author:
ROBERTSON, Justice,
      ROY NOBLE LEE, Presiding Justice, BOWLING, Justice,

text:
    Charles B. FERGUSON, et al., Appellants, v. William E. WATKINS, et al., Appellees.
    No. 54629.
    Supreme Court of Mississippi.
    Feb. 29, 1984.

      Joe D. Pegram, Oxford, for appellants.
    W. Joel Blass, Mize, Thompson & Blass, Gulfport, for appellees.
   ROBERTSON, Justice,

for the Court:

I.

This is a libel action brought against a newspaper and its editorial columnist.

Three physicians operating the emergency room in a publicly funded hospital demanded ouster of the hospital administrator. They were subjected to searing commentary by an editorial columnist in a local newspaper.

We hold that such persons are not libeled even though described in caustic if not contemptuous language and even though to a neutral observer the criticism is unfair, so long as clear falsity of fact is not found in the editorial commentary. Alternatively, we hold that such persons are vortex or limited purpose public figures who may not recover in a libel action absent proof of actual malice.

II.

A.

The Marshall County Hospital was built in Holly Springs, Mississippi, many years ago. Construction was publicly funded under the old Hill-Burton Federal Hospital Construction Program. Substantial funding for the operation of the hospital since that time has been provided by the Marshall County Board of Supervisors from funds derived from taxes levied upon the citizens of that county. The hospital receives other public funds via payments on behalf of patients under the Medicare and Medicaid Programs.

The hospital operates an emergency room the medical services in which are under the direction of three physicians, Drs. Robert P. Tate, Charles B. Ferguson, and David S. Anderson. The emergency room is open from 5:00 p.m. to 8:00 a.m. on weekdays and 24 hours a day on weekends. These three doctors are paid $135,000 per year for their services in the emergency room. In the past, these same three doctors also operated a publicly funded clinic, physically located next door to the hospital, and received from public funds $1,000 a week for this service.

For a number of years the hospital had operated at a financial loss. On June 1, 1977, the hospital Board of Trustees employed Alvin Word, III as hospital administrator. One of Word’s principal assignments was to get the hospital operating on a sound fiscal basis. However, Word “stepped on toes” and soon came into conflict with Drs. Tate, Ferguson and Anderson. This conflict culminated on April 12, 1978, when the doctors delivered to the Trustees a “him or us” ultimatum. The Board elected not to renew Word’s contract. Word left the hospital when his contract expired on May 31, 1978. Insofar as the record reflects, Drs. Tate, et al. are still working at the hospital.

On June 15, 1978, William E. Watkins, one of the Defendants below and one of the Appellees here, published an editorial column in The North Mississippi Times entitled “Marshall Viewpoint”. The North Mississippi Times is a weekly newspaper having its primary circulation in DeSoto County. It also has a limited circulation in adjoining Marshall County.

The commentary in question, the entire text of which is an appendix to this opinion, gave Watkins’ assessment of the situation at the Marshall County Hospital. It represents Watkins’ somewhat inept defense of Administrator Word whose contract had not been renewed. Watkins claimed that Word had attempted to upgrade the hospital “without asking taxpayers to foot the bill”. After listing some of Word’s contributions to the hospital, Watkins turned his attention to the problems he perceived. Watkins insisted that many local residents refused to use the hospital because they thought of it as a “welfare hospital”.

Much of this editorial column criticized the hospital in general. Only two of eleven paragraphs refer to Drs. Tate, Ferguson and Anderson directly. In those, Watkins opined that Marshall County taxpayers were being “raked over the coals” with the emergency room operation at the hospital. He wrote:

To be guaranteed $135,000 for three internists to man the emergency room from 5:00 p.m. to 8:00 a.m. and 24 hours on weekends seems very lucrative, especially insomuch as the doctors are not at the hospital all the time but rather available for immediate response if needed.
I don’t blame Drs. Robert Tate, David Anderson and Charlie Ferguson for wanting to get rid of Alvin Word, III, as if I had such a good setup, I wouldn’t want- someone to come along and tear up my little playhouse either.

Watkins then returned to his criticism of the hospital in general. He charged improper political influence in staffing and administration. He alleged that some people in power preferred to keep the hospital operating in “the red” than to see it become a self-supporting operation. He expressed his opinion that Word had been “let go” because he tried to upgrade the hospital.

In conclusion, Watkins asked, “Do we have a bad hospital or do we have a bad county government?” He urged citizens to call the United States Department of Health, Education and Welfare and demand an investigation into alleged improprieties in the administration of the hospital.

Soon after the publication of Watkins’ column, the three physician plaintiffs in this lawsuit sent a letter to Pam McPhail, editor of the North Mississippi Times. The letter advised Ms. McPhail that the doctors considered the article libelous and asked that she print a retraction. Ms. McPhail refused to do so.

B.

On September 22, 1978, Plaintiffs Tate, Ferguson and Anderson filed their declaration in the Circuit Court of Marshall County, Mississippi. Named as Defendants were William E. Watkins, the columnist who wrote the editorial column in question, Pam McPhail, the editor of the newspaper, and North Mississippi Communications, Inc., publisher of The North Mississippi Times.

The case was tried from January 6 through January 15 of 1981. At the close of the trial, the jury returned a verdict for the three plaintiff doctors, Tate, Ferguson and Anderson, in the amounts of $6,500, $5,000 and $5,000, respectively. The verdict was for compensatory damages only.

In due course the Defendants moved for judgment notwithstanding the verdict. Defendants argued, among other things, that the publication in question was not libelous and, in the alternative, that the three plaintiffs were vortex public figures and hence not entitled to recover absent proof of actual malice. In connection with the hearing on the motion, the Plaintiffs admitted that they had sustained no special damages as a result of the alleged defamatory publication.

After a full hearing,, the learned circuit judge on August 24, 1981, released his opinion. He vacated the judgments previously entered in favor of the three Plaintiffs and in lieu thereof entered in favor of each Plaintiff and against each Defendant a judgment for the sum of One Dollar described as “nominal damages, together with their lawful costs”. On the same date, final judgment was entered in accordance with the circuit judge’s opinion.

The three doctor plaintiffs have perfected an appeal to this Court in which they assign as error the aforesaid action of the circuit judge. They urge reinstatement of the judgments originally entered in accordance with the jury verdicts.

C.

We need be precise about our procedural context. We have here an appeal by the three doctor plaintiffs. They urge reinstatement of the judgments originally entered in their favor in accordance with the jury verdicts. Defendants, however, have not cross-appealed. Both in their brief and at oral argument they stated to the Court that they accept the final judgment that they pay each Plaintiff the sum of One Dollar plus costs.

Our only question, then, is whether the original judgments in favor of Plaintiffs should be reinstated. We examined the record and considered the arguments of counsel in order to determine whether there are grounds for reinstatement of those judgments. While many arguments have been advanced, we have found two independently dispositive, that is, two alternative reasons why as a matter of law these Plaintiffs are not entitled to reinstatement of the original judgments entered on the jury verdicts.

To be sure, these same reasons may have been adequate to enable Defendants to prevail on a cross-appeal had one been perfected. We do not reach that question, however, for Defendants have taken no cross-appeal, have stated that they consider the matter de minimis, and have said they are content to abide by the final judgment of August 27, 1981.

Though they take no cross-appeal, these Defendants-Appellees are entitled to argue, without having filed a cross-assignment of error, any grounds which are sufficient to sustain the judgment or to reject the appeal of Plaintiffs-Appellants. The grounds upon which we rely below were asserted by Defendants-Appellees in their motion for judgment notwithstanding the verdict and were fully briefed here. Plaintiffs-Appellants have fully responded to those arguments in their rebuttal brief—indeed, Plaintiffs’ rebuttal brief is longer than their affirmative brief.

Without doubt the issues tendered are properly before us. Without doubt the issues have been fully and ably briefed and argued. Without doubt this matter is ripe for decision on the bases described below.

III.

We recognize at the outset that in the trial court jury verdicts were returned in favor of all three plaintiff physicians. The jury’s verdict necessarily means that the jury found the Watkins’ editorial commentary defamatory.

In our review of this case, and in our decision today, we have scrupulously respected our familiar rules delineating when a jury verdict may be set aside. Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657, (Miss.1975); City of Jackson v. Locklar, 431 So.2d 475, 478-479 (Miss.1983). Even so, we find inescapable the conclusion that a jury has returned a libel verdict in rank disregard of the law. See also, Gulf Publishing Co., Inc. v. Lee, 434 So.2d 687 (Miss.1983).

IV.

A.

Our threshold inquiry into matters of substance is whether the offending editorial commentary was toward these three physician plaintiffs libelous in any context.

We have repeatedly recognized the common law rule that:

Any written or printed language which tends to injure one’s reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community is actionable per se.

See, e.g., Gulf Publishing Co., Inc. v. Lee, 434 So.2d 687, 695 (Miss.1983); Natchez Times Publishing Co. v. Dunigan, 221 Miss. 320, 326, 72 So.2d 681, 684 (1954); Conroy v. Breland, 185 Miss. 787, 797, 189 So. 814, 815 (1939). See also, Restatement, Torts 2d § 559 (1977).

Two restrictions upon the action for defamation are and must be strictly enforced. First, the words employed must have clearly been directed toward the plaintiff. Beyond that, the defamation must be clear and unmistakable from the words themselves and not be the product of innuendo, speculation or conjecture.

There is no such thing as a libelous idea. Still, a defamatory communication may consist of a statement in the form of an opinion. Opinion statements are actionable only if they clearly and unmistakably imply the allegation of undisclosed false and defamatory facts as the basis for the opinion. See Restatement, Torts 2d § 566 (1977).

On the other hand, nothing in life or our law guarantees a person immunity from occasional sharp criticism, nor should it. Short of becoming a hermit, no person avoids a few linguistic slings and arrows, many demonstrably unfair. It may be true that our law, quite wisely, has moved beyond the child’s retort, “Sticks and stones may break my bones but words can never hurt me”. Still our sensitivity to the destructive power of words hardly suggests we assess damages for all bruised feelings.

These considerations have shaped a rule of law in our “fair comment” cases. Edmonds v. Delta Democrat Publishing Co., 230 Miss. 583, 93 So.2d 171 (1957); Reaves v. Foster, 200 So.2d 453, 455-456 (Miss. 1967). Caustic commentary is simply not actionable libel.

Viewed fairly, the thrust of Watkins’ commentary is an attack upon the governing authorities of Marshall County. Watkins’ complaints about the way the hospital is run are directed primarily toward persons other than Drs. Tate, Ferguson and Anderson. Only two of the eleven paragraphs of the article fairly target three physicians at all.

Watkins does state that these three physicians are guaranteed $135,000 a year “to man the emergency room from 5:00 p.m. to 8:00 a.m. weekdays and 24 hours on weekends”. He further charges that “the doctors are not at the hospital all the time but rather available for immediate response if needed”. No one has questioned the factual accuracy of these statements.

What are challenged are two opinions offered in the same paragraph. First, Watkins charges that “Marshall County taxpayers are being raken over the coals with this emergency room operation”. These words in context suggest that the primary rakers are the Marshall County government officials who agreed to pay $135,000 a year, not the physicians who contracted to receive it.

Second, the doctors are offended that Watkins describes their arrangement as “very lucrative”. Here Watkins is suggesting that these doctors are being paid too much, or at least he is expressing his opinion to that effect. It is within our actual and judicial knowledge that vast numbers of our citizens think doctors’ fees are too high. We have no doubt that most who think this are quite sincere in their beliefs. The medical association may have a persuasive response. In an objectively structured debate, the medical association may well have the best of the argument. Still we would appear a bit silly if we held it libelous for one to express the opinion that Dr. So-and-so’s fees are too high. We are surprised that the suggestion is even made. Physicians’ skins should be toughened with sterner stuff.

In the next paragraph, Watkins implies the fact that Drs. Tate, Anderson and Ferguson played a part in getting rid of hospital administrator Alvin Word, III. We find no place in the record where this fact has been denied. Rather, these doctors admit that on April 12, 1978, they submitted to the Board of Trustees a “him or us” ultimatum. There is no fact in this paragraph which could be said to be false or defamatory.

Beyond that, we find Watkins charging caustically and a bit ineptly that,

“if I had such a good setup I wouldn’t want someone to come along and tear up my little playhouse either”.

These words fit many descriptives: impertinent, sophomoric, ineffectual. They are an opinion Watkins had the right to express. They are not libelous.

B.

1.

There is a second, independent reason why the jury verdicts in favor of the three physician plaintiffs should not be reinstated. These three doctors, in First Amendment/Law of the Press terminology, were vortex public figures. In the language of the ease law of this state, their activities were the subject of fair comment. Accordingly, Watkins’ commentary was qualifiedly privileged. As explained below, the qualification placed on the privilege has not been violated. Indeed, the evidence is without contradiction on this point.

Freedom of the press is a fundamental requisite for the vitality of any democratic society. It is constitutionally secured in this democratic society. It is secured to William Watkins, Pam McPhail and The North Mississippi Communications, Inc. by both state and federal constitutions. In the Constitution of the United States, freedom of the press is among the rights proclaimed in the First Amendment, made binding on the states via the Fourteenth Amendment. The Constitution of this state refers to freedom of the press as a “sacred right”. Miss. Const. (1890) Art. Ill, Sec. 13.

Seven years before the advent of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), we announced the public policy of this state in Edmonds v. Delta Democrat Publishing Co., 230 Miss. 583, 93 So.2d 171 (1957). Edmonds holds that, when a private citizen injects himself into a matter of legitimate public interest,

he invites free expression of public opinion, including criticism. When such criticism is in the form of an opinion, relates to public assertions or acts rather than to the individual and his private affairs, is fair in the sense that readers can understand the factual basis for the opinions contained in the criticism, and the publication relates to a matter of public interest, then the occasion is conditionally privileged; no action will lie for such publication no matter how severe the criticism or unfavorable the comments if the privilege is not abused. [Emphasis added]. 230 Miss, at 590-591, 93 So.2d at 173.

Under Edmonds the qualification on the privilege was that the words must not have been uttered out of malice. 230 Miss, at 591-592, 93 So.2d at 174. Whether the Edmonds qualification has been here violated need not detain us for the definition of malice in this context has been authoritatively announced in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Liability may not be imposed for otherwise actionable libel of a public figure unless the statements in issue were:

“made with knowledge of their falsity or in reckless disregard of whether they are true or false”. 379 U.S. at 78, 85 S.Ct. at 217, 13 L.Ed.2d at 135.

The Sullivan definition of malice, derived from the First Amendment, has been accepted and enforced repeatedly by this Court. See, e.g., Reaves v. Foster, 200 So.2d 453, 458-459 (Miss.1967); Gulf Publishing Co., Inc. v. Lee, 434 So.2d 687, 695 (Miss. 1983).

Our inquiry then is whether Drs. Tate, et al, are “public figures”, for if they are, they cannot recover absent proof of actual malice on the part of defendants.

These three physician plaintiffs hold no public office. Yet within Edmonds there is the liberal concept of the quasi-public figure, one who though otherwise a private figure becomes active or involved in a matter of public concern. Further, there is within the Sullivan doctrine the recognition of the vortex public figure. Such a person is one who is otherwise a private figure but who thrusts himself or becomes thrust into the vortex of a matter of legitimate public interest. Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789, 812 (1974). A quasi- or vortex public figure must prove actual malice when he brings a defamation action arising out of the matter of legitimate public interest. In all other aspects of his life, he remains a private figure whom some argue can recover with a lesser degree of proof or culpability on the part of the defendant.

We emphasize that the matter of legitimate public interest need not produce actual controversy. It is enough that the matter is in the public domain. Any person who becomes involved, voluntarily or involuntarily, in any matter of legitimate public interest — and this certainly includes the method of administration of any program of services financed in whole or in substantial part by public monies — becomes in that context a vortex public figure who is subject to fair comment.

2.

Before applying these principles to the facts of this case, we need to make clear the current state of our law. Several of our post-Sullivan cases have continued to apply separately the fair comment doctrine Edmonds and progeny and the constitutionally based public figure/actual malice standards of Sullivan. Having considered well both doctrines, we regard it beyond debate that the Sullivan doctrine has for the most part subsumed — and broadened (in the direction of further shielding the press from libel liability) — our fair comment cases.

Whereas, Edmonds, et al, arguably protected only commentary, the Sullivan doctrine protects commentary, opinions as well as statements of fact.

Whereas Edmonds defines malice in terms of a state of mind, Sullivan imposes a more objective test — actual knowledge of the defamatory character of words or reckless disregard thereof.

On the other hand, we regard the definition of a quasi-public figure in Edmonds —the Edmonds vortex public figure, if you will — as broader than that found in Sulli van and Gertz. Nothing in Sullivan or Gertz requires that we more restrictively define the Edmonds vortex public figure. Similarly, nothing in the law of this state or its public policy suggests such.

Consequently, we hold that under the law of this state all otherwise actionable utterances — commentary, opinion or fact — made regarding a public figure or a vortex public figure are qualifiedly privileged. The qualification on the privilege is that the person defamed may yet recover if he proves that at the time of the utterance the defendant either

(a) knew clearly that the utterance was false, defamatory and otherwise actionable, or

(b) acted in reckless disregard of whether it was false, defamatory and otherwise actionable.

This rule is a part of the positive law of this state. It is grounded in our Constitution which declares that “the freedom of speech and of the press shall be held sacred”. Miss. Const. (1890) Art. Ill, § 13. It has been foreshadowed by the liberal spirit of Edmonds and Reaves. Because it is consistent with the Constitution of the United States and the Sullivan doctrine, we may enforce it.

3.

The only task that remains, then, is to apply this rule to the facts presented here.

The subject matter of Watkins’ column was the operation of the Marshall County Community Hospital. This hospital was built with public monies under the old Hill-Burton plan. In substantial part it is operated with public funds, both through direct appropriations via the Marshall County Board of Supervisors and indirectly through funding of public insurance programs known as Medicare and Medicaid. Beyond that, the Marshall County Hospital is the only hospital serving the residents of that county. It is the nerve center of the county’s health care delivery system. Without more, the operation of the hospital is a matter of legitimate public interest.

Alvin Word, III, hospital administrator, was the center of controversy within the hospital and county government generally. He instituted efficiency programs that rankled the medical staff, including the three plaintiffs. He discharged three medical assistants. The matter culminated when Drs. Tate, et al., issued their ultimatum to the Board of Trustees: him or us. Even if they had not theretofore been public figures, the three doctors at that moment became vortex public figures. As such under the rule of law articulated above, these three doctors have no right of recovery here absent proof by clear and convincing evidence of actual malice on the part of Watkins and the other defendants. Based upon our careful review of the entire record, we hold that there is not the slightest iota of proof of actual malice on the part of Watkins and the other defendants. Indeed, we do not understand plaintiffs to argue to the contrary. Accordingly, these plaintiff physicians are not entitled to reinstatement of the jury verdicts rendered in their favor.

V.

There is a broader context. All readers of this opinion should read in its entirety the editorial column written by William E. Watkins upon which this action has been predicated. It is within the actual and judicial knowledge of this Court that newspapers around this country each year print hundreds of editorial columns equally as caustic and cynical with no one ever dreaming of filing suit.

One can pick up the editorial page of almost any newspaper in the country any day of the year and find commentary arguably “worse” than this. Commentators from Jack Anderson to Hunter S. Thompson to William F. Buckley, Jr., to Murray Kempton differ from William E. Watkins not in the verve of their editorial verdicts but only in the articulate style in which they express them:

If plaintiffs’ construction of the First Amendment had been in effect over the years, we are confident no one today would ever have heard the name of H.L. Mencken, or in this state of Frederick Sullens, of Hodding Carter or of P.D. East — with the consequence that we may have come to take ourselves too seriously.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and PRATHER and SULLIVAN, JJ., concur.

ROY NOBLE LEE, P.J., and DAN M. LEE, J., specially concur.

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

APPENDIX A

ROY NOBLE LEE, Presiding Justice,

specially concurring:

In my opinion, the editorial “Marshall Viewpoint” written by the appellee, William E. Watkins, simply does not libel the appellants, regardless of their positions, and I would decide the case on that narrow issue.

I am in full accord with Paragraph V of the majority opinion and I concur with the result finally reached in that opinion, e.g., that the judgment of the lower court be affirmed.

DAN M. LEE, J., joins this opinion.

BOWLING, Justice,

dissenting:

This dissenting opinion should have an attractive title, as all ordinary working people should be made aware of what this Court is now doing to them. An appropriate title might be “Citizens Beware — Especially Doctors!”

Although, as hereinafter discussed, the majority opinion affects every citizen of the state, this particular case affects the medical profession and the good name and reputation of physicians. Stated another way, it affects how that good name may be kept and how it may be taken away without .recourse. The medical profession is much concerned with so-called malpractice claims. In my humble opinion, it should be just as much concerned with the inability to protect the individual from not having recourse for defamation which will result from the majority opinion.

This writer does not have the eloquence to state properly the value of what is being taken away. I therefore borrow a statement from Shakespeare’s “Othello” where he said:

Who steals my purse steals trash; ’tis something, nothing;
’Twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him And makes me poor indeed.

In my humble opinion, the situation that will result after the majority opinion is published will be as bad as any that appears in the jurisprudence of this state or any other state. Realizing this is a hard statement, I am now on the spot to justify it.

The majority opinion basically is in two parts; (I) the article in question was not libelous and (II) the three doctors involved were “vortex public figures” and their good name could be besmirched without recourse unless actual malice on the part of the wrongdoer could be established.

A threshold fallacy that appears clear to me is that the judgment of one dollar under either one of the theories propounded by the majority opinion just cannot stand — neither could a judgment of one penny, one schilling or even a blade of grass. Under either majority theory, the verdict has to be “zero”. I hasten to say that I have read the part of the opinion which states that there was no cross appeal, but it is clear that the opinion is reversing and holding completely for appellees, even without using the excuse of “plain error” as provided in Mississippi Supreme Court Rule 6(b).

The first of the two part opinion under Number IV-A, in making a definite finding that the article in question was not libelous, ends with these words:

These words fit many descriptives: impertinent, sophomoric, ineffectual. They are an opinion citizens had a right to express. They are not libelous.

Again, in my humble opinion, proper legal writing requires that the opinion end there. I agree that the article is not libelous. I agree in what the opinion in effect says; that is, we are holding completely for ap-pellees. If the article is not libelous, as hereinbefore discussed, appellants were not entitled to one thin dime and we should say so without a lot of fancy words and render the cause here under the plain error rule, stating that the lower court should have reduced the judgments to zero instead of one dollar.

The first part of the opinion specifically holding that the article was not libelous in any instance, whether against appellants as public figures, private citizens, doctors or nincompoops, should end the case and end the opinion. Why go ahead and add a law journal article on the relationship between persons accused of writing libelous material against individuals and those individuals.

Why the author of the majority opinion chose, for some reason unknown to this writer, to go ahead and change the law of libel is beyond my comprehension. The case was over.

As the majority evidently has agreed to go the extra mile on a mere legal discourse, I am required to answer that part of the opinion.

Every member of the bar with any experience is familiar with the so-called taking over of the law of libel and slander by the federal courts. This, as indicated in the majority opinion, began with the famous case of New York Times, Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This opinion basically held that libelous accusations against a “public official” were not actionable unless actual malice on the part of the utterer could be proven or a reckless disregard for whether or not the charges were true. There have been a number of United States Supreme Court cases since Sullivan, supra. The principal ones being St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 70 L.Ed.2d 262 (1968); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979); and Wolston v. Readers’ Digest Association, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979).

After Sullivan, which was confined to “public officials”, Curtis Publishing Co. v. Butts, supra, came along and extended the immunity to certain “public figures.” A study of those cases reveals that the federal court has relaxed over the years its strict construction of a “public figure.” Butts, supra. I stop here and call attention to the fact that the majority opinion in the case sub judice goes backward from Sullivan, supra, instead of forward, as do the subsequent cases hereinbefore cited.

The majority opinion extends the right to libel a person, if in some manner it can be said he is a “vortex public figure.” With deference, a stupid grammarian such as I can read the cases and see that there is no such term. I do not find that word used in any of the cases except in one instance in Gertz, supra, where in talking about the plaintiff Gertz, the court said: “He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public attention in an attempt to influence its outcome.” I have checked Webster’s largest dictionary and the nearest definition I can find of the word “vortex” is:

Hence, figuratively: a. A state of affairs characterized by rapidity of change, constant excitement, or the like; sometimes a rapid round of activities, b. Something that draws or tends to draw one with compelling or irresistible force.

With the definition of “vortex” in the dictionary and as mentioned in Gertz, supra, the term refers to a condition surrounding a situation rather than defining a person. What the majority opinion is doing, in addition to carrying the law of libel back to the dark ages, is to invent a new term to further erode the rights of a person to protect his good name and reputation.

Mr. Justice Powell in Gertz, supra, [referred to in the majority opinion] said:

The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as Mr. Justice Stewart has reminded us, the individual’s right to the protection of his own good name “reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.” Rosenblatt v. Baer, 883 U.S. 75, 92, 15 L.Ed.2d 597, 86 S.Ct. 669 [679] (1966) (concurring opinion).

As noted in the quote and in all the cases hereinbefore cited, the United States Supreme Court is now leaving the libel and slander immunity question largely in the hands of individual states. No longer may this Court state, as was stated in 1967 by a prominent member, now deceased, that “the federal courts have pre-empted the field of libel and slander...” The author of the majority recognized this in his opinion and attempted to justify the excision of the rights of the doctors in question as well as other citizens of this state by relying on three cases: Edmonds v. Delta Democrat Publishing Co., 203 Miss. 583, 93 So.2d 171 (1957); Reaves v. Foster, 200 So.2d 453 (Miss. 1967); and NAACP v. Moody, 350 So.2d 1365 (Miss.1977). We shall not rehash these cases in detail, but contend with all earnestness that they do not apply in the present case under the circumstances resulting in appellants being “public figures” whether “vortex” or not. Even if it could be said that reliance on the above three Mississippi eases is permissible, the majority opinion stretches the immunity against the individual beyond the United States Supreme Court cases relied on previously by this Court and admittedly controlling in what this Court has said.

To further emphasize the role of the state court in present day libel and slander actions and the fact that this rule should not be applied in the manner as set out in the majority opinion, we quote further from Gertz, supra, where Mr. Justice Powell, for the Court, stated:

We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

In Time, Inc. v. Firestone, supra, in discussing the term “public figure” for the purpose of- the First and Fourteenth Amendment, the Court reiterated Gertz, by saying:

For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.

In Hutchinson v. Proxmire, supra, the plaintiff was in a similar position as appellants in the case sub judice. It was contended that he was a “public figure” because he was a director of research at a state mental hospital operated by the State Department of Mental Health and had “vortexed” himself to a position of authority in mental health research. The lower court fell for this contention but received a resounding reversal. The United States Supreme Court stated, through Chief Justice Burger:

Since New York Times Co. v. Sullivan, [citations omitted], this Court has sought to define the accommodation required to assure the vigorous debate on public issues that the First Amendment was designed to protect while at the same time affording protection to the reputations of individuals.

Again, the law elsewhere is going forward and we are going backward.

At the risk of undue length, the following quote from the recent case of Wolston v. Reader’s Digest Assn., Inc., supra, sums up the jurisprudence regarding libel and slander of “public figures” by saying

In New York Times Co. v. Sullivan, [citations omitted] the Court held that the First and Fourteenth Amendments prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct absent proof that the statement was made with “actual malice,” as that term is defined in that opinion. See also St. Amant v. Thompson, 390 US 727, 731, 20 L.Ed.2d 262, 88 S.Ct. 1323 [1325] (1968). Three years later, the Court extended the New York Times standard to “public figures”. Curtis Publishing Co. v. Butts, 388 US 130, 162, 18 L.Ed.2d 1094, 87 S.Ct. 1975 [1995] (1967) (Warren, C.J., concurring in result). But in Gertz v. Robert Welch, Inc., 418 US 323, 344-347, 41 L.Ed.2d 789, 94 S.Ct. 2997 [3009-3010] (1974), we declined to expand the protection afforded by that standard to defamation actions brought by private individuals. We explained in Gertz that the rationale for extending the New York Times rule to public figures was twofold. First, we recognized that public figures are less vulnerable in injury from defamatory statements because of their ability to resort to effective “self-help”. They usually enjoy significantly greater access than private individuals to channels of effective communication, which enable them through discussion to counter criticism and expose the falsehood and fallacies of defamatory statements, [citations omitted]. Second, and more importantly, was a normative consideration that public figures are less deserving of protection than private persons because public figures, like public officials, have “voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them” [citations omitted]. We identified two ways in which a person may become a public figure for purposes of the First Amendment:
“For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” 418 U.S. at 345, 41 L.Ed.2d 789, 94 S.Ct. 2997 [at 3009].

CONCLUSION

It is amazing and almost unbelievable to me that the majority of this Court would join in an opinion that reached up into thin air and pulls down a brand new legal term and interprets that term to destroy the rights of Mississippi citizens. Some say that Mississippi is last in a lot of things — it is now first in permitting the news media and other entities to have an unbridled right to ruin good reputations.

The opinion written for the majority extends the immunity of libelers and slanderers to the furtherest point that has ever been gone by any court in any state or country. The saddest part is that there is absolutely no need to even invent the term “vortex public figure” and then use that term as it is now being used. As hereinbe-fore set out, the disposition of this case was made before the term was invented. The opinion ignores the admonition of Chief Justice Berger in Hutchinson, supra, when he said for the Court, “Our practice is to avoid reaching constitutional questions if a dispositive non-constitutional ground is available.”

All the appellant doctors did was to operate the emergency room of a federally funded hospital. They took part in a controversy between the hospital administrator and the Board of Trustees. In my humble opinion, I believe that members of hospital staffs have a right to express their opinions. The majority opinion states:

Any person who becomes involved voluntarily or involuntarily in any matter of legitimate public interest — and this certainly includes the method of administration of any program of services financed in whole or in part by public monies becomes in that context a vortex public figure, who is subject to fair comment,

and

Having considered both doctrines [Sullivan and Edmonds] we regard it beyond debate that the Sullivan doctrine has for the most part, subsumed — and broadened [in the direction of further shielding the press from libel liability] — our fair comment cases.

I have been to far removed, for too long a time, from the academic field to really understand the contention about the Sullivan doctrine “subsuming” our fair comment cases. However, I still can read and a reading of the cases hereinbefore discussed just makes the statement “not so.” The Sullivan doctrine did not even deal with “public figures”, only “public officials”. Furthermore, subsequent cases, as cited, “subsume” the Sullivan doctrine.

The above quotes include almost every person who walks the streets of this state or has a job to earn a livelihood for his or her family. A large number of people now days are in some way involved in “programs of services financed in whole or in part by public monies”. Carrying the position of appellants further, it is easily seen that all members of their profession who take part in medicaid and medicare programs, are involved in “programs of services financed in whole or in part by public monies” and according to the majority, are helpless to protect their good name and reputation. Taking the hypothetical further, what about a house builder who will receive his final payment from a federal agency after building a house that is inspected regularly by. that agency through the use of public funds.

We could go on and list innumerable situations that the “brand new libel and slander law” now being adopted would grant an unbridled license to the news media and other entities and give the citizen absolutely no right of recourse.

In my humble opinion, not even the news media of this state wants the legal situation set up in the uncalled for Part II written for the majority. At whatever risk is involved, I personally want the citizens of this state to know what is being done to them.

I would concur that the article in question is not libelous and would render the cause giving a complete judgment to appel-lees under Rule 6(b) of this Court. I reiterate the title suggested for this dissent at the outset, that is, “Citizens Beware — Especially Doctors!”

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

      . At trial there was a fourth plaintiff (not a physician) in whose favor the jury had also returned a verdict. During the pendency of the motions for j.n.o.v., all claims of that plaintiff were settled out of court. We proceed here as though this fourth plaintiff had never been a party to this action.

      . The trial judge held that the utterance in question was libelous per quod and not per se. It is generally agreed that a plaintiff may not recover for libel per quod in absence of proof of special damages. Here the plaintiff-physicians stipulated that they had sustained no special damages. In this context, the trial judge held that each plaintiff was entitled to recover nominal damages-only and reduced the judgment in favor of each to One Dollar.

      . There is much sound and fury in the briefs over whether Mississippi recognizes a distinction between libel per se and libel per quod, and, if so, the contours and effects of the distinction. Because wc do not regard the utterance here in issue libelous in any context, we do not reach that issue.

      . The concept of the vortex public figure, of course, is nothing new in our law. Edmonds v. Delta Democrat Pub. Co., 230 Miss. 583, 93 So.2d 171 (1957). The term originated in Gertz v. Welch, supra, and has since been employed by both federal and state courts. Steaks Unlimited, Inc. v. Deaner, 468 F.Supp. 779, 784 (W.D.Pa. 1979); Velle Transendental Research Association v. Sanders, 518 F.Supp. 512, 515 (C.D.Calif. 1981); A.H. Belo Corp. v. Rayzor, 644 S.W.2d 71, 83-84 (Tcx.App.1981). In the context of the facts of the case at bar, as well as the legal concepts which wc arc here concerned, the term is both accurately descriptive and practicably useful, c.f. Edmonds v. Delta Democrat Pub. Co., 230 Miss. 583, 591, 93 So.2d 171, 173-74, (1957).

      . Five post-Sullivan cases have been decided by this Court whose facts lent themselves to the application of both privileges. Neither the rationale nor the results have always been consistent.

        Reaves v. Foster, 200 So.2d 453 (Miss.1967) held that a pamphlet calling a high school principal insulting names was privileged both as fair comment and because the plaintiff had failed to prove actual malice. However, Pride v. Quitman Co. Voters League, 226 So.2d 735 (Miss. 1969), held that, even though police officers were public figures, a leaflet accusing them of specific instances of police brutality was not privileged because it was not commentary. (It was admitted that the comments were made with knowledge of their falsehood.) In Arnold v. Quilllan, 262 So.2d 414 (Miss.1972), a man who had called a highway patrolman a lying, thieving son of a bitch was held liable for slander because he had acted in bad faith, even though neither privilege was mentioned. Five years later, however, NAACP v. Moody, 350 So.2d 1365 (1977) held privileged a letter accusing a highway patrolman of a specific instance of police brutality because the plaintiff was a public figure and failed to prove actual malice. Finally, in an earlier case, Perkins v. Miss. Publishers Corp., 241 So.2d 139 (1970), the Sullivan privilege shielded from liability a newspaper that had published a photograph of the plaintiffs campaign poster in the midst of a pile of weapons.
      A combined reading of these cases suggests the need for the clarifying statements made above.

      . In Reaves v. Foster, 200 So.2d 453 (Miss.1967), Justice Jones was only slightly off mark when he wrote:
      "The federal courts have pre-empted the field of libel and slander ...” 200 So.2d at 458.

      . As explained in Reaves v. Foster, 200 So.2d 453 (Miss.1967), Sullivan holds:
      "that hatred, ill will, enmity, intent to harm of negligence arc insufficient to establish malice ..." 200 So.2d at 458.

      . Plaintiffs argue vehemently that the administration of the hospital is not a matter of legitimate public interest because "no one cares who the hospital administrator is”. The point is that Watkins and The North Mississippi Times have every right to suggest, sans Sullivan-style actual' malice, that the public ought to care because their tax dollars arc being used to fund the operation of the hospital. In the present context, it matters not whether the "controversy" in fact existed before publication of the offending editorial commentary or was created by it.

      . It should be emphasized that we do not find these doctors to be vortex public figures merely because of their profession. Each of the doctors is a public employee at a public hospital. Watkins criticized these doctors in the context of the controversy concerning their public employment. If Watkins had actually libeled these doctors in the context of their private lives or businesses, our holding might well have been different.

      .We emphasize our holding in Section IV(A) above that the utterance in question is simply not libelous. Our alternative holding in this Section IV(B) is that, assuming arguendo that the words uttered may have been libelous, these plaintiffs may not recover because they arc vortex public figures who have not proved actual malice.

      . As has frequently been happening the past year or so, after the dissenting opinion of this writer was filed, the opinion written for the majority was “doctored” in an attempt to benefit the doctors. The reason for this addition to my dissent is to emphasize that the doctors should not expect any benefit from the "doctored” opinion written for the majority, as the same situation prevails as in the original opinion.


source: Caselaw Access Project

author: SULLIVAN, Justice,

license: Public Domain

text:
    T.C. COOK & Mack Hicks, d/b/a Cook’s Crossing Auto Center v. Jack BOWIE, et al.
    No. 54869.
    Supreme Court of Mississippi.
    March 7, 1984.
    Rehearing Denied April 25, 1984.
    H. Russell Rogers, Ward & Rogers, Hugh L. Brown, Starkville, for appellants.
    Thomas A. Coleman, Ackerman, for ap-pellees.

      Before ROY NOBLE LEE, PRATHER and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

This is an appeal from the Circuit Court of Choctaw County, Mississippi, from a final judgment on a jury verdict in favor of the defendants Jack Bowie, Kaye Bowie and Michael Hanley, in an action by the appellants to recover two dishonored negotiable instruments.

There are three assignments of error, to-wit:

(1) That the lower court erred in failing to grant appellants a peremptory instruction on the issue of liability and damages;

(2) That the trial court erred in allowing appellees’ instruction number 3 as it improperly defined the burden of proof required of the appellees in order to establish accord and satisfaction; and

(3) That the verdict of the jury was against the overwhelming weight of the evidence.

The parties are used car dealers who at least on three occasions did business with one another, and it is from these transactions that the controversy arose. The sole defense raised at the trial was accord and satisfaction.

In Lovorn v. Iron Wood Products Corporation, 362 So.2d 196, 197 (Miss.1978), this Court stated that the four basic elements of an accord and satisfaction are,

(1) something of value offered in full satisfaction of demand; (2) accompanied by acts and declarations as amount to a condition that if the thing offered is accepted, it is accepted in satisfaction; (3) the party offered the thing of value is bound to understand that if he takes it, he takes subject to such conditions; and (4) the party actually does accept the item.

In Roberts v. Finger, 227 Miss. 671, 677-78, 86 So.2d 463, 465 (1956), this Court held that,

One of the essential elements of an accord and satisfaction is an agreement, or a meeting of the minds of the parties. This agreement must have all the essentials of a contract and may be express, or implied from the circumstances.

Simmons v. Langston, 241 Miss. 36, 128 So.2d 749 (1961), is a case factually similar to this cause. There the defense was also accord and satisfaction and was also based solely upon the testimony of one of the defendants, unsupported by any documentation. The Simmons Court stated:

[T]he fact that delivery of encumbered property to the creditor is made in discharge of the old debt must be made known to the creditor in some unmistakable manner.

241 Miss, at 39, 128 So.2d at 750. The Court then held that the testimony did not indicate the parties had agreed to an accord and satisfaction and that the trial judge had erred in submitting the issue to the jury.

These three cases are controlling. The evidence was not sufficient for appellee to prove all four elements of accord and satisfaction. There was no agreement; no meeting of the minds. It was error to refuse to grant the peremptory instruction for appellants as no jury issue had been made.

The first assignment of error being dis-positive of this cause, assignments two and three will not be discussed.

Accordingly, the judgment of the Circuit Court of Choctaw County is reversed and judgment is entered here for the appellants for the sum of $22,050, together with civil penalty in the amount of $5,512.50, pursuant to the authority of Mississippi Code Annotated § ll-7-12(c) (Supp.1983), and costs of court.

REVERSED AND RENDERED.

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


author: WALKER, Presiding Justice,

text:
    Monroe Allen PATTERSON and Rebecca J. Patterson v. MERCHANTS TRUCK LINE, INC. and James E. Roberson, Individually.
    No. 54176.
    Supreme Court of Mississippi.
    March 28, 1984.
    G. Jyles Eaves, Eaves & Eaves, Louisville, for appellant.
    Lester F. Sumners, Darden, Sumners, Carter & Trout, New Albany, for appellee.
    Before WALKER, P.J., and PRATHER and ROBERTSON, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Chancery Court of Winston County, wherein the chancellor upheld a warranty deed executed by Monroe Allen Patterson and Rebecca J. Patterson (appellants) in favor of Merchants Truck Line, Inc. (appellees). The chancellor also found that the Patter-sons were indebted to Merchants Truck Line in the amount of $8,677.12. Judgment was entered accordingly.

From 1966 until 1980 Allen Patterson managed the Merchants Truck Line, Inc. (hereinafter MTL) terminal in Louisville, Mississippi. As manager he was responsible for collecting the freight fees from MTL’s Louisville customers. Some customers paid in advance while credit was extended to others. Mr. Patterson had authority to extend credit to those customers he thought creditworthy and was responsible for collecting the bills. When a bill was paid, Mr. Patterson would mark the bill “Paid” and send it to MTL’s New Albany office. He would also send a copy of the deposit slip showing where the check had been deposited, along with a daily cash report containing an itemization of those bills paid by cash.

Over the years MTL audited the Louisville terminal several times but never discovered anything other than minor discrepancies. On November 10, 1980 MTL conducted an audit of the Louisville terminal and discovered a shortage of approximately $10,000.00. The shortage was in bills which had been paid but which Mr. Patterson was listing as unpaid.

On November 13, 1980 Jimmy Roberson, secretary-treasurer of MTL and the one responsible for day-to-day operations of the company, contacted Mr. Patterson about the shortage and stated that the company was holding him responsible. Patterson responded that he would take care of the shortage.

The next day Patterson told his wife of the shortages. He stated that he did not know where the money had gone but had been aware of the shortages for some time and had been covering them up. Rebecca Patterson then phoned Jimmy Roberson and arranged to meet him in Pontotoc. Before she left, Mr. Patterson gave her a stack of bills, stating that they also had been paid but not reported as paid.

Mrs. Patterson took the additional bills to Pontotoc and gave them to Jimmy Roberson. At this meeting Roberson explained to Mrs. Patterson what the auditors found, and stated that the company was holding Mr. Patterson responsible. It was at this meeting that the parties first discussed the possibility of executing a deed to the Pattersons’ property as a means of covering the shortage. The meeting concluded and Mrs. Patterson returned to Louisville. That same afternoon Roberson phoned and told her that the bills she gave him totalled $79,000.00.

Thereafter, the Pattersons decided to surrender their Louisville property to cover the shortage. A deed was prepared covering four pieces of property that the Patter-sons owned. At the request of Mrs. Patterson, the deed was redrawn to exclude the house her daughter was living in. On December 16, 1980 Mr. and Mrs. Patterson signed the deed in their home.

Mr. and Mrs. Patterson have remained in their home since executing the deed, and MTL has charged them no rent.

On April 1, 1981 the Pattersons filed in the Chancery Court of Winston County a bill of complaint to set aside the warranty deed alleging, inter alia, fraud, duress, undue influence, and lack of consideration. MTL filed an answer denying the charges of the complaint and a cross-bill seeking to recover from Mr. Patterson the difference in the amount of the shortage and the value of the property in the deed.

A hearing was held on January 27, 1982 and Jimmy Roberson was called as an adverse witness by the complainants. He testified that MTL had no evidence that Mr. Patterson stole the money, but the company was holding Patterson responsible since he was the terminal manager. Roberson further testified that during the November 14 meeting Mrs. Patterson suggested conveying their Louisville property to MTL to cover the shortages.

Mrs. Patterson was also called as a witness. She testified as follows: When her husband told her about the shortages he was very upset. He was afraid that he would be arrested and would go to jail. For several weeks he remained at home, refusing to leave. She didn’t want to sign the deed but did so because she was afraid her husband might commit suicide. The idea of using their property to cover the shortages was Mr. Roberson’s.

Mrs. Linda Simard, a neighbor and close friend of the Pattersons, testified that after all of this came up Mr. Patterson became irrational and threatened suicide.

Mr. Patterson then took the stand and testified as follows: Like most terminals, he kept his cash in an unlocked drawer accessible by all of his employees. Although he knew that the funds were missing for seven or eight years and had an idea who was taking them, he did not report the shortages to the company for fear of losing his job. Instead, he covered up the shortages by using payments on current bills to cover old bills. The shortages kept growing until they were discovered in 1980. Jimmy Roberson told him that MTL was notifying the bonding company, but it would be better if they settled it without involving the bonding company. He became very upset and feared that the bonding company would prosecute him. He thought that signing the deeds was the only way out. He and his son met with Jimmy Roberson and MTL’s attorney. They advised him to get independent legal advice before signing the deed. However, Roberson later told him that if he got a call from some attorney “haggling” over the amount, he would just turn the matter over to the bonding company.

MTL called Mr. Jimmy McMillan, a real estate appraiser. He testified that he had appraised the property conveyed by the Pattersons to MTL and believed it to be worth approximately $107,500.00.

After hearing all the evidence, the chancellor rendered an opinion and final decree upholding the deed. He found no evidence of fraud, duress, undue influence or lack of consideration. Furthermore, he ruled in favor of MTL on their cross-bill, finding that Mr. Patterson still owed MTL $8,677.12. This amount represents the difference in the shortage and the net value of the property conveyed (appraised value minus outstanding mortgages). It is from this judgment that the Pattersons appeal.

The appellants first complain that the chancellor was manifestly wrong in refusing to set aside the warranty deed conveyed to appellees, Merchants Truck Line, by appellants as being obtained by fraud, duress, undue influence, lack of consideration and inadequacy of consideration.

In support of this proposition the appellants cite the cases of Bourn v. Bourn, 163 Miss. 71, 140 So. 518 (1932) and Ham v. Ham, 146 Miss. 161, 110 So. 583 (1926). These cases stand for the proposition that where a confidential or fiduciary relationship exists between parties to a deed, a presumption of invalidity arises. The grantee of the deed then has the burden of overcoming this presumption. The appellants argue that such a presumption arose in this case and the appellees did not present sufficient evidence to overcome the presumption.

In Green v. Frazier, 242 Miss. 315, 135 So.2d 399 (1961) this Court held that the burden of establishing a confidential relationship is on the party asserting it. The appellants in the present case have failed to meet this burden. The record is devoid of any evidence that the Pattersons placed a confidence in MTL. If any fiduciary duty exists at all, it was owed to MTL by Mr. Patterson, who was entrusted with the responsibility of collecting and depositing company funds. In the absence of a fiduciary or confidential duty by MTL, no presumption of invalidity arises.

The appellants also contend that the deeds should be set aside on the grounds of fraud and duress, arguing that it was obtained under threats of prosecution. The appellants admit that MTL never stated that they would be prosecuted if the deeds were not signed. Rather, they claimed that such is to be inferred from Jimmy Roberson! s statement that be would turn the matter over to the bonding company if they were unable to work something out.

In 23 Am.Jur.2d Deeds § 200, it is stated: A threatened prosecution may be regarded as duress which will avoid a deed if the grantor is not, in fact and in law, amenable to prosecution. Deeds executed in payment of alleged embezzle-ments are generally held to be voidable, and the courts will set them aside upon application for such relief. Some authorities hold that a deed procured under a threat of prosecution of a near relative of the grantor is duress which will avoid the deed. Other courts hold, however, that the inducement of protecting the near relative does not amount to duress in the absence of a showing that the grantee had no reasonable ground to suppose that the person whose prosecution was threatened was guilty. Threat of a civil suit is not, of course, sufficient to constitute duress which will void a deed, nor are mere influence and persuasion.

This Court has held that threats of prosecution, under certain circumstances, constitute duress sufficient to invalidate a deed. Allen v. LeFlore County, 78 Miss. 671, 29 So. 161 (1900). However, in McGehee v. McGehee, 227 Miss. 170, 85 So.2d 799 (1956), it is stated:

“It is the well-established general rule that it is not duress to institute or threaten to institute civil suits, or take proceedings in court, or for any person to declare that he intends to use the courts wherein to insist upon what he believes to be his legal rights. It is never duress to threaten to do that which a party has a legal right to do, and the fact that a threat was made of a resort to legal proceedings to collect a claim which was at least valid in part constitutes neither duress nor fraud such as will avoid liability on a compromise agreement. Hence, a deed is not given under duress when made as counter-security to sureties upon their threat that otherwise they will compel, by legal process, the settlement of the matters for which they are sureties, and a mortgage given to secure a creditor on a running account is not invalid for duress if given after threats are made to shut off the account and sue for the amount due.” 17 Am.Jur., Duress and Undue Influence, par. 17, p. 892. See also 13 Words and Phrases, Permanent Edition, Duress.

227 Miss. 183, 85 So.2d 799.

In this case Jimmy Roberson’s threat to turn the matter over to the bonding company was a threat to do that which he had a legal right, if not an obligation, to do. Accordingly, this threat does not constitute the type of duress needed to set aside a deed.

The appellants also argue under this assignment of error that the deed should be set aside for want of consideration or for inadequate consideration.

In Campbell v. State Highway Commission, 212 Miss. 437, 54 So.2d 654 (1951), the general rule regarding consideration for a deed was discussed:

The contention that appellants’ land is being taken without consideration is not well founded as, in the absence of fraud, a voluntary conveyance of land can not be vacated at the instance of the grantor upon the ground that it was made without any consideration. In Longmire v. Mars et al., 124 Miss. 77, 86 So. 753, 754, the court held: “A total failure of consideration for a voluntary conveyance, in the absence of fraud, is no ground for a cancellation of the deed. This had been repeatedly decided by this court. In the case of Dixon v. Milling et al., 102 Miss. 449, 59 So. 804, 43 L.R.A.,N.S., 916, the opinion quotes from Day v. Davis, 64 Miss. 253, 8 So. 203, as follows: ‘A voluntary conveyance of land cannot be vacated, at the instance of the grantor thereof, upon the mere ground that it was made without any consideration; nor will such grantor be permitted to dispute the existence of the consideration expressed in the deed.’ ”

212 Miss. 443, 54 So.2d 654.

In support of their contention the appellants cite Lampley v. Pertuit, 199 So.2d 452 (Miss.1967), wherein the Court stated that it would lay hold of slight circumstances of fraud or duress to rescind a conveyance given for grossly inadequate consideration. However, as we have already stated, absolutely no fraud or duress was proven in this case. Therefore, the Court will not question the adequacy of consideration given by MTL for the deed.

Finding no fraud, duress, undue influence, lack of consideration, or inadequate consideration, we conclude that the chancellor was correct in upholding the deed.

In the next assignment of error the appellants complain that it was error to award a money judgment to appellees with appellees having failed to meet the burden of proving by clear and convincing evidence that appellant, Monroe Allen Patterson, actually received the money. Relying upon International Order of Twelve, Knights and Daughters of Tabor v. Marshall, 195 So.2d 66 (Miss.1967), they contend that before an employee can. be held liable to an employer for misappropriation of funds, it must be proved by clear and convincing evidence that the employee actually received the funds. In Marshall, supra, the defendant was a bookkeeper for Tabor, an organization which operated a hospital. Tabor received funds by mail, personal delivery, and in some cases, delivery to individual employees. The money was then placed in a safe, the combination of which was known by the defendant and another bookkeeper. Affirming the chancellor’s decision that the defendant was not liable for the missing funds, the Court stated:

The problem in the present case is with the proof concerning whether defendant took the money. There is no presumption that will aid in proving that defendant actually received the money. That fact must be proved by clear and convincing evidence. We are unwilling to hold that a presumption should bolster unsatisfactory evidence as to whether defendant misappropriated her employer’s funds. In other words, the evidence fell short of establishing clearly and convincingly that defendant received the funds, and the case against her is not aided by any presumption. If the evidence had been sufficient to trace the money into the position of defendant, the burden of accounting for the funds would then be on defendant.

195 So.2d 69. (Emphasis added).

In this case Mr. Patterson was responsible for the company funds. Although denying any wrongdoing, Patterson admitted that he received the money. Moreover, he failed to explain its disappearance and even admitted covering up the disappearance for many years. Under these facts Patterson would be liable to MTL for the missing funds. See 53 Am. Jur.2d Master and Servant § 108. Consequently, the chancellor was correct in ruling in favor of the appellees on the cross-bill.

For the foregoing reasons, the judgment of the chancery court should be affirmed.

AFFIRMED.

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

HAWKINS, J., not participating.


author: DAN M. LEE, Justice,

text:
    Wiley FAIRCHILD, et al. v. John W. KEYES.
    No. 54194.
    Supreme Court of Mississippi.
    April 4, 1984.

      S. Robert Hammond, Jr., Jackson, Hammond, Sellers & Guest, Wallace R. Gunn, Hattiesburg, for appellants.
    Robert F. Drake, Drake & Graben, Frances T. Zachary, Zachary & Zachary, Hat-tiesburg, for appellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Forrest County wherein the appellants, Wiley and Rodney Fairchild, were ordered to specifically perform an agreement to dissolve a closed corporation formed and wholly owned by the appellants and appellee. Feeling aggrieved of that decision the Fairchilds bring this appeal and assign a number of errors. Because our decision on the first assignment is dis-positive of this case, we do not address the other issues.

At the outset we wish to note that, though we must reverse, the chancellor should be commended for his patience and efforts in a suit such as this where the record is voluminous and the issues complex.

In March, 1978, the parties to this suit Rodney Fairchild, Wiley Fairchild and John Keyes, formed a closed corporation named F.F. & K. Oil Company, Inc.. They were the sole shareholders with the distribution of shares as follows:

Wiley Fairchild, 40%; Rodney Fairchild, 30%; John Keyes, 30%. Keyes served as President, Wiley as chairman of the board, and Rodney as vice president.

On October 10, 1978, a meeting of the board of directors was held from which Rodney Fairchild was absent. From that meeting came a document entitled “Minutes of a Special Meeting of the Board of Directors.” Those minutes reflect that a motion was adopted “That it be the intent of the directors to dissolve the corporation in February, 1979, after the end of the fiscal year, and distribute the assets of the corporation at that time provided it is wise from a tax standpoint.”

Following this meeting there was a second special meeting of the board of directors. At that time Keyes was replaced as president of the corporation by Robert L. Jarvis. At this meeting it was also resolved that the corporation not be dissolved. Keyes voted against this resolution.

On July 27, 1979, Keyes filed a petition in the Chancery Court of Forrest County seeking specific performance of what he alleged was an agreement to dissolve the corporation and to liquidate its assets. The petition plainly stated that Keyes was suing the Fairchilds “In their individual capacities as well as in their corporate capacity as majority stockholders, officers and directors of the corporation...” The Fair-childs responded by filing a demurrer which argued that the suit failed for non-joinder of a necessary party, i.e., the corporation.

In a hearing on the demurrer, Keyes took the position that this was an action against the Fairchilds as individuals, not in their corporate capacity. The chancellor then overruled the demurrer and held that in a suit for specific performance of an agreement to dissolve, the corporation need not be named as a party. We reverse.

Obviously, in order to take the steps necessary to dissolve the corporation, which specific performance would require in this suit, the Fairchilds would have to act in their capacity as corporate directors. This is acknowledged by Keyes’ bill of complaint which named the Fairchilds as defendants both in their capacity as individuals and as corporate directors, even though he has taken a different position in the hearing on the demurrer and this appeal.

In 19 Am.Jur.2d Corporations § 1608, the general rule is stated that:

In an action brought by a minority stockholder to dissolve a corporation all the stockholders must be made parties, and the corporation, of course, is a necessary party to the suit.

This appears to be the soundest rule, especially so in the instant case. This is so because the alleged contract which is sought to be specifically performed was a result of a meeting of the board of directors. An agreement to dissolve the corporation, made by the board of directors, at a meeting of such directors is an act taken by the directors in their corporate capacity.

In Bruno v. Southeastern Services, Inc., 385 So.2d 620 (Miss.1980), an analogous question arose. In that case, the sole stockholder of Bruneau’s, Inc., Bruno, brought suit against an investment corporation which had allegedly defaulted on an agreement to invest equity capital in the corporation. In that case this Court again announced the rule that under Mississippi law a corporation is an entity separate and distinct from its stockholders. The Court went on to hold that where the basis of a suit is a wrong to the corporation, a plaintiff may not bring suit in his individual capacity to redress the wrong. The cause of action belongs solely to the corporate entity and may be asserted only by the corporation itself or by the plaintiff in a representative capacity in the form of a shareholders derivative suit. We then stated that: “The corporation is an indispensable party to such an action.” 385 So.2d at 622. We made it clear that the rule applies even though the individual stockholder owns all or substantially all of the stock in the corporation.

If the corporation is an indispensable party to a suit brought to protect its interest, then certainly it must be an indispensable party to a suit brought to dissolve it. Although-Keyes has termed his suit one for specific performance, it was in effect a shareholders derivative action charging the directors of the corporation with an ultra vires failure to comply with decisions of the board of directors.

Of course, as we must reverse this cause for failure to join the corporation as a necessary party, we do not decide whether there was in fact any action which binds the directors to a decision to dissolve the corporation. Indeed, we recognize that by statute a corporation is entitled to revoke proceedings for a voluntary dissolution. §§ 79-3-175 — 177 Miss.Code Ann. (1972). We also note that during the oral argument on this appeal, both parties conceded that any dissolution of the corporation must be accomplished by means provided for within Title 79, Chapter 3 of the Mississippi Code Annotated. On remand, should the corporation be joined as a party and this litigation begun anew, the learned chancellor is reminded that any dissolution, should one be ordered, must comport with statutory requirements as the corporation itself is a creature of the statutes.

The three shareholders and directors here, members of the corporate family, once evidenced a great deal of trust and reliance in one another. Now their relationship has eroded to the point that they feel they must seek the assistance of the courts to resolve their dispute. A close reading of the record and common sense suggests to us that this matter could have and should have been resolved without reference to the courts. Surely such a negotiated settlement would be the optimum resolution of this dispute.

Based on all of the foregoing, we hereby reverse the decision of the chancellor and remand this cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

SULLIVAN, J., not participating.

      . The corporation’s name was subsequently changed to Oil and Gas Properties, Inc.


author: PER CURIAM.

text:
    The WATER WORKS BOARD OF THE CITY OF BIRMINGHAM, a public corporation v. Frank BARNES, et al.
    81-774.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied March 23, 1984.
    L. Vastine Stabler, Jr., R. Michael Leonard, and Lee E. Bains, Jr. of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellant.

      William W. Conwell and Terry W. Gloor of Foster, Conwell & Gloor, Birmingham, for appellee Frank Barnes, et al.
    William A. Jackson of Harrison, Jackson & Lee, Birmingham, for appellees The City of Hoover and Rocky Ridge Fire Dist.
    Joe H. Little, Jr. and Carroll H. Sullivan of Gaillard, Little, Hume & Sullivan, Mobile, for amicus curiae Alabama-Mississippi Section of the American Water Works Association, and Bd. of Water and Sewer Com’rs of the City of Mobile, a public corporation.
   PER CURIAM.

The Water Works Board of the City of Birmingham (The Board) appeals from a final judgment of the Circuit Court of Jefferson County declaring a three-zone rate schedule adopted by the Board for water sold by meter measurement and all fire hydrant charges to be unlawful and unreasonable, and permanently enjoining the Board from the collection of charges pursuant to that schedule.

The issues raised on this appeal are as follows:

1. Did the trial court err in substituting its judgment for the Board’s with regard to the lawfulness of a three-zone rate schedule?
a. Should the trial court have presumed that the rate adopted by the Board was valid, and considered whether any rational basis for its validity existed?
2. Did the trial court err in holding that the Board did not have the authority to establish zone rates based on differences in the cost of service?
a. Did the trial court err in concluding that previous case law requires strictly uniform rates for a water system?
3. Did the trial court err in deciding that the plaintiffs had successfully demonstrated that the zone rates were not even arguably supported by differences in cost of service, but were arbitrarily and capriciously established?

We answer these questions favorably to the Board and reverse the decision of the trial court.

Although both parties have set forth in their briefs an exhaustive exposition of the facts, we believe the following are most important for a clear understanding of this case:

In March 1980, the Board announced that it had adopted a three-zone rate schedule to be effective on April 1,1980, for water sold by meter measurement and on October 1, 1980, for public and municipal fire hydrants. The three zones were established as follows:

Zone 1 — City of Birmingham and cities of Vestavia Hills, Fairfield, Homewood, Mountain Brook, and Tarrant City;
Zone 2 — Other cities and unincorporated areas of Jefferson County within current central rate boundaries;
Zone 3 — Areas of Jefferson, Shelby, St. Clair, and Blount Counties within the current rural boundaries.

The Board’s basis for adopting this three-zone schedule, which the Board itself had conceived, was a cost of service study conducted by Arthur Young and Company, an independent consulting firm.

The Board indicated that several assumptions approved by the American Water Works Association (AWWA) should underlie the study performed by Arthur Young & Co. First, that a zone rate should represent an average rate for all customers in that zone. Second, that the allocation of costs within the zones should be based upon the relationships of average day, maximum day and maximum hour demand patterns. Allocation on this basis calls for the use of the base-extra capacity rate-making method. Third, that fire protection costs should be determined for each zone and, that rate schedules should be structured to recover such costs.

The Board directed that two other assumptions, both of which pertain exclusively to the Birmingham system, should be made. First, that the allocation of costs in the study should take into account a contract for the sale of water by the Board to the City of Bessemer. Second, that water from the Board’s own Cahaba River-Lake Purdy Supply should be allocated only to Zone 1, while water purchased by the Board from the Birmingham Industrial Water Board should be allocated to Zones 2 and 3. This last assumption was predicated on the fact that the Cahaba River-Lake Purdy Supply had been sufficient to meet the demand for water when the area now in Zone 1 was all that the Board supplied. The Board alleged that the demand created as a result of expansion into Zones 2 and. 3 was the primary reason for the purchase of water from the Industrial Water Board.

Arthur Young & Co. used a five-step process in preparing the cost of service study for the Board. The first step was the determination of the total amount of revenue required to operate, maintain and develop the water system. This was done strictly on a cash basis.

The second step was the allocation of revenue requirements among the zones. As to operation and maintenance costs, allocation generally was made according to the amount of water consumption, except that all costs attributable to the Cahaba River-Lake Purdy Pumping Station were allocated to Zone 1 in accordance with the assumption concerning the distribution of that supply. As to capital costs, the following chart, prepared by the Board, indicates the basis of allocation for each item:

Allocation of Capital Costs to Zones
1. Existing Debt Service — Net Book Value
2. Proposed Debt Service — Net Book Value
3. Repair, Replacement, and Improvement — Water Consumption
4. Debt Reserve — Water Consumption
5. Capital Outlay — Water Consumption

The allocation of debt service according to net book value was opposed by the plaintiffs. As a result of such opposition, Arthur Young & Co. considered the strict allocation of debt service to debt-bearing assets, having previously identified the debt-free assets in the system. According to calculations done by Arthur Young, allocation of debt-service to Zone 3 was the same for both methods, namely 22%. In any event, there was testimony at trial that though the allocation of debt service might be considered prejudicial to Zone 3, any inequity was offset by the allocation of capital outlay on the basis of water consumption. Zone 3 was charged with $126,-000.00 of capital outlay, when allegedly, $2,000,000.00 was for Zone 3.

The third step in the preparation of the cost study was the allocation of zone costs to cost functions. The cost functions used were:

1. Base Cost
2. Excess Capacity Cost
Sub-divided into:
(a) maximum day cost
(b) maximum hour cost
3. Customer Costs
4. Direct Fire Protection

Allocation according to these functions was intended to place the expense of meeting extra demand on those customers responsible for demand in excess of the average.

Having identified the applicable cost functions, completion of the third step of the study required the allocation of operation and maintenance costs and capital costs to the functions. This process involved the development of zone peaking factors (ratio of peak demand over base demand), which were prepared for Arthur Young by CH2M Hill, an engineering firm.

The remaining two steps in the development of the study were the allocation of zone costs to customer classes and the designing of rates for water use blocks. Neither of these intra-zone processes has been questioned by the plaintiffs.

Subsequent to the application of the rates under the three-zone schedule to individual resident customers on all bills rendered after the effective date of April 1, 1980, four suits were filed in the Circuit Court of Jefferson County, all of which alleged that the new rate schedules were unenforceable. Following the consolidation of these cases, the parties agreed to try only two issues initially: the lawfulness and reasonableness of the rate schedule as it related to both water sold by meter measurements in Zone 3, and the increase of the hydrant rental charge for public fire protection in Zone 2.

The trial court rendered a judgment in favor of the plaintiffs, holding that the rate schedule for water sold by meter measurement, effective on all bills rendered on or after April 1, 1980, and all five hydrant charges effective October 1, 1980, were unlawful and unreasonable. The court’s findings of fact included the following:

1. that the boundary between Zones 1 and 2 was established on the basis of a 1951 agreement between the six cities in Zone 1 and the Board;

2. that the boundary between Zones 2 and 3 was, at least, partially based on political boundaries and not on physical differences between the areas;

3. that the water system is “one unified complex integrated system” and that “it is difficult, if not impossible, to determine the actual cost to the customers in the various zones;”

4. that areas annexed by cities within Zone 1 would automatically be accorded Zone 1 rates, without reference to cost of service.

The trial court concluded that the Board was required to charge uniform rates for all customers in the same class (e.g., residential, industrial, commercial). The Board appeals.

The Board has argued persuasively that in creating the three-zone rate schedule, it was acting legislatively and, therefore, the schedule ought to have been presumed valid by the trial court. Having carefully read the trial judge’s opinion in this case, we have found no indication that this presumption was accorded the Board’s decision. Also, we do not think that the trial court properly considered whether the extensive evidence presented regarding the differing costs of service for the zones constituted a rational basis for charging customers according to different zone rates. The finding of such a rational basis would be sufficient to uphold the challenged legislative classification. Wilkey v. State ex rel. Smith, 244 Ala. 568, 14 So.2d 536 (1943). Moreover, we are convinced that the trial judge, based on an erroneous view of the law, substituted his judgment regarding the schedule for that of the Board, which evidently was not evaluated with reference to the finding of the cost of service study performed by Arthur Young & Co.

The trial court was of the opinion that this court’s decision in the case of City of Montgomery v. Greene, 180 Ala. 322, 60 So. 900 (1913), second appeal at 187 Ala. 196, 65 So. 783 (1914), mandates invalidation of the three-zone rate schedule adopted by the Board. We disagree. The holding of City of Montgomery v. Greene was essentially that “a different rate, fixed wholly upon the corporate lines as the line of demarcation ... is an unreasonable classification.” (Emphasis added.) 180 Ala. at 329-30, 60 So. at 902. We do not interpret this holding to mean that political boundaries cannot be used in any way to delineate a difference in rates. We would need to ignore much of Justice Anderson’s thoughtful opinion for the appeals in that case in order to reach such a conclusion.

As indicated by the portion of the City of Montgomery v. Greene opinion quoted above, the court’s objection was to “unreasonable classifications.” In a subsequent part of the opinion, the court noted that

... the supplying of water and the rate charged is in no sense the exaction of a duty or tax, but is the mere furnishing, as a monopoly, a public necessity, and which must be supplied to all consumers alike, and without unreasonable discrimination either as to price or classification.

(Emphasis added.) 180 Ala. at 330, 60 So. at 902. Implicit in the language of both these sections of the opinion is the recognition that there are classifications and “dis-criminations” that are reasonable, and, therefore, can serve as legitímate bases for different rates.

This court has indicated that “physical differences” are required to justify separate classifications for rate-making purposes. Id.; City of Montgomery v. Greene, 187 Ala. at 198, 65 So. at 783 (second appeal). The trial court opined that City of Montgomery v. Greene “denotes the definition of physical differences wherein the Court clearly provided that customers on the same main could not be charged different rates _” We disagree. It is clear from the opinion for the. first appeal that even if two groups of purchasers are supplied from the same main, physical differences with respect to the two sides of a political line may constitute a sufficient basis for classifying the two groups differently in setting rates for service. 180 Ala. at 329-30, 60 So. at 902.

Having carefully reviewed the record and briefs in this case, we conclude that at least four physical differences supported the Board's action establishing a central and a rural rate in 1973, and its subsequent decision setting up an intermediate zone as part of the three-zone rate schedule, in place of the central-rural scheme. Those four variables were as follows:

1. Population density
2. Distance from filter plant
3. Vintage/Age of system
4. Peaking factor

In addition, the amount of water required for fighting fires and the density of hydrants differed for each zone. Moreover, uncontradicted testimony at trial indicated that the average pattern of land use was different in the three zones. It was the opinion of the Board that these factors were highly determinative of the cost of service for customers. That opinion was substantially verified by the cost of service study prepared by Arthur Young & Co.

The Supreme Court of Errors of Connecticut has addressed the factors that must be considered in order to properly decide whether and to what extent a departure from uniform rates is appropriate for a water system. The court said:

In a case involving a large municipality and smaller surrounding towns, a higher rate may be prescribed for consumers in the smaller communities, without unlawful discrimination, provided it is not unreasonably high in comparison with the city rate, considering the respective costs of service and other conditions affecting rates. Such a differentiation, however, logically involves an apportionment of values, revenues and expenses. [Citations omitted.] The difficulties attendant upon making approximately accurate allocations and fixing fair or satisfactory zone or other differing rates are manifest, and are not to be undertaken unless there are such differences in circumstances and conditions between different parts of the territory served as to justify departure from uniform rates.

New Haven v. New Haven Water Co., 118 Conn. 389, 412, 172 A. 767, 776 (1934). We agree with this analysis, and think that the physical differences discussed above reasonably buttress the Board’s establishment of the three-zone rate schedule in order to recover differing costs of service. Moreover, as the plaintiffs have failed to demonstrate that the zone rates do not, on the average, reflect differences in the cost of service, as documented in the Arthur Young & Co. report, there can be no finding that the Board’s action was arbitrary and capricious, or that it was not “fairly debatable.’-’ See City of Gadsden v. Downs, 412 So.2d 267 (Ala.1982).

For the foregoing reasons, we reverse the judgment of the trial court, and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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