insured had, and is subject to all defenses which the third party tort feasor might assert against the insured. We find no cases contrary to the rule expressed in this annotation and appellant cites none in its brief. No minority rule is stated in the A.L.R. annotation.

Our own cases hold, “Subrogation is the substitution of one person in place of another, whether as a creditor or as the possessor of any rightful claim, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and to its rights, remedies, or securities.” Lyon, et al v. Colonial United States Mortgage Company, 129 Miss. 54, 91 So. 708 (1922); Robertson v. Sullivan, et al, 102 Miss. 581, 59 So. 846 (1912).

In American National Insurance Company v. United States Fidelity & Guaranty Company, 215 So.2d 245 (Miss.1968), American had a fidelity insurance policy with Insurance Company of North America. After American sustained a loss, INA paid the loss and the court stated, “And that to the extent of payment by INA to insured, the insured would assign all of its rights and causes of action to INA, thus providing for subrogation.” 215 So.2d 249, 250. The court then held upon payment by INA to American of its loss INA was entitled to be subrogated to any right of action which its insured might have against the third person whose negligence or wrongful acts caused the loss.

The contract of insurance between ILM and the Bealls was not attached to the declaration so the only basis for ILM’s right to be subrogated to the claim of the Bealls against Huff arose by virtue of the contract between ILM and the Bealls on October 31,1977. Thus ILM was subrogat-ed to the right of the Bealls by contract, and not by operation of law. Although the instrument executed by the Bealls on October 31, 1977, to ILM is entitled “Release and Subrogation Receipt,” the effect of the instrument is the same as if the Bealls had made an assignment to ILM. It is familiar law that an assignee obtains no greater right in the thing assigned than was possessed by the assignor, but simply stands in the shoes of the latter and assignee’s right can rise no higher than assignor’s. Canton Exchange Bank v. Yazoo County, 144 Miss. 579, 109 So. 1 (1926); Simmons v. Smith County Bank, 225 Miss. 384, 83 So.2d 441 (1955); Smith v. Copiah County, 232 Miss. 838, 100 So.2d 614 (1958).

All that ILM received from its contract was the right to proceed on the claim that its insureds, the Bealls, had against Huff for the fire which occurred on December 1, 1976. The statute of limitations began running against the Bealls on this claim on that date and ILM does not contend otherwise. The fact that ILM later became subrogated to the rights of the Bealls did not operate to extend the period within which suit could be brought because ILM was substituted in the place of the Bealls and succeeded to the rights and remedies of Bealls’ to their claim against Huff.

ILM argues in its brief that it could not institute suit under Rule 17(b) of the Mississippi Rules of Civil Procedure until after it had become subrogated by the contract of October 31, 1977, and therefore the action did not accrue until October 31, 1977. Rule 17(b) provides the following:

(b) Subrogation Cases. In subrogation cases, regardless of whether subro-gation has occurred by operation of law, assignment, loan receipt, or otherwise, if the subrogor no longer has a pecuniary interest in the claim the action shall be brought in the name of the subrogee. If the subrogor still has a pecuniary interest in the claim the action shall be brought in the names of the subrogor and the subrogee.

Rule 17 does not create new causes of action, does not affect statutes dealing with limitation of actions, but only “prescribes the general requirements that must be satisfied regarding the plaintiffs interest in the subject matter of the proceeding and each litigant’s capacity either to sue or be sued.” See Comment following Rule 17.

ILM’s argument overlooks the fact that it was subrogated only to its insured’s right of action which accrued on December 1, 1976. The subrogation agreement did not create a new cause of action, because ILM only succeeded to the rights and remedies of its insureds. Lyon, et al, supra and Robertson, supra. ILM stands in the shoes of its insureds and takes no rights other than those of its insureds.

The trial judge correctly held the action was barred by the statute of limitations.

III.

The third question concerns the status of Curtis Mathes, the other defendant. ILM states in its brief that the circuit judge sustained appellees’ pleas of the statute of limitations and entered final judgment in favor of appellees. Final judgment was not rendered in favor of Curtis Mathes but only in favor of Bill Huff. Curtis Mathes filed an answer 12 days after the judgment for Huff and asserted as a defense the statute of limitations. No action was taken on the pleading of Curtis Mathes in the trial court, no final judgment was rendered in its favor, so it is not properly before the court. We therefore dismiss the appeal as to Curtis Mathes.

AFFIRMED AND APPEAL AGAINST CURTIS MATHES MANUFACTURING CO. DISMISSED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON AND SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.

      . Sitting pursuant to Mississippi Code Annotated, Section 9-3-6 (Supp.1982). The above opinion is adopted as the opinion of the Court.


author: WALKER, Presiding Justice, for the Court: BOWLING, Justice,

text:
    Eddie BEBLEY, Jr. v. STATE of Mississippi.
    No. 54346.
    Supreme Court of Mississippi.
    Sept. 12, 1984.

      Roy Pitts, Sarah S. Doherty, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   WALKER, Presiding Justice, for the Court:

Eddie Bebley, Jr. was indicted and tried for murder in the Circuit Court of Lauder-dale County. The jury returned a verdict of manslaughter, and Bebley was sentenced to serve a term of ten years in the custody of the Department of Corrections with six years of the term suspended and appellant placed on probation. Bebley appeals this conviction.

The defendant assigned as error that Instruction S-2 was vague, confusing, misleading and obliterated the defense of self-defense. Also, it was further argued that the instruction put the burden of proof on the defendant to prove self-defense.

This instruction has been examined by the Court on numerous occasions.

In Robinson v. State, 434 So.2d 206 (Miss.1983), although this Court did not condemn a similar instruction and reverse the case we said:

Although a majority of the Court is of the opinion that the instruction does correctly state the law, several other Judges are of the opinion that it is too long, redundant and confusing.
In the future, it might be wise for district attorneys to substitute the following instruction for the one quoted above:
The court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.

434 So.2d at 207.

Recent opinions of this Court have renewed the criticism. Scott v. State, 446 So.2d 580 (Miss.1984); and Haynes v. State, 451 So.2d 227 (Miss.1984). The Court suggested an alternative instruction in Robinson and cautioned against using the old instruction. Robinson was rendered on May 18, 1983. The petition for rehearing was denied July 27, 1984. The case sub judice was tried on May 13, 1982 at a time when Robinson had not been published in the Southern Reporter which explains the continued use of the instruction. Any use of the instruction in cases tried after Robinson was published will be closely scrutinized. A word to the wise should be sufficient.

The remaining assignments of error are without merit and require no discussion.

For the above stated reasons, the conviction and sentence are affirmed.

AFFIRMED.

ROY NOBLE LEE, P.J., and PRATHER, ROBERTSON and SULLIVAN, JJ„ concur.

BOWLING, HAWKINS and DAN M. LEE, JJ., dissent.

PATTERSON, C.J., not participating.

BOWLING, Justice,

dissenting:

The self-defense instruction that is still being given by prosecutors in a form that has been condemned by this Court, in my opinion, constitutes reversible error in this particular case.

In Robinson v. State, 434 So.2d 206 (Miss.1983), I wrote a dissenting opinion pointing out the history of this instruction and the fact that for many years this Court has recommended that it be changed.

In Haynes v. State, 451 So.2d 227 (Miss.1984), I specially concurred. In that opinion, I pointed out and adopted my dissent in Robinson, supra. In Haynes I did not think the record justified a reversal because of the facts reflected by that record.

In the case sub judice, the record, in my opinion, shows a very close set of facts on whether or not appellant, in truth and in fact, was entitled to a jury finding of self defense. The majority opinion does not set out anywhere near all the facts as shown by the record. As stated above, after reviewing the record, I cannot specially concur as in Haynes, but I am forced to dissent again as in Robinson. The facts in this record reveal a situation that, in my opinion, would cause many jurors to find that appellant acted in self defense.

In the event any juror was doubtful, the state’s instruction, that has been condemned by this Court a number of times, would tend to influence that juror’s decision.

I,therefore, again dissent from the giving and approval of the instruction in question. I believe that in this particular case, it is reversible error. I shall continue to condemn the instruction in any case where the facts are as close as those now before us. Hopefully, someday the instruction will run its course and we shall see it no more.

HAWKINS and DAN M. LEE, JJ„ join in this dissent.


text:
    Lee Edward GREEN v. STATE of Mississippi.
    No. 55059.
    Supreme Court of Mississippi.
    Sept. 19, 1984.
    Kenneth C. O’Neal, Grenada, for appellant.

      Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and HAWKINS and DAN M. LEE, JJ.
   WALKER, Presiding Justice, for the Court:

This is an appeal from the Circuit Court of Grenada County, Mississippi wherein the appellant, Lee Edward Green, was indicted, tried and convicted of attempted armed robbery and sentenced as an habitual offender to a term of fifteen years in the custody of the Mississippi Department of Corrections. Aggrieved with the lower court’s holding, appellant has perfected his appeal to this Court.

The appellant contends the court erred in failing to grant Instruction D-8 which reads:

Lonzell Williams, Jr. is an accomplice in this case and the testimony of an accomplice is to be considered and weighed with great care and caution. You may give it such weight and credit as you deem it is entitled.

Assuming Williams was an accomplice to the crime as contended by the defendant, this Court has held on numerous occasions that the trial court has broad discretion in deciding whether to grant a cautionary instruction regarding the testimony of an accomplice; and, the refusal to give such an instruction does not constitute reversal error. Fleming v. State, 319 So.2d 223 (Miss.1975); Wilson v. State, 305 So.2d 347 (Miss.1974); Robinson v. State, 219 So.2d 916 (Miss.1969). However, that discretion is subject to abuse when the State’s evidence rests solely upon the testimony of an accomplice and there is some question as to the reasonableness and consistency of the testimony, or the defendant’s guilt is not clearly proven as was the case in Catchings v. State, 394 So.2d 869 (Miss.1981). In that case we held that refusal of the requested instruction was prejudicial error and reversed the conviction.

In this case, the evidence of the defendant’s guilt was proven not only by the testimony of the accomplice, but the eyewitness testimony of the victim. Therefore, the trial court did not abuse its discretion by refusing the cautionary instruction.

In considering the evidence before us which is favorable to the State together with all reasonable inferences to be drawn therefrom, we find the evidence more than sufficient to support the verdict of guilty.

Finding no errors committed in the lower court, this cause is hereby affirmed.

AFFIRMED.

ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


text:
    John E. BECK, Jr. and Beck Enterprises, Inc. d/b/a Town & Country Motors v. James C. GOODWIN, Jr. and Metropolitan National Bank.
    No. 54373.
    Supreme Court of Mississippi.
    Sept. 26, 1984.

      Lionel R. Barrett, Jr., Nashville, Tenn., for appellants.
    James B. Persons, Denton, Persons, Dor-nan & Bilbo, Biloxi, William C. Walker, Jr., Oxford, for appellees.
    Before BOWLING, DAN M. LEE and PRATHER, JJ., and SUGG, Retired Supreme Court Justice.
   SUGG, Retired Supreme Court Justice, for the Court:

Appellants filed suit in the Circuit Court, Second Judicial District of Harrison County, on September 17, 1980, for breach of contract and alleged that the bank, through its chief executive officer Goodwin, agreed to finance appellants’ used car business but failed to do so.

The appellees filed separate answers and incorporated in their answers a general demurrer. They also filed a plea in bar based on the statute of frauds, and alleged that the contract, if any, was an oral agreement not to be performed within the space of 15 months.

The circuit court, Judge Leslie B. Grant presiding, entered an order on July 17, 1981, sustaining the demurrer and the plea in bar and granted plaintiffs thirty days to file an amended declaration.

Plaintiffs alleged in their amended declaration that they obtained a Small Business Administration loan for $280,000.00 on May 5, 1978, from the bank for the purpose of expanding the operations of plaintiffs’ business.

Plaintiffs alleged that because of anticipated growth and the significant expansion of business they requested assurances as to the continuing availability of automobile financing arrangements through the bank, and alleged:

... JAMES C. GOODWIN, JR. specifically told JOHN E. BECK, JR. that financing would never be a problem, and that as long as the bank had sufficient funds for this purpose that JOHN E. BECK, JR. and BECK ENTERPRISES, INC. would be a preferred customer. JAMES C. GOODWIN, JR. specifically indicated to JOHN E. BECK, JR. that Metropolitan would never arbitrarily cut off financing to him as they were aware that this was the very heart of his business. It was this express commitment from the defendants that caused the plaintiffs to agree to enter into the Small Business Administration Loan Agreement and to expand their business. Absent these specific assurances, upon which the plaintiffs relied, the plaintiffs would not have assumed the inherent risks in beginning to do business in a much expanded format.

Plaintiffs also alleged that in August 1979, the financing agreement was terminated by the bank, and financing could not be obtained from other banks in the area for several reasons including changes in the overall economic condition. Appellees filed a general demurrer to the amended declaration and also a motion to strike based on the statute of frauds because the contract, if any, was an oral agreement which was not to be performed within the space of fifteen (15) months.

On July 12, 1982, the court sustained the general demurrer and the motion to strike.

The order is styled “Agreed Order” and was approved and agreed to by the attorney for appellants and the attorney for appellees. However, appellees do not contend on appeal the order was intended as an agreed order so as to preclude an appeal. We therefore treat the “agreed order” as one approved as to form only.

The amended declaration does not allege the amount of financing which would be advanced by the bank, the rate of interest that would be charged, the time for advancement, the time for repayment, or what security would be required for such financing.

In Izard v. Jackson Production Credit Corporation, 188 Miss. 447, 195 So.2d 331 (1940), this Court held an agreement to lend money was too indefinite to constitute a contract and stated:

To sustain the peremptory instruction granted it by the court below, the appel-lee insists (1) that the alleged agreement to finance for another year was too vague, indefinite and uncertain to constitute a valid and enforcible contract; ....
We think the case is easily solvable upon the first proposition. That is, taking the alleged parol contract entered into between Hamilton and Izard in the most favorable light possible, it was too vague and uncertain to constitute an en-forcible contract, for the breach of which damages would be enforcible.
... The contract then, upon which Izard must rely, is the bare statement — if you will apply your cotton check due you for the 1938 cotton crop. I will finance you for another year. This constituted no contract whatever to lend money to the appellant on the part of the appellee. There was no agreement as to when, in the year 1939, he would be furnished money with which to make another crop; the amount to be furnished; the rate of interest; or as to security for the advancement.
As to the enforcibility of this contract, we say that it was too vague, indefinite and uncertain to constitute a valid contract and therefore cannot be enforced. In A.L.I., 1 Restatement, Contracts, § 32, the following is stated: “an offer must be so definite in its terms, or require such definite terms in the acceptance, that the promises and performances to be rendered by each party are reasonably certain.” ...
Sustaining this view, with reference to contracts to lend money in the future, we cite the cases of Erwin & Williams v. Erwin, 25 Ala. 236; Gafford v. Pros-kauer & Co., 59 Ala. 264; ...

In First Money, Inc. v. Frisby, 369 So.2d 746 (Miss.1979), this Court considered an oral contract to lend money. The contract was that if Frisby could arrange a land purchase deal, First Money would finance the acquisition and provide a buyer to purchase the property from Frisby at a profit. The court held, citing Izard, such an agreement did not amount to a contract to lend money because it was too indefinite.

Appellant contends that First American National Bank of Iuka v. Alcorn, Inc., 361 So.2d 481 (Miss.1978), is controlling on the question of whether the agreement between appellants and appellees is an enforceable contract. First American has no application because it involved an enforceable letter of credit.

Appellants also contend the agreement was enforceable under our holding in First Mississippi Bank v. Latch, 433 So.2d 946 (Miss.1983). In that case the bank agreed orally to extend appellee an open line of credit up to $50,000.00 on small loans and all that would be required was appellee’s signature, but on larger loans to enable appellee to finance construction projects, the bank would require an assignment of the proceeds of the contract. Each note would be for a period of six months and bear interest at the rate of 10% with an option to renew for another six months. The bank verified appellee had an unused line of credit up to $50,000.00, in a letter to the Corps of Engineers to assure the Corps appellee had financial ability to complete the job. The bank advanced appellee $12,-500.00 of a requested $15,000.00 loan and appellee secured the remaining $2,500.00 from another lender. The bank refused to lend appellee more than $12,500.00 for reasons shown by the evidence.

This Court held the contract was terminable at will, but under the peculiar facts of the case, the bank should have given reasonable notice of its intent to terminate the agreement. The measure of damages to be determined on remand was the interest paid by the appellee to another lender in excess of 10%, the rate the bank had agreed to charge, on the $2,500.00 appellee borrowed from another lender.

Latch is not applicable to the facts alleged by appellants in the case at bar, and affords appellants no comfort.

We hold that the trial judge properly sustained the demurrer because the agreement was too vague and indefinite to be enforced. Appellants did not allege how much money was to be advanced, when it was to be advanced, on what security the advances were to be made, when the advances would be repaid, or what interest would be charged for the advances.

Having held the demurrer was properly sustained, there is no necessity to consider whether the agreement violated the statute of frauds.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.

      . Sitting pursuant to Mississippi Code Annotated, Section 9-3-6 (Supp.1982). The above opinion is adopted as the opinion of the Court.


author: HAWKINS, Justice, for the Court:

text:
    Marc A. BIGGERS v. John H. FOX, III.
    No. 54404.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    Heber A. Ladner, Jr., Thomas Y. Page, Upshaw & Ladner, Jackson, for appellant.
    James W. Newman, III, Jackson, for ap-pellee.
    Before BOWLING, HAWKINS and SULLIVAN, JJ.
   HAWKINS, Justice, for the Court:

Attorney Marc Biggers appeals from a summary judgment in favor of John H. Fox, III in the Chancery Court of the First Judicial District of Hinds County.

We find there are unresolved questions of law and of fact, and that the chancellor was premature in rendering summary judgment. Accordingly, we reverse.

In 1979 Biggers was an attorney employed in the law firm of Fox. They reduced to writing their agreement on the division of a fee payable unto Fox under a contract with a client.

AGREEMENT FOR PAYMENT FOR SERVICES RENDERED
This Agreement entered into this the 5th day of March, 1979, in furtherance of and in compliance with the employment relationship existing between John H. Fox, III and Marc A. Biggers in order to set forth the parties rights under a fee payment agreement executed by John H. Fox, III and Seth P. Ball and Barbara McDonald Ball on the 30th day of March, 1979, a true and correct copy of which is attached hereto and made a part hereof by reference; and,
WHEREAS, payments for legal services rendered to Seth P. Ball are to be made in five equal installments of $24,-000 over a period of five years beginning on or before April 15, 1980 and continuing thereafter until paid, and,
WHEREAS, said payments as provided by the Fee Payment Agreement (Exhibit “A”) provides that the payments should be made by Seth P. Ball and Barbara McDonald Ball and their heirs and assigns to John H. Fox, III, his heirs and assigns; and,
WHEREAS, that in order to secure the benefits to which Marc A. Biggers is entitled under his employment relationship with John H. Fox, III, in the provision of said services therein described the parties hereto deem it advisable and prudent to execute this agreement setting forth the entitlement of said Marc A. Biggers from John H. Fox, III from fees received under said fee payment agreement.
NOW THEREFORE, IT IS MUTUALLY COVENANTED AND AGREED THAT John H. Fox, III, his heirs or assigns will pay to Marc A. Biggers, his heirs or assigns, the sum of $8,000.00 on or before the 15th day of April, in each of the years beginning April 15,1980 and continuing thereafter until paid. It is specifically agreed and understood that said payments are to be made from the $24,000.00 due and owing from Seth P. Ball and Barbara McDonald Ball, their heirs and assigns under the fee payment agreement (Exhibit “A”), as and when paid; and that in the event said payments for some reason are not forthcoming from Seth P. Ball and Barbara McDonald Ball, their heirs and assigns, the obligation of Fox for the above payments will be cancelled or deferred, contingent upon receipt of the benefits due and owing to Fox under said Fee Payment Agreement (Exhibit “A”).
WITNESS OUR SIGNATURES, this the 5th day of March, 1979.
s/John H. Fox
JOHN H. FOX, III
s/Marc A. Biggers
MARC A. BIGGERS

Thereafter, a partnership was formed between the two of them, which was later dissolved. On March 24, 1981, Biggers wrote the following agreement:

FOR AND IN CONSIDERATION OF THE SUM OF $5,000.00, I, Marc A. Big-gers, do hereby transfer and assign all my right, title and interest in the assets of the partnership of FOX & BIGGERS, to John H. Fox, III. Payment of said sum shall be made on monthly basis as current accounts payable owing to said partnership received.
s/Marc Biggers 3/24/81
MARC A. BIGGERS

Fox paid Biggers the $5,000 in four monthly installments. No payment was made on the 1979 agreement after 1981.

On June 22, 1982, Biggers filed suit against Fox for specific performance and an injunction to compel him to pay the sums due under the 1979 agreement.

On July 27,1981, Fox answered, and also filed a motion for summary judgment. Attached to his motion were the above agreements, copies of four cancelled checks for $1,250 each, and the following affidavit:

AFFIDAVIT
STATE OF MISSISSIPPI COUNTY OF HINDS
Personally appeared before me, the undersigned authority in and for the jurisdiction aforesaid, the within named JOHN H. FOX, III, who by me being first duly sworn stated on oath that the allegations of fact recited in the foregoing Answer are true and correct as therein stated and that having, at the specific instance and request of Marc A. Biggers to pay to the said Marc A. Biggers the sum of $5,000.00 in consideration for the sale, transfer and assignment of all of the assets of the partnership of the parties to the affiant, affiant thereafter paid to Marc A. Biggers, in four equal installments of $1,250.00 each during the months of April, June, July and September of the year 1981, the full sum of $5,000.00 which said sum was received and accepted by said Marc A. Biggers according to the terms of said note and further, that said sum was paid in full accord and satisfaction of said note dated March 24,1981 as exhibited herewith and to the accomplishment of the dissolution of the partnership theretofore existing.
s/John H. Fox
JOHN H. FOX, III

Hearing on the motion was set for August 10, 1982. On that date Biggers for the first time filed a counter-affidavit. The chancellor ruled that Rule 56(c) required the opposing affidavit to be filed prior to the day of the hearing, and excluded Big-gers’ affidavit from consideration on the motion.

The chancellor then held that there was no genuine issue of any material fact and Fox was entitled to judgment as a matter of law.

While not intimating their ultimate meaning or effect, we find the two agreements contradictory and ambiguous. The affidavit of Fox, concluding that payment of $5,000 was an accord and satisfaction, failed to give of his own personal knowledge all the essential facts necessary to constitute an accord and satisfaction. See: Lovorn v. Iron Woods Products Corp., 362 So.2d 196 (Miss.1978).

All issues can be resolved in a trial.

There is no necessity to address whether the chancellor erred in refusing to consider the counter-affidavit. We will say this: when an attorney is aware that affidavits are needed by a court to reach a decision, it is neither fair to the court nor opposing counsel to wait until the hearing date to file the affidavit. We will not be kindly disposed to an attorney who charges error on the part of a judge who refused to consider such an affidavit, especially if it contains affirmative allegations.

We reverse and remand for hearing on the merits.

REVERSED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ„ concur.

PATTERSON, C.J., not participating.

      . Rule 56(c) is as follows:
      Motions and Proceedings Thereon. The motion shall be served at least ten days before the time fixed for the hearing. The adverse party prior to the day of the hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genu-me issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of damages.

      . Neither have we been called upon to address the appropriateness of a Chancery Court for this lawsuit.


text:
    Lucious McCORMICK v. STATE of Mississippi.
    No. 55076.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    Richard V. Dymond, Gulfport, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and PRATHER and SULLIVAN, JJ.
   WALKER, Presiding Justice, for the Court:

Lucious McCormick was convicted of uttering forgery and sentenced to a term of ten years with the Mississippi Department of Corrections. McCormick was tried January 12, 1983 in the Circuit Court of Pearl River County, Mississippi. He appeals from his conviction.

McCormick was accused of having written and cashed a $30.00 check on the bank account of Jerry and Aslean Courtney. McCormick is alleged to have signed Jerry Courtney’s name to the check which was dated July 6, 1979.

McCormick is the nephew of Aslean Courtney and, according to Jerry Courtney, had access to a packet of twenty-five blank checks which were discovered to be missing prior to the check forgery.

Jerry Courtney testified that he recognized the handwriting on the cheek as that of McCormick. He based his opinion on handwriting he had seen in letters supposedly written by McCormick to his mother, Courtney’s sister-in-law.

Courtney turned the check and letters over to Ulmer Lumpkin then deputy sheriff with the Pearl River County Sheriffs office. Lumpkin stated that the check arid letters were taken to the Mississippi Crime Laboratory for comparison. Lumpkin retired from the sheriffs department April 30, 1980. He testified he did not know where the original documents were.

Frank Hicks, an examiner of questioned documents with the state crime lab, testified that in his opinion the person who wrote the letters and the person who prepared the face of the original check was the same person. When asked where the documents were now, Hicks said that the originals had been picked up by Larry Davis at 12:35 p.m. on July 28, 1981. Neither Davis nor anyone else was called to testify as to the whereabouts of the original check or letters since July 28, 1981.

Neither the original of the check nor the letters used as a handwriting sample were presented at the trial. A photocopy of the check was entered into evidence over the objection of McCormick’s attorney. The circumstances under which the photocopy was made are not in the record of this case. No copies of the letters were offered into evidence.

McCormick on appeal assigns the following error:

THE TRIAL COURT ERRED IN ALLOWING TESTIMONY REGARDING THE COMPARISON OF THE PURPORTEDLY FORGED CHECK AND ALLEGED KNOWN WRITING PRIOR TO IDENTIFICATION AND ADMISSION OF BOTH DOCUMENTS INTO EVIDENCE.

The general rule has been stated in 23 C.J.S. § 863 Criminal Law, p. 404:

In testifying as to identity, similarity or difference in respect of handwriting in different documents or signatures, a qualified expert witness may make a comparison of the writings and base his opinion thereon, provided the genuine writing used as a standard of comparison is properly in evidence before the court_ It is held that only the testimony of experts will be received as to the genuineness of a writing based on an opinion derived solely from a comparison, distinguished from an opinion based on personal acquaintance and corroborated or tested by comparison. (Emphasis added).

In Thompson v. Freeman, 111 Fla. 433, 149 So. 740, 743 (1933) the Court wrote:

We approve the rule stated in the case just cited [Hynes v. McDermott, 82 N.Y. 41, 37 Am.Rep. 538] that an expert in handwriting, when speaking as a witness only from a comparison of handwriting, that is, with two or more pieces of it in juxtaposition under his eye, should have before him in court the writing to which he testifies and the writings from which he testifies, else there can be no intelligent examination of him either in chief or in cross, nor can there be fair means of meeting his testimony by that of other witnesses.

This conclusion is supported by the cross-examination of Frank Hicks during which the following testimony was recorded:

Q. So if I wanted to cross examine you and ask you how you arrived at those similarities, I couldn’t; could I?
A. Well, I’m sure you could, but I don’t have the letters.
Q. But you don’t have any way to tell me?
A. To tell you what?
Q. Tell me how you arrived at your conclusions.
A. Yes, I could tell you how I arrived at my conclusions. I could not point out the characteristics seen in the letters.
Q. You can’t point out any specific instances or similarities [sic] or anything else if you don’t have any copies?
A. That’s correct.

It is evident that the testimony of Frank Hicks and Jerry Courtney as to comparison of the handwriting should not have been admitted without the introduction of the letters upon which their conclusions were based.

Even if the letters or copies of the letters had been introduced, the genuineness of the letters was not established. To warrant their use as a standard of comparison the genuineness of the letters must be proved. See 22A C.J.S. Criminal Law § 715.

In Brantley v. State, 84 Fla. 649, 94 So. 678, 679 (1922), the Court said:

The “writing” offered and received in evidence in this case as a standard for comparison is shown to be genuine by nothing more than the fact that it is a communication bearing the signature of the accused, received through the mail by the person to whom it was addressed. It does not purport to be, and no proof was offered to show that it was, in response to a communication received by the alleged writer. The finding that the written threat was the act of the accused has nothing more to support it than the opinion of the jury that it is in the same handwriting as the communication to King, which bears defendant’s signature. But there is no proof that this communication was the “writing” of the defendant. It probably was, but probability of guilt or inconclusive circumstances equally consistent with some other hypothesis than the guilt of the accused are not sufficient basis for a conviction of crime.
The genuineness of the standard for comparison is not sufficiently proved to warrant a conviction.

In the present case there is neither a “writing” nor evidence of the genuineness of the standard for comparison. Because of this obvious reversible error it is unnecessary to address the remaining assignments.

The judgment of conviction and sentence of ten years with the Mississippi Department of Corrections are vacated, and this cause is remanded for a new trial.

REVERSED AND REMANDED.

ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


text:
    STATE of Mississippi for the Use and Benefit of the PEOPLES BANK AND TRUST COMPANY v. WESTERN SURETY COMPANY.
    No. 54447.
    Supreme Court of Mississippi.
    Oct. 3, 1984.
    R. Michael Bolen, Gifford, Moore & Bo-len, Booneville, for appellant.
    James Patrick Caldwell, Riley & Weir, Tupelo, for appellee.
    Before BOWLING, HAWKINS and SULLIVAN, JJ.
   Appeal from Circuit Court, Prentiss County; Fred Wicker, Judge.

AFFIRMED.


text:
    Leonard E. JERNIGAN v. Betty Jo JERNIGAN.
    No. 55155.
    Supreme Court of Mississippi.
    Oct. 3, 1984.
    Joseph R. Meadows, Graves, Riley & Meadows, Gulfport, for appellant.
    Walter W. Teel, Tom Wright Teel, Sekul, Hornsby, Wallace & Teel, Biloxi, for appel-lee.
   Appeal from Chancery Court, Harrison County; Jason H. Floyd, Jr., Chancellor.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

AFFIRMED.


text:
    Teresa Carter (Prisock) BECKMAN v. William Franklin PRISOCK.
    No. 55110.
    Supreme Court of Mississippi.
    Oct. 3, 1984.
    Elbert E. Haley, Jr., Jackson, for appellant.
    R.E. Swindoll, Sr., Merrida P. Coxwell, Jr., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   Affirmed in part, reversed in part and remanded.

WALKER, P.J., and BOWLING, HAWKINS, PRATHER and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


text:
    Helen W. LEWIS, Widow of Harrison Lewis, Deceased, etc. v. MERIDIAN HOUSING AUTHORITY and United States Fidelity and Guaranty Company.
    No. 54411.
    Supreme Court of Mississippi.
    Oct. 3, 1984.
    Lawrence W. Rabb, Walter T. Rogers, Meridian, for appellant.
    Jay Boling, Hamilton & Boling, Meridian, for appellee.
   Appeal from Circuit Court, Lauderdale County; Henry Palmer, Judge.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

AFFIRMED.


text:
    In the Interest of J.B., a Child.
    No. 55096.
    Supreme Court of Mississippi.
    Oct. 3, 1984.
    Charles E. Webster, Wood & Twiford, Clarksdale, for appellant.
    T.H. Pearson, Clarksdale, for appellee.
   Appeal from Youth Court, Coahoma County; Joe C. Webster, County Judge Presiding as Youth Judge.

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

AFFIRMED.

WALKER, P.J., and BOWLING, HAWKINS, PRATHER and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


author: PER CURIAM.

text:
    Dargan G. SUTHER v. JEFFERSON COUNTY BOARD OF HEALTH, an Agency of the State of Alabama; and the City of Midfield, a municipal corp. JEFFERSON COUNTY BOARD OF HEALTH, an Agency of the State of Alabama; and the City of Midfield, a municipal corp. v. Dargan G. SUTHER. Ex parte Dargan G. SUTHER. (In re JEFFERSON COUNTY BOARD OF HEALTH, an Agency of the State of Alabama; and the City of Midfield, a municipal corporation v. Dargan G. SUTHER).
    82-901, 82-1044 and 82-1116.
    Supreme Court of Alabama.
    Aug. 10, 1984.
    Rehearing Denied in 82-1116 Sept. 21, 1984.

      J. William Thomason, Bessemer, for appellant/cross-appellee and petitioner.
    R.O. Hughes of Barber, Johnston & Hughes, Birmingham, for appel-lee/cross-appellant Jefferson County Board of Health.
    Thomas R. Elliott, Jr. of London, Yancey, Clark & Allen, Birmingham, for appel-lee/cross-appellant City of Midfield.
   PER CURIAM.

The Plaintiffs (the Jefferson County Board of Health and the City of Midfield) filed a complaint for injunction on May 10, 1979, against Dargan G. Suther. The allegations were that Suther was using his property in Midfield for the purpose of storing trash and garbage to the extent that a public health hazard was created in violation of certain ordinances and statutes. Additionally, Plaintiffs alleged that Suther had created a public nuisance.

After proper notice, a hearing on the issue of entering a permanent injunction was held on June 27, 1979. An injunction, to go into effect on July 20, 1979, was entered on July 16, 1979. The injunction, in detail, ordered Suther to clean up his property and keep it clean. We interpret the injunction of July 16, 1979, as a permanent injunction settling the rights of the parties after a determination of the issues raised. See 43A C.J.S. Injunctions § 246(a), p. 546 (1978). This interpretation is crucial, because we hold that the injunction of July 16, 1979, was a final judgment, and appealable as such. Suther argues that the injunction of July 16,1979, is invalid for lack of specificity, and he cites Rule 65(d)(2), A.R.Civ.P., and International Brotherhood of Electrical Workers v. Morton, 365 So.2d 662 (Ala.1978). We find that the injunction does give adequate reasons for its issuance and does reasonably describe the acts to be restrained.

Numerous motions and hearings during thé four-year period from 1979 to 1983 place this case in a peculiar and confusing procedural posture. The judge stayed the injunction several times, and an order of May 1, 1980, declared the injunction was to go into effect immediately. Therefore, even if we had not found the injunction to have been final and appeala-ble as of July 16, 1979, final judgment would have been entered, at the latest, on May 1, 1980. Although an order of May 4, 1982 (later rescinded), the subject of the cross-appeal by the Plaintiffs, was arguably a modification, all the other proceedings from 1979 to 1983 related to contempt proceedings seeking to enforce the permanent injunction of July 16, 1979.

The finality of the injunction of July 16, 1979, was not affected by the later proceedings. “[T]he court which has rendered a final decree in the form of a permanent or perpetual injunction in respect to future activities may open and modify it where the circumstances and situation of the parties are shown to have so changed as to make it just and equitable to do so.” Ex parte Myers, 246 Ala. 460, 463, 21 So.2d 113, 115 (1945). See, also, Ross v. Luton, 456 So.2d 249 (Ala.1984). “[T]he availability of modification is not a substitute for a direct appeal from a judgment.” 11 Wright and Miller, Federal Practice and Procedure § 2961, p. 601 (1973).

In 1983, the parties, who no doubt felt bogged down in a procedural morass, asked the judge for some direction or explanation. On June 9, 1983, the judge referred to an agreement of the parties and entered an order which stated, “the court’s entry of a permanent injunction, on July 19 [corrected later to “16”], 1979, and all orders entered subsequent thereto, shall not be considered final orders until the date of this order.” We hold this order to be ineffective. Parties cannot stipulate to extend the time in which to appeal. Stewart v. Younger, 375 So.2d 428 (Ala.1979). Also, changing the dates of an otherwise enforceable final judgment in order to facilitate an appeal is not a type of relief from judgment allowed by Rule 60, A.R.Civ.P.

The appeal, therefore, is dismissed for failure to appeal within 42 days of the entering of the permanent injunction of July 16, 1979, or its effective date of May 1, 1980 (even if that later date could be taken as the date of finality). Because the June 9, 1983, order was a nullity, it will not support an appeal. Underwood v. State, 439 So.2d 125, 128 (Ala.1983). The cross-appeal is also dismissed as untimely. It complains of an order of January 31, 1983, withdrawing an order of May 4, 1982.

Suther seeks review of a contempt order by the proper procedure of certiorari. The petition for writ of certiorari was granted and consolidated with the appeal and cross-appeal. We affirm the contempt order; the record fully supports the trial judge’s ruling. For the limited scope of review of contempt orders, see 4B Ala.Dig. Contempt Key No. 67 (1981).

Finally, Suther raises as error the refusal of the trial judge to grant his motion of January 6, 1983, for appointment of a guardian ad litem. Even assuming it is reviewable as relating to the contempt order, we cannot say that the trial judge’s ruling was clearly erroneous. The trial judge had the opportunity to personally observe Suther at the hearing on this and other motions. Additionally, we note that Suther was, and is, represented by counsel.

APPEAL AND CROSS-APPEAL DISMISSED; CONTEMPT ORDER AFFIRMED.

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


author: ALMON, Justice.

text:
    DEATON, INC. v. Jean BURROUGHS, the Widow of James Julian Burroughs, etc.
    82-1113.
    Supreme Court of Alabama.
    Sept. 7, 1984.

      William G. Somerville, Jr. and Stephen A. Rowe of Lange, Simpson, Robinson & Som-erville, Birmingham, for appellant.
    Neal C. Newell, D. Leon Ashford, and Francis H. Hare, Jr. of Hare, Wynn, New-ell & Newton, Birmingham, for appellee.
   ALMON, Justice.

This is an appeal from a judgment entered on a jury verdict in favor of the plaintiff in a wrongful death action which arose out of a collision between two flatbed tractor-trailer trucks.

David Tate drove a tractor-trailer truck as an employee of Deaton, Inc. (Deaton). At approximately 1:00 a.m. on November 17, 1980, Tate left Birmingham, Alabama, driving a Deaton flatbed tractor-trailer truck northbound on Interstate Highway 59 en route to Knoxville, Tennessee. The Deaton truck was loaded with 40,000 pounds of steel beams, some of which extended more than two feet beyond the forty-foot trailer bed. No warning lights or flags were attached to the protruding steel, and the entire load was secured with only four chains, although the trailer was designed for six chains to be used.

The decedent, James Burroughs, was also travelling north on 1-59. Burroughs was driving a tractor-trailer truck for Schu-ler Industries (Schuler) en route to Greensboro, North Carolina, and was accompanied by another Schuler truck driven by James Gerald Barnett.

By coincidence, the Deaton and Schuler trucks followed the same northern route, taking 1-59 north to 1-24, through Chattanooga, and then taking 1-75 north. At the intersection of 1-24 and 1-75, approximately 16 miles south of the scene of the collision, the two Schuler trucks joined with two Luck’s Food Company trucks driven by Jimmie Howard Brewer and Austin Walker.

During this trip, Tate made three stops. Tate first stopped in Gadsden to tighten the chains securing the steel beams that he was transporting. Approximately 17 miles from Cleveland, Tennessee, Tate stopped again to tighten several loose chains and discovered that a right rear tire was losing air. Although Tate resumed travel on 1-75 north, he again pulled off onto the emergency lane of the highway to check his directory for the location of a truck stop in Cleveland where he intended to have the tire repaired.

Although it is unclear whether the collision between the Deaton truck and Bur-rough’s truck happened while Tate was pulling back onto the highway after his third stop, it is undisputed that the collision occurred right over the crest of a hill on 1-75 north in the immediate area of mile marker 20, which is just south of the Cleveland Exit 20. In the collision, the cab of Burrough’s truck was entangled in the steel beams protruding from the Deaton trailer. Burroughs was impaled by these beams, and died as a result. It is also undisputed that the collision occurred before dawn in driving conditions particularly hazardous due to the mountainous terrain, bumpy roads, rain, and darkness.

The circumstances surrounding the collisions are, however, the subject of much controversy. Tate contends that during his third stop he pulled onto the shoulder of 1-75 near the intersection of highways 11 and 64, checked his directory for the location of the truck stop, and then resumed travel northbound on 1-75 at an approximate speed of between 40 and 55 miles per hour for a distance of six to eight miles before the collision occurred.

Tate testified that as he topped the hill at mile marker 20, he checked his mirrors and saw traffic on the hilltop behind him two miles away but did not see any vehicles in the valley between these hills. According to Tate, he was in the right lane with his right turn signal on, travelling at a speed of 40 to 55 miles per hour and was slowing down to take Exit 20 to the Cleveland truck stop when he felt a bump from the rear of his truck. Tate, however, travelled 400 to 700 feet down the highway before stopping his vehicle, then stopped partially in the emergency lane. Tate then saw steam coming from the rear of his trailer and discovered that the cab of Burrough’s truck was entangled in the steel beams which protruded from the Deaton truck.

The driver of the other Schuler truck and the driver of one of the Luck’s trucks contradicted Tate’s account of the circumstances surrounding the collision. Both of these drivers, who were travelling directly in front of Burroughs, stated that they saw the Deaton truck near the top of a hill between mile markers nineteen and twenty. According to these drivers, the Deaton truck was either stopped or moving no more than 15 miles per hour, positioned partially in the right lane and partially in the emergency lane. One of the drivers testified that as he passed the Deaton truck, the steel beams were protruding six to eight feet from the rear of the Deaton trailer.

On October 29, 1981, Jean Burroughs, the widow of James Burroughs, filed a wrongful death action on behalf of herself and her three minor children in Jefferson Circuit Court against Deaton, Inc.; Deaton, Inc., Truckloading Division; David Tate; and several fictitious defendants. The complaint alleged that the defendants negligently or wantonly caused the death of her husband in a collision between his tractor-trailer truck and a truck operated by the defendants.

Tate also brought suit against Schuler Industries for his own personal injuries arising out of the collision, and his case was consolidated with the wrongful death action.

In addition to the complaint, the plaintiff also filed on October 29, 1981, certain interrogatories, requesting that the defendants disclose the identity of any persons whom they expected to call as expert witnesses at trial. Deaton never answered these interrogatories, despite a court order requiring such disclosure. The defendants did, however, answer the complaint, denying each material allegation and asserting the defense of contributory negligence as to the negligence count.

Before trial, both Deaton, Inc., Truck-loading Division, and Tate were dismissed as parties defendant. Although the case could have been tried under Tennessee law, the parties tried it under Alabama law by consent. At the close of all the evidence, Deaton moved for a directed verdict on both the negligence and wanton conduct counts. This motion was denied, and the jury returned a verdict against Deaton in the amount of $835,000.00. Deaton’s motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, was denied.

The following issues are presented for review: 1) whether the trial court erred in denying Deaton’s motions for directed verdict and for judgment notwithstanding the verdict; 2) whether the trial court erred in denying Deaton’s motion for new trial on the grounds that a) the verdict was against the weight and preponderance of the evidence and b) the verdict was excessive; and 3) whether the trial court erred in partially excluding the testimony of Dea-ton’s expert at trial.

I. Motion for Directed Verdict

Deaton contends that there was insufficient evidence to justify submitting the wantonness count to the jury, and that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict.

It is axiomatic that a motion for directed verdict and its corollary motion for judgment notwithstanding the verdict objectively test the sufficiency of the, evidence:

“[TJJnder our system, the jury must be allowed to pass on the evidence if any, no matter how slight, is offered, which, if believed, would support a verdict in favor of the party against whom a directed verdict is sought.”

Herston v. Whitesell, 374 So.2d 267, 270 (Ala.1979). See also Rule 50, A.R.Civ.P., and Casey v. Jones, 410 So.2d 5, 7 (Ala.1981).

A directed verdict is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ. See Caterpillar Tractor Co. v. Ford, 406 So.2d 854 (Ala.1981).

In Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972), this Court defined the elements of wanton conduct:

“ ‘Wantonness’ is the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of such duty injury will likely or probably result. .... Wantonness may arise [when one has] knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on disaster. Wantonness may arise after discovery of actual peril, by conscious failure to use preventive means at hand. Knowledge need not be shown by direct proof, but may be shown by adducing facts from which knowledge is a legitimate inference.”

288 Ala. at 251-52, 259 So.2d 801-02.

The question of wantonness must be determined by the facts and circumstances of each case. Cooper v. Watts, 280 Ala. 236, 191 So.2d 519 (1966).

We believe that sufficient evidence was presented to justify submission of this count to the jury. Although the evidence was in conflict, a jury could have found that immediately prior to impact the following circumstances existed: 1) that the chains securing the steel beams on the Deaton trailer were so loose that the beams had shifted backwards so that six to eight feet of steel protruded from the rear of the trailer; 2) that Tate knew of this dangerous condition but failed to use the two other chains, which the trailer was designed to accomodate, to secure the beams as required by § 393.100(c)(4)(i) of the Federal Motor Carrier Safety Regulations; 3) that this protrusion, which was not marked by either special warning flags or lights, as required by Code 1975, § 32-5-211, could have blocked the view of the trailer lights; 4) that the Deaton truck had a low right rear tire which exacerbated the difficulty of travel on the dark, wet, rainy, bumpy, and mountaineous highway; 5) that Tate, despite his knowledge of these conditions, pulled his truck partially onto the highway without using a turn indicator, at a point just beyond the crest of a hill where his view of traffic approaching from the rear was impeded; and 6) that the Deaton truck was either not moving or travelling no faster than 15 miles per hour when Burroughs topped the crest of the hill in the right lane travelling at a normal highway speed.

We therefore hold that the trial court did not err in submitting the wantonness count to the jury.

II. Motion for New Trial

Deaton argues that the trial court erred in failing to grant its motion for new trial on the grounds that 1) the jury verdict was against the great weight and preponderance of the evidence and 2) the jury verdict was excessive.

The denial of a motion for new trial, based on the challenge that the verdict is against the weight of the evidence, rests largely within the discretion of the trial court, and the trial court’s ultimate decision as to such motion will be affirmed unless plainly and palpably erroneous. Williamson v. United Farm Agency of Ala., Inc., 401 So.2d 759 (Ala.1981). The presumption favoring the correctness of the jury verdict is strengthened, moreover, when the trial court refuses to grant a motion for new trial. Walker v. Cardwell, 348 So.2d 1049 (Ala.1977).

Based upon our previous recitation of the evidence supporting a finding of wanton conduct on the part of Deaton, we cannot say that the jury verdict was against the weight and preponderance of the evidence. The trial court was therefore correct in denying Deaton’s motion for new trial on this ground.

Deaton argues alternatively that in the event the verdict can be supported by the evidence, a new trial is nevertheless warranted because the damages awarded were excessive.

In a wrongful death action brought under Code 1975, § 6-5-410, the only damages recoverable are punitive in nature, and the amount thereof is determined by the gravity of the wrong done, the' propriety of punishing the wrongdoer, and the need for deterring others from committing the same or similar wrongful conduct. See Estes Health Care Centers, Inc. v. Bannerman, 411 So.2d 109 (Ala.1982). The amount of damages to be awarded in a wrongful death action is, moreover, largely within the discretion of the jury, and where the trial court refuses to grant a new trial because it does not find the verdict excessive, the favorable presumption attending the jury verdict is strengthened. See Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So.2d 830 (1948).

We cannot say that the award of $835,000.00 in punitive damages was excessive. There is evidence to justify the jury’s award as a deterrent to Deaton and other trucking companies which might use the public highways to haul steel beams and other dangerous material without adequately securing the loads. The trial court’s denial of the motion for new trial on this ground was therefore proper.

III. Partial Exclusion of Expert Testimony

Deaton contends that the trial court abused its discretion in partially excluding the testimony of its expert witness at trial. Although Deaton admits that it never formally answered the plaintiff’s interrogatories requesting the name of any person whom Deaton expected to call as an expert witness at trial, Deaton argues that the trial court should have allowed its expert, John Sims, to testify as to the issue of the load shift on the Deaton trailer because 1) Deaton says that three months prior to trial, defense counsel informed one of the attorneys for the plaintiff that Sims would be used as an expert witness at trial; 2) Sims’s testimony as to the load shift provided critical rebuttal testimony as to one of the plaintiffs primary theories of liability; and 3) the plaintiff’s failure to supplement her answers to Deaton’s interrogatories requesting the identity of all witnesses the plaintiff expected to call at trial vitiated any duty to answer on the part of Deaton.

It is undisputed that on October 29, 1981, plaintiff filed interrogatories, requesting that the defendants provide the name of any person whom they expected to call as an expert witness at trial. Approximately seven months later, Tate answered this interrogatory by stating that he did not know whether such an expert would testify at trial. Tate never supplemented this response. Although Deaton and Tate were represented by the same attorney in this action, Deaton never filed any answers to these interrogatories, despite an order compelling such responses.

The trial commenced on May 2, 1983. On the second day of trial, defense counsel informed one of the plaintiff’s attorneys that Deaton would call John Sims as an expert witness. When plaintiff’s counsel evidenced surprise, counsel for Deaton contended that three months before, he had informed plaintiff’s counsel of the identity of this expert.

Plaintiff’s counsel, however, stated that he had no recollection of this disclosure. He further stated that it was his custom and practice in a case of this magnitude 1) to depose the opposing party’s expert to acquire the facts upon which he based his opinion; 2) to locate and employ a properly qualified rebuttal expert witness; 3) to allow the rebuttal expert to conduct necessary studies; and 4) to prepare such rebuttal expert for trial. Counsel for plaintiff concluded that consenting to a continuance during the middle of the trial to obtain this information would not only disrupt the trial but also impede his effective representation of his client.

Instead of objecting to Deaton’s use of this expert at trial, plaintiff’s counsel proposed the following compromise: plaintiff would pose no formal objections to Dea-ton’s use of this expert if the expert would testify only to the issue of whether there was adequate lighting on the Deaton truck and not to the issue of whether the steel beams shifted back only after impact. Defense counsel would not agree to this compromise, however, and plaintiff’s counsel renewed his objection to the use of the witness at trial. The trial court ordered that Sims be allowed to testify only with regard to the lighting issue. Defense counsel objected to this partial exclusion but at no time made a formal offer of proof detailing the matters to which Sims was expected to testify.

Under Rule 26(b)(4)(A)(i), A.R.Civ.P., the plaintiff properly filed an interrogatory requesting the identity of any person whom Deaton expected to call as an expert witness at trial. It is undisputed that this interrogatory was properly served upon Deaton; yet Deaton failed to answer, despite a court order, made pursuant to Rule 37(a), compelling Deaton to answer within 30 days.

Where a party fails to provide or permit discovery ordered under Rule 37(a) (see Rule 37(b)(2)), or fails to serve answers to interrogatories after proper service (see Rule 37(d)), the court in which the action is pending may, under Rule 37(b)(2), “make such orders in regard to the failure as are just,” including the following:

“(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
“(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
“(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party....”

Rule 37(b)(2), A.R.Civ.P.

The choice of sanctions to be imposed is largely within the discretion of the trial court, and this choice will not be disturbed on appeal absent a gross abuse of discretion. See Tucker v. Tucker, 416 So.2d 1053 (Ala.Civ.App.1982).

We cannot say that the trial court’s partial exclusion of the testimony of Deaton’s expert witness constituted an abuse of discretion.

When faced with the possible Rule 37(b)(2) sanctions of dismissal, entry of default judgment, or total exclusion of this expert’s testimony, the trial court’s choice of sanctions, in actuality, represented a fair and equitable compromise where the trial court could have found that the expert was unveiled, much to the opposing party’s surprise, midway through the trial. On the other hand, under the trial court’s implicit finding that the plaintiff was surprised by this witness, to allow complete testimony from this expert would have necessitated the grant of a prolonged continuance to allow the plaintiff the opportunity to prepare rebuttal testimony, inevitably resulting in a substantial disruption of the trial.

Deaton’s contention that the plaintiff’s failure to supplement her answers to interrogatories requesting the names of all trial witnesses somehow vitiated its own failure to respond to the plaintiff’s interrogatories is without merit. Deaton already knew the identity of the witnesses plaintiff called but had not named by supplementing her list, so no surprise or prejudice is shown.

The judgment of the circuit court is affirmed.

AFFIRMED.

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

      . The attorneys representing Deaton on appeal were not trial counsel.

      . We decline to adopt the position argued by Deaton on appeal that the mere fact that the front of Burroughs’s truck collided with the rear of the Deaton truck established contributory negligence as a matter of law.