text:
    MOORE, ROMERO & CO., Plaintiff-Appellant, v. NAN CORPORATION, Defendant-Appellee.
    No. 83-1040.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Hawley & Schexnayder, W. Paul Haw-ley, Lafayette, for plaintiff-appellant.
    Jefferson J. Moss, Jr., and Linda G. Smith of Moss, Becker & Bradley, Lafayette, for defendant-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   KNOLL, Judge.

Moore, Romero & Company, a certified public accounting firm, (hereafter Moore) seeks to enforce a bill in the sum of $8,950 for auditing services against Nan Corporation (hereafter Nan) and Miss Lillian Corporation (hereafter Lillian). The trial court awarded Moore the sum of $5,898.40 with legal interest from the date of judgment and denied Moore’s request for attorney’s fees. Moore contends Nan and Lillian are liable for $8,950, legal interest from the date of billing, and attorney’s fees for the collection of an open account. The issues on appeal are: (1) whether the trial court was manifestly erroneous in determining Nan’s and Lillian’s indebtedness; (2) whether Moore’s services for Nan and Lillian fell under a contractual relationship or were performed on an open account basis; and, (3) whether legal interest was owed Moore from the date of billing.

The actions against Nan and Lillian were consolidated at trial and will be considered together in this appeal. A separate opinion is being rendered this day in Moore, Romero & Co. v. Miss Lillian Corporation, 458 So.2d 680 (La.App.3d Cir.1984).

For the following reasons we affirm the judgment of the trial court.

FACTS

On June 2, 1980, Nan and Lillian hired Moore to audit their corporate records for the fiscal year 1979. Moore prepared engagement letters outlining the terms and service to be performed. Nan and Lillian accepted and approved these letters. Sometime later Nan and Lillian authorized Moore to conduct similar audits for the fiscal year 1980. No engagement letter was prepared for the second year’s audits.

Moore completed Nan’s and Lillian’s audits for both years in 1981. On August 21, 1981, Moore billed Nan $4,500 and Lillian $4,450. Nan and Lillian complained that Moore’s bills were excessive and paid nothing. On September 8, 1982, Moore’s attorney mailed certified demand letters and copies of the bills to Nan and Lillian. Unable to agree on the accounting fees, Moore instituted separate suits against Nan and Lillian. Nan and Lillian filed exceptions of no right of action, contending that Moore was not entitled to claim attorney’s fees. The trial court deferred the exceptions to the trial on the merits. Nan and Lillian answered the suits with general denials.

DETERMINATION OF AMOUNT OWED

Moore contends that it proved Nan and Lillian owed it $8,950 for professional accounting services on an open account basis.

The trial court concluded Moore had contracts with Nan and Lillian to perform audits for 1979 and 1980. LSA-C.C. Art. 1779 delineates the following requisites for a valid contract: (1) parties legally capable of contracting; (2) their consent legally given; (3) a certain object which forms the matter of the agreement; and (4) a lawful purpose. These requisites were met in the cases sub judice. Signed engagement letters dated June 2, 1980, particularized the agreement between the parties relative to the 1979 audits. Neither Nan nor Lillian dispute Moore’s authority to perform the 1980 audits. Even though this agreement was not reduced to writing, Moore’s authority was obtained orally from Nan and Lillian. A contract, though not reduced to writing, is valid. LSA-C.C. Arts. 1811, 1816 and 1817; Southern Scrap Mat. Co. v. Commercial Scrap Mat. Corp., 239 La. 958, 120 So.2d 491 (1960).

Nan and Lillian do not contend either that the hours indicated on Moore’s time sheets or the rates charged are excessive; they challenge Moore’s claim for undocumented time. In the engagement letters Moore was not promised a fixed price for its auditing work, only that Moore would bill the corporations at its regular rate plus out-of-pocket expenses.

A contract which does not provide a specified sum of money for remuneration will not vitiate the contract. Porter v. Johnson, 408 So.2d 961 (La.App. 2nd Cir. 1981), writ denied, 412 So.2d 99 (La.1982). Where there is a contract without a fixed price, the price is determined as that which is reasonable in light of community custom and equity between the parties. LSA-C.C. Art. 1965; Grimaldi Plumbing & Heating Co., Inc. v. Doucette, 414 So.2d 832 (La. App. 4th Cir.1982); Porter, supra; Skains v. White, 391 So.2d 1327 (La.App. 2nd Cir. 1980). The sum of recovery is the reasonable value of services which has inured to the benefit of another. Porter, supra. In order to determine what is a reasonable value for the services provided, the trial court must look to the circumstances in each individual situation. Pasquier, Batson & Co. v. Ewing, 430 So.2d 724 (La.App. 2nd Cir.1983), writs denied, 435 So.2d 437 and 435 So.2d 441 (La.1983); Swan v. Beaubouef, 206 So.2d 315 (La.App. 4th Cir. 1968).

Moore maintained detailed accounting sheets showing the time various members of its audit team spent on each of the audits, and the amount charged for each member’s services. Nan’s audit time sheet reflected 82 hours totaling $2,806.90; Lillian’s reflected 84 hours totaling $3,091.50. Nonetheless, Moore contended it spent time in excess of that shown on the time sheets and billed Nan $4,500 and Lillian $4,450. Moore claimed that it performed seven audits simultaneously for several interrelated corporations (including Nan and Lillian). Therefore, because of an overlap of time on each audit, Moore chose to bill the individual corporations by totaling all the audit amounts and averaging the total among the corporate audits.

Nan and Lillian timely objected to the relevancy of testimony relating to audits Moore may have performed simultaneously for these other corporations. To be relevant, evidence must have some probative value and be reasonably connected to the transaction in question. State In Interest of Miles, 441 So.2d 61 (La.App. 3rd Cir.1983). Evidence should not be excluded where it is admissible to prove any hypothesis included in plaintiff’s cause of action. Associates Financial Services Co., Inc. v. Ryan, 382 So.2d 215 (La.App. 3rd Cir.1980). The trial court is granted a great deal of discretion in assessing the probative value of evidence. City of Baton Rouge v. Tullier, 401 So.2d 422 (La.App. 1st Cir.1981), writ denied, 406 So.2d 605 (La.1981).

The trial court sustained Nan’s and Lillian’s objection and excluded Moore’s testimony regarding the other audits as irrelevant. Moore’s pleadings did not contain any allegations which hinted to a con-nexity between the other corporate audits and the time sheets kept on Nan and Lillian, nor did it refer to these other audits. The very terms of Moore’s engagement letters provided that billings would be based on time spent on each corporate audit, not on an average. Accordingly, we find the trial court properly excluded the evidence as irrelevant.

The trial court concluded Moore’s charges were excessive and calculated Moore’s recovery on the time records kept by Moore. We find no abuse in the trial court’s discretion in using Moore’s own time sheets to determine the amount owed.

In a related issue, Moore complains that the trial court erred in awarding interest only from the date of judgment. We disagree.

The trial court made a factual determination regarding the value of services rendered by Moore, and reasoned that the actual value of Moore’s services was not determinable until final judgment. Since Moore’s claim was unliquidated until judgment was rendered in the trial court, legal interest is allowed from the date of judgment, not from the date of judicial demand. Pasquier, supra; Grimaldi, supra; Succession of Butler, 294 So.2d 512 (La.1974). Accordingly, under the facts of this case, the trial court did not err in awarding legal interest from the date of judgment.

ATTORNEY’S FEES

Moore contends that the trial judge erred in sustaining Nan’s and Lillian’s exceptions of no cause of action as to attorney's fees. We affirm the trial court’s denial of attorney’s fees, although we find that the defendants’ exceptions of no cause of action should not have been sustained.

The exception of “No Cause of Action” is used to test the legal sufficiency of the petition. On the trial of an exception of no cause of action the issue is whether the face of the petition presents a case which legally entitles petitioner to the redress sought. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975).

Nan and Lillian filed exceptions calling for a partial no cause of action. This is not provided for in our law. Emp. Mut. Liability Ins. v. Red Simpson, Inc., 386 So.2d 961 (La.App. 3rd Cir.1980). The effect of granting a peremptory exception is that the entire action shall be dismissed, not part of the action. LSA-C.C.P. Art. 934. “Defendant’s use of the exception of no cause of action to strike an element of claimed damages represents an improper use of the procedural vehicle.... ” Walker v. Western-Southern Life Ins. Co., 361 So.2d 892 (La.App. 2nd Cir.1978), writ denied, 363 So.2d 537 (La.1978).

Under our procedural law, the exception of no cause of action should be overruled if any part of the petition can withstand the exception. Emp. Mut. Liability Ins., supra. The exception to this rule is that when two separate and distinct causes of action are set forth in one petition, an exception of no cause of action may be valid. However, this exception is inapplicable to the case sub judice. Moore’s claim is not grounded on two separate causes of action. Moore’s only cause of action is a claim for payment on an open account basis, in which attorney’s fees are allowed when LSA-R.S. 9:2781 has been complied with. Consequently, it was error for the trial court to sustain Nan’s and Lillian’s exceptions of no cause of action; however, since we are denying Moore’s claim for attorney’s fees, for reasons set forth infra, this error is not relevant.

We agree with the trial court’s determination that Moore’s agreement with Nan and Lillian was not based on an open account because their relationship was neither running or current, nor was there an anticipation of future dealings between the parties.

When this lawsuit was tried, LSA-R.S. 9:2781(C) provided as follows:

“For the purposes of this Section, an open account shall include debts incurred for professional services, including, but not limited to, legal and medical services, which are rendered on a continuing basis. (Emphasis added.)

In Colonial Products Company v. Park Place Homes, Inc., 282 So.2d 574 (La.App. 4th Cir.1973), the court concluded that an open account existed in a “... situation where there [had] been running or current dealings between the parties and the account [had] been kept open with the expectation of further dealings.” See also Monlezun v. Fontenot, 379 So.2d 43 (La.App. 3rd Cir. 1979).

Awards of attorney’s fees are penal and should be made only in cases which are clear and free from doubt. Texas Industries, Inc. v. Roach, 426 So.2d 315 (La. App. 2nd Cir.1983).

Moore contracted to provide Nan and Lillian with audits for the specific years 1979 and 1980. The record contains no evidence that Moore provided or billed Nan and Lillian for other accounting services, or that there was any expectation of future dealings. Under these circumstances we are unable to conclude that this action is based on an open account, entitling Moore to attorney’s fees. The record supports the conclusion that Moore contracted to perform specific auditing work authorized by Nan and Lillian which has been completed.

Accordingly, we find the trial court was correct in its determination that Moore was not entitled to receive attorney’s fees.

For the foregoing reasons, the judgments of the trial court are affirmed. All costs of this appeal are assessed to appellant, Moore, Romero and Company.

AFFIRMED.


source: Caselaw Access Project

author: KNOLL, Judge.

license: Public Domain

text:
    MOORE, ROMERO & CO., Plaintiff-Appellant, v. MISS LILLIAN CORPORATION, Defendant-Appellee.
    No. 83-1041.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Hawley & Schexnayder, W. Paul Haw-ley, Lafayette, for plaintiff-appellant.
    Jefferson J. Moss, Jr., and Linda G. Smith of Moss, Becker & Bradley, Lafayette, for defendant-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   KNOLL, Judge.

For the reasons assigned in the companion case of Moore, Romero & Co. v. Nan Corporation, 458 So.2d 675 (La.App. 3rd Cir.1984), wherein a separate decision is rendered this day, the judgment of the trial court is affirmed.

All costs of this appeal are assessed to the appellant, Moore, Romero & Co.

AFFIRMED.


author: ROY NOBLE LEE, Presiding Justice,

text:
    In re Inquiry Concerning a Judge No. 83-167, Billy Gunn BROWN.
    No. 55652.
    Supreme Court of Mississippi.
    Aug. 29, 1984.
    Rehearing Denied Nov. 14, 1984.
    Luther T. Brantley, III, Jackson, for Mississippi Com’n on Judicial Performance.
    Robert D. Jones, Martin & Jones, Meridian, for respondent.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Mississippi Commission on Judicial Performance and the respondent, Justice Court Judge Billy Gunn Brown, have filed in this Court a motion praying the Court to accept findings of fact submitted by the Commission pursuant to a formal complaint filed with it on January 23, 1984, against the respondent. The Commission recommended that Justice Court Judge Brown be publicly reprimanded by this Court and fined the sum of fourteen hundred dollars ($1,400) in order to prevent his undue enrichment, all in accordance with Section 177A of the Mississippi Constitution 1890. We accept the findings of fact and the recommendation of the Commission, but we apply an additional sanction.

We mean no criticism or disrespect to the Mississippi Commission on Judicial Performance. The members of the Commission have worked tirelessly and faithfully in discharging their duties and have rendered a fine service to the Bench and Bar. However, this Court has the final responsibility and duty in matters considered by the Commission.

In Re: Lloyd W. Anderson, 412 So.2d 743 (Miss.1982), succinctly stated our duty as follows:

The power to impose sanctions is delegated solely to this Court; it therefore follows we have an obligation to conduct an independent inquiry of the record in order to make our final determination of the appropriate action to be taken in each case. In so doing, we will accord careful consideration to the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses. [412 So.2d at 746].

The evidence, including the respondent’s admissions, overwhelmingly supports the Commission’s findings of fact and that the respondent from 1976 through 1983 converted to his own use money of civil litigants in his court aggregating twenty-one thousand nine hundred eighty-three dollars and thirty-two cents ($21,-983.32) involving one hundred seventy (170) different cases. The Commission found such conduct to be willful misconduct in office, conduct prejudicial to the administration of justice, and conduct which brought disrepute to the office. In our opinion, not only has that misconduct brought the office of Justice Court Judge, District 3, Lauderdale County, into disrepute, but has reflected upon every other Justice Court in the State and the entire judiciary.

Justice Court Judge William Anderson was fined and removed from office for misconduct which involved conversion of litigants’ money in an aggregate amount not exceeding fifty dollars ($50.00). In Re: Inquiry Concerning Judge William Anderson, 451 So.2d 232 (Miss.1984) [Not Yet Reported],

Justice Court Judge Lloyd W. Anderson was removed from office for charging traffic violators greater sums to be paid as fines than those reported by him to the county totalling two hundred fourteen dollars ($214.00). In Re: Lloyd W. Anderson, 412 So.2d 743 (Miss.1982).

In Hannah v. State, 336 So.2d 1317 (Miss.1976), Justice of the Peace Hannah was convicted of converting county property in the amount of eleven hundred seventy-six dollars fifty cents ($1,176.50) in his possession. The trial judge sentenced him to a term of seven (7) years in the state penitentiary and removed him from office, as the law required. In Donald v. State, 339 So.2d 1359 (Miss.1976), a companion case, the same sentence and removal from office were imposed.

If continued in office as Justice Court Judge, District 3, Lauderdale County, Mississippi, the respondent will impose fines and jail sentences on persons guilty of misdemeanors (petty offenses). How ironic, when, over a period of seven (7) years, he has misappropriated $21,983.32 through that office. The misdemeanor offenses pale into insignificance when compared to his own!

The record shows by clear, convincing and overwhelming evidence that the respondent is guilty of misconduct which brought the office of Justice Court Judge in District 3, Lauderdale County, into disrepute. That office will remain in disrepute as long as respondent occupies it. In our opinion, the appropriate sanction for such conduct is, and should be, removal from office. Therefore, the respondent, Justice Court Judge Billy Gunn Brown, is fined the sum of $1,400.00, is publicly reprimanded by causing the findings of fact and recommendation of the Commission to be published in the Southern Reporter (2d Series), Mississippi Cases, and respondent Billy Gunn Brown is removed from the office of Justice Court Judge, District 3, Lauderdale County, Mississippi.

RESPONDENT BROWN FINED $1,400, REPRIMANDED, AND REMOVED FROM OFFICE.

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

DAN M. LEE, J., dissents.

BEFORE THE MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE INQUIRY CONCERNING A JUDGE NO. 83-167

COMMISSION FINDINGS OF FACT AND RECOMMENDATIONS

. Initiation of proceedings

The Formal Complaint against the Respondent was filed with the Commission on January 23, 1984; it was personally served upon the Respondent on January 24, 1984. The Respondent’s Answer was filed with the Commission on March 15, 1984.

Hearing

On March 26, 1984, a formal hearing was held in accordance with the Rules of Mississippi Commission on Judicial Performance in Inquiry Concerning a Judge No. 83-167. The hearing was before a committee of the Commission, as provided by Rule 8C, consisting of William M. Bost, Jr., Presiding; James K. Dukes and Mrs. Elizabeth Powers. The Commission was represented by Luther T. Brantley, III- of Jackson. The Respondent Judge, Billy Gunn Brown, Justice Court Judge District 3, Lauderdale County, was represented by Robert D. Jones of Meridian.

Findings

The evidence adduced at the formal hearing having been considered, the Commission has found the following by clear and convincing evidence:

1.

The Respondent, from 1976 to 1983, commingled money received by virtue of his office as justice court judge as criminal fines due Lauderdale County and on behalf of civil litigants with his personal money in one bank account styled “Billy Gunn Brown, Justice Court Judge”, which was account No. 049-376-7 at the Merchants and Farmers Bank of Meridian. Respondent utilized said account to receive and pay out funds held in trust and escrow on behalf of Lauderdale County and civil litigants, as well as to receive and pay out personal funds for personal expenses.

2.

As of approximately December 13, 1983, Respondent’s official dockets reflected that he had collected in his official capacity as justice court judge the sum of approximately $21,983.32 on behalf of various civil litigants prior to December 13, 1983, which had not, as of said date, been remitted to the litigants. At that time, Respondent’s bank record reflected an account balance of $321.51; Respondent’s check memo book reflected an overdraft. Respondent did not have sufficient funds on account to refund said $21,983.32 collected on behalf of civil litigants. Respondent maintained throughout the Commission investigation and proceeding that he intended to repay each litigant the money collected on his behalf. The Commission finds that there were 170 different cases in which Respondent was holding funds belonging to litigants.

3.

In one civil action styled Max Chizk v. Norman Terry, Respondent collected the sum of $462.00 from Terry in his official capacity as justice court judge. The money was collected on July 11, 1983, and forwarded to the plaintiff on December 13, 1983. At no time was this action entered in Respondent’s official docket as required by law; Respondent did not retain any court costs for processing this action.

4.

By engaging in the aforementioned conduct while holding the office of justice court judge, the Respondent violated Canons 1, 2A, 3A and 3B of the Code of Judicial Conduct, adopted by the Conference of Mississippi Judges on October 25, 1974. Canon 1 contains the following language, to-wit:

“An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, -and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”

Canon 2, Paragraph A of said Code contains the following language to-wit:

“A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Canon 3, Paragraph A of said Code contains the following language to-wit:

“A. Adjudicative Responsibilities
(1) A judge should be faithful to the law and maintain professional competence in it ....
(5) A judge should dispose promptly of the business of the court.”

Furthermore, he has violated Canon 3B of said Code which contains the following language, to-wit:

“B. Administrative Responsibilities
(1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.”

5.

In engaging in the course of conduct described hereinabove, the Respondent has violated the Canons of the Code of Judicial Conduct. Said conduct further constitutes willful misconduct in office, willful and persistent failure to perform his duties, and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, all in violation of Section 177A of the Mississippi Constitution of 1890, as amended.

6.

In mitigation the Commission finds that Respondent has cooperated with the Commission throughout the investigation and hearing process and that subsequent to the hearing, Respondent met with Mr. Roy Rodman, the Commission investigator, and reported to Mr. Rodman as to how the aforementioned 170 cases were resolved. In summary, the resolution was as follows: Mr. Rodman reviewed 18 cases totalling $8,512.85 which had been paid and the can-celled checks were available for his inspection. There were 69 cases in which photocopies of checks had been made, said checks having been mailed to the litigants and totalling $8,658.36. In addition, there were some 43 other cases totalling $3,623.51 in which the Plaintiff had confirmed in writing as being paid. There were, therefore, 130 cases totalling $20,-794.72 which had been satisfactorily resolved by the making of restitution or otherwise clearing up the question as to who is holding the funds. In an additional 23 cases totalling $1,216.74 the Judge had been in touch with the parties and made some arrangement to pay off the debt, or the debt had been previously paid and confirmation is being awaited or otherwise it was apparent from review of the records that in these cases there will be no enrichment to the Judge at the conclusion of the case. In the remaining 17 cases totalling $1,337.78, the Plaintiffs cannot be located and there is no way to return the money. With the exception of these matters, all of the cases in which the litigants’ money has been held by Judge Brown have been resolved to the Commission’s satisfaction.

Recommendation

The foregoing constitutes the Commission’s findings by clear and convincing evidence that the conduct of Billy Gunn Brown constitutes willful misconduct in office, willful and persistent failure to perform his duties, and conduct prejudicial to the administration of justice which brings the judicial office into disrepute as set forth in Section 177A of the Mississippi Constitution of 1890, as amended. The Commission recommends that the Respondent, Billy Gunn Brown, be publicly reprimanded by the Mississippi Supreme Court and further that he be fined the sum of $1,400.00 in order to prevent the undue enrichment of Judge Brown, all in accordance with Section 177A of the Mississippi Constitution. It is the feeling of the Commission that the conduct of Judge Brown was of such a severe and serious nature as to warrant removal from office. However, due to the fact that Judge Brown cooperated with the Commission and voluntarily made restitution insofar as he was able and further that since January 1, 1984, judges are no longer required to handle litigant’s money, it is highly unlikely that Judge Brown or any other judge will repeat this offense. Nevertheless, there is $1,337.78 which he is unable to return and the amount of the fine is set with this fact in mind. The Commission would further state that its recommendation is made without prejudice to those 17 plaintiffs whose $1,337.78 remains unsettled. The offenses clearly warrant both a public reprimand and a fine.

Respectfully submitted, MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE

/s/ Kenneth B. Robertson Kenneth B. Robertson, Chairman

Date: May 18, 1984

      . This amount was hot reimbursed to civil litigants because their whereabouts were unknown.


author: PRATHER, Justice,

text:
    Hugh MEDDERS, Executor, Estate of Yewing Winon Medders, Deceased v. Betty RYLE, Executrix, Estate of Mary Davis Medders, Deceased.
    No. 54281.
    Supreme Court of Mississippi.
    Sept. 5, 1984.
    Rehearing Denied Nov. 14, 1984.

      Charles C. Jacobs, Jr., Lindsey C. Mea-dor, Jacobs, Griffith, Pearson, Eddins & Povall, Cleveland, for appellant.
    William Cliff Heaton, Neblett, Bobo & Chapman, Shelby, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

This appeal addresses the competency of evidence under the “Deadman’s Statute” and sufficiency of proof required to establish a resulting trust. The suit arose within the administration of the estate of Yew-ing Winon Medders, deceased, when notice of the filing of heirship determination was given to the deceased’s first wife, Mary Davis Medders and the five children of their marriage. The Chancery Court of Bolivar County held that a resulting trust arose against the proceeds of sale of forty acres of land titled to the decedent and sold by him nine months prior to death. From this decree the Y.W. Medders Estate appeals. The first wife, Mary Davis Med-ders, sought allegedly unpaid alimony due her prior to the decedent’s death, and from a denial of that claim, she cross-appeals.

The Executor of Yewing Winon Medders Estate appeals and assigns as error:

(1) The competency of testimony by Mary Davis Medders in violation of the Dead Man’s Statute;

(2) The ruling of the trial court that Mary Davis Medders was entitled to a one-half interest in the homeplace on the theory of a resulting trust arising out of the 1939 purchase of the property;

(3) The ruling of the trial court that Mary Davis Medders was entitled to a one-half interest in the homeplace on the theory of an equitable estoppel arising out of the 1946 divorce decree; and

(4) The failure of the trial court to hold that Mary Davis Medders was barred by the doctrine of laches from asserting a claim for an equitable one-half interest in the homeplace.

Mary Davis Medders, as cross-appellant, assigns as error:

(5)The ruling of the trial court that Mary Davis Medders was estopped to raise the issue of unpaid alimony by the decedent, Y.W. Medders.

I.

In 1922, Yewing Winon Medders married his first wife, Mary Davis Medders. Thereafter, on June 30, 1939, W.M. Merritt and Lottie W. Merritt conveyed to Yewing Med-ders by warranty deed 80 acres of Bolivar County farmland for $6,000.00. Simultaneously to this purchase, Yewing and Mary signed a Farm Security Administration mortgage for $6,705.00 secured by the eighty acres. The record is silent as to who signed the promissory note. Yewing and Mary made their home on the property, farmed the land and reared their five children.

In 1946 Mary was awarded a divorce from Yewing on the ground of habitual cruel and inhuman treatment. The divorce decree stated that Mary and Yewing were each the owners of an undivided one-half interest in the eighty acre homeplace. The decree provided that Yewing farm the land, but support Mary by dividing the proceeds of the farm profits from this land with Mary in such manner as the parties “may mutually agree upon.”

Two weeks after the divorce, Yewing married his second wife, Gladys. Yewing provided Mary with a house in Boyle, Mississippi. Yewing paid the utilities, repairs and insurance on this house, purchased clothing for the children and gave Mary $25.00 per month which he later raised to $40.00 per month.

Mary Medders now claims that the divorce was actually arranged by her husband and his attorney. Her understanding at the time of the divorce was that she would have a one-half interest in the eighty acre homeplace.

In 1969 Yewing executed his last will and testament, devising his ex-wife Mary a life estate in the house and lot in Boyle, with the remainder to descend upon her death to Yewing’s grandson. The will left his widow Gladys a life estate in all real property, the remainder to descend upon her death to Yewing’s five children of his first marriage. All of Yewing’s personal property was bequeathed to Gladys.

On January 2, 1978, Yewing conveyed all his real property to his brother, Hugh Med-ders, and his brother's wife, Grace for approximately $200,000.00. Yewing and Gladys moved to Cleveland, and on October 19, 1978 Yewing Medders died.

Y.W. Medder’s brother, Hugh Medders, was named executor and probated the will. Following the executor’s petition for partial disbursement of assets and for a determination of heirship, Mary Medders and four of the five children filed an answer and cross-bill in which they asserted an interest under the will in the eighty acre homeplace conveyed by Yewing to his brother prior to his death. Appellees/eross-appellants further alleged that by virtue of the 1946 divorce decree Yewing was without authority to convey the eighty acres. The appel-lees sought a lien against the proceeds of the sale of the property.

The chancellor found no evidence of a confidential relationship, undue influence by Hugh Medders or mental incompetency on the part of Yewing at the time of the sale and upheld the decedent’s sale of his property. Further, the Court held Mary was estopped to seek unpaid alimony. However, the court found that Mary was entitled to an equitable one-half interest in the eighty acre homeplace on a theory of resulting trust or, in the alternative, the theory of equitable estoppel.

Mary David Medders died on May 28, 1982 subsequent to the hearing before the chancery court. The suit was revived by her executrix, Betty Ryle.

II.

The first assignment of error is the trial court’s admission of Mary Medders’ testimony. Appellant contends that the testimony was incompetent under Mississippi Code Annotated section 13-1-7 (1972), the Dead Man’s Statute, which prohibits as being incompetent testimony by a witness to establish his or her own claim against the estate of a deceased person which originated during the lifetime of the deceased.

Both parties to this controversy admit the incompetency of testimony of one seeking to establish his or her own claim against the estate of a deceased person under the “Deadman’s Statute” which in pertinent part states:

A person shall not testify as a witness to establish [her] own claim ... against the estate of a deceased person, which originated during the lifetime of such deceased person....

Miss.Code Ann. § 13-1-7 (1972). Our cases interpreting this statute and its applicability to the competency of persons affected by the statute are legend. In Re Collier, 381 So.2d 1338 (Miss.1980) and Bourn v. Bourn, 375 So.2d 421 (Miss.1979) are two of our more recent cases interpre-tating this provision.

Additionally, we have recognized that there can be a waiver of the incompetency of a witness. Birchett v. Hundermark, 145 Miss. 683, 110 So. 237 (1926) (waiver of incompetency by introducing and examining claimant as witness.) Coney v. Coney, 249 Miss. 561, 163 So.2d 692 (1964) (examination of incompetent witness operates as a waiver of incompetency of subsequently offered testimony of other witnesses as to matters testified to by the first witness.)

However, the question presented here is whether the objection voiced by the appellant’s attorney was specific enough to apprise the court of the basis of the objection.

The appellee argues that any objection to the testimony was waived by failure to object on the specific basis of the statute. The objection to the testimony occurred as follows:

Q. Now, Mrs. Medders, do you recall approximately when the divorce was granted between you and Y.W. Medders?
A. In ’48.
Q. Well, I think the record would reflect. ...
A. ’47.
Q. All right, in or around 1946 I believe the final decree would show us, okay. Do you know who served as the lawyer back then?
A. Shands.
Q. Now was he your regular lawyer?
A. No, I didn’t have no lawyer.
Q. And between you and Y.W. Med-ders which one of you wanted the divorce?
A. He did.
Q. And when you went to the lawyer’s office what did you find there?
A. The papers already ready.
Q. All right.
A. The divorce papers was already ready.
Q. Had you gone up there before you went that first time?
A. No.
Q. And how many times did you even see the lawyer?
A. One time.
BY MR. WYNNE: No, your Honor, I’m going to object. I think this is all self-serving.
BY THE COURT: I don’t believe that’s any valid objection to it. I would overruled the objection.

Following the objection, Mary testified at length about the circumstances surrounding the divorce and the limited support she received afterwards.

Appellee relies upon Fant v. Fant, 173 Miss. 472, 162 So. 159 (1935), contending that Yewing’s estate waived any objection to the competency of Mary Medders by failing to waive answer under oath. In Fant, however, the waiver was applied only to allow admission of the sworn answer as evidence. 162 So.2d at 161. Research discloses no case in which failure to waive answer under oath has been held to permit an otherwise incompetent witness to testify in open court.

The objection by counsel for appellant at trial did, in fact, focus upon the matter which is now urged — that the testimony of Mary Davis Medders was incompetent as being in violation of Miss.Code Ann. § 13-1-7 (1972), the Deadman’s Statute. Appellant stated that “this is all self-serving”, to which the Court replied, “I don’t believe that’s any valid objection to it.”

The rationale underlying the Deadman’s Statute is that self-interested testimony should not be permitted to establish a claim against one whose lips have been sealed by death. Poole v. McCarty, 240 Miss. 341, 127 So.2d 398 (1961). The objection that Mary "Davis Medders’ testimony was “self-serving” focused on the very basis of the prohibition.

We conclude that permitting the claimant, Mary Davis Medders to testify to establish her own claim against the Estate of Yewing Winon Medders which originated during the lifetime of the decedent was reversible error.

III.

The chancellor concluded that since Mary signed the mortgage agreement along with her husband, she thereby became obligated on the note along with her husband. Thus, the chancellor reasoned, Mary “shared equally in paying for the land.” (R. 357).

The general rule is that when a transfer of property is made to one person and the purchase price is paid by another, a resulting trust arises in favor of the person by whom the purchase price is paid. Shrader v. Shrader, 119 Miss. 526, 81 So. 227 (1919); Restatement (Second) Law of Trusts § 440 (1959). A resulting trust, unlike a constructive trust or an equitable estoppel, is not a remedial device for the prevention of unjust enrichment. Bogert & Bogert, Law of Trusts § 71 (5th Ed. 1973). The basis of a resulting trust is “that the person seeking to assert the trust actually made payment or partial payment for the property allegedly in trust at the time that the property was conveyed.” Leininager v. Leininager, 705 F.2d 727 (5th Cir.1983). The fact of payment must be established beyond a reasonable doubt. Matter of Estate of Evans, 359 So.2d 1381, 1383 (Miss.1978); Logan v. Johnson, 72 Miss. 185, 16 So. 231, 232 (1894).

In the case sub judice, the deed to the 80 acre homeplace recites that the purchase price was “paid by Y.W. Medders.” Mary does not claim to have furnished any portion of the purchase price. The chancellor’s finding of a resulting trust was based solely on the Farm Security Administration loan agreement, which Mary and Yewing both signed as “mortgagor.”

Thus, the question here is whether the signature of both husband and wife as “mortgagor” on a purchase money loan agreement establishes “payment” by the wife so as to give rise to a resulting trust in her favor?

Cox v. Cox, 183 So.2d 921 (Miss.1966) presents a similar fact situation. The parties divorced and the decree held the wife to be the owner of a one-half undivided interest in the homestead based upon a resulting trust. 183 So.2d at 923. The husband appealed and this Court reversed.

The appellant purchased their homestead on credit. The deed was made to him, but it was necessary for his wife to sign the purchase money mortgage and the notes. There is no record that Mrs. Cox put any money into the purchase of the ‘ homestead at the time of the purchase.

183 So.2d at 923.

In Matter of Estate of Evans, 359 So.2d 1381 (Miss.1978) is also on point. Evans and Spearman were ceremonially married and lived as husband and wife for 19 years. Upon Evans’ death Spearman claimed ownership of property disposed of by Evans’ will. The lower court found Spearman to be the owner of an undivided one-half interest in the house and lot based upon the fact that in signing the loan instruments, Spear-man had obligated himself for the payments. 359 So.2d at 1383. This Court reversed, stating:

The chancellor seems to have based his conclusion that a resulting trust had arisen almost solely upon the fact that Spearman, in signing the trust deeds and notes, had become obligated for their payment. The circumstances are entirely consistent with the fact that the lender required the signature of “her husband” as the property was, ostensibly, a homestead. As stated, there is no evidence of any payment by Spearman upon the purchase money debt, notwithstanding some testimony that he worked and helped the family. On the contrary, there is evidence of payments by Elizabeth Evans Spearman. The proof tending to support the finding of a resulting trust does not meet the standard required under the circumstances.

The chancellor’s ruling in the case sub judice is in conflict with this Court’s decisions in Cox and Evans. The signature of a spouse on a loan agreement without more does not give rise to a resulting trust in the property purchased in favor of the spouse. As this Court’s decisions recognize, any rule to the contrary would ignore customary lending practice. This court concludes that the proof here, even with Mrs. Mary Medders’ testimony, fails to establish a resulting trust.

IV.

The third assignment of error is the trial court’s ruling that Mary was entitled to an equitable one-half interest in the 80 acre homeplace on the theory of an equitable estoppel arising out of the 1946 divorce decree.

In light of our holding with reference to the receipt of the testimony of Mary Davis Medders, we are of the opinion that the proof on this issue should be re-evaluated in light of the exclusion of the incompetent evidence.

V.

Appellant’s fourth assignment of error, that the trial court erred in refusing to hold that Mary’s claim to an interest in the homeplace was barred due to laches, is without merit. Appellant reasons that Mary’s interest arose in 1939 or 1946. However, her claim, if any, did not arise until that interest was violated by Yewing’s conveyance of the property to his brother in January of 1978. No error is noted here.

VI.

The Estate of Mary Davis Medders cross appeals on the chancellor’s ruling that Mary Medders was estopped to claim unpaid alimony.

Statutory authority for bringing an action to collect past due alimony payments is found in Miss.Code Ann. § 15-1-43 (1972) which reads as follows:

All actions founded on any judgment or decree rendered by any court of record in this state, shall be brought within seven years next after the rendition of such judgment or decree, and not after, and an execution shall not issue on any judgment or decree after seven years from the date of the judgment or decree.

This statutory authority was recognized in the case of Rubisoff v. Rubisoff, 242 Miss. 225, 133 So.2d 534 (1961), where it was stated that “[i]t is a well-settled rule of law in this State that installments of alimony become fixed and vested when due and unpaid.” 242 Miss. 235, 133 So.2d at 537.

In the case of Schaffer v. Schaffer, 209 Miss. 220, 46 So.2d 443 (1950), this Court held that a claim for past-due alimony was probatable against the estate of the deceased husband, but limited to back alimony for seven years maximum.

The foregoing cases of Rubisoff and Schaffer both dealt with fixed amounts of alimony which had become due and payable, yet remained unpaid. In Rubisoff the claim was against the husband while he lived, but in Schaffer the claim was against the estate of the deceased husband and was probated.

The trial court, in its written opinion, stated in denying the claim for alimony that:

She had continued for a long period of time to accept the support provided by him, including the providing of a house and the payment of utilities, hospital insurance, burial insurance, and a limited amount of cash. There is no evidence that she made complaint during his lifetime. I consider that after his death she was estopped to raise the question of adequacy of his support_ Her recourse was to return to the court for modification of the divorce decree if she considered support inadequate.

No probated claim was filed within the statutory period. Miss.Code Ann. § 91-7-145 (Supp.1982).

The amount required under the divorce decree was unliquidated. The record reveals some support was furnished; the question of adequacy of support should have been litigated during the lifetime of Y.W. Medders. We agree that with the trial court’s finding that Mary Davis Med-ders is estopped from raising the question of adequacy of support. The cases cited by appellee (cross-appellant), Rainwater v. Rainwater, 236 Miss. 412, 110 So.2d 608 (1959) and Gibson v. Clark, 216 Miss. 430, 62 So.2d 485 (1953), do not stand for the proposition that a surviving spouse can successfully raise this question against the estate of the deceased spouse. To the contrary, the cases cited dealt with fixed amounts of alimony which became due and payable and thus vested, and yet, remained unpaid. There was no question about adequacy or inadequacy which is the issue here and distinguishes this case from cases relied upon by appellee.

We affirm the chancellor’s holding on this issue.

Therefore, we reverse the chancellor’s holding on the admission of incompetent evidence and holding that proof established a resulting trust, and remand for a retrial not inconsistent with this opinion. If the Estate of Mary Davis Medders can establish equitable estoppel based upon the 1946 divorce decree by competent evidence, such avenue is open to them on remand. We affirm the chancellor’s holding on the cross-appeal.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

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


author: DAN M. LEE, Justice,

text:
    In the Matter of the Last Will and Testament of Mrs. G.L. (Mai) CHAMBERS, Deceased. Mrs. Glenn ABERNATHY, et al. v. O.R. SMITH, Jr. and George P. Chambers, Joint Executors.
    No. 54969.
    Supreme Court of Mississippi.
    Sept. 5, 1984.
    Rehearing Denied Nov. 14, 1984.

      Charles R. Wilbanks, Corinth, for appellants.
    W.C. Sweat, Jr., Corinth, for appellees.
    Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Alcorn County wherein the chancellor approved the final accounting of the Estate of Mrs. G.L. (Mai) Chambers. The appellants are devisees under Mrs. Chambers’ will who object to the acceptance of the final accounting of her estate. The appellees are co-executors of the estate. The chancellor overruled the objections to the final accounting and the objectors bring this appeal.

On June 12, 1968, Mrs. G.L. (Mai) Chambers died. Mrs. Chambers had executed a joint will with her husband who had predeceased her. Subsequent to his death she executed two codicils, one of which is irrelevant for purposes of this appeal, the other named George P. Chambers and Mrs. Beatrice C. Owen as joint executors. This codicil also named O.R. Smith, Jr. as an alternate executor. The will and codicils were filed for probate on July 5, 1968. The final account of the executors was filed on January 6, 1982, some thirteen and one-half years after Mrs. Chambers’ death. To quote the chancellor “The administration has been lengthy and complex with numerous beneficiaries involved throughout.”

We address three points on this appeal: (1) The failure of the co-executors to make annual accountings. (2) The actions of one of the co-executors in asserting a legal position inconsistent with the interest of the estate. (3) The award of attorneys fees and executors fees in light of the above enumerated irregularities.

The co-executors readily admit that they did not make annual accountings. Section 91-7-277 Miss.Code Ann. (1972) reads:

Every executor or administrator, at least once in each year or oftener if required by the court, shall present under oath an account of his administration, showing the disbursements, every item of which and the amount thereof to be distinctly stated and supported by legal voucher, and it shall also show the receipts of money and from what sources. The failure to account annually shall be a breach of the administration bond, for which it may be put in suit, or the executor or administrator may be removed; but the court may, on application and on cause shown, extend the time for accounting. In the event that the account shall be presented by a bank or trust company which is subject to supervision of the department of bank supervision of the State of Mississippi or of the comptroller of the currency of the United States, and such account or the petition for the approval of same shall contain a statement under oath by an officer of said bank or trust company showing that the vouchers covering the disbursements in the account presented are on file with said bank or trust company, such bank or trust company shall not be required to file vouchers. Provided, however, that said bank or trust company shall produce said vouchers for inspection of any interested party or his or her attorney at any time during legal banking hours at the office of said bank or trust company and, provided further, that the court on its own motion or on the motion of any interested party may require that said vouchers be produced and inspected at the time of hearing of any objections that may be filed to any annual accounts of any executors or administrators. The court shall examine all such accounts and the vouchers required to be filed or produced for inspection, and if satisfied that the account is just and true, it shall decree the same approved and allowed as a correct annual settlement. If the decree allowing and approving the account of any executor or administrator shall affirmatively recite that the vouchers to support the disbursements shown in the account were exhibited to and approved by the court, it shall not be necessary to file the vouchers in the cause, but they shall be preserved by the executor or administrator until after the final accounting has been approved.

The co-executors argue that because the chancellor found that their failure to make annual accountings resulted in no loss to the estate that this matter is of no consequence. We disagree. Under our interpretation of § 91-7-277 the requirement that annual accountings be made is mandatory, not simply advisory. Ridgeway v. Jones, 125 Miss. 22, 87 So. 461 (1921). The requirement of an annual accounting is designed to prevent the plundering of estates and safeguard the intention of the deceased and the statutes of descent and distribution. Heirs and devi-sees are entitled to this protection so that their interests are not silently eroded by a river of unnecessary or improper expenditures.

It is not significant that in the instant case the chancellor found that the making of annual accounts would not have been of any benefit to the estate. The failure to make the annual accountings as required by § 91-7-277 is a breach of the executor’s mandatory duties.

Within a year prior to her death Mrs. Chambers, the testatrix, deeded certain of her property to George P. Chambers, one of the co-executors. A suit was filed by eleven of the devisees of the estate to bring that property back into the estate. In defending this suit and attempting to prevent the subject property from being returned to the corpus of the estate, George Chambers obviously had a conflict of interest with the estate. As we have held in Ratliff v. Ratliff, 395 So.2d 956 (Miss.1981) an executor may not take inconsistent positions which would be detrimental to the heirs on the one hand and beneficial to himself on the other. When an executor finds his own interest in conflict with those of the estate, the sanctity of the fiduciary relationship is invaded and he should immediately resign as executor.

The executors in this case were awarded $5,000 each as executors fees together with an award of $500 to the Estate of Mrs. Owens. In addition, the attorney for the estate was awarded an attorney’s fee of $17,000. These sums are shocking to the conscience of this Court in light of the aforementioned irregularities and the inexcusable failure of the executors and estate’s attorney to timely file federal and state tax returns resulting in the assessment of a penalty and interest costing the estate several thousand dollars. We therefore reverse the order of the chancellor approving the final accounting of the Estate of Mrs. G.L. Mai Chambers and remand this cause to the Chancery Court of Alcorn County for determination of an appropriate sum of attorneys and executors fees.

REVERSED AND REMANDED.

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

BOWLING, J., not participating.

      . O.R. Smith, Jr. was appointed substituted executor on September 2, 1970, following the death of Mrs. Owen on July 28, 1970.


author: BOWLING, Justice,

text:
    Ethel Mae THOMAS v. DEVINEY CONSTRUCTION COMPANY and The Insurance Company of North America.
    No. 54403.
    Supreme Court of Mississippi.
    Sept. 12, 1984.
    Rehearing Denied Nov. 14, 1984.
    W. 0. Luckett, Dan T. Bing, Luckett, Luckett, Luckett & Thompson, Clarksdale, for appellant.
    David H. Nutt, Rhoden & Nutt, Jackson, for appellee.
    Before BOWLING, HAWKINS and SULLIVAN, JJ.
   BOWLING, Justice,

for the Court:

This case comes to us from the Circuit Court of Coahoma County. Appellant Ethel Mae Thomas was plaintiff below. Upon the conclusion of her evidence, the trial court, on motion of defendants, directed a verdict for the defendants. The question before us is whether or not the trial court did this correctly. We hold that its action was error and reverse and remand the cause.

On September 6, 1979, appellant received a judgment in the amount of $10,000 against one Chester B. Thomas. The judgment grew out of a motor vehicle collision between a vehicle operated by appellant Thomas and a vehicle owned by appellee Deviney Construction Company and operated by Chester B. Thomas.

The present cause of action was filed by appellant Ethel Mae Thomas against Devi-ney Construction Company, contending that it owed the judgment against Chester B. Thomas under the financial responsibility laws of the State of Mississippi, particularly, what is hereinafter discussed and known as the “omnibus clause.”

In the first declaration filed, appellant alleged that appellee Deviney was “self-insured” within the meaning of the Mississippi statutes. Deviney answered the first declaration and affirmatively admitted that it was “self insured at the time of the accident.”

Further, the defendant, in abiding by the trial court’s order, filed a pre-trial statement on July 23, 1981, stipulating that De-viney “was self-insured at the time of the accident.”

On January 20, 1982, Deviney filed an amended answer stating that at the time of the accident it did have a policy of insurance, and “defendant denies that it was totally self-insured at the time of the accident, but alleges to the contrary that it was insured under a policy of insurance which provided excess coverage above an amount in excess demanded by this action, and accordingly as a practical matter, is self-insured for the purposes of this action.”

Thereafter, the plaintiff filed an amended declaration joining as a defendant, in addition to Deviney Construction Company, the Insurance Company of North America (hereinafter INA), alleging that Deviney’s truck was covered by this company’s policy at the time of the collision and that appellant was entitled to recover under the omnibus clause of the policy.

On February 25,1982, Deviney Construction Company filed its amended answer admitting that it was an insured under a policy of automobile liability insurance issued by INA and that the policy covered the vehicle involved in the collision “under certain terms and conditions contained in said policy.”

On February 25, 1982, INA filed its answer to the amended declaration admitting an automobile liability insurance policy insuring Deviney was in existence but denied appellant’s allegations as to the policy’s coverage.

The trial of the case started on Monday, July 19, 1982, at 8:30 a.m., with all parties present and announcing ready for trial. Included in the record were certain requests for admissions of fact filed by appellant [plaintiff below] on May 17, 1982. This instrument requested that Deviney admit or deny that the company had ever filed any application to be self insured or had ever been issued any certificate of self insurance under the provisions of Mississippi Code Annotated, Section 63-15-1, et seq. (1983 Supp.) [specifically § 63-15-53], providing for application of any owner in whose name more than twenty-five motor vehicles are licensed.

On June 16, 1982, Deviney filed its answers to the amended request and admitted that it had never filed an application to be a self insurer and that it had never been issued a certificate of self insurance under the applicable statutes.

The reason the above information is important is that it later developed that the insurance policy issued by INA provided for a deductible of $100,000. In other words, it provided that Deviney was responsible for the first $100,000 damage its vehicles did to users of Mississippi highways. It developed in the cause in oral argument that Deviney is a rather large construction company owned by a non-resident conglomerate. Its principal activities are subcontracting work for utilities.

Not the least question in the cause is what is the effect of Deviney ignoring the statute under which it did not become a self insurer, as required, up to the sum of $100,000. We are forced to refresh our recollection that in its first answer Deviney affirmatively stated that it was self insured. In its stipulation of facts filed pursuant to the court’s usual order, it was affirmatively stated that “defendant, Devi-ney Construction Company, was self insured at the time of the accident complained of, .... ” In its amended answer Deviney stated “accordingly as a practical matter, it is self insured for the purposes of this action.” In its answer to the amended declaration Deviney admitted the insurance policy existed but did not divulge its terms. It however denied the allegation of the declaration that the insurance policy provided for excess coverage above a certain amount and denied that “Deviney may be self insured to the extent of said certain amount.”

AT TRIAL

The trial thereof started on the morning of July 19, 1982, with the burden on the part of appellant to prove that its judgment against Deviney’s driver Thomas was collectible under either INA’s omnibus clauses under its insurance policy or from Deviney as a matter of law under the type of insurance it was required to have which also would have included an omnibus clause.

Appellant introduced only one witness. He happened to be Chester B. Thomas, Deviney’s driver at the time appellant was damaged. The purpose of this interrogation, of course, was to prove that at the time of the collision Thomas was driving the truck “with the permission” of Devi-ney.

We carefully have studied all of the testimony given by Mr. Thomas. It is charitable to say that he agreed with anyone who was asking him questions. It developed that Deviney's nearest sub-office was in Greenwood, Mississippi, under the direction of a man named Robert Gilbert. The work at Clarksdale was being performed with the use of one truck with which we are involved. This truck and the crew working were under the supervision and control of one Roosevelt Kilpatrick, the foreman. On direct examination by appellant’s attorney, Thomas testified that he drove the truck in question “pretty often.” He stated that the truck had normally been parked at night behind a “station” but that because of vandalism, Kilpatrick had been instructed to keep it at his home overnight on Paul Edwards Street in Clarksdale. According to Thomas, Kilpatrick kept the keys to the truck and could use it anytime he wanted.

According to Thomas, on December 29, 1978, the day the collision occurred, they had come from work [installing poles] and Kilpatrick had driven the truck to a parking area near a cafe that he ran as a sideline. The truck was locked and Kilpa-trick assumed whatever duties he performed in the cafe.

Thomas needed to look at a house he wanted to move into, so he asked Kilpatrick to let him make the trip in the truck. Kil-patrick agreed and gave Thomas the truck keys. The collision with appellant occurred during the course of that trip.

Thomas gave the following testimony on direct examination:

Q. At the time on December 29, 1978, when you got the truck, were you aware of any rules prohibiting the use of this truck for personal use without permission?
A. Yes.
Q. If you got permission?
A. Yes, he definitely said “don’t use the truck unless you have permission to use it.”
Q. All right. Were you ever given any kind of ... anything in writing that prohibited you from using the truck for personal errands?
A. No.

Thomas stated that he had permission from Kilpatrick to drive the truck on the occasion in question.

On cross examination Thomas stated that he knew that Mr. Robert Gilbert [the superintendent in Greenwood] had made it clear that the truck was not to be used for personal use. He knew that it was not to be used for such. He agreed that he received word from Mr. Gilbert at least once a month that the truck was not to be used for personal use.

Thomas then was subjected to redirect examination. The paramount question and answer was:

Q. And Roosevelt Kilpatrick had control of the truck. He had the keys to the truck, did he not? (emphasis ours)
A. Yes, he did.
Q. And he kept it in his possession all the time?
A. Yes, that’s right.

After the testimony of Thomas, appellant introduced the INA policy and rested her case. The attorneys for both appellees [defendants below] dictated motions for a directed verdict at that point. The court granted both motions. The question therefore is whether or not at that point appellant had introduced sufficient evidence to “get by” a directed verdict.

This Court has held in too many cases to list that in determining whether or not a directed verdict is given, the trial judge is forced to accept as true all evidence favorable to the plaintiff, together with all reasonable inferences to be gained therefrom. See Paymaster Oil Co. v. Mitchell, 319 So.2d 652 (Miss.1975); and Buford v. Jitney Jungle Stores of America, Inc., 388 So.2d 146 (Miss.1980), Vise v. Vise, 363 So.2d 548 (Miss.1978), and National Mortgage Company v. Williams, 357 So.2d 934 (Miss.1978).

We have to bear in mind that what we are dealing with here is not the liability involving negligence of Thomas, the truck driver. We are to determine whether or not appellant made a case for the jury to determine if appellant’s judgement came within the terms of the omnibus clause of either the INA policy or the situation Devi-ney found itself in under that policy or in violation of law, by either having only a policy with $100,000 deductible or not being self-insured. We have already seen that Deviney ignored the laws of the State of Mississippi by not becoming a self-insured for the sum of $100,000 before its insurance coverage was supposed to be reached. There also is the question as to whether or not INA’s policy protected the appellant under its omnibus clause, regardless of its deductible provision between it and Devi-ney. We are constrained to say at first blush, Deviney was “playing” with the financial responsibility laws of this state and consequently subjecting highway users to exposure the statutes were designed to prevent.

We said in Travelers Indemnity Co. v. Watkins, 209 So.2d 630 (Miss.1968), that “there is an abundance of authority that the public policy is to protect those injured by careless drivers.” We further said:

The insurance business is affected with a public interest and is regarded generally as quasi-public in character. The authorities abundantly support this statement. There are numerous statutes enacted by the legislature regulating insurance and in many instances specifying precise clauses that are written into insurance policies by law. Policies insuring automobile owners against public liability is the subject of the Mississippi Motor Vehicle Safety Responsibility Act, Mississippi Code 1942 Annotated section 8285-01 et seq. (1956) [MCA § 63-15-3 (1972), and the Uninsured Motor Vehicle Act, Mississippi Code 1942 Annotated section 8285-51 et seq. (Supp.1966)] [MCA § 83-11-101 (1972)]. The latter statute became effective after the accident in this case. The Safety Responsibility Act specifically provides in section 8285-21 [MCA § 63-15-43 (1972)] that an owner’s policy of liability insurance within the meaning of that act “shall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured. 4 * * ” The Motor Vehicle Safety Responsibility Act in its various sections is a clear manifestation of the public policy of this state that an automobile liability insurance policy is intended to protect those injured by careless drivers as well as the named insured and permittees.

In Travelers we further said:

The purpose of an omnibus clause is to protect the named insured, the persons within the omnibus clause, and the public generally and its members injured by the negligent operation of the insured automobile on a public highway.

The pronouncements in Travelers, were reiterated in Vaughn v. State Farm Mutual Automobile Ins. Co., 359 So.2d 339 (Miss. 1978). The majority held there however that at the time of the collision the vehicle was being operated by a “third permittee” and under the facts of that particular case, the omnibus coverage did not apply. There the parents of a fifteen year old girl were divorced. The ex-husband and father bought an automobile and turned it over to his ex-wife. She permitted the young daughter to make a trip in the vehicle. Later on the young daughter permitted a friend to drive the vehicle. During the course of that drive, the collision occurred.

The paramount question is do we have a situation here such as in Vaughn? It is obvious we do not. It is undisputed that Kilpatrick was the foreman of the corporate defendant. According to Thomas, Kilpatrick had control of that truck. Thomas’ testimony, although weakened by cross examination, was that the alter ego of the corporation in regard to this one truck’s activities in Clarksdale was Kilpa-trick, the company foreman who kept the keys to the truck and kept it in his sole possession at all times, day and night. Un-disputedly, he and he alone gave Thomas “permission” to use the truck, gave him the keys to be used to unlock the truck and start the ignition. Undisputedly, Thomas had “permission” from foreman Kilpatrick to use the truck.

We therefore find that at the time the directed verdicts were requested, there was a jury question presented as to whether or not at the time of the collision, Thomas was a first permittee in the use of the truck and was covered under either the INA omnibus clause of its policy or was covered under the requirements for such by appellant De-viney Construction Company.

As hereinbefore stated, Deviney after affirmatively stating it was a self-insurer, admitted that it had failed even to apply for a certificate of self insurance. The legal ball as to whether INA or Deviney should pay appellant’s judgment is now in INA and Deviney’s court. As usual, INA’s policy does not coincide with the Mississippi statutory requirements describing omnibus clauses. We say “as usual” for the reason that as this writer stated in Vaughn, an examination of a number of policies reveals that no company’s policy examined was worded as required by the Mississippi statute. Be that as it may, the insurance policy covering the truck in question has written into it the Mississippi statute requiring that it cover any person driving the vehicle with the express or implied permission of the insured. If, due to any contractual relationship between INA and Deviney, the former refuses to pay, that is a matter between INA and Deviney.

We further hold that regardless of the relationship between INA and Deviney, the latter has the legal obligation under this state’s Safety Responsibility Act § 63-15-1, et seq. to abide by those laws which makes it responsible for appellant’s judgment for damages caused by the driver permitted by the foreman Kilpatrick to be the driver.

We hold that the lower court was in error in finding that appellant did not present a question for the jury at the point when appellees’ motions for directed verdicts were granted. It is therefore necessary to reverse and remand the cause for the proper issues to be presented to a jury, if that should develop to be the situation on retrial.

REVERSED AND REMANDED.

WALKER, P.J., and HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., and ROY NOBLE LEE, P.J., not participating.


author: WALKER, Presiding Justice,

text:
    Sylvia A.B. DETHLEFS and Opal Brandenburg v. BEAU MAISON DEVELOPMENT CORPORATION.
    No. 55080.
    Supreme Court of Mississippi.
    Oct. 3, 1984.

      Sylvia A.B. Dethlefs, Opal Brandenburg, pro se.
    No briefs for appellee.
    Before WALKER, P.J., and ROBERTSON and SULLIVAN, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Harrison County wherein the motion of appellee, Beau Máison Development Corporation, for summary judgment was granted.

In December of 1982, the appellants, Sylvia Dethlefs and Opal Brandenburg, filed their declaration seeking $200,000.00 actual damages and $600,000.00 punitive damages resulting from damage to their drainage easement and property located in the City of Long Beach, Mississippi. Appellee’s property lies directly east of and adjoins the appellants’ property. The petition alleged the appellee, after notice from appellants of the existence of an underground drainage easement consisting of underground pipes which served to drain appellants’ pond fed by a natural artesian well, proceeded to begin construction of a condominium complex which destroyed the effectiveness of the easement causing appellants’ property to flood rendering it unusable and worthless.

By way of answer, the appellee denied the existence of the drainage easement and filed a motion for summary judgment pursuant to Rule 56 of the Mississippi Rules of Civil Procedure.

Affidavits filed in support of said motion alleged:

(1) No easement of any type or nature exists in the chain of title to appellee’s property;

(2) No drainage ditch or pipe could be found on appellee’s property after inspection; however, on the property to the west of appellants’ land, there exists a concrete drain approximately 18 to 24 inches in diameter coming from the direction of their property to the west;

(3) The prior owners of appellee’s land from December 1972 to October 1982 have no knowledge of any easement or underground pipes, and the natural drainage of appellants’ property flows to the west.

Affidavits in support of appellants’ motion to deny appellee’s request for summary judgment alleged:

(1) The appellee was contacted by one of the appellants in an attempt to locate and verify the easement but she was unsuccessful in arranging a meeting.

(2) The pipe has been traced to a city drainage ditch on the west side of White Harbor Road;

(3) A concrete drain referred to by appel-lee does not connect appellants’ property but is several hundred feet to the west of appellants’ property;

(4) Robert Wells, former employee for 19 years of a nursery which had existed on appellants’ property, had personal knowledge of the existence of the underground pipe system and also of three large catch-basin covers which were on appellee’s property;

(5) The prior owner of appellants’ property asserted the underground pipes did exist before she purchased the property in 1946;

(6) The prior owner as well as Mr. Wells and an owner of nearby property asserted appellants’ property did not flood prior to the construction done by Beau Maison;

(7) Russell Gould, an owner of property near the land in question, had personal knowledge of the drainage pipes existing prior to 1947; and

(8) Appellants produced various deeds transferring the property later acquired by Beau Maison in which said land was conveyed subject to any and all easements as well as the most recent deed which states: “This conveyance subject to all other restrictions, easements and reservations of record.”

Following a hearing on appellants’ motion February 23, 1983, Judge Vlahos granted the motion for summary judgment and dismissed with prejudice as to the appellants. The record does not show any opinion which was rendered but merely Judge Vlahos’ order of dismissal.

The order of dismissal was granted pursuant to Rule 56 of the Mississippi Rules of Civil Procedure which states in part:

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 admission on file, together with the affidavits, if any, show that there is no genuine 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.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

With the passage of the Mississippi Rules of Civil Procedure, effective January 1, 1982, Rule 56 was entered to expedite the determination of actions on their merits and to eliminate unmeritorious claims or defenses without the necessity of a full trial. However, a motion for summary judgment lies only when there is no genuine issue of material fact and is not a substitute for the trial of disputed fact issues. It is not to be used as a means of depriving a litigant of a full trial on genuine fact issues.

From the record and facts before us, it is evident the appellee failed to demonstrate the absence of a material issue of fact, i.e., the existence of a drainage easement and any resulting damage caused by them to said easement. The facts were not only conflicting but inconclusive as to the issues presented in appellants’ declaration. In essence the trial court tried the case itself without benefit of a jury.

In ruling upon a motion for summary judgment, the lower court judge is to determine whether there are issues which need to be tried based upon the pleadings and any affidavits or other forms of evidence presented. It is not a function of the lower court once a triable issue exists to resolve that issue as was done in this case.

Furthermore, notification of appeal was forwarded to appellee’s attorney of record on April 11,1983. Summons to appear in this Court was served upon said attorney in December 1983. No brief has been received by this Court from the appellee. Failure of an appellee to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of appealing party, that there was no error. State v. Maples, 402 So.2d 350 (Miss.1981). Where the appellant’s brief makes out an apparent ease of error as in this matter, we do not regard it as our obligation to look to the record to find a way to avoid the force of the appellants’ argument. Westinghouse Credit Corporation v. Deposit Guaranty National Bank, 304 So.2d 636 (Miss.1974).

Finding that there was a genuine issue of material fact, we hold that the lower court was in error in granting appellee’s motion for summary judgment and that this cause should be reversed and remanded for 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.

      . See Appendix "A”.


text:
    Jessie Eugene ROBERTS v. STATE of Mississippi.
    No. 54442.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    Rehearing Denied Nov. 14, 1984.
    George Martin Via, Booneville, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Prentiss County wherein the jury found the appellant, Jessie Eugene Roberts, guilty of the murder of his wife, Ruby Roberts. Roberts was sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections. From his conviction and sentence he brings this appeal. We affirm.

At approximately 6:45 p.m. on December 18, 1981, Jessie Eugene Roberts arrived at the home of a neighbor, Roy Maxie. Maxie testified that Roberts asked him for help. He first asked to borrow $20 for some gasoline, then he said “My wife’s laying in the floor with her head blowed off.” According to Maxie, Roberts told him that he was in the bathroom when his wife put a shotgun under her chin and killed herself. Maxie directed his son to siphon some gasoline into Roberts’ ear. Maxie then phoned the Prentiss County Sheriff’s Office and handed the phone to Roberts. .Roberts reported that his wife had killed herself. Roberts then returned home.

When Roberts arrived back at his house Tom and Eloise Hendrix were parked there. The Hendrixes had made arrangements to meet the Roberts and play cards that evening. Because the Roberts’ car was gone when they arrived the Hendrixes had waited in their car assuming that the Robertses would return shortly. Mrs. Hendrix testified that when Eugene Roberts returned he told her that he had been to the drugstore to get his wife’s medicine. Roberts then walked up to the house, opened the door and called for the Hendrixes. He stated: “I didn’t mean to do it baby, my baby.”

Tom Hendrix testified that as he went into the Roberts house with Eugene Roberts, Roberts stated, “Oh, Lord, he said he’d do it and he done it.”

Carl Sartain, a Prentiss County Deputy Sheriff, testified that he and Deputy Bob Glover responded to Roberts call. When they arrived, they found Eugene Roberts lying on a couch in the living room. Mrs. Roberts’ body was lying on the floor. Most of her head had been blown away by a shotgun blast. Her hands were found in her jacket pockets. There was blood and brains on three walls of the room. An empty shotgun shell was found in front a heater located in the middle of the room. Deputy Sartain testified that the only other sign of a disturbance in the house was a crumpled egg carton and a broken egg found on the floor of the kitchen. A shotgun was found in a bedroom just off the living room.

Deputies Sartain and Glover took Roberts into custody. They advised him of his rights and he signed a waiver of those rights. Roberts then gave two consistent statements. Although no written statement was introduced into evidence, Officer Sartain testified as to the substance of those statements. He stated that Roberts told him that earlier in the day he and Mrs. Roberts had gone to the drugstore. They left the drugstore about 5:00 p.m. and went to Barbara Joiner's house. They visited with Mrs. Joiner for an indeterminate period of time and then went home. After they arrived home they remembered that they needed something from the grocery store. Roberts then went inside the house and built a fire in the stove in the living room and then left to go to the grocery store. Mrs. Roberts remained at home. When Roberts returned home he found Mrs. Roberts lying on the floor dead. He put the groceries up and then picked up the gun and put it in the bedroom. He then went to Roy Maxie’s home and called the Sheriff’s office.

Joann Lollar testified that she and her husband owned a small general store. She was running the store on December 18, 1981. At approximately 5:15 to 5:30 she saw Eugene and Ruby Roberts in her store. They left between 5:30 and 6:00 o’clock. Mrs. Lollar testified that she did not see Eugene Roberts again that day before she closed the store at approximately 6:00 p.m.

Mary Ings, Mrs. Roberts’ sister, testified that Mrs. Roberts once told her that now that she had married into the Roberts family one of the Roberts men would kill her. Mrs. Ings also testified that Eugene Roberts’ brother once threatened to have Ruby Roberts sent to jail for bigamy because she had never divorced another man before marrying Eugene Roberts. The brother threatened to blow Ruby Roberts’ head off someday. Mrs. Ings also testified that Eugene Roberts had threatened to blow Ruby Roberts’ head off on a prior occasion.

On all of the above detailed testimony, the jury returned a verdict of guilty of murder.

THE LAW

Roberts’ first assignment of error is that the trial court erred in not instructing the jury on the lesser included offense of manslaughter. The defense requested Instruction D-13 which contained the possibility of the jury returning a verdict of guilty of manslaughter. That instruction read:

If you find that the State has failed to prove any one of the essential elements of the crime of murder beyond a reasonable doubt, and to a moral certainty, and to the exclusion of every other reasonable hypothesis consistent with his innocence, you must find the Defendant not guilty of murder and you will proceed with your deliberations to decide whether the state has proved beyond a reasonable doubt, to a moral certainty and to the exclusion of every other reasonable hypothesis consistent with the Defendant’s innocence, all the essential elements of the crime of manslaughter.
The crime of murder is distinguished from the crime of manslaughter by the absence or failure to prove willfulness or deliberate design.

Manslaughter is defined by § 97-3-35 Miss. Code Ann. (1972) as:

The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.

As can be seen by comparison of the requested instruction to § 97-3-35, the instruction fails to properly define manslaughter. Therefore the circuit court properly refused to give it. This is not to say the facts of this case did not warrant a manslaughter instruction. Roberts’ statement that “I didn’t mean to do it baby, my baby” is certainly sufficient on which to base an instruction on manslaughter and would have supported a verdict of guilty of manslaughter. If there is any evidence that may warrant a manslaughter instruction certainly one should be given. The fault in the instant case is that it was the duty of the defense counsel to offer a proper manslaughter instruction. Having failed to do so he may not complain of not having been given an instruction which did not properly define manslaughter.

Roberts’ second assignment of error deals with the circumstantial evidence instructions. The court granted three instructions on circumstantial evidence. In addition, the court granted Instruction S-l which did not state the proper burden of proof in a circumstantial evidence case. Roberts argues that the instructions were therefore in hopeless conflict.

It has long been the rule that if instructions correctly state the law when read together as a whole, then there is no error. Hickombottom v. State, 409 So.2d 1337 (Miss.1982); Anderson v. State, 397 So.2d 81 (Miss.1981); Norman v. State, 385 So.2d 1298 (Miss.1980). Also, if an error in one instruction is cured by another when the instructions are considered as a whole the error will not be reversible. Church v. State, 288 So.2d 855 (Miss. 1974), appeal after remand 317 So.2d 386 (Miss. 1975), cert. den. 423 U.S. 1016, 96 S.Ct. 450, 46 L.Ed.2d 388 (1975).

We are of the opinion that when the instructions are considered as a whole the jury was properly instructed as to the re-, quired burden of proof. Therefore, we find no merit to this assignment of error.

Roberts next argues that the trial court erred in failing to grant Instruction D-15. D-15 reads as follows:

The court instructs the jury that you may consider the lack of cogent motive in determining the sufficiency of the evidence to sustain a conviction of murder.

Roberts is correct in asserting that the state failed to prove motive; however, proof of motive is not essential to a conviction for a felonious homicide. Barnett v. State, 232 Miss. 208, 98 So.2d 656 (1957); Swanson v. State, 218 Miss. 103, 65 So.2d 232 (1953). Rather than being a matter of law on which the jury should be instructed, this point is more appropriately a point for closing argument. Therefore, we do not find the trial court in error for refusing this instruction.

Finally, Roberts argues that the admission of certain photographs of his wife which depict her condition following the shooting, constitute error. He argues that these photographs had no evidentiary or probative value and were introduced solely to inflame the minds of the jury and prejudice them.

We' have reviewed these photographs and their relation to the proof offered by the state. We are of the opinion that these photographs, while admittedly gruesome, do have some probative value and were therefore properly admissible. Cessna v. State, 381 So.2d 173 (Miss.1980); Hammock v. State, 379 So.2d 323 (Miss. 1980).

Based on all of the foregoing, we hereby affirm Jessie Eugene Roberts’ conviction of murder and his sentence of life imprisonment.

AFFIRMED.

WALKER and ROY NOBLE LEE, PJJ., and BOWLING, HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


author: PATTERSON, Chief Justice,

text:
    Helen WILLIS v. Mary MARLAR.
    No. 54748.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    Rehearing Denied Nov. 14, 1984.
    Charles R. Wilbanks, Corinth, for appellant.
    Wendell H. Trapp, Jr., Smith, Ross & Trapp, Corinth, for appellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

On November 17, 1981, Helen Willis brought suit against Mary Marlar for injuries Mrs. Willis received in an automobile collision. The Circuit Court of Alcorn County sustained defendant’s motion for a directed verdict at the conclusion of plaintiffs case in chief, and Mrs. Willis appeals.

On December 29, 1980, the automobile of Helen and Billy Joe Willis was struck in the rear by a car driven by Mary Marlar. At the time both Mr. and Mrs. Willis occupied their vehicle which was damaged beyond repair. Although Mrs. Marlar and Mr. Willis were uninjured in the accident, Mrs. Willis complained of pain in her neck and was driven to the local hospital, where she was X-rayed and released.

During the following week Mrs. Willis twice consulted Dr. Frank Davis, who prescribed medication to relieve the distress in her neck and shoulder. She later returned to her employment at a shirt factory in early January, the first working day of 1981, and with the exception of a few days, worked there steadily until May 15, 1981. However, during this interval she experienced pain and reduced effectiveness at work.

On January 8, 1981, State Farm Insurance Company, the insurer for Mary Mar-lar, delivered its draft for $6,500 payable to Billy Willis and Ford Motor Credit Company. Mr. Willis endorsed the check, which was used to pay the debt owed to Ford Motor Credit Company for the car that Mrs. Marlar had damaged. While Mrs. Willis did not endorse the draft, she acknowledged it by executing a receipt for $6,500. Having paid the indebtedness on their wrecked car, the Willises purchased a used Mercury Cougar automobile, financed through Ford Motor Credit, for substantially the same sum as their old vehicle had cost.

On January 26, the Willises signed an instrument entitled “Agreement and Release,” which is of primary concern in this suit.

According to the Willises’ testimony, State Farm claims adjuster Eddie Whaley telephoned Mr. Willis on January 26, 1981, and expressed a desire to meet with Mr. and Mrs. Willis during their lunch break at the guard shack of the factory where Mrs. Willis worked. Mrs. Willis stated she had a thirty-minute lunch break and spent at least ten minutes walking to the guard shack. When she arrived, Mr. Whaley asked her to sign a document expressing her satisfaction with the used Cougar she and Mr. Willis had bought to replace the wrecked car. When she inquired about blank spaces in the agreement, Whaley replied that he had not filled it out but would do so later. He also promised her a copy of the agreement which she never received. Nevertheless, she signed the instrument without reading it.

Mr. Willis arrived at the Guard Shack immediately thereafter, and Mrs. Willis returned to work. Believing the release form to be a statement that State Farm would pay “up to date” all medical bills, Mr. Willis signed it. When asked why he did not read the document, he testified, “Well, it was one of those hurry deals.” He . also testified that, the handwriting and the print entitled “Schedule of Benefits” was not on the document when he signed it and that the words “Agreement and Release” at the top of the paper were concealed under the clip of a clipboard at the time.

Mrs. Willis continued to experience pain in her neck, shoulder and arm, and in May 1981, consulted Dr. William Brown, a neurosurgeon. It was his opinion that Mrs. Willis had a slipped disc and required surgery, which Mrs. Willis feared. She consulted another neurosurgeon, a Dr. Boyd of Memphis, who at one point admitted her into the hospital for a week. Mrs. Willis testified her injury prevented her working from May 15 to October 26, 1981. She then worked a little over a week, after which she did not return to her employment until January 2, 1982.

According to her testimony, Mrs. Willis was unable to return State Farm’s money when she discovered she had signed the release, stating she “didn’t have any of their money....” State Farm paid the Willises a total of $6,924.00. The first $6,500 went to Ford Motor Credit in payment of the demolished vehicle without reaching Mrs. Willis. It appears from the record that by the time the Willises realized the significance of the document signed on January 26, 1981, they were in extreme financial distress and were unable to repay the consideration for the release.

In her answer to the suit Mrs. Marlar gave notice to Mrs. Willis, that she intended to assert the release as an affirmative defense. In her response to the affirmative defense, Mrs. Willis alleged the release was void because (1) there was an absence of good faith and full understanding of legal rights; (2) the nature and effect of the instrument were misrepresented to Mrs. Willis; (3) there was a failure of consideration, or in the alternative, a grossly inadequate consideration for the execution of the instrument; and (4) Mrs. Willis was induced not to read the instrument.

The trial court sustained Mrs. Marlar’s motion for a separate hearing on the affirmative defense that Mrs. Willis’ cause of action was barred by the release from all claims arising out of the automobile collision. After a jury was impaneled to try the factual issues in the hearing, Mrs. Willis put on her case in chief. The court then granted defendant’s motion for directed verdict.

Mrs. Willis now argues this was error in view of Mississippi Code Annotated, § 11— 7-59 (1972), which provides in part:

... And if the defendant fail to sustain the matter of the plea so heard, upon which matter, after motion made, he shall have the burden both as to the law and the facts, he shall nevertheless then have the right to go on to trial upon his answer as a whole. (Emphasis added.)

We held in Ricks Lumber Company, Inc. v. Natchez Steel & Pipe, Inc., 318 So.2d 883, 886 (Miss.1975), “When defendant requested a separate hearing on the pleas set up in its answer, it had the burden both as to law and the facts. See Section 11-7-59, Mississippi Code 1972 Annotated.”

It should be noted that although Mrs. Marlar, the defendant, had the burden of proof to establish the issue raised by her affirmative plea, she offered no testimony in support of it. It appears that the plaintiff assumed such burden and offered the testimony above related concerning the execution of the “release” and the receipt. Indeed the plaintiff introduced the deposition of Mr. Eddie Whaley, the insurance adjuster, who procured the “release.” From it and the testimony of the plaintiff, there came into being an issue of fact for the jury’s determination, in our opinion.

In accord with the rule stated in Gates v. Murphree, 286 So.2d 291, 292 (Miss. 1973), that on appeal from directed verdict we will accept as true the evidence of appellant together with all reasonable inferences, we reverse and remand so that the trial might proceed according to Mississippi Code Annotated, § 11-7-59 (1972).

REVERSED AND REMANDED FOR A NEW TRIAL.

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

APPENDIX A

AGREEMENT AND RELEASE

      . Appendix "A".

      This suit was filed in November of 1981. The procedures herein discussed have since been supplanted by Rule 81(h), Miss.R.Civ.P., Appendix B (Practice and Procedure in Circuit Courts), effective January 1, 1982.