author: SULLIVAN, Justice, for the Court:

text:
    CITY OF JACKSON, Mississippi v. Martin Dale AINSWORTH.
    No. 55189.
    Supreme Court of Mississippi.
    Dec. 19, 1984.

      David L. Love, Jackson, for appellant.
    James P. Cothren, Cothren & Pittman, Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.
   SULLIVAN, Justice, for the Court:

This appeal arises from a personal injury action brought by Ainsworth for $125,000 in damages sustained when he stepped on a piece of lumber and fractured his ankle in a baseball game on a field owned and maintained by the city of Jackson. The jury awarded Ainsworth $4,582 in medical expenses and lost wages, based on a finding that the city was 40% negligent and Ains-worth was 60% contributorily negligent. Ainsworth filed a motion for a new trial on damages only, or alternatively for an addi-tur, based upon the jury’s failure to award any damages for the elements of permanent impairment and pain and suffering. The trial court ordered a $16,000 additur or a new trial on damages if the additur were not accepted. The city refused to accept the additur and appealed under Mississippi Code Annotated § 11-7-213 (1972), assigning two errors by the trial court:

1. Did the trial court abuse its discretion in ordering a $16,000 additur or, in the alternative, a new trial on the issue of damages.
2. Did the trial court err in allowing the jury to return its verdict in a form substantially different from the court’s instructions?

We conclude that the circuit judge’s action on both points was not error, and affirm.

I.

The circuit court in this case exercised its authority under Mississippi Code Annotated § 11-1-55 (Supp.1984), to overrule a motion for a new trial on the issue of damages on the condition that the defendant accept an additur ordered by the court. The city of Jackson appealed the circuit court’s order granting a new trial on the issue of damages pursuant to Mississippi Code Annotated § 11-7-213 (1972), which provides that when the sole ground for a new trial is the inadequacy of damages awarded, the party aggrieved may elect to appeal from the order granting a new trial.

Where an appeal is taken under § 11-7-213, the scope of review of this Court is limited to determining whether the trial court abused its discretion in granting a motion for a new trial on damages only where the defense refuses to accept an additur. Hynum v. Smith, 447 So.2d 1288 (Miss.1984); Cortez v. Brown, 408 So.2d 464 (Miss.1981); Screws v. Parker, 365 So.2d 633 (Miss.1978); Dorris v. Carr, 330 So.2d 872 (Miss.1976).

The decision to appeal under § 11-7-213 means that an appellant must be willing to accept the verdict in all other respects, including the determination of liability. Cortez v. Brown, 408 So.2d at 471, City of Meridian v. Dickson, 266 So.2d 143, 144 (Miss.1972). An appeal asserting that an additur was erroneously ordered precludes review of the trial court’s rulings on the admissibility of evidence, rulings on instructions to the jury, motions for directed verdict, peremptory instructions and other errors. Cortez v. Brown, 408 So.2d at 471. Otherwise, this Court would not be able to limit the scope of appeal to the question of whether the trial court abused its discretion in granting a new trial on the issue of damages only. City of Meridian v. Dickson, 266 So.2d at 144. In none of the above cited cases did the defendant submit to a new trial on damages in order to preserve his right to appeal on both liability and damages.

The verdict returned by the jury in this case was as follows:

We, the jury, find for the plaintiff and assess his damages at *$,4,582.
Negligence:
Plaintiff 60%
Defendant 40%
Salary at time of injury: $25,500
25,500 12 = monthly salary $2,125 X 3 months’ absence from work 2125
_3 6375 5080 medical expenses 11,455
11,455
x60% negligence 6,873
11,455 6,873 *4,582

In addition to proof of lost wages and medical expenses, Ainsworth offered evidence of pain and suffering and permanent impairment. He testified that when he arrived at the emergency room with his left foot turned around backwards the doctor had two assistants hold him down while the doctor twisted his foot around to normal position, without waiting for the painkilling medication to take effect. Ainsworth suffered additional pain from the splint placed on his leg and from a non-walking cast held in place by two pins driven through the bone below his knee. Ainsworth suffered intense pain from the weight of the cast on the pins, and had to have them removed in separate procedures. Dr. Nix, Ainsworth’s treating physician, stated that Ainsworth had a lot more pain than the average patient. Dr. Nix detected post-traumatic arthritis in Ainsworth’s ankle, which will get worse as time passes.

As a result of the injury, Dr. Nix stated that Ainsworth has 15% permanent impairment of the left leg. Ainsworth also faces future surgery to relieve the post-traumatic arthritis, either by ankle fusion, which makes the ankle completely stiff, or by an ankle replacement operation. Ainsworth testified that hills, inclines, and running are a problem because his ankle will not bend enough to walk up or down naturally and he runs with a limp. He wears support ankle braces on both feet. Dr. Nix stated that Ainsworth’s difficulty with inclines, declines and squatting will increase with the arthritis.

The trial judge relied upon Cash v. Illinois Central Railroad Co., 388 So.2d 871 (Miss.1980), as authority for his formulation of Ainsworth’s damages. We stated in Cash:

After considering all of the elements of damage, as well as his uncontradicted testimony of continued pain and suffering and his limited ability to do physical work around his home and for his family, we are of the opinion “that the damages awarded were contrary to the overwhelming weight of the credible evidence,” [M.C.A. § 11-1-55 (Supp.1979) ], and that there should be an additur so as to increase the total verdict to $50,000. Then, in accordance with the jury’s verdict finding Cash 50% contributorily negligent, the total verdict should be reduced to $25,000.

Id. at 876.

Appellant cites numerous cases where this Court reversed an additur by the trial court, upon the basis that the jury verdict was not so inadequate as to evince bias, prejudice or passion. Biloxi Electric Co. v. Thorn, 264 So.2d 404 (Miss.1972); Toyota Motor Co. v. Sanford, 375 So.2d 1036 (Miss.1979); Mississippi State Highway Commission v. Antioch Baptist Church, 392 So.2d 512 (Miss.1981). In Biloxi Electric Co. v. Thorn, this Court noted:

Generally, as in this case, the only evidence of corruption, passion, prejudice or bias on the part of the jury is an inference, if any, to be drawn from contrasting the amount of the verdict with the amount of damages, (citation omitted).

264 So.2d at 406. Also, in Toyota Motor Co. v. Sanford, this Court stated:

A jury verdict is not lightly to be set aside, and in no case is it permissible for a judge, merely because he feels that more or less should have been awarded, to substitute its judgment for that of the jury in actions in the circuit court, the verdict of the jury is not simply advisory.

375 So.2d at 1038-39. Finally, in Mississippi State Highway Commission v. Antioch Baptist Church, this Court said:

Awards fixed by jury determination are not merely advisory and will not under the general rule be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable and outrageous. (citations omitted)

392 So.2d at 514.

The city of Jackson contends that there is no evidence to indicate that the jury’s verdict was the product of passion, prejudice, partiality, or other improper influences. The award of $4,582, in appellant’s view, is not against the overwhelming weight of the evidence and the jury fairly evaluated appellee’s claim. The notes accompanying the jury verdict, Ainsworth points out, clearly fail to reflect the uncontested credible evidence offered by Ains-worth himself, his wife, and the treating physician, that he suffered considerable pain and suffering during and after the injury, and would have gradually increasing permanent impairment of his left ankle with worsening post-traumatic arthritis. It was also undisputed that Ainsworth’s present 15% permanent impairment prevented normal activities such as running, climbing a ladder and ascending or descending inclines. The calculations accompanying the jury verdict, as Ainsworth accurately notes, contain no amounts for either pain and suffering or permanent impairment.

Unlike Biloxi Electric Co. v. Thorn, cited by appellant, there is more evidence than a mere disparity between the verdict and the amount of damages, upon which to base an order of additur; there is the clear failure of the jury to take into account properly compensable elements of damages supported by uncontradicted credible evidence, as shown in the calculations accompanying the jury verdict. The trial judge in this case would not appear to be merely substituting his estimate of the damages for that of the jury, as condemned in Toyota Motor Co. v. Sanford; his order of additur compensated Ainsworth for elements of damages which were established by the overwhelming weight of the evidence in the case, which the jury inexplicably failed to credit. Finally, the jury’s failure to compensate Ainsworth for the intense pain and continuing discomfort and impairment which he suffered would appear to be so unreasonable as, in the words of State Highway Commission v. Antioch Baptist Church, “to strike mankind at first blush as being beyond all measure, unreasonable, and outrageous,” so that an award of additur would be appropriate.

The trial court did not abuse its discretion in ordering an additur to compensate Ainsworth for the pain and suffering and permanent impairment sustained by this man in the prime of life. The jury having found Ainsworth to be entitled to compensation for medical expenses and lost wages, it would appear that damages should likewise be awarded for the more intangible but no less real pain and impairment that he suffered. Nothing in the record would appear to suggest that these uncompensated injuries were fabricated or false, so that a jury determination that no compensation was due Ainsworth for the elements of pain and permanent impairment would appear to be against the overwhelming weight of the credible evidence.

II.

Appellant contends that the trial judge erred in allowing the jury to return its verdict in a form substantially different from the court’s instructions. The jury instructions directed the jury, if it found for the plaintiff, to return its verdict as follows:

We the jury find for the plaintiff and assess his damages at $_

The jury verdict in the case at bar used this very language, but also contained below the calculations of damages based on a comparative negligence instruction.

It should initially be noted that the record reflects no objection by appellant to the form of the verdict at the time it was returned in open court. Also, appellant cites no authority in either of his briefs to support his position that this constitutes reversible error.

Appellee cites § 11-7-157 of Mississippi Code Annotated (1972), which states:

No special form of verdict is required, and where there has been a substantial compliance with the requirements of the law in rendering a verdict, a judgment shall not be arrested or reversed for mere want of form therein.

Appellee notes that the verdict was in the exact form suggested by the trial court for a verdict for the plaintiff and asserts that the only question is whether the calculations of the jury were mere surplusage or matters responsive to the issues in the case. Appellee notes that the finding of percentages of fault contained in the calculations were relevant to the issue of comparative negligence, which was submitted to the jury. In Boyd Construction Co. v. Bilbro, 210 So.2d 637 (Miss.1968), the jury returned its verdict with a separate piece of paper stating: “We find the defendants 50% responsible for accident and death of Mrs. Lucille Bilbro, $92,500.” We ruled that the inclusion of this finding did not per se establish the fact that the jury did not follow the law in determining damages. 210 So.2d at 642. We also stated that where a jury verdict is responsive to the issue but also contains findings which are not necessary for the determination of the issue involved, such additional findings may be disregarded as surplusage.

Appellee notes that appellant had no reason to complain of the form of the verdict when it was returned and that appellant’s true reason for attacking the form of the verdict on appeal is that it clearly reveals the trial judge’s basis for sustaining the additur, namely the failure to the jury to include in its damages calculations any amount for pain and suffering.

This Court has previously refused to reverse a case on an asserted error unsupported by any authority. Goodyear Yellow Pine Co. v. Lumpkin, 158 Miss. 578, 579, 130 So. 745 (1930); Bruce v. Brogan, 175 Miss. 208, 217, 166 So. 350 (1936); Gandy v. State, 373 So.2d 1042, 1047 (Miss.1979).

The form of the jury verdict including the calculations contains findings responsive to some of the issues involved in the case, and is proper under Boyd Construction Co. v. Bilbro, supra. The failure of appellant to support his argument with any statute or case law authority also requires that his appeal be rejected on this point.

The trial court’s judgment of additur is affirmed as a reasonable exercise of discretion in response to an inadequate damages award. The inclusion of the calculations of damages in the jury verdict is not reversible error because it responds to the issue of comparative negligence.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Harrison V. PITTMAN v. Linda HODGES, Administratrix of the Estate of Joseph R. Hodges.
    No. 54501.
    Supreme Court of Mississippi.
    Dec. 19, 1984.

      Cary E. Bufkin, Jim Bullock, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, John S. Holmes, Yazoo City, for appellant.
    Michael T. Lewis, Oxford, for appellee.
    Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.
   SULLIVAN, Justice, for the Court:

This judgment based upon a jury verdict of $20,000 in favor of appellee for nerve damage to the face and mouth of Joseph Hodges is appealed from the Circuit Court of Yazoo County, Mississippi.

Three issues are raised:

I. Was this action barred by the two-year statute of limitations?

II. Was there competent medical evidence showing causal connection between appellant’s treatment and Hodges’ injuries?

III. Was the jury properly instructed regarding damages?

I.

WAS THE ACTION BARRED BY MISSISSIPPI CODE ANNOTATED § 15-1-36 (SUPP.1984), THE TWO YEAR STATUTE OF LIMITATIONS ON DENTAL MALPRACTICE?

This suit was filed two years and seven days after Hodges last saw Dr. Pittman. In the interim, Hodges was divorced and ultimately died. The suit was revived in his daughter’s name and when the child died was revived again by his former wife, as Administratrix of his estate.

October 5, 1978, Hodges was examined by Dr. Pittman.

October 16, 1978, Dr. Pittman extracted two wisdom teeth, packed the cavity with gauze and put two stitches across the socket.

October 23, 1978, Hodges returned to Dr. Pittman to have the packing and stitches removed. He complained to Dr. Pittman of numbness in his lip.

November 17, 1978, Hodges returned, still complaining of numbness and a feeling of material still in the socket. Dr. Pittman removed a piece of gauze from the hole in Hodges’ jaw, which Pittman had overlooked on October 23, 1978. Dr. Pittman also prescribed an antibiotic.

November 27, 1978, Hodges returned to Dr. Pittman to have a stitch removed which had been overlooked by Dr. Pittman on October 23, 1978, and November 17, 1978. Dr. Pittman told Hodges the eomplained-of numbness might last from two to six weeks or perhaps as long as six months to a year. This was the last visit Hodges made to Dr. Pittman.

The Mississippi statute of limitations on bringing a dental malpractice action reads as follows:

No claim in tort may be brought against a ... dentist ... for injuries arising out of the course of medical or surgical treatment unless it is filed within two (2) years from the date of the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.

§ 15-1-36, Mississippi Code Annotated (Supp.1984).

The appellant urges that this statute begins to run from the date the alleged act or omission shall or with reasonable diligence might have been first discovered, and not from the manifestation of an effect of the alleged act. From the facts in this case and that theory, the appellant urges that when Hodges first expressed dissatisfaction with the surgery or no later than November 27, 1978, the statute of limitations was triggered. The permanence of the numbness was unknown or unpredictable at that time.

In Struthers-Wells Gulfport, Inc. v. Bradford, 304 So.2d 645 (Miss.1974), we held that'the two-year workmen’s compensation statute of limitations did not begin to run against a claimant who sustained a spider bite until by reasonable care and diligence it was discoverable and apparent that a compensable injury had been sustained. We pointed out in Bradford that under the statute the claim period runs from the time that a compensable injury becomes apparent, and that nothing in the Bradford record indicated that the claimant as a reasonable person should have recognized the nature, seriousness, and probable compensable character of the injury. 304 So.2d at 649. It would appear, therefore, that in Mississippi the principle relied upon by appellant to determine when the statute of limitations begins to run does not invariably focus upon the date on which the act or omission occurs; the focus is rather upon when the plaintiff discovers the injury by the exercise of reasonable care and diligence.

In Tribou v. Gunn, 410 So.2d 378 (Miss.1982), § 15-1-36, Mississippi Code Annotated (Supp.1984), was applied to a case involving a series of negligent diagnoses occurring during a course of treatment lasting several years by the defendant physician. Tribou was examined by the physician concerning a lump in her breast in 1976. Two months later a pap smear by another doctor suggested some malignant growth. Tribou brought the pap smear to Dr. Gunn in January, 1977, but he maintained that she did not have breast cancer. On May 12, 1978, Dr. Gunn performed a biopsy on Tribou which revealed breast cancer and required a radical mastectomy. Tribou brought suit on March 19,1980, and Dr. Gunn interposed the statute of limitations.

This Court held-that plaintiff’s suit for acts occurring prior to May 12, 1978, was not barred by the statute of limitations because the defendant did not diagnose her cancer until that date and there is nothing in the record to indicate that she could have known or discovered her cancer by the exercise of reasonable diligence by that time. This Court held that she was entitled to a trial on her claim which charged a series of negligent acts or omissions beginning in 1976, because she filed her suit within two years from the date that she discovered the acts which constituted medical malpractice. 410 So.2d at 379.

Under the theory of Tribou, appellant urges that the statute would begin to run against Hodges from the date that he first discovered his numbness or on October 23, 1978. This is incorrect. Dr. Pittman testified that he told Hodges that a numbness of this type could take from two to six weeks or even up to six months to a year to go away, and he did not tell Hodges this until November 27, 1978. In our view, Hodges was entitled to rely upon Dr. Pittman’s statements that the numbness would temporarily last from two to six weeks or even longer, and only thereafter could Hodges then by the exercise of reasonable diligence have known or discovered that his numbness was permanent and would not go away.

The trial court was eminently correct when it followed this principle in ruling on appellant’s motion for a directed verdict which asserted this statute of limitations. We quote the trial court as follows:

BY THE COURT: The motion will be denied. It is a question of when it reasonably could have been discovered .... The fact that he had experienced numbness in the jaw does not necessarily mean that he could have reasonably expected or suspected at that time that there was any neglect or omission, if any.

In summary, the essence of the injury to Hodges was the permanent nature of the numbness, which could not reasonably have been discovered until the period of temporary numbness described by Dr. Pittman had passed. At the very least this period was from two to six weeks, and if the minimum figure of two weeks is added to November 27, 1978, then this suit was timely filed within two years following the very earliest date at which Hodges could reasonably have discovered the permanent numbness resulting from Dr. Pittman’s treatment. The first assignment of error is, therefore, without merit.

II.

WAS THERE COMPETENT MEDICAL EVIDENCE SHOWING CAUSAL CONNECTION BETWEEN DR. PITTMAN’S TREATMENT AND THE INJURIES OF HODGES?

During the direct examination of Dr. El-gene G. Mainous, chairman of oral maxillo-facial surgery at the University of Mississippi Medical Center, who testified as an expert on behalf of Hodges, the following took place:

Q Dr. Mainous, do you have an opinion as to the cause of numbness based on a reasonable degree of medical certainty and related to the same hypothetical which I posed to you earlier? Do you have such an opinion?
A Well—
Q As to the cause of numbness?
A There could be three possible causes of numbness. One, the — the nerve could have been damaged during the surgical procedure. Two, the nerve could be damaged from exerting extreme pressure on a material that does not change its intensity when it’s in the presence of a solution. And three, the presence of infection secondary to a foreign body that doesn’t resorb.

Dr. Mainous also testified that in his opinion the use of the xrays in question as a diagnostic tool prior to surgery did not conform to the standard of care in Yazoo City, Mississippi.

Based upon this response, Dr. Pittman urges that the peremptory instruction should have been granted because by setting forth three alternative actions the testimony of Dr. Mainous was incompetent to prove proximate cause. The incompetency theory arises because Dr. Mainous expressed his opinion in terms of medical possibilities, and not probabilities. That medical probability is required by our law is supported by our decision in Garrett v. Wade, 259 So.2d 476 (Miss.1972) to the effect that:

This Court has consistently held that medical testimony is not probative unless it is in the terms of probabilities and not possibilities. In Scott County Co-Operative v. Brown, 187 So.2d 321 (Miss.1966), we held that the doctor’s statement that he was of the opinion that the mental condition “could have been caused” by the accident was insufficient to justify submitting to the jury the question of causal connection between the malady and the accident. This Court has ruled to the same effect in Morrell & Company v. Shultz, 208 So.2d 906 (Miss.1968); Kramer Service, Inc. v. Wilkins, 184 Miss. 483, 186 So. 625 (1939); Mutual Benefit Health & Accident Association v. Johnson, 186 So. 297 (Miss.1939); Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747 (1938); Berryhill v. Nichols, 171 Miss. 769, 158 So. 470 (1935).

In Scott County Co-Op v. Brown, cited in Garrett v. Wade, supra, this Court made a careful reading of all of the expert witness’s testimony before evaluating his opinion as to causal connection. The doctor first stated that it was “very likely” that the accident caused her mental condition, and then stated “I am of the opinion that it could have been.” Scott County, 187 So.2d at 326. This Court held that the testimony showed only a possibility that her psychotic condition was caused by the accident and it should, therefore, have been excluded.

In this case, as in Scott County Co-Op, supra, the inquiry should be whether after a careful reading of all the testimony of Dr. Mainous, his opinion as to causation is expressed in terms of medical probability or possibility. In connection with this inquiry, this Court has noted in Jesco, Inc. v. Shannon, 451 So.2d 694, 700 (Miss.1984), that absolute certainty is not required for an expert witness and whenever facts are in dispute, or the evidence is such that fairminded men may draw different inferences, a measure of speculation and conjecture is allowed. See also, City of Jackson v. Locklar, 431 So.2d 475 (Miss.1983).

Finally, the scope of appellate review on motion for judgment n.o.v. requires this Court to consider all the evidence, but in the light and with all reasonable inferences most favorable to the party opposed to the motion and to grant such a motion only if the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not have reached a contrary verdict. City of Jackson v. Locklar, 431 So.2d 475, 478; General Tire and Rubber Co. v. Darnell, 221 So.2d 104 (Miss.1969).

Dr. Mainous’s opinion as to the proximate cause of Hodges’ numbness was expressed in three alternatives. He testified in some detail as to the basis for his opinion on each of these alternatives. The meaning of his answer “there could be three possible causes of numbness” should be considered in light of his testimony on each of these causes to determine whether he considered the numbness a possible result of one of the three causes mentioned or a probable result of Dr. Pittman’s treatment as a whole with three alternative explanations for the numbness.

First, Dr. Mainous expressed the opinion that the numbness could have been caused by an injury during the surgical procedure. This sort of injury occurs when the roots of the impacted wisdom tooth impinge upon the mandibular nerve as the tooth is removed. An essential diagnostic tool for preventing such an injury is clear, detailed xrays showing the proximity of the mandibular canal to the roots of the impacted wisdom tooth. Dr. Mainous testified that the panagraphic xray used by Dr. Pittman in this case was inadequate because it lacked the clear detail showing the relation of the mandibular nerve to the wisdom tooth. While Dr. Pittman testified that the xray had faded in time but possessed sufficiently clear detail at the time of the surgery to enable him to make a proper diagnosis, Dr. Mainous contradicted this and stated that in his teaching he used ten-to-fifteen year old xrays which had not faded with time. Dr. Pittman and his expert witness Dr. Hurt admitted that in its present condition the panagraphic xray was not of diagnostic quality. Secondly, Dr. Mainous stated that the nerve could be damaged from exerting extreme pressure on the packing material placed in the tooth socket. Dr. Mainous stated that when there is persistent bleeding an absorbable material may be put in a surgical site to coagulate the blood but his opinion was that the proper practice was to use absorb-able materials which become flimsy and disintegrate into the body when saturated. He stated that a danger exists with the use of Iodoform gauze because it does not change consistency when moistened so that considerable pressure can be applied to the gauze. He also stated that Dr. Pittman deviated from the normal standard of care in leaving some of the non-absorbable gauze in the wound for thirty-one days. Dr. Pittman stated that he removed 99% of the gauze on October 23rd, and that only a small sliver in a hole in the jawbone was overlooked. Finally, Dr. Mainous stated that the numbness could have resulted from an infection secondary to the portion of gauze left in Hodges’ mouth for thirty-one days. Pittman denied that there was any infection at any time in Hodges’ mouth and initially did not recall writing Hodges an antibiotic prescription. When confronted with a copy, Pittman stated that he wrote it as a psychological boost and as a precautionary measure since Hodges was preparing to go on a deer hunt. Dr. Mai-nous stated that the body’s response to leaving the gauze in the wound for thirty-one days would be inflammation and infection. In his opinion, leaving the gauze in the wound for that period of time would produce an infection that would affect the nerve tissue.

Expert witnesses need not testify with absolute certainty. There is no merit to the slightly ironic argument that more than one breach of the standard of care casts doubt upon Dr. Pittman’s liability and entitles him to an exemption from the scrutiny of the jury.

Taken as a whole, Dr. Mainous’s testimony and his answer to the hypothetical question expressed an opinion based upon a reasonable degree of medical certainty in terms of medical probability that the numbness of Hodges was caused by the actions of Dr. Pittman and Dr. Pittman’s breach of the applicable standard of care.

There is no merit to appellant’s second assignment of error.

III.

WAS THE JURY PROPERLY INSTRUCTED REGARDING DAMAGES?

The only jury instruction pertaining to damages which was given in this case is as follows:

In order to be recovered damages must be shown with reasonable certainty both as to their nature and as to their cause. A plaintiff is not deprived of his right to recover because he is unable to prove with absolute certainty the mathematical value of'his injury. If the cause of injury is reasonably certain, he may reasonably estimate the damages. Although the lack of a perfect measure does not preclude recovery, he must not guess or speculate. The plaintiff must give you a reasonable basis on which to base your estimate.

Appellant raises the objection that standing alone this instruction is an insufficient guide to the jury as to how to determine the amount of damages, if any it might award. However, the appellant himself offered no damage instructions to correct the alleged deficiencies assigned on this appeal. As a matter of fact, when objections to the jury instructions were being heard, counsel for appellant offered no objection to this instruction, but stated instead “I think this is probably a reasonable instruction, Your Honor.” This jury instruction did form the basis for part of appellant’s motion for a new trial, however.

It is undisputed that there was no evidence in the record as to the lost wages of Hodges or his diminished earning capacity, but there was evidence from both Dr. Mai-nous and Linda Hodges concerning the extent of the injury and the related suffering.

Appellant cites Alabama Great Southern R.R. Co. v. Broach, 238 Miss. 618, 119 So.2d 923 (1960), Broadhead v. Gatlin, 243 Miss. 386, 137 So.2d 909 (1962), and State Highway Commission v. Engell, 251 Miss. 855, 171 So.2d 860 (1965), for the proposition that where the jury is instructed only by a statement such as that in the case at bar, the case should be reversed and remanded for a lack of a proper basis for the jury to measure damages. It should be noted that all three of the cases cited by the appellant involve injuries to real property, and not personal injury.

Appellee claims the appellant is procedurally barred by Mississippi Supreme Court Rule 42 which states in part:

... No assignment of error based on the giving of an instruction to the jury will be considered on appeal unless specific objection was made in the trial court stating the particular ground or grounds of such objection.

Rule 42 further provides that this Court may raise an objection to a jury instruction in order to prevent manifest injustice. We cannot say that manifest injustice resulted from the unobjected-to jury instruction in this case. The damages suffered by Hodges as a result of the numbness of his lip and part of his face are not susceptible of precise computation. Assigning a money value to compensate a person for the permanent loss of feeling in part of his face is not a matter to which any specific guidelines can be supplied to a jury. Even though there was no loss of wages evidence, there was considerable testimony as to the pain and suffering Hodges sustained from this injury. That testimony, coupled with appellant’s apparent approval of the jury instruction prior to the verdict by virtue of his failure to object to it, is sufficient to determine that this assignment of error is without merit.

We, therefore, affirm.

AFFIRMED.

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


author: HAWKINS, Justice, ROY NOBLE LEE, Presiding Justice, HAWKINS, Justice,

text:
    Albert Lee FRIDAY, a/k/a Billy Friday v. STATE of Mississippi.
    No. 54039.
    Supreme Court of Mississippi.
    Jan. 9, 1985.

      Stanley H. Hathorn, Hathorn & Hathorn, Louisville, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   ON PETITION FOR REHEARING

En Banc.

The petition for rehearing is sustained, the former opinion of the Court is withdrawn, and the following opinion is substituted therefor.

I.

HAWKINS, Justice,

for the Court:

Albert Lee Friday was tried and convicted in the Circuit Court of Winston County for the crimes of kidnapping and rape and sentenced to a term of life imprisonment without parole on each crime. We vacate the conviction and sentence of life imprisonment without parole on the crime of kidnapping, without prejudice to the State. We affirm the conviction for the crime of rape, but vacate the sentence and remand to the lower court for resentencing.

On October 28, 1981, Friday was indicted by the grand jury of Winston County in a well-drawn, four-court indictment as follows:

Count One charged him with the crime of robbery of Vicki Lynn Long in violation of Miss.Code Ann. § 97-3-73.
Count Two charged him with the crime of kidnapping Melanie Diane Long in violation of Miss.Code Ann. § 97-3-53.
Count Three charged him with the crime of kidnapping Tara Yarbrough in violation of Miss.Code Ann. § 97-3-53.
Count Four charged him with the crime of rape of Melanie Diane Long in violation of Miss.Code Ann. § 97-3-65.

The indictment also charged Friday with being a habitual criminal by four previous criminal convictions and sentences to a penitentiary. The first conviction charged was for the crime of forgery (uttering) in the Circuit Court of LeFlore County on May 20, 1955, and serving a term of one year or more in the state penitentiary. The second conviction was for the crime of forgery (uttering) in the same court on November 23, 1957, and serving a term of one year or more in the state penitentiary. The third conviction charged was for the crime of robbery by assault in a Texas state court on February 17, 1970, and sentenced to serve more than one year in a penitentiary of that state. The fourth conviction charged was for the crime of robbery by assault, also in a Texas state court on February 17, 1970, and sentenced to serve more than one year in a penitentiary in that state.

The basis for the indictment was Friday’s robbery of a convenience store in which Melanie, aged 15, was temporarily in charge, and abducting her and another child, and thereafter raping Melanie.

Defense counsel filed a motion to quash the indictment or, in the alternative, require the State to elect which of the counts it intended to try Friday on, and that he be tried separately on each count.

The circuit judge overruled the motion to quash, but did sustain the motion to require the State to make an election by ruling Counts One and Three had to be tried separately. The circuit judge also ruled, however, that Counts Two and Four, the crimes of kidnapping Melanie and raping her, could be tried together.

Following trial, the jury found Friday guilty on each of the counts, but also stated in each verdict that it was unable to agree as to the punishment.

The circuit judge then conducted a hearing without a jury on the habitual criminal charges in the indictment. The State put on proof of the four convictions, and sentences served in the state penitentiary at Parchman. The circuit judge found, however, that the State had failed to prove the serving of the sentences in the Texas penitentiary.

Upon appeal Friday first argues the weight and sufficiency of the evidence and we find the verdict on each charge was amply supported by the evidence adduced.

Friday next argues that he should have been tried separately on each of the counts. The recent case of Stinson v. State, 443 So.2d 869 (Miss.1983), is controlling on this point. Because of the inherent prospect of destroying a defendant’s right to the presumption of innocence, Mississippi does not allow trial on separate charges to be consolidated where evidence of the crime would not be mutually admissible in separate trials and where the defendant is subject to receiving more than one sentence.

All the testimony adduced by the State on the kidnapping charge was relevant to the charge of rape. We therefore affirm the conviction for rape. We vacate the conviction and sentence of kidnapping, but without prejudice to the State’s taking whatever further action it finds appropriate.

II.

ROY NOBLE LEE, Presiding Justice,

for the Court:

In deciding whether Friday should be sentenced under Mississippi Code Annotated § 99-19-81 (Supp.1984) or Mississippi Code Annotated § 99-19-83 (Supp.1984), the circuit judge ruled that the current crimes for which Friday was charged and convicted could be considered as constituting one of the crimes of violence.

He accordingly sentenced Friday to life imprisonment without parole on each crime for which he had been convicted under § 99-19-83. Friday also assigns that the court had no authority to sentence him under that section. We agree with that argument.

In McLamb v. State, 456 So.2d 743 (Miss.1984), the Court held that, in order to be sentenced to life imprisonment as an habitual offender, the individual must have committed two (2) prior felonies, one of which was violent, and must have been sentenced and served terms of at least one year on each of those prior felonies. Here, the record does not indicate that Friday served imprisonment for the crimes of violence, and McLamb is dispositive of the question.

The circuit judge should have sentenced Friday under § 99-19-81, which provides that every person convicted in this state of a felony who shall have been convicted twice previously of any felony and shall have been sentenced to separate terms of one year or more in a penal institution shall be sentenced to the maximum term of imprisonment prescribed for such felony.

Appellant was convicted of the crime of rape under Mississippi Code Annotated § 97-3-65. The pertinent part of that section applicable to the sentence imposed upon appellant follows:

(2) Every person who shall forcibly ravish any female ..., upon conviction shall be imprisoned for life in the state penitentiary if the jury by its verdict so prescribes; and in eases where the jury fails to fix the penalty at life imprisonment the court shall fix the penalty at imprisonment in the state penitentiary for any term as the court, in its discretion, may determine.

In Stewart v. State, 372 So.2d 257 (Miss.1979), the Court held that imposition of a life sentence is within the sole province of the jury and, absent a jury recommendation of life imprisonment, the trial judge must sentence the defendant to a definite term reasonably expected to be less than life. See also Lee v. State, 322 So.2d 751 (Miss.1975).

We are of the opinion that the lower court erred in sentencing appellant to life imprisonment without parole, since he had no authority to impose a life sentence, absent the jury’s recommendation. We further are of the opinion that under § 99-19-81 the maximum term of imprisonment prescribed for the crime for which the appellant was convicted is that sentence imposed by the trial judge, which must be reasonably less than life.

Therefore, we affirm the conviction of appellant for rape, but vacate the sentence of life imprisonment without parole, and remand the case to the lower court for resentencing to some term reasonably less than life, without parole.

PETITION FOR REHEARING GRANTED; CONVICTION AFFIRMED, BUT SENTENCE VACATED, AND CAUSE REMANDED FOR RESENTENCING.

PATTERSON, C.J., WALKER, P.J., and HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur in part I.

PATTERSON, C.J., WALKER, P.J., and DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur in part II.

HAWKINS, J., dissents to part II.

HAWKINS, Justice,

dissenting to Part II:

A mild dissent.

I am afraid the present opinion has created and then overlooked a conflict between Miss.Code Ann. § 99-19-81 and Stewart v. State, 372 So.2d 257 (Miss.1979).

■ As the majority notes, Miss.Code Ann. § 99-19-81 states that a convicted felon who is a habitual offender under this statute “shall be sentenced to the maximum, term of imprisonment prescribed for such felony..

Friday was convicted of rape under Miss. Code Ann. § 97-3-65. The “maximum term of imprisonment prescribed for such felony” under Miss.Code Ann. § 97-3-65 is life imprisonment.

While it is no doubt the law under Stewart that a person convicted under a statute which only authorizes the jury to impose the life sentence, and the jury fails to impose such sentence, the circuit judge must sentence him to a period “reasonably less than life,” in this case Friday is not being sentenced under the discretionary authority of a jury or circuit judge, but the mandatory provisions of Miss.Code Ann. § 99-19-81, which requires he receive the maximum sentence authorized under Miss.Code Ann. § 97-3-65. I believe this not only authorizes, but requires the circuit court impose a life sentence.

In holding that even though Miss.Code Ann. § 99-19-81 requires the maximum sentence authorized by Miss.Code Ann. § 97-3-65, but a circuit judge cannot impose the life sentence, here is what we do: we require the circuit judge to impose the maximum sentence he could impose under § 97-3-65 when the jury does not prescribe the punishment.

This means the circuit judge must somehow make a calculation as to how long the convicted habitual offender will live, and then impose a sentence “reasonably less than life.” Shall it be a year less than life, a month, a day? I do not see how Miss. Code Ann. § 99-19-81 can ever be enforced under our present holding when there has been a dual conviction of a statute such as Miss.Code Ann. § 97-3-65 and as a habitual offender under Miss.Code Ann. § 99-19-81. I believe Miss.Code Ann. § 99-19-81 was enacted to give certainty in sentencing.

The present opinion in these unusual statutes such as Miss.Code Ann. § 97-3-65 to a degree weakens Miss.Code Ann. § 99-19-81. I would, therefore, hold Stewart is inapplicable to this case, and deny the petition.

      . This section does not require that the accused actually serve time on the sentence.

      . The office of the Attorney General concedes that if the Court holds appellant was not properly sentenced under § 99-19-83, then the case should be remanded to the lower court for re-sentencing to a term reasonably less than life, without parole, under 99-19-81.


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

text:
    Roy PITTS v. MISSISSIPPI STATE BAR ASSOCIATION.
    Misc. No. 119.
    Supreme Court of Mississippi.
    Jan. 9, 1985.

      Samuel H. Wilkins, Jackson, for appellant.
    Andrew J. Kilpatrick, Jr., Jackson, for appellee.
   ON PETITION FOR REHEARING

DAN M. LEE, Justice, for the Court:

This cause was originally decided on September 5, 1984. The appellant thereafter filed a Petition For Rehearing. Finding merit in that Petition, our original opinion rendered September 5, 1984, is hereby withdrawn and this one is substituted therefor.

This is an appeal from a decision of the Mississippi State Bar Complaint Tribunal wherein the appellant, Roy Pitts, was found guilty of various infractions of the Code of Professional Responsibility of the Mississippi State Bar and thereafter suspended from practice for one hundred eighty (180) days. The disciplinary rules Pitts was found guilty of violating are DR 1-102; DR 6-101; DR 7-101, DR 7-102; and DR 9-102. Pitts was also found guilty of violating § 73-3-35 Miss.Code Ann. (1972), the oath of an attorney.

Feeling aggrieved by the decision of the Complaint Tribunal, Pitts brings this appeal and assigns as error:

(1) that this action is barred by the Statute of Limitations:
(2) that the Tribunal failed to show by clear and convincing evidence violation of certain Disciplinary Rules; and
(3) that the penalty imposed upon the Appellant was unduly harsh and disproportionate to the offense.

There is little dispute regarding the factual scenario in this cause. By his answer to the complaint, Pitts has admitted the facts upon which the complaint is based. His answer denied only that those facts constitute violations of the Code of Professional Responsibility.

On May 24,1967, Roy Pitts, acting as the attorney for Gary T. Byrd, Sr., filed a petition in the Chancery Court of Lauder-dale County seeking to have Byrd appointed as general guardian for Gary T. Byrd, Jr. The younger Byrd was to receive $2,520.68 as the result of being the beneficiary of a deceased uncle’s life insurance policy. On the same date the chancery court entered a decree appointing Gary T. Byrd, Sr. as the general guardian for Gary T. Byrd, Jr. and as a result the insurance funds were disbursed to the elder Byrd. Pursuant to a petition for further instructions filed by Roy Pitts, the chancery court ordered that the insurance proceeds be invested in a savings account at Home Federal Savings and Loan Association of Meridian. The court further ordered that the court costs and expenses, together with an attorney’s fee in the amount of $100 be paid from the proceeds.

When he and Pitts left the Lauderdale County Courthouse, Byrd endorsed the insurance check and gave it to Pitts. Byrd stated that he understood that Pitts was to put the money in the Home Federal Savings and Loan.

On July 18, 1967, Pitts deposited the check in his trust account and wrote himself a check for $100 as attorney’s fee. It was not until June 22, 1976 that Pitts took the remaining insurance proceeds and deposited them in an account at Home Federal. This nine year delay in depositing the funds is the basis for the present action.

Gary Byrd, Sr. testified that on numerous occasions he asked Pitts about the money. He stated that he was aware of the requirement of annual accounts and also aware that no annual accountings had been filed in this cause. Byrd stated that he wrote letters and “at least one hundred attempts on the phone” to get Pitts to make some sort of accounting. Generally, Byrd was not able to get through Pitts’ secretary but when he did Pitts assured him that everything was taken care of and that he would take care of the accountings.

Byrd moved several times between 1967 and 1973. He stated that normally after each move he would attempt to contact Pitts to get the status of the account. Byrd testified that he had written Pitts at least ten personal letters with his return address on them between 1967 and 1980.

In 1970 or 1971, Byrd learned that there had been no account established when he contacted the Home Federal Savings and Loan directly. He stated that he again contacted Pitts and that Pitts assured him that “everything was fine” and that Byrd would soon be getting a report.

On October 7, 1980, Byrd met with Chancellor William Neville who had ordered the guardianship established. Byrd told him that he was never able to get any response regarding the status of the account or the guardianship. Chancellor Neville immediately called Pitts and told him to come to his office. At that time Pitts produced a pass book showing that the account had been established in 1976. By joint motion he was removed as counsel.

Chancellor Neville testified that from the date of the establishment of the guardianship in 1967 through the time Pitts was removed as counsel in 1980, Pitts never filed an accounting with the chancery court. Chancellor Neville stated that he had requested Pitts to file an accounting “many, many times.” Chancellor Neville had talked to Pitts personally and had his court administrator attempt to contact Pitts about the failure to file accountings. Neville also testified that Pitts assured him “Judge, there is no need to worry. The money is safe and on deposit.” Chancellor Neville first learned of the nine year delay in depositing the funds at the October 7, 1980 meeting with Byrd and Pitts.

Roy Pitts testified that in 1967 he was running for the State Senate and was very much preoccupied. He corroborated the details of receiving the insurance check, depositing it in his trust account and immediately paying himself the attorney’s fee. It was established that at the time Pitts finally made the deposit in 1976 he deposited the amount of $3,909.29. This Pitts explained represented both the principal and the interest the money would have accumulated during the interim. Pitts had added the sum he calculated as interest which would have been earned on the account for nine years and paid it from his own pocket.

Pitts stated that “It was just procrastination” that caused him to delay in making the deposit. He testified he never used the funds for his own benefit and that he personally paid the annual premium on the guardian bond of $22.50. Each time the matter came to his attention he simply neglected it. After being contacted by Byrd he did not want to admit his neglect because he was embarrassed and so he did not deposit the money right away. Pitts could not figure out how to explain what had happened to the money in the interim period so he kept putting it off. He also delayed because he did not have the money to pay the interest the principal would have accumulated.

Pitts admitted that he received routine notices of the need to file an accounting but was afraid to do so both before and after he made the deposit because he could not account for the lengthy delay. He also admitted telling Byrd and his wife that everything was alright when he knew in fact that that was not the truth.

The rest of Pitts’ testimony was essentially a plea for mercy based on numerous personal problems which it would serve no purpose to detail here but which are substantial indeed.

THE LAW.

Pitts’ first assignment of error is that this action is barred by § 15-1-49 Miss., Coded Ann. (1972), which imposes a six year limitation on all actions “for which no other period of limitation is prescribed.” As there is no other limitation on disciplinary actions in Title 73, Chapter 3 of the Mississippi Code, Pitts argues that the six year period in § 15-1-49 is applicable. This point has not previously been discussed by this Court; however, the appel-lee cites authority from a number of jurisdictions to the effect that a general statute of limitations does not bar disciplinary proceedings.

Pitts argues that because Byrd knew of the failure to open an account at Home Federal in 1970 or 1971 the six year period would have long since run. That argument is misguided as Byrd’s knowledge is inconsequential. The continuing failure to open the account until 1976, the failure to file any accounting through 1980, the knowing misrepresentation to both Chancellor Neville and to Byrd through 1980 are all matters which did not come to the attention of Chancellor Neville, the person at whose instance the original complaint was filed, until 1980. Based on the record, the State Bar had no way of knowing of Pitts’ failure to establish the guardianship account until 1980 when he was called into Chancellor Neville’s office. Therefore, even if § 15-1-49 were applicable to disciplinary proceedings it could in no way be a bar to the instant action.

Pitts’ second assignment of error is that he was not guilty of misconduct as defined in the disciplinary rules. Essentially he argues that he was negligent but not possessed of a fraudulent intent. This assignment of error is not well taken. It was established and admitted by Pitts that he was not truthful to his client about the funds and was also not truthful to Chancellor Neville. All of the allegations in the complaint were admitted and only the legal conclusions denied. Pitts also acknowledged having received several notices of the requirement to account and having ignored them or disobeyed them. He stated he did not know the whereabouts of his client but Byrd testified that he had written to Pitts on at least ten occasions and called him “hundreds of times.” By his own testimony, Pitts admitted to deliberately misleading his client and the chancellor. Although in his brief Pitts argues that “there is not the bare suggestion throughout the testimony before the tribunal that appellant intended or willed the events which transpired.” Pitts acknowledged that he not only deceived his client and the chancellor but also purposely continued to delay in opening the account and refused to file annual accountings because he was “embarrassed” by the truth and afraid of its consequences. There is therefore no merit to Pitts’ weight of the evidence argument.

Pitts’ final assignment of error is that the 180 day suspension from practice is an unduly harsh punishment. We agree. Pitts argues that his personal and family problems, along with his lack of intent to defraud his client, should weigh in favor of a less severe punishment. These arguments are persuasive. The theory behind punishment imposed as the result of Bar disciplinary proceedings is that that punishment, like a criminal sanction, serves a three-fold purpose. First, there is the obvious intent to punish the wrongdoer to the degree that the sanction is appropriate for the offense. Secondly, many theories on the role of sanctions recognize their utility as a deterrence to further violations both on the part of the immediate offender and the general community. Finally, sanctions have a definite role in reinforcing the confidence of the general public in the ability of society to govern itself. This third role is particularly important in regard to Bar disciplinary proceedings because our profession assumes the responsibility of governing its members. Therefore, public confidence and faith in the integrity of the entire Bar is dependent upon our willingness to impose appropriate sanctions on our members who have violated the Code of Professional Responsibility.

In the instant case, Roy Pitts has undeniably deceived both his client and the Chancery Court of Lauderdale County; however, based upon this record and the recognized purposes of punishment, we are of the opinion that the 180 day suspension issued to Roy Pitts was unduly harsh. We therefore reduce that punishment to a thirty (30) day suspension and a public reprimand. Following the completion of the thirty (30) day suspension, Pitts is free to pursue reinstatement under § 73-3-337 Miss.Code Ann. (Supp.1983) and Rule 12 of the Rules of Discipline for the Mississippi State Bar, adopted September 7, 1983.

Based on all of the foregoing, the decision of the Complaint Tribunal is affirmed as modified and it is hereby ordered that Attorney Roy Pitts be suspended from the practice of law for a period of thirty (30) days and issued a public reprimand. It is further ordered that this suspension shall commence thirty (30) days after the date on which this opinion and judgment become final. Furthermore, it is ordered that thirty (30) days after this opinion and judgment become final, the Clerk of the Supreme Court of Mississippi shall forward an attested copy to the Circuit Court Judges and Chancellors in and for Lauder-dale County, Mississippi, with instructions to the senior judges of eabh court to include a copy of this opinion and judgment upon the minutes of their respective courts. Furthermore, it is ordered that the Clerk of the Supreme Court of Mississippi shall immediately forward the attorneys of record for the parties herein a copy of this opinion and judgment. It is also ordered that thirty (30) days after this opinion and judgment become final the Clerk of the Supreme Court of Mississippi shall forward an attested copy to the Clerks for the Federal District Courts, Northern and Southern Districts of Mississippi, and to the Clerk of the United States Court of Appeals for the Fifth Circuit, and to the Clerk of the United States Supreme Court. It is further ordered that the State Bar is entitled to recover from Roy Pitts the sum of $98.84 as previously assessed by the Committee on Complaints, together with all actual and reasonably necessary costs and expenses occasioned by the litigation of this matter.

IT IS SO ORDERED.

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


text:
    Tommie COLLINS, et ux. v. James COLLINS, et al.
    No. 55498.
    Supreme Court of Mississippi.
    Jan. 16, 1985.
    Mark S. Howard, Bishop & Howard, Waynesboro, for appellants.
    Gilford F. Dabbs, III, Dabbs & Donnell, Quitman, for appellees.
   Appeal from Chancery Court, Clarke County; Jerry G. Mason, Chancellor.

Before PATTERSON, C.J., PRATHER and SULLIVAN, JJ., and SUGG, Retired Justice for the Court.

AFFIRMED.


text:
    David Joseph GIBSON v. STATE of Mississippi.
    No. 55397.
    Supreme Court of Mississippi.
    Jan. 16, 1985.
    Joe M. Buchanan, Indianola, for appellant.
    Edwin Lloyd Pittman, Atty. Gen., by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; James C. Sumner, Judge.

Before PATTERSON, C.J., and PRATHER and SULLIVAN, JJ.

AFFIRMED.


text:
    Freida Evans DANOS v. Neil EVANS.
    No. 55375.
    Supreme Court of Mississippi.
    Jan. 23, 1985.
    Barbara Holley Reid, Meridian, for appellant.
    Thomas L. Goldman, Goldman, Dreyfus & Primeaux, Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; Jerry G. Mason, Chancellor.

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

AFFIRMED.


text:
    Jimmy D. WHITE, d/b/a AAA Auto Parts v. MOTIVE PARTS WAREHOUSE, INC.
    No. 55401.
    Supreme Court of Mississippi.
    Jan. 23, 1985.
    George Thomas Sullivan, Collins, for appellant.
    John H. Downey, Downey & Brown, Jackson, for appellee.
   Appeal from Circuit Court, Smith County; L.D. Pittman, Judge.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.


author: SHORES, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation v. Jerry W. JACKSON, as the Administrator of the Estate of Kenneth L. Ivey; and Shellie K. Ivey.
    83-1245-CER.
    Supreme Court of Alabama.
    Dec. 21, 1984.

      Harvey Jackson, Jr. of Tweedy, Jackson & Beech, Jasper, for appellant.
    Jerry W. Jackson, Haleyville, for appel-lees.
   SHORES, Justice.

The following question has been certified to this Court by the United States Court of Appeals, Eleventh Circuit, pursuant to Rule 18, Alabama Rules of Appellate Procedure:

Whether Kenneth Ivey, at the time of his death, was a person insured under the liability provisions of the policies in question in accordance with the holding in State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974).

We answer in the affirmative.

The litigation began when State Farm Mutual Insurance Company filed suit for declaratory judgment arising out of an automobile accident, requesting the federal court for the Northern District of Alabama to find that there was no coverage provided under the uninsured motorist clause contained in seven insurance policies. State Farm appealed the trial court’s judgment finding coverage to the Eleventh Circuit Court of Appeals, which certified the question set out above to us.

Because the district court, Propst, J., correctly interpreted the applicable Alabama law and entered an excellent memorandum opinion reflecting a complete understanding thereof, we set out and adopt that court’s opinion as our own in answer to the question certified:

“1. This case arises out of a single motor vehicle accident in which Kenneth L. Ivey, deceased, was a passenger, which accident occurred on April 17, 1982, on what is known as the Strip Pit Road in Winston County, Alabama. This motor vehicle was owned and operated by Leslie Swart, Jr., who also died as a result of the accident. Leslie Swart, Jr., was a cousin of the mother of the deceased, Kenneth L. Ivey, and his parents, Mr. and Mrs. Shellie K. Ivey, at Route # 4, Box 160, Haleyville, Winston County, Alabama, at the time of this accident. Prior to April 17, 1982, the date of the accident, the plaintiff had issued seven (7) automobile liability insurance policies wherein defendant, Shellie K. Ivey, was the named insured in three (3) of these policies and Kenneth L. Ivey, deceased, was the named insured in four (4) of them. None of these policies had terminated as of the date of the accident and at that time the said Leslie Swart, Jr., was an uninsured motorist. Certified copies of the policies as listed in the complaint are authentic and true and correct.

“2. Under the three (3) policies issued to Shellie K. Ivey, the father of Kenneth L. Ivey, deceased, and the four (4) policies issued to Kenneth L. Ivey, deceased, the following definitions are contained:

“On page 2
“‘NON-OWNED CAR — means a car not:
“ ‘1. owned by,
“ ‘2. registered in the name of,
“ ‘3. furnished or available for the regular or frequent use of: you, your spouse, or any relatives.
“ ‘RELATIVE — means a person related to you or your spouse by blood, marriage or adoption who lives with you.—
“ ‘YOUR CAR — means the car or the vehicle described on the declarations page.’
“3. On page 5 of these policies:
“ ‘COVERAGE FOR THE USE OF OTHER CARS
“ ‘The liability coverage extends to the use, by an insured, of a newly acquired car, a temporary substitute car or a non-owned car.
“ ‘WHO IS AN INSURED
“ ‘When we refer to your car, a newly acquired car or a temporary substitute car, insured means:
“1. you;
“ ‘2. your spouse;
“ ‘3. The relatives of the first person named in the declarations;—
“ ‘When we refer to a non-owned car, insured means:
“ ‘1. The first person named in the declarations;
“ ‘2. his or her spouse;
“ ‘3. their relatives;’

“4. UNDER SECTION I — LIABILITY — COVERAGE A of all of the policies commencing on Page 5 thereof there is the statement: THERE IS NO COVERAGE: and continuing on page 6 thereof:

“ ‘2. FOR BODILY INJURY TO:
“‘C. ANY INSURED OR ANY MEMBER OF AN INSURED’S FAMILY RESIDING IN THE INSURED’S HOUSEHOLD.’

“5. UNDER SECTION III — UNINSURED MOTOR VEHICLE — COVERAGE U on page 7 thereof the following statement is found:

“ ‘An uninsured motor vehicle does not include a land motor vehicle:
“ ‘2. furnished for the regular use of you, your spouse or any relative;’

“6. The vehicle involved was not an owned vehicle as to Shellie K. Ivey and Kenneth L. Ivey, deceased, but was owned by and furnished by Leslie Swart, Jr., for his regular use, Swart being a relative of both Shellie K. Ivey and Kenneth L. Ivey, deceased. Kenneth L. Ivey, deceased, was a resident relative living with his father and mother, Mr. and Mrs. Shellie K. Ivey, at Route # 4, Box 160, Haleyville, Winston County, Alabama, at the time of this accident.

“7. It is agreed that all seven (7) policies are introduced into evidence in this case.

“CONCLUSIONS OF LAW

“... The starting point is § 32-7-23, Code of Alabama 1975, which provides:

“ ‘No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of section 32-7-6, under provisions approved by the commissioner of insurance for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage; and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with the policy previously issued to him by the same insurer. (Acts 1965, No. 866, p. 1614).’

“The earliest Alabama ease cited by the parties, which appears to have a direct pertinency to the facts of this case, is State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974). In Reaves, the plaintiff, James Reaves, his mother Catherine Reaves, and his sister Annie Ruth Franklin, were all residents of the same household. State Farm had issued two automobile insurance policies to Annie Ruth Franklin only, but James was an ‘insured’ under the omnibus clauses of the two policies. James, a minor, was injured when his mother’s uninsured motorcycle was struck by an uninsured motorist. James and his mother sought to recover from State Farm under the uninsured motorist provisions of his sister’s policies. The sister’s policies contained the following exclusions to the uninsured motorist provisions:

“ ‘THIS INSURANCE DOES NOT APPLY:
“ ‘(b) TO BODILY INJURY TO AN INSURED WHILE OCCUPYING OR THROUGH BEING STRUCK BY A LAND MOTOR VEHICLE OWNED BY THE NAMED INSURED OR ANY RESIDENT OF THE SAME HOUSEHOLD, IF SUCH VEHICLE IS NOT AN OWNED VEHICLE.’

The policies defined ‘owned motor vehicle’ to mean ‘the motor vehicle or trailer described in the declarations.... M’

“While rejecting an argument to find in the Alabama statute the same intent which the Supreme Court of Florida had found in the Florida statute (Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971)), Justice Bloodworth, in a unanimous decision, affirmed the trial court’s conclusion that the exclusion clause recited above was void.

“Justice Bloodworth emphasized the language in § 32-7-23 which states, ‘[ujnless coverage is provided therein or supplemental thereto ... for the protection of persons insured thereunder ...’■, concluding that ‘[b]y the literal words of the statute, it mandates uninsured motorist coverage for “persons insured thereunder” in the policy.’ Further that, ‘The use of the broader term “persons insured thereunder” and the narrower term “named insured” in the same sentence appears to us to indicate clearly that the legislature intended to draw a distinction between the two types of insureds, and did indeed intend to require uninsured motorist coverage for the broader class “persons insured thereunder.” ’ 292 Ala. at 222 [292 So.2d 95], Further that:

“ ‘Moreover, the use of the plural “persons insured thereunder” in one clause and the singular “named insured” in the other would indicate that the legislature envisioned that, in the type of policy in question here having the usual “omnibus clause,” uninsured motorist coverage was intended to be extended to all “persons insured thereunder,” without regard to the mentioned exclusion.
“ ‘While we do not read the statute as requiring every automobile liability insurance policy to include an “omnibus clause,” nevertheless once an automobile liability policy is issued extending coverage to a certain class of insureds under such a clause, uninsured motorist coverage must be offered to cover the same class of insureds. Appellant admits that appellees here come within the policy definition of the word “Insured” being relatives of the named insured and residents of the same household.
“ ‘It is, therefore, that we conclude that appellees were among the “persons insured thereunder” in the subject policy, within the provisions of § 74(62a) [§ 32-7-23], and as such were required to be given uninsured motorist coverage, absent a rejection of such coverage by the “named insured.” ’

292 Ala. at 223 [292 So.2d 95].

“The Supreme Court of Alabama then concluded that the above recited exclusion was void as being repugnant to then Title 36, § 74(62a), Code of Alabama 1940 (now § 32-7-23). The Court expounded:

“ ‘Moreover, as the insurance policy in question reads, it appears to insure ap-pellee James Reaves against bodily injury sustained if he were struck by a negligent, uninsured motorist when driving the car described in the policy; when driving any car owned by anyone other than the residents of the named insured’s household, whether insured or uninsured; even, when walking.
“‘To require an insurer under the statute to also extend coverage to such an insured while driving his own vehicle, or one belonging to another member of the household, though uninsured, does not place an unreasonable burden on an insurer. Such result not only does not conflict with the policy underlying the Uninsured Motorist Statute, but it furthers this policy. This Court has stated that policy to be:
“Uninsured motorist coverage is intended to provide financial recompense to innocent persons who are injured and to dependents of those who are killed because of the wrongful conduct of uninsured motorists....” ’
‘Gulf American Fire and Casualty Company v. Gowan, 283 Ala. 480, 483, 218 So.2d 688 (1969).’

292 Ala. at 224 [292 So.2d 95] (emphasis added).

“Reaves stands for the proposition that if a person is insured under the liability coverage provision of a motor vehicle insurance policy and uninsured motorist coverage is not rejected, the uninsured motorist coverage dictated by § 32-7-23 cannot be excluded from the policy as to such an insured person. In Reaves, the Supreme Court determined that the plaintiff was an ‘insured’ under provisions which stated:

“ ‘Insured — the unqualified word “insured” includes
“ ‘(1) the named insured, and
“ ‘(2) If the named insured is a person or persons, also includes his or their spouse(s), if a resident of the same household, and
“ ‘(3) if residents of the same household, the relatives of the first person named in the declarations, or of his spouse, and
“ ‘(4) any other person while using the owned motor vehicle, PROVIDED THE OPERATION AND THE ACTUAL USE OF SUCH VEHICLE ARE WITH THE PERMISSION OF THE NAMED INSURED OR SUCH SPOUSE AND ARE WITHIN THE SCOPE OF SUCH PERMISSION, and
“ ‘(5) under coverages A and B any other person or organization, but only with respect to his or its liability for the use of such owned motor vehicle by an insured as defined in the four subsections above.’ ”

292 Ala. at 220-21 [292 So.2d 95].

“Under the stipulated facts the following exclusion appears to cover this case:

“ ‘An uninsured motor vehicle does not include a land motor vehicle
“ ‘2. furnished for the regular use of you, your spouse or any relative.’ ”

However, a clause purporting to exclude uninsured motorist coverage was held to be void in Reaves, supra. See also Higgins v. Nationwide Mutual Insurance Co., 291 Ala. 462, 282 So.2d 301 (1973), (a clause which excluded automobiles owned by governmental entities from the definition of uninsured motorists was held void as to the plaintiff).

“This court’s inquiry cannot stop, however, with a reading of the exclusion clause. The court must determine, pursuant to Reaves, whether Kenneth Ivey was ‘a person insured’ under the liability provisions of the policies in question.

“Each of the policies provides, as to liability coverage, that:

“ ‘We will:
“ ‘1. pay damages which an insured becomes legally liable to pay because of:
“ ‘a. bodily injury to others, and
“ ‘b. damage to or destruction of property including loss of its use,
caused by accident resulting from the ownership, maintenance or use of your car; and
“ ‘2. defend any suit against an insured for such damages with attorneys hired and paid by us. We will not defend any suit after we have paid the applicable limit of our liability for the accident which is the basis of the lawsuit.’

“Further that:

‘“COVERAGE FOR THE USE OF OTHER CARS
‘The liability coverage extends to the use, by an insured, of a newly acquired car, a temporary substitute car or a non-owned car.
“ ‘Who Is an Insured
‘When we refer to your car, a newly acquired car or a temporary substitute car, insured means:
“ ‘1. you;
‘2. your spouse;
‘3. the relatives of the first person named in the declarations;
“ ‘4. any other person while using such a car if its use is within the scope of consent of you or your spouse; and
“ ‘5. any other person or organization liable for the use of such a car by one of the above insureds.
‘When we refer to a non-owned car, insured means:
“ ‘1. the first person named in the declarations;
“ ‘2. his or her spouse;
“ ‘3. their relatives; and
“ ‘4. any person or organization which does not own or hire the car but is liable for its use by one of the above persons’

“The policies further provide that:

‘Relative — means a person related to you or your spouse by blood, marriage or adoption who lives with you. It includes your unmarried and unemanci-pated child away at school.
‘Your Car — means the car or the vehicle described on the declaration page.
‘Insured — means the person, persons or organization defined as insureds in the specific coverage.
‘Non-Owned Car — means a car not:
“ ‘1. owned by,
“ ‘2. registered in the name of, or
“ ‘3. furnished or available for the regular or frequent use of:
‘you, your spouse, or any relatives.’

“Further that:

“ ‘THERE IS NO COVERAGE:
“‘2. FOR ANY BODILY INJURY TO:
“‘c. ANY INSURED OR ANY MEMBER OF AN INSURED’S FAMILY RESIDING IN THE INSURED’S HOUSEHOLD.’

“On first blush, it would appear that Kenneth L. Ivey was an insured under the liability provisions of all the policies and that, under Reaves, supra, he was covered as a victim of an accident caused by an uninsured motorist under the provisions of all the policies at issue at the time of his death notwithstanding the exclusion clause. As to four of the policies, Kenneth L. Ivey was the named insured and the ‘you’ and ‘the first person named in the declarations.’ As to the other three policies, Kenneth L. Ivey was a relative of ‘the first person named in the declarations.’ Being thus prima facie covered under the liability provisions of all policies at issue, Reaves would appear to dictate that Kenneth L. Ivey was covered under the uninsured motorist provisions of all policies at issue and that the exclusion clause is void as to him. It should be remembered that James Reaves was injured while driving an uninsured motor vehicle owned by a relative member of the same household. Kenneth L. Ivey was a passenger in an uninsured vehicle owned by a relative member of the same household.

“The court’s conclusions are supported by language in Holloway v. Nationwide Mutual Insurance Co., 376 So.2d 690 (Ala.1979), where the court distinguished between ‘insureds of the first class’ and ‘insureds of the second class.’ Under the discussion in that case, Kenneth L. Ivey would be an ‘insured of the first class’ under all the policies. See 376 So.2d 694.[21 The court’s conclusion is further supported by the following language in Alabama Farm Bureau Mutual Casualty Insurance Company v. Pigott, 393 So.2d 1379 (Ala.1981):

“ ‘Appellant, in Reaves, supra, argued that uninsured motorist coverage was required only for the named insured, even though the liability provisions of the policy in question extended coverage to others, including relatives of the named insured who were residents of the same household. In rejecting appellant’s argument, this Court said that once an automobile liability policy is issued extending coverage to a certain class of insureds under such a clause, uninsured motorist coverage must be offered to cover the same class of insureds. Thus, the mandated reciprocal extent of uninsured motorist coverage is determined by the extent of liability coverage for which the parties have contracted in the same policy, once minimal statutory liability coverage is provided, and not by the extent of liability coverage which would have been provided in the policy of the third-party tort-feasor, if the tort-feasor had liability insurance.
“ ‘It was also held in Reaves that Alabama’s Uninsured Motorist Statute, Tit. 36, § 74(62a), Code 1940 (now § 32-7-23, Code 1975), mandated uninsured motorist coverage for “persons insured thereunder,” that is, persons insured under the liability provisions of the policy. Thus, a class of insureds named in the provisions of an automobile liability policy in Alabama are provided uninsured motorist coverage regardless of whether that class is specifically named in the policy providing uninsured motorist coverage.’

393 So.2d at 1382-83.

“In Lambert v. Liberty Mutual Insurance Co., 331 So.2d 260 (Ala.1976), the Alabama Supreme Court interpreted Reaves as follows:

“ ‘In State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974), we construed our uninsured motorist statute as mandating uninsured motorist coverage for all “persons insured thereunder” under the automobile liability policy. We held that because a brother and mother of a policyholder were “insureds” under the omnibus clause of the liability policy they must also be covered under uninsured motorist provisions and therefore they would not fall under an “exclusion” for injury suffered while occupying a vehicle owned by the “named insured” or any member of the same household and not covered under the policy.’

331 So.2d at 265.

“For other cases which interpret Reaves as authoritatively construing Reaves as conferring uninsured motorist coverage in favor of persons who are insured under the general liability coverage expressed in the relevant policy, see Insurance Company of North America v. Thomas, 337 So.2d 365, 369 (Ala. [Civ.App.] 1976); Billups v. Alabama Farm Bureau Mutual Casualty Insurance Co., 352 So.2d 1097, 1100 (Ala.1977); USF&G v. Perry, 361 So.2d 594, 596 (Ala. [Civ.] App.1978); and Nationwide Mutual Insurance Co. v. United Services Automobile Association, 359 So.2d 380, 381 (Ala. [Civ.] App.1978).’

“... The crucial language in Reaves which is applicable to this case is that which says: ‘[o]nce an automobile liability policy is issued extending coverage to a certain class of insureds under such a clause, uninsured motorist coverage must be offered to cover the same class of insureds.’ 292 Ala. at 223 [292 So.2d 95] (emphasis added). Reaves further holds that once the liability coverage is extended to a class of insureds, the uninsured motorist coverage cannot be excluded. Reaves does not say that the liability coverage so extended must extend to every automobile which said insured may drive or occupy.

“It is apparent that State Farm intended to extend some liability coverage to Kenneth L. Ivey under his own policies and the policies under which Shellie K. Ivey is the named insured. While State Farm may not have intended the uninsured motorist coverage to be as expansive as is here declared, the Alabama Statute and the Reaves interpretation constructively supply that intent.

“It appears to this court that the uninsured motorist coverage inures to a person, not to a vehicle. It further appears that uninsured motorist coverage is not dependent on the insured person being injured in connection with a vehicle which is covered by the liability insurer against whom recovery is sought under the uninsured motorist provisions. While to have uninsured motorist coverage the person must have some liability coverage under the policy sued on, he need not have liability coverage in all events and for all purposes. Any liability coverage to an ‘insured of the first class’ spawns uninsured coverage which then becomes fixed as to that insured. Once in place the uninsured motorist coverage is in the nature of casualty or health and accident coverage which is conditioned on injury for which an uninsured motorist is legally liable. It is not necessary to find that Swart’s automobile was covered by the liability provisions of the seven policies in order for Kenneth L. Ivey to have been covered under their uninsured motorist provisions. If Swart’s automobile had been so covered he would not have been uninsured.”

"[1] The motorcycle driven by James was not so described.”
"[2] The policies in question in this case provide, with reference to uninsured motorist coverage, as follows:
‘“Who Is an Insured
" ‘Insured — means the person or persons covered by uninsured motor vehicle coverage.’
“This is:
"T. the first person named in the declarations;
" ‘2. his or her spouse;
‘3. their relatives; and
“ ‘4. any other person while occupying:
‘a. your car, a temporary substitute car, a newly acquired car or a trailer attached to such car. Such vehicle has to be used within the scope of the consent of the first person named in the declarations or that person’s spouse; or
“ ‘b. a car now owned by you, your spouse, or any relative, or a trailer attached to such a car. It has to be driven by the first person named or that person’s spouse and within the scope of the owner’s consent.
" ‘Such other person occupying a vehicle used to carry persons for a charge is not an insured.
" '5. any person entitled to recover damages because of bodily injury to an insured under 1 through 4 above.
"In Holloway, the court said:
" 'The Uninsured Motorist Statute, Code 1975, § 32-7-23, absent rejection by the named insured, mandates uninsured motorist coverage for the protection of persons insured under a motor vehicle liability policy. As heretofore construed by this Court, the statute mandates stacking in the case of the named or designated insureds as well as relatives living in the same household where such persons are included in the policy’s definition of "insureds” for purposes of liability. These persons are entitled to stack the available coverages because their right to coverage under the primary liability coverage is not limited to their use or occupancy of a vehicle insured under the policy. A clause limiting their rights of uninsured motorist coverage to the'minimum coverage available on only one insured vehicle would be an unreasonable derogation of the mandate of the statute, because additional premium charges would not afford them any additional benefits.’
"376 So.2d at 694-95."

CERTIFIED QUESTION ANSWERED.

All the Justices concur, except TOR-BERT, C.J., who is recused.