Transcontinental Gas Pipe Line Corp. v. Rogers

284 So. 2d 304 (1973)

TRANSCONTINENTAL GAS PIPE LINE CORPORATION, Defendant-Appellant, v. Houston ROGERS and Jewell Rogers, Plaintiffs-Appellees.

No. 47257.

Supreme Court of Mississippi.

October 22, 1973.

M.M. Roberts, S. Wayne Easterling, Hattiesburg, John K. Keyes, Collins, for defendant-appellant.

No brief filed on behalf of plaintiffs-appellees.

PATTERSON, Justice:

This case arises from a tort suit in the Circuit Court of Covington County. The *305 defendant below appeals from a jury verdict for the plaintiffs in the sum of $1750. No brief responding to that of the appellant has been filed by the appellees though a certified true copy of the appellant's brief was sent to them on October 31, 1972.

We have considered the brief and argument of the appellant, as well as the record, and we cannot with confidence affirm the case. In fact, it is our opinion that it is controlled by Lawler v. Moran, 245 Miss. 301, 148 So. 2d 198 (1963), wherein we stated in quoting from Gulf, M. & O.R. Co. v. Webster County, 194 Miss. 660, 13 So. 2d 644 (1943):

"The failure to file this brief [by the appellee] is tantamount to a confession of error, and will be accepted as such, and the judgment of the court below will be reversed, since an answer to the appellant's brief cannot be safely made by us, without our doing that which the appellee, by its attorney, should have done, i.e., brief the appellee's side of the case. This we are not called on to do, therefore the case falls within, and is governed by, W.T. Raleigh Co. v. Armstrong, 165 Miss. 380, 140 So. 527." (245 Miss. at 302, 148 So.2d at 199).

See the more recent cases of Jackson v. Walker, 240 So. 2d 606 (Miss. 1970); Charles F. Hayes & Associates, Inc. v. Blue, 233 So. 2d 127 (Miss. 1970), and United States Fidelity & Guaranty Co. v. State, 204 So. 2d 852 (Miss. 1967), to the same effect.

The judgment of the lower court is reversed and remanded to the Circuit Court of Covington County for a trial upon the question of damages only. See Graves, Proof of Damages to Property in Tort Actions, 33 Miss.L.J. 151 (1962), and Southland Co. v. Aaron, 221 Miss. 59, 72 So. 2d 161 (1954), relating to this issue.

Reversed and remanded.

GILLESPIE, C.J., and INZER, SUGG and WALKER, JJ., concur.