United States Fidelity & Guaranty Co. v. State ex rel. Tompkins

PATTERSON, Justice: This appeal arises from a tort action in the Circuit Court of George County. The defendants below appeal from a jury verdict for the plaintiff in the sum of $10,000. No brief or other matter relating to the cause has been filed by the appellee in this case though appellant filed a brief and certified that a true copy of the same was mailed, postage prepaid, United States mail, to the attorneys for the plaintiff on the 7th day of May, 1967. We have carefully considered the brief of the appellant, as well as the record, and we cannot say that we can with entire confidence affirm the case. In fact, it is our opinion that this case is controlled by Lawler v. Moran, 245 Miss. 301, 302, 148 So.2d 198, 199 (1963), wherein we stated in quoting from Gulf M. & O. RR 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 [853] 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.” For the above reason the judgment of the lower court is reversed without prejudice and the case remanded. Reversed and remanded. GILLESPIE, P. J., and RODGERS, BRADY and SMITH, JJ., concur.