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PROTECTIVE SERVICE LIFE INSURANCE COMPANY v. ALVIN CARTER

NOVEMBER 30, 1983

PROTECTIVE SERVICE LIFE INSURANCE COMPANY
v.
ALVIN CARTER, D/B/A CARTER FUNERAL HOME AND VALLEY LIFE INSURANCE COMPANY



BEFORE BROOM, HAWKINS AND DAN LEE

DAN LEE, JUSTICE, FOR THE COURT:

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

On June 2, 1982, this Court decided the case of Glenn v. Herring, 115 So.2d 695 (Miss. 1982), which promulgated Rule 47 of the Supreme Court Rules and abrogated Mississippi Code Annotated section 11-1-17 (1972). Rule 47 replaces the appeal procedure of the statute with the right to apply to this Court for a writ of mandamus to compel a trial judge to render a decision on a matter taken under advisement or deferred. Prior to our ruling in Glenn, the chancellor lost jurisdiction to render a decree in a matter once appeal was perfected pursuant to Mississippi Code Annotated S 11-1-17 (1972). Riley v. Richardson, 258 So.2d 419 (Miss. 1972). This Court has long applied the principle that if there has been a change, alteration or repeal of the law applicable to the rights of the parties, after rendition of the original judgment, and pending the appeal, the case must be heard and decided in the appellate court according to the prior existing law. Musgrove v. Vicksburg and Nashville Railroad Company, 50 Miss. 677, 682 (1874). Therefore we must apply the law as stated in Riley. Doing so, we find first that

 the chancellor had no jurisdiction to render a decree in this matter. Second, the decree which was entered is simply attached to the record and not a part of it. There being no valid decree, we are not required to find the chancellor manifestly wrong.

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

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

 239 Miss. at 67, 121 So.2d at 119.

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

 wrong.

 FACTS

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

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

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

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

 Rev. Henry Gladney, the person recommended by Alvin

 Carter to serve as PSL's agent in the Clay County area, testified that he was informed by Alvin Carter of a contract which Carter had signed in order to become general agent for VL sometime between March and May, 1979. Rev. Gladney referred in his testimony to meetings where Dr. Lincoln Ragsdale and Alvin Carter discussed the sale of VL policies. At one such meeting Rev. Gladney agreed to write insurance for VL on commission so long as the work did not interfere with PSL policies already in force. Later, Dr. Ragsdale, Alvin Carter, Tommy Free and Rev. Gladney met at Carter Funeral Home to discuss slowly switching over all PSL policies to VL policies. They decided this could best be accomplished by allowing the PSL policies to lapse because lapsed business would be anyone's and would not require notice to PSL. Rev. Gladney stated that he objected because the plan was not legal but was assured by Dr. Ragsdale that it would be all right if the plan were carried out slowly. Alvin Carter ...


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