* L ocal Rule 47.5.1 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession." Pursuant to that rule, the court has determined that this

opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-60164

Summary Calendar

_______________

WILLIE LEE RAULS,

Plaintiff-Appellant,

VERSUS

THE GLIDDEN COMPANY,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Mississippi

(1:94cv241RR)

_________________________

November 21, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

Willie Lee Rauls br o ught this diversity action, alleging

negligence by the Glidden Co. (“Glidden”). The district court

granted summary judgment for Glidden, and we affirm.

Rauls injured his back while making a delivery to Glidden

Paint Store in Gulfport, Mississippi, as an employee of John Fayard2

Fast Freight, Inc. According to Rauls’s complaint:

The Defendants required [him] to unload the truck’s cargo which was an 1800 pound pallet. Defendant refused to unload

or assist the plaintiff. The freight bill clearly indicates

that The Glidden Store, d/b/a Glidden Paint Store is

responsible for loading and unloading the truck. [As a

consequence, Glidden] and through [its] employees did then and

there carelessly, negligently, and recklessly cause or allow

[him] to be seriously injured.

The district court granted summary judgment because: “Rauls’

own testimony deconstructs the foundation upon which he bases his

negligence claim. Restated, he debunks his own claim that Glidden

‘through [its] employees’: (1) ‘required’ him to unload c argo,

(2) ‘refused to . . . assist’ him, and (3) is therefore guilty of

negligence.” By Rauls’s own admission in his deposition, he was

not told to unload the truck, but took it upon himself to do so.

We agree with the district c ourt that Rauls failed to

establish an essential element of his negligence claim——a breach of

duty. See Carpenter v. Nobile , 620 So. 2d 961, 964 (Miss. 1993);

Georgia Casualty Co. v. Cotton Mills Prods. Co.

, 132 So. 73 (Miss.

1931) (holding that negligence can arise from breach of a contractual duty). There was no breach, because Rauls waived the benefit

of the contract when he voluntarily unloaded the pallet. A

contractual duty can be discharged when the beneficiary of the

contractual rig ht waives that benefit. C anizaro v. Mobile

Communications Corp.

, 655 So. 2d 25, 29 (Miss. 1995) (holding that

a party may waive a right to which he would be e ntitled under a

contract by either words or conduct); M ariana v. Hennington

, 90

So. 2d 356, 362 (Miss. 1956) (holding that a party may waive

beneficial contract provisions by actions and conduct); Moore v.3

Yazoo & M.V.R. Co. , 166 So. 395, 397 (Miss. 1936) (finding waiver

when plaintiff failed to protest breach of employment contract and

continued to work). Even assuming that the bill of lading

established a contractual duty on Gli dden to unload the pallets,

Glidden did not breach that duty when Rauls unloaded the pallets

without complaint.

The judgment is AFFIRMED.