author: BROOM, Justice,

text:
    CANAL INSURANCE COMPANY v. C. I. T. FINANCIAL SERVICES CORPORATION et al.
    No. 50191.
    Supreme Court of Mississippi.
    April 5, 1978.
    Rehearing Denied April 26, 1978.

      Shell, Buford, Bufkin, Callicutt & Perry, K. Hayes Callicutt, Jackson, for appellant.
    McDavid & Edmonson, Richard M. Ed-monson, King & Spencer, Robert W. King, Henley, Lotterhos, Bennett & Sulser, Floyd M. Sulser, Jr., Jackson, for appellees.
    Before SMITH, P. J., and BROOM, LEE and COFER, JJ.
   BROOM, Justice,

for the Court:

The chief aspect of this case concerns a clause in an insurance policy providing for “automatic insurance” upon the purchase of a newly acquired motor vehicle. The case was tried in the Chancery Court of the First Judicial District of Hinds County. C. I. T. Financial Services Corporation, Jerry L. Small and Lilia Small, d/b/a S & W Trucking Company, as parties complainant (C. I. T. and Smalls herein), sued Canal Insurance Company and A. E. McDill, d/b/a McDill Insurance Company (Canal and McDill herein). Canal filed a cross bill against McDill. The lower court dismissed the cross bill against McDill and entered a decree for $11,923 against Canal and in favor of C. I. T. and the Smalls. We affirm.

Suit of the Smalls and finance company C. I. T. against insurer, Canal, and agent McDill, was for insurance coverage on a 1972 White freightliner tractor (’72 freight-liner herein) damaged in a wreck on August II, 1972. Canal filed a cross bill against McDill seeking a decree requiring McDill to make Canal whole in the event Canal was held liable to the Smalls. Although the briefs deal at length with various other facts, set forth here will be primarily those facts germane to the issue: Was Canal liable under Section IV, the “thirty-day automatic insurance clause?” Section IV of the Canal policy provides:

If the insured who is the owner of the automobile, or his spouse if a resident of the same household, acquires ownership of another automobile and so notifies the company within thirty days following the date of delivery, such insurance as is afforded by this policy applies also to such other automobile as of the date of such acquisition:
(a) If it replaces an automobile described in this policy, or
(b) If it is an additional automobile and if the company insures all automobiles owned by insured and such spouse at such delivery date. (Emphasis added)

In 1971, the Smalls and a Mrs. Weems, formed a partnership in the trucking (commodity hauling) business known as S & W Trucking Company. Initially, the business owned one trailer and two trucks which McDill insured through Canal (policy number C 16 90 88). On July 3, 1974, the Smalls purchased from Capital White Truck Company a new 1974 White freightliner and obtained insurance coverage on it that same day. In addition to the 1974 freightliner, the Smalls made arrangements to also purchase a 1972 freightliner (the vehicle at issue financed by C. I. T.) and trailmobile (trailer) from Mr. Carroll L. Berry, who was having financial difficulties. The original discussions about transfer of the ’72 freightliner were between Berry and Capital White who became Berry’s agent in the dealings with the Smalls. C. I. T. already had a finance lien on the vehicle Berry had left with Capital White requesting that Capital White find someone to make the back payments and assume the obligations under the notes. Whether or not McDill confirmed insurance coverage on the ’72 freightliner when the Smalls bargained for it is not pertinent to the dispositive issue of whether Canal is liable under Section IV of its policy.

On July 8, 1974, Carroll Berry and Mr. Small executed a security agreement purportedly transferring the ’72 freightliner and trailer to the Smalls. Mrs. Small signed the agreement on either July 8 or 11, 1974. Actual physical possession of the ’72 freightliner was not taken by the Smalls until July 15, 1974, less than thirty days before it was damaged, because as of the 8th, it was yet to be repainted according to the agreed deal. Within thirty days of the Smalls’ taking actual possession, the ’72 freightliner was wrecked on August 11, 1974. The testimony revealed that on July 8, 1974, the Smalls owned a number of vehicles in their individual names: a 1975 GMC pickup, a Mustang, a Cadillac, a gas truck, and other vehicles.

Appellant contends that the chancery court erred in:

I. HOLDING THAT THE THIRTY DAY PERIOD BEGAN TO RUN ON JULY 15, 1974, INSTEAD OF HOLDING THAT IT BEGAN TO RUN ON JULY 8,1974, THE DATE THE SMALLS ACQUIRED PAPER TITLE TO THE ’72 FREIGHTLINER.
II. NOT GIVING CANAL A JUDGMENT AGAINST McDILL FOR ANY SUM FOR WHICH CANAL WAS HELD LIABLE, OR HOLDING THAT McDILL WAS TOTALLY RESPONSIBLE FOR ANY LOSS HEREIN.

The critical issues, each being related to the policy’s “automatic insurance” clause set forth above are:

(1) Is the “delivery date” under the policy provision, the date of the transfer of title or the date the insured obtains physical possession, actual or constructive, of the vehicle?
(2) If, under the policy provision, the date of the transfer of title can be different from the date of delivery, when did delivery occur in the instant case?
(3) Under the policy provision, did the failure of S & W Trucking Company to notify Canal within thirty days of the date of the delivery of the vehicle, relieve Canal from liability under the policy?
(4) Was section IV(b) of the policy provision complied with?

Canal argues that the term “delivery date” as used in the automatic insurance provision means the date of the transfer of title and not the date that the insured obtains possession of the vehicle. Yahnke v. State Farm Fire and Casualty Company, 4 Ariz.App. 287, 419 P.2d 548 (1966), is relied on by Canal, who specifically refers to the following headnote in that case:

The term “delivery date” in provision of automobile insurance policy insuring any newly acquired . . . contemplated the date of transfer of title and not the date that the insured obtained possession of automobile.

In Yahnke, plaintiff’s father, early in 1961, acquired a Jeep which needed extensive repairs. In the summer of 1961, plaintiff took physical possession of the vehicle and carried it to a garage where he and another worked on it. In February 1962, plaintiff insured his personal car through defendant insurance company. In May 1962, plaintiff’s father obtained the certificate of title from the Jeep seller, but the name of the buyer was left blank. A few days before the accident, the certificate was given to plaintiff, who inserted his name. On July 14,1972, the Jeep was accidentally damaged and plaintiff notified defendant insurance company. Under the automatic “newly acquired automobile provision” of his policy, plaintiff sought insurance coverage for the Jeep, but on August 14, 1962, the insurance company disclaimed coverage. The insurance company maintained that the “delivery date” contemplated the date of physical delivery and not the date of the transfer of title. The Arizona court held otherwise stating:

The policy provision clearly contemplates a situation where physical delivery is the final act in the transfer of ownership. Where such is not the case, ownership, rather than physical delivery, is the crucial concept. The 30 day period began to run when plaintiff became the owner of the jeep. The property was transferred from father to plaintiff when the parties intended it to be so transferred, “and their intentions may be disclosed by their conduct, common usage, and the circumstances of the case.” (Emphasis added). (4 Ariz.App. at 289, 419 P.2d at 550).

The Smalls and C. I. T. contend that the facts in the instant case are materially different from those in Yahnke v. State Farm, supra, and, for that reason, the case has no application to the issues herein. They point to the italicized language the court’s opinion focusing on “physical delivery” as the final act in the transfer of ownership. As Yahnke stated, “Where such is not the case, ownership, rather than physical delivery, is the crucial concept.” In Yahnke, the facts did show a contrary intention in that, although the plaintiff had physical possession of the Jeep, there was no intent that he have ownership of the Jeep until that ownership was transferred from his father to him. Therefore, it was the intent of the parties that the transfer of papers was to be a final act in transferring ownership. Conversely, in the instant case, it was clearly contemplated that physical delivery would be the final act in transferring ownership. The consideration for the freightliner (delinquent payments of Berry) was not paid by the Smalls until delivery of the vehicle to them on July 15, 1974. “Physical delivery” was the final act in transferring ownership to the Smalls and, not in conflict with Yahnke, physical delivery (not ownership) became the controlling factor. in

Appellees make the cogent argument that under the plain wording of the Section IV policy provision, the delivery date rather than the date of acquisition sets in motion the thirty day notice requirement. In the policy, usage of the different phraseology, i. e., “acquires ownership” and “delivery”, clearly indicates that the party preparing the insurance contract contemplated that the date of acquisition of the vehicle could in fact be different from the date of delivery of the vehicle. Appellees cite Dairyland Insurance Co. v. Crane, 344 F.Supp. 839 (S.D.1972), where Crane, a resident of South Dakota, had a 1952 Chevrolet pickup insured under a liability policy (Dairyland’s) which had an automatic insurance clause similar to the clause before us. On March 29, 1967, Crane purchased a 1950 Chevrolet sedan in Iowa but it was not until April 1, 1967, that he took possession of the automobile and drove it from Iowa to South Dakota. On May 21, 1967, Crane was involved in an accident in Nebraska.

Crane stated that he had to make modifications to the car before it became operable and that these modifications were not completed until May 15, 1967. Therefore, he argued that he had no duty to notify Dairy-land until thirty days after May 15, 1967. The district court held that the date of delivery triggered the thirty day notice clause and stated:

It is the date of delivery that is important under the policy provisions and not the date on which the insured decides what purpose he will make the newly acquired automobile. (344 F.Supp. at 842).

Our holding is that appellant’s reliance upon Yahnke v. State Farm Fire and Casualty Company, supra, is misplaced, and when viewed in its proper perspective, Yahnke, is more supportive of appellees’ position. Upon the peculiar facts of the instant case, we hold that the date of “delivery” rather than the date of “acquisition” sets in motion the thirty-day period in which notification of purchase must be given to the insurer (Canal).

When did delivery of the truck occur? Canal maintains that delivery was complete on July 8, 1974, and that nothing else was left to be done. In effect, Canal’s position is that the transfer of title from Berry to the Smalls also amounted to an absolute delivery of the truck. C. I. T. and Smalls argue that while title passed on July 8, 1974, the actual delivery did not occur under the policy provision, until July 15, 1974, when the Smalls paid the delinquent payments and picked up the truck.

Undisputed evidence shows that part of the bargain finally struck between the Smalls and Berry’s representative, Capital White Truck Company, was that the truck would be repainted. Capital White, as agent of Berry, maintained possession of the truck so that it could be repainted. Our opinion is that delivery (as contemplated by the policy) was not complete until the July 15 transfer of possession. Prior to that time, the delivery was at most merely conditional. Black’s Law Dictionary, 515 (Rev. 4th Ed.1968) defines “Conditional Delivery” as:

. one which passes the thing subject to delivery from the possession of the grantor, but is not completed by possession of the grantee, or a third person as his agent, until the happening of a specified event. [In this case, the repainting of the truck.]

Had Canal so desired, it could have so worded its policy in such a manner as to make it clear and obvious that the thirty-day automatic coverage period begins when documentation of a change of title is accomplished. The policy was not so worded, and our rule is that insurance contracts are to be construed most strongly in favor of the insured.

Next, we must decide: Under the terms of the “automatic insurance clause,” did the failure of the Smalls to give notice of the purchase of the truck to Canal within thirty days from its delivery, amount to a forfeiture of this policy provision? Our view is that the giving of such notice is merely a condition subsequent which must be done in order to keep coverage beyond the thirty-day period. Central National Ins. Co. v. Le Mars Mut. Ins. Co. of Iowa, 294 F.Supp. 1396 (S.D.Iowa 1968). See also, Georgia Mat. Ins. Co. v. Criterion Ins. Co., 131 Ga. 339, 206 S.E.2d 88 (1974). We reject the thesis that the giving of such notice within thirty days of the date of delivery of the vehicle is a condition precedent to liability under the policy.

Policy section IV(b) requires that all the automobiles owned by the insured policy holder be insured by the same company (Canal). Canal contends that the Smalls owned a number of vehicles in their individual names which were insured by other insurance companies, and that, therefore, the sub-section (b) policy provision was not complied with. Significant is the fact that the policy in the instant case was issued to “S & W Trucking” and not to the Smalls in their individual names. The record shows that all vehicles owned by the Smalls in the trucking company business were insured by Canal. Moreover, the business of “S & W Trucking Company” was the hauling of produce and poultry, and the other vehicles owned by the Smalls could not be utilized in such a way. Also, most of the other vehicles were private passenger cars, which are not insured in Mississippi by Canal.

Our conclusion is that the decision of the chancellor in the instant case should be affirmed. Final and absolute delivery of the ’72 freightliner, under the terms of the policy provision, occurred July 15, 1974, on which date the thirty-day period began running. Therefore, the August 11 damage (within the thirty-day period) to the vehicle was covered by the policy which was already issued and binding when the vehicle was finally delivered on July 15. Accordingly, McDill is neither bound to make Canal whole nor liable to Canal [for failure to request Canal to issue an endorsement covering the ’72 freightliner] as asserted in Canal’s cross bill against McDill, because Canal’s liability is solely on the policy issued to the Smalls, d/b/a S & W Trucking Company prior to the purchase of the ’72 freightliner.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.


source: Caselaw Access Project

author: SMITH, Presiding Justice,

license: Public Domain

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION et al.
    No. 50145.
    Supreme Court of Mississippi.
    April 5, 1978.

      Butler, Snow, O’Mara, Stevens & Carnea-da, George H. Butler, Stephen W. Rosen-blatt, Roger M. Flynt, Jr., Jackson, for appellant.
    Fred J. Lotterhos, Jackson,, for appellees.
    Before SMITH, P. J., and ROBERTSON and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

This is an appeal by South Central Bell Telephone Company from a judgment of the Circuit Court of the First Judicial District of Hinds County, Mississippi affirming an order of the Mississippi Employment Security Commission Board of Review granting unemployment compensation benefits to ten persons employed by Bell, appellees here, and charging these benefits to Bell’s experience rating.

In the Fall of 1973, South Central Bell notified its long-distance telephone operators in its Cleveland office that their positions would be phased out in approximately eighteen months. On April 19, 1975, South Central Bell closed its offices in Cleveland, Mississippi and, pursuant to its collective bargaining contract with Communication Workers of America, South Central Bell provided these operators with three alternatives. First, they might transfer to another office; second, they might terminate their employment and collect severance pay; and third, they might go on leave of absence for as much as one year.

There were approximately twenty-six operators who were affected by the closing of the Cleveland office. Of these twenty-six, sixteen elected to transfer to the Greenville, Greenwood or Clarksdale offices. The remaining ten declined to transfer, assigning as their reason the distance they would have to commute to and from work and the alleged uncertainty of their working hours if they did transfer and commute. Five of these ten operators who decided not to transfer chose to terminate their employment and accept severance pay. The other five elected to take a leave of absence.

Shortly after the Cleveland office closed, each of the ten former operators filed a claim with the Mississippi Employment Security Commission for unemployment compensation. After due investigation, the Claims Examiner found that each claimant was disqualified from receiving benefits because of their failure to accept an offer of suitable work. Each of the claimants appealed from that ruling to the Appeals Referee of the Employment Security Commission. The Appeals Referee reversed the decision of the Claims Examiner and held that each of the ten operators was entitled to benefits because the offer to transfer them to other towns did not constitute an offer of suitable work because of the distance each would have to travel.

South Central Bell appealed the Referee’s decision to the Board of Review of the Employment Security Commission. The decision of the Referee was affirmed by the Board of Review following a hearing on the matter. From this decision, South Central Bell filed a Petition for Review in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Mississippi Code Annotated section 71-5-531 (1972). On January 10, 1977, an order was entered in that court affirming the decision of the Board of Review.

Numerous grounds for reversal are assigned, but, since both appellant and appel-lees have organized their arguments on the propositions into three categories, they will be considered in the same manner.

1. Were the appellees disqualified from receiving benefits under Mississippi Code Annotated section 71-5-513(A)(4)(a) (1972) for failing to accept available, suitable work offered to them?

Mississippi Code Annotated, section 71-5-513(A)(4)(a) (1972), provides:

(4) If the commission finds that he has failed, without good cause, either to apply for available suitable work when so directed by the employment office or the commission, to accept suitable work when offered him, or to return to his customary self-employment (if any) when so directed by the commission, such disqualification shall continue for the week in which such failure occurred and for not more than the twelve (12) weeks which immediately follow such week, as determined by the commission according to the circumstances in each case.
(a) In determining whether or not any work is suitable for an individual, the commission shall consider among other factors the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.

It is unquestioned, in the case sub judice, that appellees were offered the same type of employment in which they had been engaged, in other Bell offices, i. e., Clarksdale, Greenwood and Greenville. The Board of Review stated in its opinion that these offers were, in fact, made. The issue is whether the work offered constituted “suitable” work. The Board of Review found that the work offered was not suitable because of the distance each appellee would be required to travel. Evidence showed that from Cleveland to Clarksdale was forty-three miles; to Greenwood thirty-eight miles and to Greenville thirty-five miles.

The test used to determine whether the distance to be travelled rendered the available work “unsuitable” is whether it is unusual or uncommon for employees in the claimant’s occupation or in the area in which claimant resides to drive that distance to work. See Graham v. Mississippi Employment Security Commission Decision No. 244-R-61 (1962). Consistent with the Graham decision is In re Foshe, 46 BR-75 (1975), which presented an almost identical fact pattern as the case now under consideration. In Foshe the claimant’s job in New Albany, Mississippi was phased out and she was offered a transfer to the same job in Tupelo, Mississippi. This was a distance of approximately thirty-six miles, one way. The Board held that this was an offer of suitable work and as a result of claimant’s refusing it, she was disqualified from receiving unemployment compensation benefits. See also In re Bolton, 60-63-BR—75 (1975).

Bell contends that the Board of Review used the wrong test in deciding whether the distance was so great as to render the work unsuitable. The Board decided that since most of the employees of appellant did not commute, then the work offered was unsuitable. Appellant contends that the proper rule is whether it is unusual or uncommon for a worker in that area to commute thirty or thirty-five miles to work. Evidence showed that twenty-six of the one hundred twenty employees at the Greenwood office commute daily from distances ranging from eight to forty-two miles one way; fourteen of the one hundred eighteen employees at the Greenville office commute a distance ranging from fifteen to fifty miles one way; and eleven of fifty-five employees at the Clarksdale office commute daily from a distance ranging from eight to thirty-seven miles one way.

Testimony further showed that ten of the operators who were employed at the Cleveland office transferred and now commute from Cleveland daily. (Eight go to Green-ville and two go to Clarksdale). Although none of the cases cited in the argument relate a specific test to be applied, it seems that the “unusual or uncommon” rule is preferable over a mere “head count” rule where the majority wins. The decision of the Board of Review was wholly inconsistent with its previous decisions in Foshe and Bolton, supra.

In argument, appellees suggest that there are “subtle differences” between this case and the New Albany-Tupelo case, but fail to point them out. The Court takes judicial notice, as a matter of common knowledge, that commuting is a fact of modern life and that a very great many workers commute daily distances comparable to those in this case. Certainly the roads in the flat, level Delta are no more difficult or unsafe, or more dangerous to morals or health than Highway 78 with its curves and hills in the Northeast part of our state. Since the work offered to these ladies was suitable, their refusal to accept disqualifies them from receiving unemployment benefits under the statute.

The Board also said that there was a substantial prospect for securing similar work in the Cleveland area. The evidence does not support this proposition. A witness testified that he knew of only about six positions (called PBX’s) in the Cleveland area in which a person skilled and trained as a telephone operator could find suitable employment. Several of the appellees testified that they had applied at the banks around Cleveland, but had not found employment. None testified that she had applied at any of the PBX’s which Mr. Clark testified about.

One of the operators involved in this case, Sherry Holland, was the chief operator at appellant’s office in Cleveland. At the time the Cleveland office was closed, there was, and still is, an opening for a chief operator at the Greenwood office. She was offered either this job or a job as a regular operator at either of the other two offices, but she declined them, she said, because of the distance she would have to travel and the uncertain hours that she might have to work. There was some dispute as to whether the chief operator job was formally offered to her, but it appears that it was and that she was not interested. At any rate, it was brought out at the hearing that the job was open and that she could have it, but she made no statement tending to show that she would take it. Instead, she took a leave of absence.

2. Were appellees ineligible for benefits under Mississippi Code Annotated Section 71-5-511 (1972), since they were not “available for work” because they unreasonably restricted the terms and conditions under which they would accept employment?

Bell contends that by refusing to transfer to Clarksdale, Greenwood or Greenville, the appellees put such an unreasonable restriction upon their availability for work that they are disqualified under the statute from receiving unemployment benefits. Mississippi Code Annotated, Section 71-5-511(c) (1972) provides that the claimant must be “available for work”. In Mississippi Employment Security Commission v. Blasingame, 237 Miss. 744, 116 So.2d 213 (1959), this Court stated:

The words “available for work” imply that in order that an unemployed individual be entitled to benefits he must be willing to accept any suitable work which may be offered him without attaching thereto restrictions or conditions not usual or customary in that occupation, but which he may desire because of his particular needs or circumstances. Unemployment Compensation Commission v. Tomko, 192 Va. 463, 65 S.E.2d 524, 25 A.L.R.2d 1071. The burden is upon the unemployed individual to show the required conditions have been met entitling him to benefits. Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496. It has been held that the test of availability is subjective in nature and must depend in part on the facts and circumstances of each case. A factor to be considered is claimant’s mental attitude, that is, whether he wants to go to work or is content to remain idle.

It has already been noted that few jobs, of the kind for which the appellees were specially trained, were available in the Cleveland area. It has also been shown that it was not unusual for operators in that area to commute twenty-five to thirty miles to work. As stated in Blasingame, supra, the burden is upon the claimant to show that he or she left work involuntarily and is now available for suitable work if offered. Appellees failed to meet this burden, and have unduly restricted their availability for suitable work, thus disqualifying them from unemployment benefits.

3. Were the five appellees who elected to take leaves of absence disqualified because they had not terminated their employment but only had suspended it?

Five of the appellees were “unemployed” because they chose to go on leave of absence. As noted, all of the operators were offered three options at the time the Cleveland office was being phased out. One of the options was to go on leave of absence for up to one year. The effect of electing to go on leave of absence was that the employee might return to work at any time during the span of one year and would not lose her seniority. Seniority was important because it determined who had preference in selecting work-hours and also the amount of severance pay they would receive upon termination of employment. Moreover, any employee on leave of absence remained under the group life insurance umbrella provided by the company and received a concession of forty percent discount on their local telephone bills. Appellees, Cobb, Cruse, Goss, Holland and Joiner, all refused to transfer because of the distance they would have to travel to work. But instead of terminating their employment, they accepted the leave of absence option.

Although this Court has never addressed the issue on the precise facts presented here, it has interpreted the phrase “unemployed” on two occasions when dealing with employees on a leave of absence. In the case of Mississippi Employment Security Commission v. Jackson, 237 Miss. 897, 116 So.2d 830 (1960), it was held that employees who take vacations without pay pursuant to a collective bargaining agreement with the employer are not eligible for benefits for that period of time because the employer-employee relationship continues and their work was only voluntarily suspended for a certain designated time. Later, in Smith v. Mississippi Employment Security Commission, 344 So.2d 137 (Miss.1977), an employee was granted and took a three-month leave of absence due to pregnancy. When she returned at the end of three months, her position had been phased out due to declining business. The issue before the Court was whether she left work voluntarily thereby disqualifying her for benefits. The Court held that she was not disqualified and could receive benefits beginning after the three-month leave of absence expired. In so holding, the Court stated:

Mrs. Smith did not leave her employment, but temporarily suspended it pursuant to an agreement with her employer. Such temporary suspensions of a continuing employment are common. Employees may be allowed vacation without pay, or they may arrange leaves of absence, for instance, because of illness or duty with the military reserve. In none of these cases can it reasonably be asserted that the employee has left work. If, during his leave, his position is terminated, he cannot be said to have left work voluntarily. Likewise, it seems to us that when an employer grants an employee a leave of absence because of pregnancy, she has not left work within the meaning of the statute.
Mrs. Smith’s case presents a similar situation. On August 30, 1974, she and her employer agreed that she would not work until December 3, 1974, and that she would not be paid for that time. Like the employees in Jackson, supra, she was entitled to return to work at the end of that period only if there was work available. As in Jackson, it cannot be said that she was laid off, and it cannot be said that her employment was terminated. When there was no work for her at the end of the agreed period, she was entitled to unemployment benefits, just as the workers in Jackson were entitled to unemployment benefits for the third week of their Christmas layoff.

According to these cases, an employee who voluntarily takes a leave of absence is not unemployed for the period of time during which their work is only temporarily suspended. Although the present case is slightly different on its facts, appel-lees who elected to take the leave of absence option are not “unemployed” within the meaning of the statute and are disqualified from receiving benefits.

In Mississippi Employment Security Commission v. Blasingame, supra, this Court stated:

The scope of review by the courts on an appeal from an order of the Board of Review is set out in the statute. Section 7388, Mississippi Code of 1942, as amended, reads in part as follows: ‘In any judicial proceedings under this section, the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.’ The legislature has clearly provided that judicial review of decisions of the Board of Review shall be confined to questions of law.

(237 Miss. at 747, 116 So.2d at 214).

See also Mississippi Employment Security Commission v. Fortenberry, 193 So.2d 142 (Miss.1966); Mississippi Employment Security Commission v. Ballard, 252 Miss. 418, 174 So.2d 367 (1965) and Mississippi Employment Security Commission v. Rakestraw, 254 Miss. 56, 179 So.2d 830 (1965).

We have concluded that the Commission erroneously applied the law to facts which are without substantial dispute. There is nothing to support a view that traveling to Greenwood, Clarksdale or Greenville from Cleveland would so substantially increase the degree of risk to health, safety or morals beyond that assumed by workers travel-ling from Tupelo to New Albany or that the commuting contemplated was so unusual or uncommon as to make the offered work “unsuitable.” If “subtle differences” exist between this case and the New Albany-Tu-pelo case, as suggested by appellees, they have not been pointed out.

We hold that the Commission was in error, as a matter of law, in holding that appellees were unemployed and eligible for unemployment benefits under the statute. The judgment appealed from is reversed and judgment is entered here for appellant.

REVERSED AND JUDGMENT ENTERED FOR APPELLANT.

PATTERSON, C. J., and ROBERTSON, SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    John Eddie VALE v. STATE of Mississippi.
    No. 50644.
    Supreme Court of Mississippi.
    April 12, 1978.
    Rehearing Denied April 26, 1978.
    Paul Richard Lambert, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen., by Calvin Coolidge Williams, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
   AFFIRMED.


text:
    Charles W. PRYOR v. Martha Pryor LEE.
    No. 50707.
    Supreme Court of Mississippi.
    April 12, 1978.
    Rehearing Denied April 26, 1978.
    Laurel G. Weir, Philadelphia, for appellant.
    Warner, Ray & Cobb, Leonard B. Cobb, Meridian, for appellee.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
   AFFIRMED.


author: WALKER, Justice,

text:
    M. F. SURLES, County Superintendent of Education of Montgomery County, Mississippi v. The STATE of Mississippi ex rel. Niles McNEEL, District Attorney.
    No. 50479.
    Supreme Court of Mississippi.
    April 12, 1978.
    Sumner & Sumner, John M. Sumner, Wi-nona, for appellant.
    J. Niles McNeel, Dist. Atty., in pro per.
   WALKER, Justice,

for the Court:

This is an appeal from the Circuit Court of Montgomery County, Mississippi, wherein the appellant, M. F. Surles, County Superintendent of Education of Montgomery County, was ordered by the court to execute a twenty-five year lease on sixteenth section lands in Montgomery County which he had previously refused to do.

The lease on certain sixteenth section lands in Montgomery County expired during the year 1976 and the Board of Supervisors advertised for bids for a twenty-five year lease on these properties.

Bids were received on these properties in accordance with the advertisement. However, the Montgomery County Board of Education refused to approve the leases because of the amount bid for them. Thereafter, in accordance with Mississippi Code Annotated section 29-3-1 (1972), appraisers were appointed and the Board of Education refused to accept the appraisals made by the appraisers. As a result the matter was heard by the Chancery Court of Montgomery County pursuant to the provisions of Mississippi Code Annotated section 29-3-1 (1972), and values were established by the court.

Thereafter the Board of Supervisors directed the County Superintendent of Education to execute the twenty-five year lease on the lands at the annual rental rates set by the Chancery Court.

The Montgomery County Board of Education then directed the Montgomery County Superintendent of Education not to execute the leases because they had previously requested the Board of Supervisors to enter only into five-year leases for sixteenth section lands in Montgomery County, and consequently the proposed twenty-five year leases had not been approved by a majority of the membership of the Board of Trustees as provided in Mississippi Code Annotated section 29-3-1 (1972).

Subsequently, a petition for writ of mandamus was filed by the District Attorney for Montgomery County. The Circuit Court of Montgomery County granted the petition and entered an order directing the County Superintendent of Education to execute the said leases.

We are faced here with the problem of reconciling Mississippi Code Annotated section 29-3-55 (1972), which gives the County Board of Supervisors the power to determine the terms and conditions of “[a]ll leases entered into under the provisions of law applicable to sixteenth section lands . .” with Mississippi Code Annotated section 29-3-1 (Supp.1977) which provides, in part, as follows:

The county boards of supervisors of the several counties wherein there are situated any sixteenth section school lands, or lands in lieu thereof, under the general supervision of the State Land Commissioner' shall have control and jurisdiction of said school lands and of all funds arising from any disposition thereof heretofore or hereafter made; provided, that no action of any board of supervisors with regard to the leasing of sixteenth section lands, or lands in lieu thereof, shall be valid unless approved by a majority of the membership of the board of trustees of the school district or districts in which the section or portion thereof proposed to be leased is located. Such vote shall be taken at a regular or duly called special meeting of the board of trustees and shall be entered on the minutes thereof. In the event the board of trustees of the school district or districts in which the land is located declines to approve the rental value of the land set by the board of supervisors, the board of supervisors shall appoint one (1) appraiser, the board of trustees shall appoint one (1) appraiser, and the two (2) appraisers so appointed shall appoint a third appraiser whose duty it shall be to appraise the land, exclusive of buildings, structures and fences, and to file a written report with each board setting forth their recommendation for the rental value of the land. The cost of the appraisal shall be paid from any available sixteenth section school funds. In the event any party is aggrieved by the decision of the appraisers setting forth the appraised rental value, the party so aggrieved shall be entitled to an appeal to the chancery court in which the land is located. Such appeal shall be taken within twenty (20) days following the decision. The chancery court, on appeal, may review all of the proceedings, may receive additional evidence, and make findings of fact, as well as conclusions of law to insure that a fair and reasonable return may be obtained on the sixteenth section lands or lands in lieu thereof. (Emphasis added).

The appellant argues that the italicized portion of section 29-3-1 gives the Board of Trustees a veto over all matters relating to the leasing of sixteenth section lands. We do not agree.

It is well settled that “. statutes which deal with the same subject matter, although in apparent conflict, should, so far as reasonably possible, be construed in harmony with each other so as to give force and effect to each . . . .” McCullen v. State Ex Rel. Alexander, 217 Miss. 256, 267, 63 So.2d 856, 859 (Miss.1953). We also have stated that “‘[t]he words, phrases and sentences of a statute are to be understood as used, not in any abstract sense, but with due regard to the context, and in that sense which best harmonizes with all other parts of-the statute.’ ” State Ex Rel. Patterson v. Board of Supervisors of Warren County, 233 Miss. 240, 271-72, 102 So.2d 198, 210 (1958), quoting 82 C.J.S. Statutes section 348 (1953).

If we were to adopt the interpretation urged by the appellant, section 29-3-55 would effectively be rendered meaningless. We are of the opinion that the foregoing rules of construction are controlling here and that the veto power conferred by the italicized portion of section 29-3 — 1 must be read in light of that portion of the section which deals with the procedure to be followed if the Board of Trustees and Board of Supervisors disagree over the rental value of the land. If the section is read in this way, it means that the Board of Trustees only has a veto over the annual rental value and that veto is subject to the procedure set forth to resolve such disputes.

We are convinced that this is the proper interpretation of section 29-3-1 because of the legislature’s failure to amend either section 29-3-1 or section 29-3-55 so as to provide a procedure for resolving disputes on issues other than rental values. The procedure for resolving disputes over rental values indicates a legislative intent to avoid the type of impasse between the Board of Supervisors and Board of Trustees with which we are here faced. It would seem that if the legislature thought that section 29-3-1, as amended, gave the Board of Trustees a general veto power over matters other than rental values, it would have provided procedures for resolving such conflicts.

For the foregoing reasons, we hold that the circuit court properly granted the writ of mandamus and that order is hereby affirmed. See Cox v. Robinson, 295 So.2d 432 (Miss.1974).

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE and BOWLING, JJ., concur.

COFER, J., took no part.


author: ROBERTSON, Presiding Justice,

text:
    Frank BAGGETT v. The FURST CORPORATION and John H. Stribling.
    No. 50188.
    Supreme Court of Mississippi.
    April 12, 1978.
    William C. Thompson, Forest, for appellant.
    Jerome L. Lohrmann, Jackson, for appel-lee.

      Before ROBERTSON, SUGG and WALKER, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Frank Baggett appeals from the dismissal of his amended supplemental bill of complaint against The Furst Corporation and John H. (Pete) Stribling, by the Chancery Court of Scott County at the close of complainant’s case.

Baggett averred in his amended bill of complaint that The Furst Corporation, acting by and through Stribling, its president, and Stribling individually had, through material and fraudulent misrepresentations to him, defrauded him of the value of the timber on 239 acres of land in Scott County.

Baggett averred that on May 16,1974, he executed a written option to The Furst Corporation for the sale and purchase of 239 acres of land in Scott County for the cash price of $300 an acre. Stribling paid Baggett $1,000 for this one-year option. Baggett later orally agreed to finance the sale and purchase.

On December 10,1974, Stribling appeared at Baggett’s grocery store in Lake, Mississippi, with a general warranty deed to The Furst Corporation, and a promissory note and deed of trust to Baggett, all prepared by Stribling’s attorney at Stribling’s instance.

When Stribling found only Mrs. Baggett tending the store, he asked her to sign the deed. She asked him if the papers had been prepared in accordance with the option, and Stribling assured her that they had. She called her husband at Lackey Lumber Company in Forest, and told him that Stribling was there with the papers, and, when she told him that Stribling had told her that the papers were prepared in accordance with the option, Baggett instructed her to go ahead and sign the deed.

Stribling asked Baggett to remain in Forest and he would bring the papers to him. When Stribling arrived, Baggett asked him if the papers had been prepared in accordance with the option and their agreement, and Stribling assured him that they had been so prepared.

Whereupon, Stribling and Baggett appeared before a Notary Public and Baggett signed the warranty deed and Stribling, on behalf of The Furst Corporation, signed the promissory note and the deed of trust securing the promissory note.

The note was for $60,700, and was to be paid in annual installments of principal of $2,000 plus 8% per annum interest on the unpaid balance, the first payment being due and payable on December 1, 1975. The Furst Corporation defaulted in the payment of this first installment of principal and interest, and Baggett placed the collection of this note in the hands of his attorney.

Baggett discovered that the 1975 ad valo-rem taxes had not been paid, and that the deed of trust, at the bottom of the first page, after a detailed description of the land, contained this exception:

“LESS AND EXCEPT, all timber of every kind and nature now or hereafter growing on the above described property.”

Baggett also discovered that on December 18, 1974, eight days after the sale was closed on December 10, 1974, The Furst Corporation sold to Rex Timber Corporation all merchantable timber on the 239 acres for $25,000, “together with the right to cut and remove said timber therefrom for a period of two years”.

The amended bill of complaint was filed on November 15, 1976. At the trial, Bag-gett testified that, prior to signing the warranty deed, Stribling assured him that the papers were “like the option”. Baggett, who was 70 years old, admitted that he did not read over the papers, because he “taken Mr. Stribling at his word.” Baggett also testified that “There wasn’t any timber discussed”.

Mrs. Baggett testified that Stribling told her that the papers were just like the option agreement, and that she told her husband this over the telephone. Only the warranty deed was shown Mrs. Baggett by Stribling, and she admitted that she signed it after being assured by Stribling that it was just like the option agreement. She also testified that at no time was the timber discussed.

Stribling himself testified:

“Q And you knew that Mr. Baggett considered you to be an honest man?
A I hope he did. Yes.
Q You knew that Mr. Baggett was relying on your representations?
A Possibly yes.
Q And at no time you told him that that timber was excluded in that Deed of Trust?
A No. At no time was the timber ever discussed.” . ■

Stribling further testified on cross-examination:

“Q When did you first plan on excluding the timber?
A From the very beginning.
Q You had that in mind?
A Right.
Q And you didn’t discuss it with Mr. and Mrs. Baggett?
A No.
Q Didn’t even mention it to them?
A No.”

Stribling’s own testimony convicts him and his corporation of fraud and misrepresentation. The aged Baggetts innocently signed a warranty deed conveying their 239 acres of land and all the timber on it to The Furst Corporation, and received back a deed of trust with all merchantable timber excepted, on Stribling’s representation that the papers were prepared in accordance with their agreement and option.

The Baggetts relied on Stribling’s honesty and on his word, when Stribling had determined from the beginning to defraud them of the timber on their land. It would be hard to imagine a clearer case of misrepresentation, fraud and wrongdoing, or a clearer case of unjust enrichment at the expense of innocent parties.

The lower court was manifestly in error in excluding the testimony offered on behalf of the complainant, and in sustaining the motion of the defendants to dismiss the amended and supplemental bill of complaint.

The decree dismissing the amended bill of complaint is reversed, and this cause is remanded for a new trial.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.

LEE, J., took no part.


author: PER CURIAM.

text:
    J. W. EURTON et al. v. Madge E. SMITH.
    77-145.
    Supreme Court of Alabama.
    Feb. 24, 1978.
    Rehearing Denied April 21, 1978.
    Talmadge H. Fambrough, Pell City, for appellants.
    William J. Trussell, of Church, Trussed & Robinson, Pell City, for appellee.
   PER CURIAM.

Appeal by J. W. Eurton and Margaret B. Eurton from a judgment entered by the trial court ordering them to specifically perform under a lease-sale agreement by executing and delivering to Madge E. Smith a deed conveying real estate. We affirm.

Mrs. Smith filed this action for specific performance in the trial court to have the Eurtons execute and deliver a deed conveying to her the title to a tract of land described in a lease-sale contract. The complaint alleged that Eurton agreed to lease the described real estate to Mrs. Smith for a consideration of $4,000 ($300 paid in cash and the balance divided into 72 payments of $63.09); and at the end of the rental period, if Mrs. Smith had complied with the conditions of the lease-sale - contract, Eurton would apply the $4,000 rental as payment for the real estate and execute a deed conveying title to her. Mrs. Smith claimed she complied with all of the conditions and made timely tender of the $4,000; but Eur-ton refused to accept the money and to execute the deed. The Eurtons answered-generally, and sought affirmative relief, by cross-complaint, to have the agreement declared null and void for violations of, and noncompliance with, the terms of the lease-sale contract by Mrs. Smith, particularly nonpayment of the monthly rental. The Eurtons requested that monies paid Mrs. Smith and the value of labor services rendered by her husband, for which credit was given as rental payments, be declared such under the terms and conditions of the agreement and not consideration for purchase.

The action was heard by the trial court without a jury; and the following is its findings and conclusions as set forth in the judgment:

“Upon consideration of the testimony and exhibits in support of the pleading, the Court finds that on June 15,1971 that plaintiff, Madge E. Smith, and the defendants entered into an agreement for the purchase of certain property in St. Clair County, Alabama, as set out and described in said agreement (Plaintiff’s Exhibit # 1). Said agreement contains a provision stating that a promissory note bearing interest at seven per cent was given by plaintiff to further secure said agreement. Said note was offered in evidence as Defendant’s Exhibit # 1.
“The evidence and exhibits indicate that plaintiff made payments under the note in the amount set out therein, but at times in the specified amount and at times in varying amounts up to Five Hundred Dollars. The last payment was made on July 14, 1972 at which time it appears that plaintiff had made total payments substantially in advance of that due by the terms of said agreement (Plaintiff’s Exhibit # 1).
“There was no further payments made subsequent to July 14,1972 nor was there any demands for payment being made by defendant thereafter until plaintiff, through her attorney, requested the balance due and made offer of payment by cashier’s check. Defendants at that time advised that they would not accept the cashier’s check and advised that they were terminating the agreement. Plaintiff thereafter, on December 27, 1974, entered these proceedings seeking specific performance on the part of the defendants.
“This Court is of the opinion that at the time of the execution of the agreement and note that both parties treated said transaction as a mortgage transaction. It is further indicated from the evidence that plaintiff made improvements to said property. The Court is therefore of the opinion that it would be against equity and good conscience to now allow the defendants to void said agreement without affording the plaintiff some means of payment or redemption as provided under the mortgage laws of the State of Alabama.
“The Court has prepared an amortization schedule giving credit for principal, accumulation of interest and balance due after each payment made by plaintiff and finds that as of May 1, 1977, with accumulated interest at seven per cent, the plaintiff would owe to defendants under the terms of said agreement the sum of Two Thousand Seven Hundred Forty Five and 44/100 Dollars ($2,745.44). The Court is filing a copy of amortization schedule with the clerk for inspection by plaintiff and defendant.
“It is therefore ORDERED, ADJUDGED and DECREED that plaintiff pay to the clerk of this court the sum of Two Thousand Seven Hundred Forty Five and 44/100 Dollars ($2,745.44) together with the cost of these proceedings and that within ten (10) days thereafter that defendants execute and deliver to plaintiff a deed conveying the real estate set out in Plaintiff’s Exhibit # 1. If defendants should fail and refuse to execute said deed within ten (10) days as provided herein then the clerk of this court is Ordered to execute a register’s deed conveying all right, title and interest of defendants to subject lands to plaintiff.
“Cost of these proceedings are hereby-taxed against plaintiff.”

On appeal the Eurtons advance several contentions for reversal of the trial court’s judgment, however, a disposition of the appeal centers around the rights and obligations of the parties under the lease-sale contract. It is undisputed by the parties, and a reading of the contract reveals, if Mrs. Smith had complied with all of the conditions of the agreement, Eurton was to make and execute a deed conveying title to the described real estate. The contract also contained a forfeiture provision which provides if Mrs. Smith failed to make rental payments when due or failed to perform any of the other stated conditions in the contract:

“ * * * then on the happening of any such event by the party of the second part [Mrs. Smith] forfeits his rights to a conveyance of said property, and all money paid by the party of the second part under this contract shall be taken and held as payment of rent for said property, * * * n

Eurton argues, and the evidence shows, before Mrs. Smith offered to pay the balance due in November 1974, she had not made a rental payment since she became current on 14 July 1973; therefore, under the contract, he had a right to cancel the contract.

This is a tenable argument. However, it does not address the decisive question to be answered: whether Eurton waived his right to take advantage of the forfeiture provision. We conclude that he did.

Generally, forfeiture provisions in lease-sale contracts are not favored in equity. Gatewood v. Hughes, 214 Ala. 674, 108 So. 562 (1926). Prior decisions of this court have long recognized that such forfeiture provisions may be waived by the lessor-vendor. Murray v. Webster, 256 Ala. 248, 54 So.2d 505 (1951); Commercial Union Fire Ins. Co. of New York v. Parvin, 279 Ala. 645, 189 So.2d 330 (1966).

One of the earlier cases to recite the rule governing waiver by a lessor-vendor is Hawkins v. Coston, 214 Ala. 135, 107 So. 50 (1926), where this court said:

“ * * * The general rule in such matter is that, if the lessor by his acts leads the lessee to believe that strict performance of the agreements in the contract will not be insisted upon, equity will not permit the lessor to take advantage of forfeiture provisions in the contract without notice to the lessee that strict compliance will be required —on the theory that the lessor is estopped from enforcing the forfeiture provisions until he has notified the other party that he intends to do so. It would be inequitable for one party to a contract to lull the other party to sleep by numerous waivers of the provisions of the contract, and then, after the property has . been practically paid for, change his position and insist on the forfeiture and retake the property. * * * ” (emphasis added) See also Humphrey v. Humphrey, 254 Ala. 395, 48 So.2d 424 (1950), and Mooney v. Weaver, 262 Ala. 392, 79 So.2d 3 (1955).

This rule raises two ancillary issues:

1. Did Eurton by his acts lead Mrs. Smith to believe strict performance of the agreement, payments of rent when due, would not be insisted upon?; and

2. If so, did Eurton notify Mrs. Smith that strict compliance would be required before he exercised his right to forfeit the agreement?

I

Course of Dealing Between the Parties

On this point, the evidence clearly establishes Eurton did not insist on strict performance of the agreement with respect to the monthly payments of rent. In brief, Eurton gives this account of Mrs. Smith’s prior payments of rent:

“By the end of 1971, plaintiff was one payment behind on her rental payments.
“During the following year, 1972, plaintiff made five payments, and was in arrears eight payments at the beginning of 1973. From the first of 1973 to the 14th day of July, 1973, plaintiff either paid or was credited with 15 payments, the last payments $427.68, was credit for labor performed by plaintiff’s husband. On that date, July 14, 1973, payments were current. * * * ”

Under the lease-sale contract, as mentioned earlier, Mrs. Smith’s failure to pay the monthly rent when due was in clear violation of the terms and conditions of the agreement; and Eurton had an unequivocal right to forfeit the contract. However, as the evidence indicates, Eurton did not exercise that right nor did he complain; he continued to accept the late payments and even gave credit as payments of rent the value of labor performed by Mrs. Smith’s husband. The record also contains testimony that Eurton expressed his consent to the delays in Mrs. Smith’s payments of rent. The only reasonable interpretation from Eurton’s prior acts with reference to payments of rent is that he did not require strict compliance: prompt payments of rent under the contract; thus lulling Mrs. Smith to sleep.

II

Notice of Forfeiture

The parties agree, and the evidence supports this, there was no communication between the parties from 14 July 1973 to 10 October 1974, when Eurton informed Mr. Smith the contract was cancelled as of that date because Mrs. Smith was 14 months in arrears in payment of rent. Eurton’s failure to give notice that prompt payments of rents would be required before he cancelled the contract is clearly contrary to the rule stated in Hawkins v. Coston, supra, and the other cited authorities. Because Eurton’s act lulled Mrs. Smith to sleep, he had an equitable duty to awaken her before forfeiting the contract.

Answering the two ancillary issues as we do, that: Eurton’s prior acts led Mrs. Smith to believe payments of rent when due would not be insisted upon; Eurton’s failure to give notice that strict compliance would be required before he cancelled the contract, plus evidence showing Mrs. Smith had paid a substantial amount under the contract, we hold Eurton waived his right to take advantage of the forfeiture provisions in the lease-sale contract. In this action the trial court was correct in ordering specific performance upon Mrs. Smith’s offer to do equity by paying the balance due.

Other grounds for reversal advanced by Eurton include the contention that the trial court erred in its treatment of the instrument sued on, the lease-sale contract, as a mortgage. This court has held when confronted with similar facts and circumstances as in this case:

“ * * * The position of the vendor becomes more analogous to that of a mortgagee ; and if the vendor for continued default asserts a right of forfeiture, the vendee may maintain a bill for redemption and specific performance upon offer to do equity by payment of the balance due upon the debt, * * * ” (emphasis added) France v. Ramsey, 214 Ala. 327, 107 So. 816 (1926).

The applicability of the mortgage laws of this state is not inconsistent with the finding of waiver by the lessor-vendor.

Eurton further contends the trial court’s judgment should be reversed due to the trial court’s finding that Mrs. Smith’s last payment was 14 July 1972. On that occasion the plaintiff was substantially in advance of her payments due under the terms of the contract. This finding by the trial court is clearly a typographical self-correcting error, as can be readily observed from our earlier references to the evidence which shows the date to be 14 July 1973 and establishing that on the latter date Mrs. Smith was current in her payment. This error is obviously harmless; it has no effect on the substantive rights of the parties. Rule 61, ARCP.

For the reasons stated in this opinion, the judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C. J., and BLOOD WORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Lavelle DYER v. William H. TRAEGER et al.
    SC 2714.
    Supreme Court of Alabama.
    March 3, 1978.
    Rehearing Denied April 21, 1978.

      Hubbard H. Harvey, Demopolis, for appellant.
    W. W. Dinning, Demopolis, for appellees.
   BLOODWORTH, Justice.

Plaintiff, Mrs. Lavelle Dyer, appeals from a judgment for defendants, William H. Traeger, Jr., et al., and from a denial of her motion for new trial in a negligence suit tried to a jury, arising out of an automobile accident. We affirm.

The accident, which provides the basis for this suit, occurred on November 22, 1975, shortly after 5:00 a. m. on U. S. Highway 80 in Demopolis, Alabama, while plaintiff was delivering newspapers along her designated route. Just prior to dropping off her allotted papers at Gilbert’s Drive-In, plaintiff’s and defendants’ vehicles collided. Plaintiff testified that she was in the right lane, preparing to turn in at Gilbert’s Drive-In, when defendants’ vehicle, which was operated by Joseph Cargile, struck her from the rear. Defendant Cargile testified that he was in the right lane, and plaintiff crossed over from the middle lane in front of him so that he hit her in the right lane. The case went to the jury which found for the defendants. This appeal resulted.

Plaintiff contends that the trial court erred in allowing city policeman Charles Avery to give his opinion as to the location of the point of impact, because, she argues, there were insufficient facts in evidence to support that opinion. Plaintiff contends the only evidence Avery had upon which to base his testimony was some broken pieces of glass found in the roadway.

It is, of course, the general rule that witnesses must testify to facts and cannot express mere matters of opinion. McPherson v. Martin, 234 Ala. 244, 174 So. 791 (1937). There are, of course, exceptions to this rule. Thus, it is held that where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind; or, if, from the nature of the particular fact better evidence is not attainable, the opinion of a witness, derived from observation, is admissible. McPherson v. Martin, supra.

The precise question of whether opinion evidence is admissible as to the point of impact of a collision is one which has occasioned a wide divergence of opinion. See “Opinion Evidence — Point of Collision,” 66 A.L.R.2d 1048. In Alabama, the rule seems to be clear that such opinion testimony is proper, assuming the witness details the facts upon which his conclusion is based. Robinson v. Morrison, 272 Ala. 552, 133 So.2d 230 (1961); Madison v. State, 40 Ala.App. 62, 109 So.2d 749 (1958); McPherson v. Martin, supra.

Plaintiff argues, however, that such testimony is improper in that it is a subject which is within the common knowledge and ken of the jury. We cannot agree. We think this argument is adequately answered by the following quotation from a California Court of Appeals’ decision.

“ . . . It is quite obvious that the conclusion, based upon the facts of the particular case, as to just where a collision between two vehicles occurred, may be so obvious that any reasonable person, trained or not, can draw that inference from the facts. It is equally clear that cases may occur where the opinions of trained experts in the field on this subject will be of great assistance to the members of the jury in arriving at their conclusions. In such cases a traffic officer who has spent years investigating accidents in which he has been required to render official reports not only as to the facts of the accidents but also as to his opinion as to their causes, including his opinion, where necessary, as to the point of impact, is an expert. Necessarily, in this field, much must be left to the common sense and discretion of the trial court.”

Zelayeta v. Pacific Greyhound Lines, Inc., 104 Cal.App.2d 716, 726-27; 232 P.2d 572, 579 (1951).

We think Avery’s testimony as to point of impact, based upon the location of fragments of glass, was one of those subjects which required an opinion. We think the alleged paucity of facts upon which Avery based his opinion goes to the weight, rather than the admissibility, of the evidence. There is no error in the trial judge’s ruling.

Plaintiff next contends that witness Tony Stough was improperly qualified as an accident reconstruction “expert.”

The admission of opinion testimony by so-called “Accident Reconstruction Experts” or “Accidentologists” has been a subject which has occasioned a great deal of debate in Alabama and elsewhere. Over the past six years in Alabama, the issue of the propriety of opinion evidence by an “Accident Reconstruction Expert” as to the speed of vehicles at the time of the accident or their point of impact, etc., has been directly considered by this Court in two cases, Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972), and Williams v. Tyler, 340 So.2d 20 (Ala.1976), and alluded to in at least one other, McWhorter v. Clark, 342 So.2d 903 (Ala.1977). However, no clear consensus has yet emerged from these cases.

We need not reach the issue as to whether the use of opinion testimony by an “Accident Reconstruction Expert” is proper because we consider that witness Stough was properly qualified as an expert notwithstanding that appellation and that the testimony sought to be elicited from him is ádmissible.

Of course, the testimony of expert witnesses is not binding upon the jury, unless uncontradicted and a subject exclusively within the knowledge of experts. Union Central Life Insurance Company v. Scott, 286 Ala. 10, 236 So.2d 328 (1970); see also Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975). And, an objection to his testimony on the ground of inadequacy of facts, goes to the weight of the evidence rather than its admissibility. Shelby County v. Baker, 269 Ala. 111, 110 So.2d 896 (1959).

The question of whether or not a particular witness will be allowed to testify as an expert is largely discretionary with the trial court, whose discretion will not be disturbed on appeal except for abuse. Byars v. Mixon, 292 Ala. 661, 299 So.2d 262 (1974); Hagler v. Gilliland, 292 Ala. 262, 299 So.2d 647 (1974).

Here, we think that witness Stough was properly qualified to testify. His qualifications included the fact that he was Deputy Director of the Law Enforcement Academy of the University of Alabama, where he taught the standard accident investigation course. He had also served as a police officer with the Tuscaloosa Police Department for nine years, during which time he had investigated numerous cases and had testified as a “consultant” on accident reconstruction in both state and federal courts. Given this background, we cannot say the trial judge abused his discretion in allowing Stough to testify as an expert.

Plaintiff finally contends that Stough was improperly allowed to answer certain hypothetical questions because, she argues, the questions failed to incorporate sufficient facts upon which his opinion could be based. Again, we are constrained to disagree. The frame and substance of hypothetical questions to expert witnesses is a matter largely committed to the sound discretion of the trial court. Dendy v. Eagle Motor Lines, Inc., 292 Ala. 99, 289 So.2d 603 (1974); Hagler v. Gilliland, supra. The record shows that the trial judge did not abuse his discretion. In fact, on a number of occasions, the trial judge sustained an identical objection by plaintiff to other questions asked of witness, Stough, thus indicating that he was mindful of the rule that hypothetical questions, asked of experts, must incorporate sufficient facts, and he did not abuse his discretion.

For the foregoing reasons, therefore, this case is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER and EMBRY, JJ., concur.

ALMON, J., concurs in the result.


text:
    OPINION OF THE JUSTICES.
    No. 248.
    Supreme Court of Alabama.
    April 6, 1978.
   To the Members of the Senate of the State of Alabama

State Capitol

Montgomery, Alabama

Dear Sirs:

On April 5, 1978, we received from you copies of Senate Resolution 432, which reads, as follows:

“RESOLVED BY THE SENATE OF ALABAMA,

That the Honorable Chief Justice and Associate Justices of the Supreme Court of Alabama, or a majority of them, are respectfully requested to give this body their written opinions concerning the following important constitutional question which has arisen in connection with the pending measure, S.C. 759, which is attached hereto and made a part hereof:

“Does Senate Bill 759 violate Section 70 of the Constitution of Alabama which provides that revenue raising bills shall originate in the House of Representatives?

“RESOLVED FURTHER, That the Secretary of the Senate is directed to send nine true copies of S.B. 759 forthwith to the Clerk of the Supreme Court.

“By Mr. Peden

S. 759

RFD — P & T

RD 1-4-4-78

SYNOPSIS: This bill provides for the annual distribution to certain counties, municipalities and public agencies of a percentage of the amounts paid to the state by federal agencies in lieu of ad valorem taxes.

“A BILL TO BE ENTITLED AN ACT

“To provide for the annual distribution to certain counties, municipalities and public agencies of a percentage of the amount paid to the state by federal agencies in lieu of ad valorem taxes; and to repeal conflicting laws.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

“Section 1. Commencing for the fiscal year beginning October 1,1979, twenty percent (20%) of any payments made to the state by any federal agencies in lieu of ad valorem taxes shall be paid back, to the counties, municipalities, and public agencies therein where the property is located as provided herein and in fiscal years beginning after such date the percent of payments back to the counties and municipalities shall be increased ten percent (10%) each fiscal year thereafter until eighty percent (80%) of the annual receipts are so distributed annually.

“Distribution herein provided shall be made to the governing bodies of said counties. However, the legislature may prescribe other distribution within such counties to local governments and public agencies therein.

“Any such payments by a federal agency which has as its principal business the production of power shall be distributed as follows:

“(A) Eighty percent of said amount shall be distributed among the counties in the same proportion that the amount of such agency’s power sales revenue generated in each county, less direct sales by such agency to industry, bears to the total amount of such agency’s power sales revenue generated in all counties of the state served by such agency.

“(B) Ten percent of said amount shall be distributed among the counties in the same proportion that the dollar value amount of such agency’s properties and reservoir lands in each county bears to the total dollar value of all such agency’s properties and reservoir lands in all counties served by such agency.

“(C) Ten percent of said amount shall be distributed among the counties in the same proportion that the amount of such agency’s direct power sales to industry in each county bears to the total amount of such agency’s power sales revenue generated in such manner in all counties of the state served by TV A.

“Section 2. Any amount received by any county directly from such agency as payment in lieu of taxes shall be paid over to the state for redistribution according to the formula provided in Section 1 hereof.

“Section 3. Any such payments by any other federal agencies shall be distributed on the basis of the value of the property located in a county. Any portion of a county’s share of said payments is to be paid to the municipalities in the county in the same proportion that the population of each municipality bears to the population of the entire county. For the purposes of this section, the population of the county and each municipality therein shall be determined by the 1970 or any subsequent federal decennial census.

“Section 4. The provisions of this act are severable. If any part of the act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.

“Section 5. All laws or parts of laws which conflict with this act are hereby repealed.

“Section 6. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.”

The answer to the question posed in Senate Resolution 432 is in the negative. Section 70, Constitution of Alabama, 1901, provides:

“All bills for raising revenue shall originate in the house of representatives. The governor, auditor, and attorney-general shall, before each regular session of the legislature, prepare a general revenue bill to be submitted to the legislature, for its information, and the secretary of state shall have printed for the use of the legislature a sufficient number of copies of the bill so prepared, which the governor shall transmit to the house of representatives as soon as organized, to be used or dealt with as that house may elect. The senate may propose amendments to revenue bills. No revenue bill shall be passed during the last five days of the session.”

As we read Senate Bill 759, it would provide for the annual distribution to certain counties, municipalities and public agencies a percentage of the amount paid to the state by certain federal agencies in lieu of ad valorem taxes.

We are of the opinion that the bill proposes to change the distribution of certain funds which are received by the state, but we are of the opinion that the proposed bill is not a bill for raising revenue under the terms of Section 70 of the Constitution of Alabama, 1901. In State ex rel. Franklin County v. Hester, 224 Ala. 460, 140 So. 744 (1932), this court stated:

“The purpose of this suit is to test the constitutionality of the Act of July 22, 1931. Acts. p. 604.
“The title of that act purports to amend section 4V2 of the General Revenue Act of 1919, p. 284. No other feature of the act refers in terms to the Revenue Act of 1919. But it relates to the matter embraced in section 4V2 of the Revenue Act. That act created a trial tax of $3 in every case in the circuit court and directed its payment into the general funds of the state treasury. The act of 1931 re-enacts the provision for a trial tax fixing the same amount, but provides that one-half of it shall be paid to the state and one-half to the county, and that the clerk or register may retain a commission of 5 per cent. The act, therefore, does not •raise, increase, or decrease revenue.
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“. .We think it is clear that the mere fact that a bill proposes to change some features of the revenue act with respect to the disposition of funds raised under its terms does not make it a ‘revenue bill’ regulated by the provisions of Constitution section 70. Such a bill is not ‘in the nature of a general revenue bill.’ ”
Respectfully submitted,

C. C. TORBERT, Jr., Chief Justice

JAMES N. BLOODWORTH

HUGH MADDOX

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

SAM A. BEATTY

Associate Justices