Petition — Arrow Food Distributors, Inc. v. Love

oe

r° FILee 4

Nov 1 1978

EORAEL RODAR, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1978

ARROW FOOD DISTRIBUTORS, INC.,

Petitioner,

VS.

LLOYD F. LOVE, CONSERVATOR OF THE ESTATE OF

WILLIAM F. RILEY, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE

OF MISSISSIPPI

HEBER LADNER, JR.

UPSHAW, SCHISSEL, Dor1zAs & LADNER

1646 Capital Towers

Jackson, Mississippi 39201

Attorneys for Petitioner

E. L. MENDENAALL, INc., 926 Cherry Siveet, Kansas City, Mo. 64106, (816) 421-3030

TABLE OF CONTENTS

ER nls eheeeitiaen ni ahiastagasenintidbiniiie

surieaietien ................. OP eset ed AEN a ee a A

i a senseuidashnmuentens

Constitutional Provisions Involved

a _seisshniuunbpbabonansansbweagebas

-

II.

Ill.

The Application in State Court, After Remand

From Federal Court, of Mississippi’s “Special

Appearance” Rule Barring a Defendant, Who

First Properly Challenged in Personam Juris-

diction Under Rule 12, F.R.C.P. in Federal Court,

From Thereafter Challenging in Personam Ju-

risdiction in the State Courts of Mississippi Vio-

lates Due Process in That (1) It Substantially

Burdens the Assertion of Federal Rights in State

Court; (2) It Is Wholly Unfair; and (3) It

Amounts to an Unconstitutional Exercise of

Supervisory Jurisdiction by a State Court Over

SRR er a a

The Attachment of $3,500 of Accounts Receiv-

able of the Petitioner Arrow, a Non-Resident of

the State of Mississippi, Was Insufficient, Under

Shaffer, to Vest in Personam Jurisdiction in the

i atsiencaapeasiesanmeacees

Mississippi's Prejudgment Attachment Stat-

utes, Section 11-31-1, Mississippi Code of 1972,

Violate Due Process As Applied to This Peti-

tioner in That the Writs of Attachment Initiating

This Suit Were Obtained Without Notice, With-

out Bond, or Without Hearing ......................... Lagatiinen

1]

II

IV. The Assumption of in Personam Jurisdiction

Over the Defendant Violates Due Process in That

the Cause of Action Arose Outside Mississippi

and the Defendant Was Not Engaged in Contin-

uous and Substantial Activity in Mississippi ........ 16

Rr CL UR eee SAP ee NE AP Res Fe 17

Appendix “A”—Decision of the Supreme Court of

III ic sascutasiinpeincchieeaapccseastpaa scaleins peu hekchaciepiiamunadeindcnes) Al

Table of Authorities

CASES

American Railway Express v. Levee, 263 U.S. 19, 44 S.

Ce. RE ee Ree Ie CED cintsrcacnvatnenternharmpnisinaninedapichonionen 6

Arrow Food Distributors, Inc. v. Love, 361 So.2d 324

I. Te I sen iectdaianetdnsianenteanscnitehsamabesnemistinas 1, 4, 5, 6, 14

Brinkerhoff-Faris Company v. Hill, 281 U.S. 673, 50 S.

Ch. GR, Pa ee Ue Ce eitktbcetinciisiimienains 10

Brown v. Western Railway of Alabama, 338 U.S. 294,

70 S.Ct. 105, 94 L.Ed. 100 (1949) 00. 6

Burton v. U. S., 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed.

I CT ciiicetiadctesiniicecottinsbticn ceheelebmrapnaticiialiibadillaniae ceases 11

Creswill v. Grand Lodge Knights of Pythias, 225 U.S.

246, 32 S.Ct. 822, 56 L.Ed. 1074 (1912) ...0.20000.... 6

Daniels v. Allen, 344 U.S. 443, 73 S.Ct. 392, 97 L.Ed.

Re COI ieceiiesiidbeciinstsiiticectieiceiaepescaaicancccisesiruaiciapanin 10

Davis, Director General of Railroads, etc. v. Wechsler,

263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143 (1923) ........ 6, 7, 9, 10

Ellis v. Dixon, 349 U.S. 458, 75 S.Ct. 850, 99 L.Ed. 1231

CID cnc sisesinsetaisiineeictienteciustaiainethitceiiaael ia tare 6

Employers’ Reinsurance Corporation v. Bryant, 299 US.

374, 57 S.Ct. 273, 81 L.Ed. 289 (1936) 2.000... 7

Ill

Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d

Se ihc csaa select tace adapt dinininibiociniaaaesnebphcabicsdreamasanne 14

Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.

Tie oe RY Ta OMR eae ee SOAR 8, 10

International Shoe Co. v. Washington, 326 U.S. 310, 66

S.Ct. 154, 90 L.Ed. 95 (1945) ............. SAEED Sree SOS 13, 16-17

Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6

acs 6

McCoy v. Watson, 154 Miss. 307, 122 So. 368 (1929) ... 9

McMillan v. Tate, 260 So.2d 832 (1972) 0.0... 9

Mississippi Chemical Corporation v. Chemical Construc-

tion Corporation, 444 F.Supp. 925 (U.S.D.C., S.D.

SN I seca eakellerdutcalieashaderepninctialba SaRectrencantssbneviceeicens 14, 15

Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895,

Ae Se TE WII iiseecccibetcaddleveninsivedventeneitastensepsaseson 14

Mladinich v. Kohn, 250 Miss. 497, 175 So.2d 785 (1964) 9

Murdock v. City of Memphis, 20 Wall. 590, 22 L.Ed. 429

BBR ap ote UA ONT 2) rN TE nO Se eT 10

North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S.

601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) 000... 14

Perkins v. Benguet Consolidated Mining Company, 342

Rs aa io 17

Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed.

Ge SERIE ssinidscdalaiceniiniddetcbdeiiniaitiidencnasienanicepsesaiestensenigegesiovess 10

St. Louis Southwestern Railroad Company v. Alexan-

Og RR RT a ee ee 17

Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.

ae SE IIE satarsetsccpuetbica emneebeodinniansnicdlctsnnttassenti 2, 4, 11, 12, 13

Tauza v. Susquehanna Cual Company, 220 N.Y. 259, 115

SE RAE EY ACen .

Turner v. Williams, 162 Miss. 258, 139 So. 606 (1932) 9

Ward v. Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed.

OO ae =

IV

CONSTITUTIONAL PROVISIONS AND STATUTES

Constitution of the United States—

Fifth Amendment ......................... RS ee AST 3

Peoeebeenths AMOI qn. ccncecsccscesciciececensssaccvesesseesseses 3

Mississippi Code of 1972, Annotated—

Ceeetem. DR RRR, OE Ue occa decane citescsstcnicscsciesncnyccserienani 3, 14

IE) REEMA isusceiisincsnsinsceconntbtaadeeeseaentnianaapiadaaniamaimita 14

IA I in cccissiniciscendccntihenphtpancgpniaiichseaainaniaatiabilegl 3,4, 16

Rule 12, Federal Rules of Civil Procedure ........................ 2,9

y Bis FM By | Seeemunprnrecerreiey Mev enale sens Meteo: 2

TEXTS

2A Moore’s Federal Practice, para. 12.12 .....0....0000.0..... 9, 10

Restatement 2d, Conflicts of Laws, Section 47/2) .......... 13

In the Supreme Court of the United States

OCTOBER TERM, 1978

ARROW FOOD DISTRIBUTORS, INC.,

Petitioner,

Vs.

LLOYD F. LOVE, CONSERVATOR OF THE ESTATE OF

WILLIAM F. RILEY, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE

OF MISSISSIPPI

The Petitioner, Arrow Food Distributors, Inc., respect-

fully prays that a Writ of Certiorari issue to review the

July 12, 1978, Judgment and Opinion of the Supreme Court

of Mississippi, wherein a $248,920 judgment against the

Petitioner was affirmed,

OPINION BELOW

The decision of the Supreme Court of Mississippi is

reported at 361 So.2d 324 (Miss. S.Ct. 1978). It appears

as an appendix hereto as Appendix “A”. A timely Petition

for Rehearing before the Supreme Court of Mississippi was

filed and denied on August 23, 1978. Thereafter the Peti-

tioner timely filed an application for a stay of the mandate

of the Supreme Court of Mississippi to pursue this Writ

of Certiorari. The application for stay was denied on

September 15, 1978.

2

Petitioner is contemporaneously herewith filing an ap-

plication to this Court to stay the mandate of the Mississippi

Supreme Court pending disposition of this Petition for

Certiorari. Presently, the final mandate of the Supreme

Court of Mississippi has not issued, pending payment of the

costs and issuance of notice of forfeiture to the supersedeas

bondsman. However, these steps are imminent and Peti-

tioner respectfully prays that the companion motion for

a stay be granted to preserve and save the subject matter

of this appeal. No further effectual relief by way of stay

exists in the Supreme Court of Mississippi, since this Peti-

tioner’s application for a stay in that Court has been denied.

JURISDICTION

The final order of the Supreme Court of Mississippi

denying the Petition for Rehearing was entered on Sep-

tember 15, 1978. This Petition for Certiorari was ruled

within ninety (90) days of that date. This Court’s juris-

diction is invoked under 28 U.S.C., Section 1257(3).

QUESTIONS PRESENTED

1. Whether in a civil case first removed from State

Court to United States District Court and then remanded

after answer, a State Court may preclude the defendant

from challenging jurisdiction over his person because that

defendant failed to file a “‘special appearance” in Federal

Court even though Federal Court pleadings properly chal-

lenged jurisdiction over defendant’s person under Rule 12,

F.R.C.P.

2. Whether, in a suit jurisdictionally initiated by at-

tachment of the “effects” of a non-resident, there was ju-

risdiction over the person of the defendant under Shaffer v.

Heitner.

3

3. Whether, as applied to the Petitioner, Arrow Foods,

in this case, Mississippi’s attachment statutes, Section 11-31-

1, Mississippi Code of 1972, Annotated, et seq., are uncon-

stitutional because they authorize a pre-judgment attach-

ment of Arrow’s “effects” without notice, bond, or a hear-

ing.

4. Whether Section 79-1-27, Mississippi Code of 1972,

Annotated, conferring jurisdiction of suits against foreign

corporations may constitutionally be applied to Petitioner,

Arrow Foods, where the subject suit arose outside the State

of Mississippi, the Petitioner Arrow was not engaged in

continuous and substantial activity in Mississippi, and the

suit did not arise out of such activity.

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provisions involved are:

The Fifth and Fourteenth Amendments to the Con-

stitution of the United States.

STATEMENT OF THE CASE

The Respondent, Lloyd F. Love, Conservator, filed this

suit for $2,917,000 for his ward’s personal injuries in the

Chancery Court of Adams County, Mississippi. Writs of

non-resident attachment were sued out against local defen-

dants who allegedly held “effects” of the Petitioner, Arrow

Food Distributors, a non-resident corporation.

Before answer, appearance, or any pleading whatever.

the Petitioner, Arrow, removed the cause under 28 U.S.C.

Section 1441 to the United States District Court for the

Southern District of Mississippi. After removal, and pend-

ing a hearing on the rernoval petition, Petitioner, Arrow,

first answered the complaint. In separate conspicuous de-

4

fenses included in its federal court answer, Arrow ques-

tioned jurisdiction over its person, over the subject matter,

and moved to quash the non-resident attachment on due

process grounds.

After hearing, the cause was remanded to the Chancery

Court of Adams County, Mississippi. As the opinion below

recites, “The pleadings transferred to the Chancery Court

included Arrow’s answer which asserted Thirteen de-

fenses.” Arrow Food Distributors, Inc. v. Love, supra, p.

326. The Chancery Court of Adams County, Mississippi,

overruled the pleas to jurisdiction. After trial to a jury,

the Court entered judgment. upon the jury’s verdict in

the amount of $248,920.00. The defendant, Arrow, appealed

to the Supreme Court of Mississippi. The appeal was

almost wholly comprised of jurisdictional objections co-

extensive with issues two through four of this petition.

Inter alia, Arrow asserted on appeal that the attach-

ment was void under the teachings of Shaffer v. Heitner,

433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), that

Arrow was a non-resident corporation which had no sub-

stantial minimal contacts with the State of Mississippi,

that the attachment was void ab initio, having been begun

without hearing, notice or bond, and finally that Arrow

could not be sued in Mississippi on a cause of action arising

in Louisiana under Section 79-1-27, Mississippi Code of

1972, consistent with due process, unless Arrow had con-

tinuous and substantial activity in Mississippi.

The opinion of the Supreme Court of Mississippi pre-

termitted any consideration of the jurisdictional issues.

The avoidance of the jurisdictional issues was rested upon

procedural grounds:

We note that Arrow filed an answer and asserted

thirteen defenses in a full trial of this cause. By

entering a general appearance, Arrow waived any

asserted defect in the jurisdiction. Maupin v. Dennis,

252 Miss. 497, 175 So.2d 130 (1965); Mladinich v.

Kohn, 250 Miss. 138, 164 So.2d 785 (1964).

In McMillan v. Tate, 260 So.2d 832 (Miss. 1972), this

Court said:

While an individual or corporation may appear

specially for the purpose of objecting to the juris-

diction of the court over his person, he must do

so before filing any other pleadings. 260 So.2d

at 833 [emphasis by the Supreme Court of Mis-

sissippi]. Love, supra, at 327.

Hence the appeal to this Court.

I. The Application in State Court, After Remand

From Federal Court, of Mississippi’s ‘‘Special

Appearance”’ Rule Barring a Defendant, Who

First Properly Challenged in Personam Jurisdic-

tion Under Rule 12, F.R.C.P. in Federal Court,

From Thereafter Challenging in Personam Juris-

diction in the State Courts of Mississippi Violates

Due Process in That (1) It Substantially Burdens

the Assertion of Federal Rights in State Court;

(2) It Is Wholly Unfair; and (3) It Amounts to an

Unconstitutional Exercise of Supervisory Jurisdic-

tion by a State Court Over a Federal Court.

As this Court has aptly remarked, “Jurisdiction is

the right to put the wheels of justice in motion and to

proceed to the final determination of a cause upon the

pleadings and the evidence.” The right and opportunity

to challenge jurisdiction on federal constitutional bases is

sacred. In State Court, “the assertion of federal rights,

when plainly and reasonably made, is not to be defeated

6

under the name of local practice.” Davis, Director General

of Railroads, etc. v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68

L.Ed. 143 (1923). Local rules of pleading clearly and un-

exceptionally cannot defeat ‘fa plain assertion of federal

right.” Ward v. Love County, 253 U.S. 17, 40 S.C’. 419,

64 L.Ed. 751 (1920); Creswill v. Grand Lodge Knights of

Pythias, 225 U.S. 246, 32 S.Ct. 822, 56 L.Ed. 1074 (1912);

American Railway Express v. Levee, 263 U.S. 19, 44 S.Ct.

11, 68 L.Ed. 140 (1923); Brown v. Western Railway of

Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 160 (1949);

Ellis v. Dixon, 349 U.S. 458, 75 S.Ct. 850, 99 L.Ed. 1231

(1955); Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826,

6 L.Ed.2d 1191 (1961).

The “local” rule invoked to bar Arrow’s defenses bore

no relationship to local state practice or state concerns.

The answer filed by Petitioner Arrow said to be the basis

for ‘“‘waiver’” of the right to contest jurisdiction was filed

in Federal Court after removal. Love, supra, 361 So.2d

324 at 326, 327. No answer had been filed in State Court

before removal. It is ultra vires for a State Supreme Court

to exert supervisory power over federal court pleadings

or to invoke doctrines of waiver, estoppel or default there-

upon. The holding of the Supreme Court of Mississippi,

cutting off Petitioner Arrow’s right to contest jurisdiction,

plainly encumbers the right to make constitutional defenses

in state court. There is no more unreasonable obstacle

to raising federal rights than to impose a waiver or for-

feiture upon a litigant in state court for what he properly

did in federal court.

The use of a local procedural rule to thwart the exer-

cise of Federal rights has been prohibited by this Court

since Davis, Director v. Wechsler, supra, and progeny. The

paucity of cases reaching this Court since 1923 attests to

the fact that Davis is understood and applied.

7

That a state Court should transgress the teachings of

Davis, even if on arguable grounds, is highly unusual.

Initially the Mississippi special appearance rule could not

have applied in this case since the case was removed

before any answer, appearance, or any hearing in State

Court. While this Court possesses supervisory power over

the inferior Federal courts, Employers’ Reinsurance Cov-

poration v. Bryant, 299 U.S. 374, 57 S.Ct. 273, 81 L.Ed. 289

(1936), the absence of any supervisory power by a State

Court over the procedures of a Federal Court, coextensive

in jurisdiction, is too clear for citation or comment. There-

fore, the procedural ruling of the Supreme Court of Mis-

sissippi here is a double insult to the Federal system. It

clearly burdens the assertion of constitutional rights and

does so by meddlesome interference in the Federal Court

system.

Davis v. Wechsler, supra, directly controls this case

and commands a reversal of the case at bar. In Davis,

the defendant was attempting, by appropriate pleas, to

claim under the Federal Transportation Act of 1920 that

the suit against him was brought in an improper forum.

The effort to claim this federal right was squelched by

the Missouri State Court of Appeals. That court held that

the federal statute involved was a venue statute and not

a jurisdictional statute. Therefore, under state law, venue

was waived by the appearance of the defendant. Earlier,

the defendant had answered and had pled jurisdiction but

not venue. The decision in Davis turned, then, on the fact

that the defendant there was claiming the suit was in the

wrong county, but had mislabeled his plea, according to

state practice.

Clearly, the defendant in Davis was claiming a vai-

uable federal right, and not one created by Missouri law.

The State court defeated that claim based upen procedural

8

characterizations of the proper factual and legal plea. In

its response to the situation, this Court ruled:

Whatever springs the state may set for those who are

endeavoring to assert rights that the State confers,

the assertion of federal rights, when plainly and rea-

sonably made, is not to be defeated under the name

of local practice. ... Indeed, when the state requires

him to unite his defense on the merits, which imports

an appearance pro hac vice, with his preliminary plea,

it is hard to understand how any affect could be attrib-

uted to the statement that he appeared. The state

courts may deal with that as they think proper in local

matters but they cannot treat it as defeating a plain

assertion of federal right. The principle is general

and necessary. Ward v. Love County, 253 U.S. 17, 22.

If the constitution and laws of the United States are

to be enforced, this court cannot accept as final the

decision of the state tribunal as to what are the facts

alleged to give rise to the right or to bar the assertion

of it even upon local grounds. Creswill v. Grand Lodge

Knights of Pythias, 225 U.S. 246. This is familiar as

to the substantive law and for the same reasons it

is necessary to see that local practice shall be allowed

to put unreasonable obstacles in the way. See Amer-

ican Railway Express v. Levee, decided this day, ante,

19,

The decision below unreasonably burdens the assertion

of federal constitutional rights in the state system, demon-

strates an unwarranted supervisory jurisdiction by state

court over federal courts, and finally was not fairly applied

to this case.

In Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13

L.Ed.2d 408, in a criminal context, this Court announced

9

that a state procedural rule could not bar a federal con-

stitutional claim unless the rule was reasonable and had

been fairly applied. The unreasonableness of the rule is

amply shown by Davis. However, assuming arguendo, that

a state may for a pure local idiosyncrasy require that a

pleading challenging jurisdiction be labeled “Special Ap-

pearance”, the state, it may be shown, has not fairly applied

this rule to the present litigants. To contest jurisdiction

in Mississippi, a corporation must “appear specially for the

purpose of objecting to the jurisdiction of the court over

his person” before filing any other pleadings. McMillan

v. Tate, 260 So.2d 832 (1972). However, it has long been

an exception to that rule that the filing of a petition for

removal does not constitute a general appearance. McCoy

v. Watson, 154 Miss. 307, 122 So, 368 (1929). The McCoy

exception is carried forward and approved in Mladinich

v. Kohn, 250 Miss, 497, 175 So.2d 785 (1964). Citing with

approval an older case, Turner v. Williams, 162 Miss, 258,

139 So. 606 (1932), the Mladinich court observed, as regards

removal, that the non-resident does not submit himself to

the state court by availing himself of the right of removal

to federal court. Mladinich, supra at 793.

Since the pleadings said to offend the Mississippi

“special appearance” rule were filed after removal to

Federal court, no reasonable construction of a waiver can

be applied to such pleadings. If it does not infringe the

Mississippi special appearance rule to file a petition for

removal as the cases concede, then proper and appropriate

steps taken to contest jurisdiction in federal court before

remand similarly could not be a waiver. Since special

appearances are unknown and unnecessary in federal court,

2A Moore’s Federal Practice, paragraph 12.12, pp. 2324-

2325, the proper perfection of jurisdictional objections by

pleading those defenses under Rule 12 in th» first respon-

10

sive pleading, as was unquestionably done here, is all that

a removing defendant need do. Id. at 2320.

Since the decision below turns upon a _ procedural

ground cutting off asserted federal constitutional rights,

no other ground in the Mississippi Supreme Court’s decision

can insulate this case from this Court’s review. The

principle that this court will not review state court judg-

ments resting on independent and adequate state grounds,

Murdock v. City of Memphis, 20 Wall. 590, 22 L.Ed, 429

(1875), principally relates to substantive grounds, Where

as here, a state procedural rule has precluded consideration

of a federal question, a federal question is always pre-

sented. Henry v. Mississippi, 379 U.S. 443, 446-447, 85 S.Ct.

564, 13 L.Ed.2d 408 (1965). The adequate state ground

principle has no application when federal rights are re-

jected on the basis of procedural technicalities. Davis v.

Wechsler, supra, at 24-25; Daniels v. Allen, 344 U.S, 443, 73

S.Ct. 392, 97 L.Ed. 1366 (1953); Brinkerhoff-Faris Com-

pany V, Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107 (1930);

Rogers v. Alabama, 192 U.S, 226, 230-231, 24 S.Ct. 257, 48

L.Ed. 417 (1904). Davis, supra, forthrightly holds that a

state’s adherence to its own procedural rules cannot con-

stitute an independent and adequate state ground requir-

ing affirmance.

The existence of an unwarranted procedural default

below is unmistakable. The rule has prevented the defen-

dant from raising serious and substantial constitutional

questions concerning jurisdiction over its person. Since

the petitioner verily believes for the foregoing reasons that

its petition is well taken and should be granted, petitioner

will address here the scope of the relief.

First, this Court could vacate the decision of the Mis-

sissippi Supreme Court and remand the case to that Court

11

with directions to consider the constitutional questions

raised about jurisdiction. This course would avoid antici-

pation of a question of constitutional law in advance of the

necessity of deciding it. Burton v. U. S., 196 U.S. 283, 25

S.Ct. 243, 49 L.Ed. 482 (1905). Moreover, the Mississippi

Supreme Court arguably should be given an opportunity

to meet the constitutional questions raised.

The great likelihood is that this court, upon grant of

the petition for certiorari, would vacate and remand to

the Supreme Court of Mississippi, postponing a decision

on the federal constitutional questions raised. However,

since there is jurisdiction in this court to hear and finally

decide the constitutional questions raised, they are set out

hereafter. Should the court prefer to abstain from deciding

these questions, the bounds and substance of the constitu-

tional questions raised will further substantiate petitioner’s

contention that the procedural rule invoked against it fore-

closed substantial constitutional claims.

II. The Attachment of $3,500 of Accounts Receivable

of the Petitioner Arrow, a Non-Resident of the

State of Mississippi, Was Insufficient, Under

Shaffer, to Vest in Personam Jurisdiction in the

Courts of Mississippi.

Under Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569,

53 L.Ed.2d 683 (1977), Mississippi lacked in personam

jurisdiction over petitioner Arrow Food Distributors, Inc.,

and the resulting exercise of jurisdiction by attachment

over Arrow was unconstitutional. Shaffer recognizes that

the happenstance existence of property or choses in action

in a given state is not sufficient to vest jurisdiction there

over all controversies between the parties. To do this is

to “allow state court jurisdiction that is fundamentally un-

fair to the defendant”, Shaffer, supra.

12

Here, a personal injury suit arising in Louisiana was

filed for $2,917,000 in Mississippi. The sole jurisdictional

vehicle was the attachment of $3,500 in open accounts.

The natural, logical and practical jurisdictional situs for

this personal injury suit was the State of Louisiana. The

accident occurred there. The petitioner Arrow has its

principal place of business there. The liability witnesses

and contemporaneous medical evidence were there. To

this day, a “protective” lawsuit remains on file in West

Feliciana Parish, Louisiana.

A square application of the Shaffer jurisdictional tests

deprives the Mississippi courts of jurisdiction. The prop-

erty attached, accounts receivable for food stuffs, is wholly

unrelated to the cause of action, a tort suit between a

Louisiana conservator and a Louisiana-based Delaware cor-

poration, arising wholly within Louisiana. Nor are there

compelling ties among the petitioner Arrow, the State of

Mississippi, and the underlying litigation. The presence

of $3,500 in accounts receivable in Mississippi is not strongly

suggestive that the petitioner Arrow had any significant

contacts with Mississippi. The use of one truck, one driver,

and one load of groceries per week in five counties of a

state, is not a sufficient contact. Similarly, the complainant

in this state court suit was not perfecting a claim to the

attached property. This suit is purely and clearly the type

of Harris v. Balk attachment which this Court in Shaffer

stated would be significantly changed:

For the type of quasi in rem action typified by Harris

v. Balk and the present case, . .. [this case] would

result in significant change. These are cases where

the property which now serves as the basis for state

court jurisdiction is completely unrelated to the plain-

tiff’s cause of action. Thus, although the presence of

the defendant's property in a state might suggest the

13

existence of other ties among the defendant, the state

and the litigation, the presence of the property alone

would not support the state’s jurisdiction. If those

other ties did not exist, cases over which the state is

now thought to have jurisdiction could not be brought

in that forum. Id. at 433 US.

Shaffer holds that all assertions of state court juris-

diction must be evaluated according to the standards set

forth in International Shoe v. Washington, 326 U.S. 310, 66

S.Ct. 154, 90 L.Ed. 95 (1945) and its progeny. As to causes

of action arising outside the forum state, International Shoe

holds that a non-resident corporation may not be sued,

consistent with due process, unless it is engaged in contin-

uous and substantial activity. Suits arising outside of the

forum state brought against non-resident corporations, as

here, may not be brought under International Shoe unless

the activities of the defendant in the forum state are con-

nected with the cause of action and the defendant’s activ-

ities are continuing and substantial. This caveat on out of

state causes of action is embodied in the Restatement 2d,

Conflicts of Laws, Section 47(2). Clearly, the contact of

Arrow in Mississippi falls short of those minimum contacts

necessary to vest jurisdiction under International Shoe v.

Washington and Shaffer v. Heitner.

III. Mississippi’s Prejudgment Attachment Statutes,

Section 11-31-1, Mississippi Code of 1972, Violate

Due Process As Applied to This Petitioner in

That the Writs of Attachment Initiating This Suit

Were Obtained Without Notice, Without Bond, or

Without Hearing.

This suit was begun by the respondent, Love, upon

the filing of a bill of complaint requesting writs of attaeh-

14

ment against four local defendants. According to the opin-

ion of the Mississippi Supreme Court below, Love, supra,

at 326, the attachments tied up approximately $3,500 in ac-

counts for foodstuffs. Without notice, bond, or a subse-

quent hearing on the attachment, the attachment, under

Mississippi law is “sufficient to bind such effects or in-

debtedness. . .” Section 11-31-3. The plaintiff made no

showing, by affidavit or otherwise, of his entitlement to

the monies attached. No bond is authorized or required by

Mississippi statutes, Section 11-31-1, et seq. No security

by bond or otherwise is authorized or was required of the

respondent in this case. Petitioner Arrow has no preroga-

tive under the subject statutes to recover damages, interest

or attorney’s fees if the attachments are wrongful.

That such procedures constitute a deprivation of prop-

erty without due process of law is inferable from this

Court's recent decisions. Fuentes v. Shevin, 407 U.S. 67,

92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Mitchell v. W. T.

Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406

(1974); North Georgia Finishing, Inc. v. Di-Chem, Inc.,

419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975).

For present purposes, further citation supporting the

invalidity of Mississippi’s attachment in Chancery statutes

is unnecessary. Recently, the United States District Court

for the Southern District of Mississippi declared those

statutes unconstitutional on the bases alleged here. Missis-

sippi Chemical Corporation v. Chemical Construction Cor-

poration, 444 F.Supp. 925 (U.S.D.C., S.D. Miss. 1977).

The reasons which underlay that decision parallel and

overlap the grounds urged here:

... This Court is of the opinion that the Mississippi

attachment in Chancery statutes are unconstitutional

because they do not require the plaintiff to obtain

15

any Court ordered writ of sequestration or garnish-

ment, the obligation of the attachment defendant to

the non-resident principal defendant being bound by

the service of process made at the sole instance and

discretion of the plaintiff's attorney; no bond is re-

quired of the plaintiff nor is there any requirement

that the plaintiff show, by affidavit or otherwise, that

he is in any way entitled to the attachment; there is

no review, either prior to or after service upon the

attachment defendant of the propriety of the attach-

ment by a disinterested, neutral judicial officer; the

principal defendant can dissolve the attachment only

by posting a satisfactory bond, and no procedure exists

whereby the principal defendant can challenge the

validity of the attachment on the grounds of procedural

irregularity, excessiveness of the attachment, lack of

merit of the underlying claim, or any other reason;

only by prevailing at trial on the merits can the prin-

cipal defendant obtain relief from the attached indebt-

edness; all debts owing to the principal defendant are

subject to attachment regardless of where the debts

arose, provided only that the attachment defendant

be served within the state of Mississippi; and finally

the statutes do not require even a rudimentary ex

parte hearing. Id. at 938.

The flimsy procedural default relied upon by the Mis-

sissippi Supreme Court foreclosed and submerged consid-

eration of this viable constitutional issue. Indeed, the

opinion in Mississippi Chemical Corporation would and

should be persuasive upon the Mississippi Supreme Court

if these constitutional defenses may be finally heard.

16

IV. The Assumption of in Personam Jurisdiction

Over the Defendant Violates Due Process in

That the Cause of Action Arose Outside Missis-

sippi and the Defendant Was Not Engaged in

Continuous and Substantial Activity in Missis-

sippi.

The petitioner Arrow conducted route sales of food-

stuffs in five of Mississippi’s eighty-two counties, utilizing

one salesman and one delivery truck. The orders were

filled in Louisiana and shipped by truck to Mississippi.

The Mississippi area serviced was that portion of southwest

Mississippi nearest Baton Rouge, Louisiana. At best, the

average of weekly shipments in the ninety days before

suit was filed was $2,000 to $3,000 per week. At the time

suit was filed, Arrow’s Mississippi customers owed it

$3,186.06. The accident giving rise to this suit occurred

within the State of Louisiana.

The claim of jurisdiction over the petitioner, Arrow

Food Distributors, Inc., in Mississippi, rests upon Section

79-1-27, Mississippi Code of 1972:

Any corporation claiming existence under the laws of

any other state or any other country foreign to the

United States, found doing business in this state, shall

be subject to suit here to the same extent that corpora-

tions of this state are, whether the cause of an action

accrued in this state or-not-——————™

The due process limitation of a state’s assumption of

jurisdiction over non-resident corporations for non-forum

state injuries is a two-pronged test. First, the obligation

sued upon must arise out of the very activity supplying

the contacts or ties with the forum state. Second, the

non-resident corporation must be engaged in continuous

and substantial activity in the forum state. International

17

Shoe Company v. Washington, 326 U.S. 310; Tauza v. Sus-

quehanna Coal Company, 220 N.Y. 259, 115 N.E, 195 (1917);

St. Louis Southwestern Railroad Company v. Alexander,

227 U.S. 218 (1913); Perkins v. Benguet Consolidated

Mining Company, 342 U.S. 437 (1952).

Anticipating the absence of jurisdiction in Mississippi,

the respondent has on file a “protective” suit in the State

of Louisiana. At the base of it, this case concerns a

Louisiana automobile accident and litigation between a

Delaware Corporation having its principal place of business

in Louisiana, and a Louisiana conservator for a Mississippi

plaintiff. Based upon tests of International Shoe and a

factual analysis of the case, there is a strong viable ques-

tion as to whether Mississippi’s assumption of in personam

jurisdiction over the petitioner was constitutionally correct.

Likewise, that issue has been glossed over through the

invocation of Mississippi’s peculiar procedural rule.

CONCLUSION

For the aforestated reasons, the Petition for Certiorari

should be granted in that the petitioner was unquestion-

ably denied due process by the procedural “special appear-

ance” rule utilized by the Mississippi Supreme Court.

-_7fAdternatively, there was no in personam jurisdiction over

the petitioner in the state courts of Mississippi.

_ Respectfully submitted,

Arrow Foop Distrisutors, INc.

UPSHAW, SCHISSEL, DorizAs & LADNER

by HEBER LADNER, JR.

Al

APPENDIX

ARROW FOOD DISTRIBUTORS, INC.

v.

Lloyd F. LOVE, Conservator of the Estate of

William F. Riley, Jr.

No. 50287,

Supreme Court of Mississippi.

July 12, 1978.

Rehearing Denied Aug. 23, 1978.

Conservator of estate of injured motorist brought ac-

tion against owner of tractor trailer that collided with

motorist’s automobile. The Chancery Court, Adams County,

Frederick C. Berger, Chancellor, entered judgment for

plaintiff, and defendant appealed. The Supreme Court,

Robertson, P.J., held that: (1) evidence sustained finding

that nonresident defendant that owned tractor trailer in-

volved in accident did substantial amount of business in

state at time cause of action accrued, and Chancery Court

had jurisdiction over such nonresident defendant; (2) deci-

sion of federal district court that action did not invoke

federal jurisdiction precluded further litigation on such

issue; (3) evidence sustained jury verdict awarding

$248,920 to 23-year-old plaintiff; (4) defendant failed to

preserve contention of error in connection with protective

order covering plaintifis medical records, and (5) chan-

a cellor did not err in excluding opinion testimony of acci-

dentologist.

Affirmed.

A2

1. Corporations (Key) 668(1)

Statute governing service of process when defendant

is a nonresident doing business in state complements statute

governing foreign corporations subject to suit in state in

furthering state’s avowed policy to open the door of state

courts to foreign corporations found doing business in state

to sue and be sued in state on all bona fide causes of action.

Code 1972, §§ 13-3-57, 79-1-27.

2. Courts (Key) 12(5)

Evidence in action to recover for injuries sustained

in motor vehicle collision sustained finding that nonresident

defendant that owned tractor trailer involved in accident

did substantial amount of business in state at time cause

of action accrued, and thus chancery court had jurisdiction

over such nonresident defendant. Code 1972, §§ 13-3-57,

79-1-27.

3. Appearance (Key) 22

By entering a general appearance, nonresident defen-

dant waived any asserted defect in chancery court’s juris-

diction over it.

4. Judgment (Key) 829(2)

Federal district court’s decision that action arising out

of motor vehicle collision did not invoke federal jurisdiction

precluded further litigation of the issue of forum in which

removed case was to be litigated.

5. Damages (Key) 132(3)

Evidence in action to recover for personal injuries sus-

tained in motor vehicle collision sustained jury verdict

awarding $248,920 to 23-year-old plaintiff motorist who

a

A3

was totally and permanently disabled, who suffered brain

contusion, basilar skull fracture, sheared teeth and cuts on

the head requiring 175 stitches, who underwent a complete

change of personality due to dead brain cells and formation

of scar tissue, and who had been making $10,800 per year

with a good chance of advancement at time of accident.

6. Appeal and Error (Key) 205

On appeal from judgment entered in action to recover

for injuries sustained in motor vehicle collision, defendant

failed to preserve its contention of error with respect to

chancellor’s protective order covering plaintiff's medical

records, because such records were never introduced into

evidence and were never offered into evidence.

7. Evidence (Key) 519

In action to recover for injuries sustained in motor

vehicle collision, chancellor did not err in excluding opinion

testimony of accidentologist, in view of fact that acci-

dentologist’s observations as to how jury should interpret

photographs introduced into evidence invaded province of

jury.

Upshaw, Dorizas & Ladner, Heber Ladner, Jr., Jackson,

for appellant.

Daniel Coker, Horton, Bell & Dukes, Terry R. Levy,

Joe H. Daniel, Jackson, Zuccaro, Riley, Pintard & Brown,

William F. Riley, Sr., Natchez, for appellee.

Before ROBERTSON, SUGG and BROOM, JJ.

ROBERTSON, Presiding Justice, for the Court:

Arrow Food Distributors, Inc., a Delaware corporation

with its headquarters in New Orleans, Louisiana, appeals

A4

from a decree of the Chancery Court of Adams County,

Mississippi, for $248,920, in favor of Lloyd F. Love, Con-

servator of the Estate of William F. Riley, Jr.

The injuries to Riley resulted from a head-on collision

of Riley’s Pinto automobile with a large refrigerated

tractor-trailer unit owned by Arrow and driven by Henry

D. Alexander. About 4:45 A.M., August 1, 1975, William

F. Riley, Jr. was driving south on U. S. Highway 61 north

of Baton Rouge, Louisiana. Riley was on his way back

to work as a roustabout on an oil rig off of the Louisiana

coast. It was raining rather heavily and foggy in low

places along the highway. Henry Alexander was driving

Arrow’s refrigerated tractor-trailer unit north on U. S.

Highway 61 at a speed of 45 to 50 miles per hour. He was

en route to Natchez, Mississippi, to deliver refrigerated

foods ordered by Mississippi customers of Arrow. Alex-

ander testified that he thought he saw headlights in his

lane. He blinked his lights and, according to Alexander,

the headlights, instead of moving west, moved to the east

side of the highway. Alexander continued:

“At this time I applied my brakes lightly, my truck

went into a skid, and shortly after I went into a skid

there was an impact.

Q All right. Now, as you approached that ve-

hicle, tell the Court and Jury again what that vehicle

did?

A It moved to the right shoulder.

Q What did you do at that time?

A At that time I looked and I saw that the left

lane was available, there was no traffic coming, so I

tried to move over to my left.

Q What were the weather conditions that day?

A It was raining.

A5

Q Were there any other weather conditions that

you took note of?

A It was slightly foggy in spots.”

Louisiana Highway Patrolman Joe White testified that

the refrigerated van turned over and the dual rear wheels

came to rest on top of the Pinto automobile. Riley’s Pinto

was completely in the southbound lane. Arrow’s truck

was partially in the southbound lane, partially on the west

shoulder and partially in the northbound lane. Riley re-

mained unconscious in a Baton Rouge hospital for 24 hours.

He suffered a brain contusion, basilar skull fracture,

sheared teeth, various bruises and cuts on the head re-

quiring 175 stitches, burns to his fingers and hand, and a

compression fracture of the sixth cervical vertebra with

a narrowing of the disc between the fifth and sixth ver-

tebrae. The force of the impact bent the frame of the

defendant’s truck and totally demolished Riley’s automo-

bile,

Arrow assigned 24 errors but briefed only 6. In its

brief, Arrow argues:

1. The Chancery Court of Adams County did not have

jurisdiction;

2. The United States District Court for the Southern

District of Mississippi did have jurisdiction even

though, after a hearing, that Court had remanded

the case to the Adams County Chancery Court;

3. The trial court erred in sustaining a motion in

limine and entering a protective order covering

Riley’s medical records at Whitfield;

4. The court erred when it excluded the tetsimony of

an expert “accidentologist”’; and

5. The verdict was against the overwhelming weight

of the evidence.

A6

Nelson DeSoto, vice president of appellant, testified

that Arrow had sold foodstuffs in Mississippi continuously

since 1951. Sales in Mississippi averaged $2,000 to $3,000

a week. A salesman would come to Mississippi and solicit

orders. The orders would be filled in Louisiana and

shipped by truck to Mississippi purchasers. Sales in Mis-

sissippi of $104,000 to $156,000 annually, in our opinion,

constitute a substantial amount of business. In April, 1976,

$9,000 was owed Arrow by Mississippi purchasers. On

June 23, 1976, approximately $3,500 was still owed Arrow

by Mississippi purchasers, and two delinquent accounts had

been placed in the hands of attorneys for collection. Arrow

had used Mississippi’s highways for 15 years in delivering

foodstuffs sold to Mississippi customers, and now would

use Mississippi’s courts in collecting debts due it.

Suit was begun as an attachment in chancery. The

defendants were Arrow Foods, a non-resident corporation,

and four Mississippi debtors of Arrow. Process was served

on the Secretary of State of Mississippi for Arrow. All

four attachment defendants answered admitting that they

owed Arrow. Appellant moved to transfer to the United

States District Court for the Southern District of Missis-

sippi on the ground of diversity of citizenship between

Arrow and the ward, William F. Riley, Jr.. who was a

Natchez resident, even though his conservator, Lloyd F.

Love, was a Louisiana resident. After a hearing, the United

States District Court remanded the case to the Chancery

Court of Adams County. The pleadings transferred to the

chancery court included Arrow’s Answer which asserted

thirteen defenses.

Mississippi Code Annotated section 13-3-57 (1972) pro-

vides in part:

“Any nonresident person, firm, general or limited

partnership, or any foreign or other corporation not

Al

qualified under the constitution and laws of this state

as to doing business herein, who shall make a contract

with a resident of this state to be performed in whole

or in part by any party in this state, or who shall

commit a tort in whole or in part in this state against

a resident of this state, or who shall do any business

or perform any character of work or service in this

state, shall by such act or acts be deemed to be doing

business in Mississippi. Such act or acts shall be

deemed equivelent to the appointment by such non-

resident of the secretary of state of the State of

Mississippi, or his successor or successors in office, to

be the true and lawful attorney or agent of such non-

resident upon whom all lawful process may be served

in any actions or proceedings accrued or accruing from

such act or acts, or arising from or growing out of

such contract or tort, or as an incident thereto, by any

such nonresident or his, their, or its agent, servant or

employee.

“The doing of such business, or the engaging in

any such work or service in this state, or the making

of such contract, or the committing of such tort in this

state, shall be deemed to be a signification of such non-

resident’s agreement that any process against it or its

representative which is so served upon the secretary

of state shall be of the same legal force and effect as if

served on the nonresident at its principal place of

business in the state or country where it is incorporated

and according to the law of that state or country.”

(Emphasis added ).

Arrow contends that section 13-38-57 does not apply

because the collision took place in Louisiana and the cause

of action accrued there. The appellee answers that not

A8

only does section 13-3-57 apply but that Mississippi Code

Annotated section 79-1-27 (1972) also applies. The appel-

lee contends that section 79-1-27 complements 13-3-57 and

that these sections must be read together and harmonized.

Section 79-1-27 provides:

“Any corporation claiming existence under the

laws of any other state or of any country foreign to

the United States, found doing business in this state,

shall be subject to suit here to the same extent that

corporations of this state are, whether the cause of

action accrued in this state or not.” (Emphasis added).

In Vicksburg S. & P. R. Co. v. Forcheimer, 113 Miss.

531, 74 So. 418 (1917), in discussing section 79-1-27 (Chap-

ter 123, Laws 1908), this Court said:

“The policy of our state is to open the door of

our courts to all foreign corporations desiring to sue

on any proper cause of action, and to subject foreign

corporations to suit here the same as individuals. This

is the express declaration of our statute,....” 113

Miss. at 537-38, 74 So. at 419.

[1] In our opinion section 13-3-57 and 79-1-27 must

be read together, construed together and harmonized one

with the other. When this is done and full meaning is

given to the language used in each section, it is clear

to us that 13-3-57 complements 79-1-27 in furthering the

state’s avowed policy as expressed in Vicksburg S. & P. R.

Co. v. Forcheimer, supra, to “open the door” of our Mis-

sissippi courts to foreign corporations found doing business

in this State to sue and be sued here on all bona fide

causes of action.

[2] Besides being a bona fide attachment suit, the

chancellor found that Arrow over the years had done

A9

and was still doing a substantial amount of business in

Mississippi at the time this cause of action accrued. We

cannot say that the chancellor was wrong in his finding.

[3] We note that Arrow filed an Answer and as-

serted thirteen defenses in a full trial of this cause. By

entering a general appearance, Arrow waived any asserted

defect in the jurisdiction. Maupin v. Dennis, 252 Miss.

496, 175 So.2d 130 (1965); Mladinich v. Kohn, 250 Miss.

138, 164 So.2d 785 (1964).

In McMillan v. Tate, 260 So.2d 832 (Miss. 1972) this

Court said:

“While an individual or corporation may appear spe-

cially for the purpose of objecting to the jurisdiction

of the court over his person, he must do so before

filing any other pleadings.” 260 So.2d at 833. (Em-

phasis added).

There is no merit in this assignment of error.

[4] In its next assignment of error, Arrow attempts

to relitigate the matter of federal court jurisdiction in

a State court. This contention was long ago rejected by

the Supreme Court of the United States in Missouri R. R.

Co. v. Fitzgerald, 160 U.S. 556, 16 S.Ct. 389, 40 L.Ed. 536

[1896]. In McLaughlin Br s, v. Hallowell, 228 U.S. 278, 33

S.Ct. 465, 57 L.Ed. 835 (1912), the United States Supreme

Court again answered this contention:

“The supreme court of Nebraska rightly recognized

the courts of the United States to be the exclusive

judges of their own jurisdiction, ... As, under the

statute, a remanding order of the circuit court is not

reviewable by this court on appeal or writ of error

from or to that court, so it would seem to follow

that it cannot be reviewed on a writ of error to a state

Al0

court, the prohibition being that ‘no appeal or writ

of error from the decision of the circuit court, remand-

ing such cause, shall be allowed.’” 227 U.S. at 286,

33 S.Ct. at 468, 57 L.Ed. at 839.

In Rath Packing Co. v. Becker, 530 F.2d 1295 (9th

Cir. 1975) cert. granted 425 U.S. 933, 96 S.Ct. 1663, 48

L.Ed.2d 174 (1976), the Ninth Circuit, citing Missouri R.

R. Co. v. Fitzgerald, supra, said:

“The decision of the district court that the case does

not invoke the federal jurisdiction and must be re-

manded precludes further litigation of the issue of

the forum in which the removed case is to be litigated.”

530 F.2d at 1303. (Emphasis added).

[5] Appellant next contends that the verdict is

against the overwhelming weight of the evidence.

Where the accident happened, Highway 61 is about

50 feet wide. There are two travel lanes, each approxi-

mately 12 feet wide, and beside each lane is an asphalt

shoulder ten or twelve feet wide. Henry D. Alexander,

the driver of appellant’s tractor-trailer, was the only eye-

witness able to testify. He testified that when he thought

he saw Riley in his northbound lane he blinked his lights

but Riley moved further to the east. Then Alexander

braked lightly and attempted to move into Riley’s south-

bound lane, but his truck “went into a skid and shortly

after I went into a skid there was an impact.”

The impact was entirely in Riley’s southbound lane.

When Trooper White arrived he found Riley’s Pinto under-

neath the right rear dual wheels of the trailer which

had turned over. Arrow’s tractor-trailer stretched all the

way from the west shoulder completely across the south-

bound lane and partially across the northbound lane. There

All

were two-inch-deep gouge marks two feet west of the

center line which stretched north in the southbound lane

for 40 feet to the point of impact. The physical facts

fully support and justify the jury’s verdict as to liability.

As to the jury verdict for $248,920 damages, the over-

whelming testimony of the medical doctors who examined

him was that 23-year-old Billy Riley was totally and per-

manently disabled. After carefully examining the photo-

graphs in the record showing the complete demolition of

Riley’s Pinto it is hard to comprehend how Riley is even

alive today.

He suffered a brain contusion, basilar skull fracture,

sheared teeth and cuts on the head requiring 175 stitches.

The doctors attributed his complete change of personality

(causing him to threaten to kill his wife and child, his

parents and even himself) to dead brain cells and the

formation of scar tissue as a result of the brain contusion

and basilar skull fracture.

Riley was making $10,800 a year with a good chance

of advancement. Under the facts of this case, we cannot

say that the unanimous jury verdict is excessive and that

the chancellor was in error in adopting the jury verdict

as the judgment of the court.

[6] Even if the records on Riley at the Mississippi

State Hospital at Whitfield were not privileged and were

admissible in evidence, Arrow has not preserved this point

because these records were never introduced into evidence,

nor were they even offered into evidence. They are not,

therefore, before this Court. We stated in Willenbrock

v. Brown, 239 So.2d 922 (Miss. 1970):

“It was the duty of the appellant to perfect the record

on appeal and we have stated many times that we

Al2

will not consider anything on appeal that does not

appear in the record.” 239 So.2d at 925.

[7] There is no merit in *he appellant’s contention

that the chancellor erred when he excluded the opinion

testimony of accidentologist Alvin Doyle, Jr.

We specifically answered this contention in Hagan

Storm Fence Company v. Edwards, 245 Miss. 487, 148 So.2d

693 (1963), when we said:

“It should be observed that Mr. Doyle had no

facts before him on which to reach his conclusions

that the jury did not have. He testified from photo-

graphs that had been introduced in evidence, the loca-

tion at which the two vehicles came to rest as neces-

sarily related to him by witnesses, and testified as

to the indicated speed of each automobile at the time

of the accident, and of course he did not know the

point of impact except from hearsay, and on the basis

of his experience as hereinbefore set forth.” 245 Miss.

at 492, 148 So.2d at 695.

His observations as to how the jury should interpret the

pictures introduced into evidence invaded the province

of the jury and should not have been admitted.

Finding no reversible error, we are of the opinion

that the decree of the chancery court, adopting the jury’s

verdict as its own, should be and is hereby affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG,

WALKER, BROOM, LrE, BOWLING and COFER, JJ.,

concur.