text:
    Ronald C. McGUIRE, Plaintiff-Appellant, v. CENTRAL LOUISIANA ELECTRIC COMPANY, INC., Defendant-Appellee.
    No. 5279.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 1976.

      Jake Shapiro, Alexandria, for plaintiff-appellant.
    Holt, Wagner & Lee by Richard E. Lee, Pineville, for defendant-appellee.
    Before MILLER, WATSON and CUTRER, JJ.
   MILLER, Judge.

The Supreme Court has remanded this case to us for determination of the quantum of damages to which plaintiff is entitled. McGuire v. Central Louisiana Electric Company, Inc., 337 So.2d 1070 (Louisiana Supreme Court, handed down September 13, 1976).

This matter was previously before this court. McGuire v. Central Louisiana Electric Company, Inc., 324 So.2d 890 (La.App. 3 Cir. 1975).

Plaintiff is entitled to recover for the three trees improperly removed by CLECO’s subcontractor; for the cost of removing the six stumps left by the subcontractor; and for the cost of repairing ruts left in McGuire’s lawn by the subcontractor’s machinery. On the basis of the record, $500 constitutes a proper award for these damages which CLECO caused to McGuire’s property.

Plaintiff employed as experts Mr. L. H. Butter, a nurseryman and landscape contractor, and Mr. Avit J. Gremillion, survey- or. Both experts made on site inspections and both testified at the trial. They were qualified as expert witnesses. Tr. 94, 132. Their expert witness fees are set at $150 each.

Judgment is rendered in favor of Ronald C. McGuire and against Central Louisiana Electric Company, Inc. in the amount of $500, together with legal interest from date of judicial demand. The expert fees for Messrs. Butter and Gremillion, totaling $300, are taxed as costs of court. Defendant is cast for all costs of court at the trial and appellate levels.

JUDGMENT FOR PLAINTIFF.


source: Caselaw Access Project

author: HOOD, Judge.

license: Public Domain

text:
    Mary Lee BROUSSARD, Plaintiff-Appellant, v. ACADIA INDUSTRIES, INC., et al., Defendants-Appellees.
    No. 5666.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.

      Cline, Richard & Miller by Jack D. Miller, Rayne, for plaintiff-appellant.
    Davidson, Meaux, Onebane & Donohoe by Robert M. Mahony, Lafayette, for defendant-appellee.
    Before HOOD, DOMENGEAUX and GUIDRY, JJ.
   HOOD, Judge.

Mary Lee Broussard instituted this suit for workmen’s compensation benefits against Acadia Industries, Inc., and its insurer, Fireman’s Fund American Insurance Companies. The trial judge rendered judgment in favor of defendants dismissing the suit. Plaintiff appealed.

The only issue presented is whether plaintiff’s present disability resulted from an accident which arose out of or in the course of her employment.

Plaintiff worked as a bag seamstress for Acadia Industries from February, 1974, until December 24 of that year. She alleges that shortly after reporting for work on or about September 10, 1974, she fell to the floor when a leg of the sewing machine chair on which she was sitting broke. She landed in a sitting position, but she got up immediately after the fall. The foreman of the shop repaired the chair, and plaintiff resumed her work and worked the rest of the day. She continued to work regularly at her job, performing all of her duties in a normal manner, from that time until the end of her working day on December 24, 1974, except for a period of about four days when she was hospitalized during the month of September.

We are convinced that plaintiff fell from her chair, as alleged, but the evidence indicates that the fall occurred almost two weeks prior to the time she alleged it did or that her symptoms manifested themselves several days before the fall.

Mrs. Broussard testified that she experienced pain in her back when the above accident occurred, but that she did not report an injury and she continued to work for the next three or four months despite that pain. She stated that she continued to work for “a couple of days or a couple of weeks” before she sought medical treatment, and she concedes that even then she did not tell her treating physicians that she had sustained an injury in September. She explained that she did not inform anyone about the accident because she felt that the injury was not serious and she was afraid that she might lose her job if her employer knew that she had sustained an injury on the job.

Plaintiff was examined by her family physician, Dr. C. Thomas Curtis, a general practitioner, on September 11, 1974. At that time, she complained of pain “in the left upper quadrant of the abdomen,” stating that she had been experiencing that pain for about two weeks. She did not complain of injury to or pain in her back, and she did not tell the doctor that she had sustained a trauma or an accident of any kind. She did not tell him even that she was working. Dr. Curtis diagnosed her condition as “myalgia,” or muscle pain, and he prescribed a combination tranquilizer and muscle relaxant. He stated that at that time he considered her back to be “normal.” Plaintiff was worried about an internal disease, however, so Dr. Curtis hospitalized her from September 15 to September 18, 1974, “primarily for purposes of evaluation.” While in the hospital he treated her for “acute abdominal wall myalgia,” and he discharged her after three or four days of treatment “on a diet which was for her stomach, thyroid medication and to continue this combination muscle relaxant.”

Dr. Curtis examined plaintiff again on November 18, 1974, two months after he had discharged her from the hospital. On that occasion, Mrs. Broussard for the first time complained of pain in the low back area. She did not tell Dr. Curtis that she had sustained a trauma of any kind. The doctor found objective signs of an abnormal back condition, and he prescribed a muscle relaxant and an anti-inflammatory drug.

Mrs. Broussard sought no other medical treatment until December 25, 1974, when she was examined by Dr. Curtis in the emergency room of a hospital in Rayne. Her complaints at that time were of “severe pain in the right hip.” She told the doctor that at about mid-day on Christmas, while in her home, she stooped over and then twisted slightly and sharply as she began to straighten up, and that at that time she felt a sharp pain in the right lower back area which radiated down to the mid-calf of her right leg. The pain became very severe, and she thereupon was brought to the emergency room of the hospital by ambulance. She mentioned no other trauma or accident in the history she gave. Dr. Curtis made a tentative diagnosis of “severe acute sacroiliac strain,” and he hospitalized her until January 4, 1975. He concluded that plaintiff had sustained a ruptured disc, and he thereupon referred her to a specialist, an orthopedic surgeon, and he has not treated her since that time.

Dr. Curtis feels, as we understand his testimony, that plaintiff sustained a ruptured disc as a result of the incident which occurred on December 25, 1974, in her home, and that her present disability did not result from the accident which occurred in the course of her employment shortly before September 11, 1974.

Plaintiff was examined by Dr. Eugene J. Dabezies, an orthopedic surgeon, on March 6, 1975. Dr. Dabezies concluded that she had ruptured intervertebral discs at the L4-L5 and the L5-S1 levels, and he performed a procedure known as chemonucleo-lysis to correct that condition. Plaintiff was hospitalized from April 2 until April 11, 1975, and was seen periodically by Dr. Da-bezies thereafter until October 8, 1975. Dr. Dabezies feels that plaintiff has a permanent 10% disability of the body as a whole, and that she will not be able to do the type of work which she was performing immediately prior to December 25, 1974.

The only history which plaintiff gave Dr. Dabezies relating to the onset of her symptoms was the incident which occurred on December 25, 1974. He concluded, therefore, that the injury resulted from the accident which occurred on that day.

Plaintiff called as lay witnesses four members of her immediate family, all of whom testified that she had had no complaints of pain in her back prior to the time that she fell from her chair in August or September of 1974, and that she has complained of back pain since that time.

Plaintiff’s work record indicates that she worked regularly, averaging about forty hours per week, during the months of October, November and December, until the end of her working day on December 24, 1974. The owner, the plant foreman and an inspector of the employer company testified that plaintiff worked normally until Christmas Day, 1974, that she did not report an injury at any time, and that she made no complaints during that time, other than the usual minor complaints made by all other employees. The first notice that the defendant employer received of the fact that plaintiff claimed that she had sustained a work connected accident was contained in a letter addressed to Acadia Industries by plaintiff’s attorney, dated March 31, 1975, requesting payment of some medical bills incurred by Mrs. Broussard.

The trial judge held that there was “no causal connection between the accident of September, 1974, and the herniated discs.” He felt that it was possible for plaintiff to have sustained a disc injury in September, 1974, and for it not to become symptomatic until December of that year. He concluded, however, that that was not probable and that plaintiff had failed to prove a causal connection between the alleged accident and her present disability.

Plaintiff argues that under the facts presented herein she must be presumed to have sustained a disabling injury at the time of the accident which occurred in September, 1974. She contends that defendant has failed to overcome that presumption.

A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterward, provided that the medical evidence shows that there is a reasonable possibility of causal connection between the accident and the disability. Porter v. Augenstein Construction Company, 280 So.2d 861 (La.App. 3 Cir. 1973); Bourque v. Monte Christo Drilling Corporation, 221 So.2d 604 (La.App. 3 Cir. 1969); Roberson v. Liberty Mutual Insurance Company, 316 So.2d 22 (La.App. 3 Cir. 1975).

In the instant suit, both of plaintiff’s treating physicians felt that her disabling condition resulted from the accident which occurred in her home on December 25,1974, rather than from the accident which is alleged in the petition. That accident, of course, was not connected with her employment. Mrs. Broussard’s symptoms of disc injury did not commence with the accident which occurred in September, 1974, and her first treating physician stated that the symptoms following the September accident were not compatible with an injury involving a ruptured disc. Under those circumstances we conclude that plaintiff is not entitled to the presumption that her disability resulted from the September accident.

The factual findings of the trial judge, and particularly those which involve a determination of the credibility of the witnesses, are entitled to great weight, and those findings will not be disturbed unless found to be clearly erroneous.

We find no error in the conclusion reached by the trial judge that there was no causal connection between the accident which occurred in August or September, 1974, and plaintiff’s disabling condition. There thus is no error in the judgment which dismisses this suit.

For the reasons assigned, the judgment appealed from is affirmed. The cost of this appeal assessed to plaintiff-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Ramona Boutte SCHOEFFLER and William Schoeffler, Plaintiffs and Appellants, v. REMINGTON ARMS, INC., and Cullum and Boren, Defendants and Appellees.
    No. 5697.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Frank Smith, Jr., Lafayette, for plaintiffs and appellants.
    Allen, Gooch & Bourgeois, Ltd. by Arthur Robison, Lafayette, for defendants and ap-pellees.
    Before DOMENGEAUX, WATSON and HUMPHRIES, JJ.
   DOMENGEAUX, Judge.

This is a products liability action. Plaintiff, Ramona Boutte Schoeffler, was injured when a .22 caliber bullet accidentally discharged, striking her in the leg. She and her husband, William Schoeffler, instituted suit against Remington Arms, Inc., manufacturer of the bullet, and Cullum and Boren, distributor of same. From a judgment of dismissal plaintiff has appealed. We affirm.

Plaintiffs owned and operated a gun shop in the city of Lafayette, Louisiana, both having considerable experience in the field of firearms. They were in the habit of driving out to a certain piece of property near the Vermilion River, which they owned, each afternoon, to take target practice with .22 caliber firearms. On the afternoon of May 6, 1975, plaintiffs ventured to the Vermilion River property and were joined by 15-year-old Ricky Leblanc, the son of a friend. Mr. and Mrs. Schoeffler had in their possession on that afternoon two .22 caliber firearms, to-wit: A Ruger automatic pistol and a collapsible survival rifle.

A few days prior thereto Mrs. Schoeffler had purchased three boxes of Remington .22 caliber rimfire ammunition, each box containing 100 cartridges. On the day prior to the date in question plaintiffs had also been at the Vermilion River property firing the same two weapons. The only ammunition which they used was the above described Remington .22 caliber cartridges. Plaintiffs experienced a number of misfires with this ammunition in both weapons. On May 6, 1975, the following day, plaintiffs employed the above described ammunition exclusively, experiencing several additional misfires, again using both firearms.

Sometime hear dusk, the mosquitoes in the area became bothersome, and the parties decided to terminate their shooting activities. Mr. Schoeffler was firing the Rug-er automatic pistol at the time and testified that, on the last clip, he experienced misfires with the second and third cartridges and was forced to eject them manually. After firing his last shot Mr. Schoeffler pulled the trigger and hearing a click, assumed that the final cartridge had been fired. However, he failed to further examine the weapon to verify that assumption.

Mrs. Schoeffler then began to dismantle her survival rifle, and plaintiffs walked from the bank of the Vermilion River to their pickup truck which was parked only a few feet away. Mr. Schoeffler placed the pistol on the seat of the pickup, and both parties went around to the back of the truck to store the remainder of their gear in the camper portion thereof. Mrs. Schoeffler returned to the cab of the truck, opened the door, entering partially, when the Ruger pistol discharged, the bullet therefrom striking her in the leg. In a written statement given to investigating police officers, Mr. Schoeffler stated that he was also entering the truck at the time of discharge and that his hand had struck the weapon at the time of firing. However, this plaintiff later denied that he was in the truck at the time the pistol discharged.

Plaintiffs filed this suit contending that Mrs. Sehoeffler’s injury was caused by a defect in the ammunition which caused a “misfire”. Defendants denied any defect whatsoever in their product, alleged contributory negligence on behalf of plaintiffs and filed a reconventional demand against Mr. Schoeffler for contribution should they be adjudged liable. The trial judge found that the cartridge in question in fact misfired but that the subsequent discharge thereof could not have been caused by the shell itself. The district judge concluded that plaintiffs failed to prove by a preponderance of the evidence that the cartridge was defective and/or that their damages were caused by any defect thereof. He further found that the proximate cause of Mrs. Sehoeffler’s injuries was the negligence of her husband.

Three individuals were accepted by the court as experts in the field of firearms and related matters, and all testified in defendant’s behalf.

Jack Chisnall, a 36-year employee of Remington Arms Company, Inc., and currently supervisor of Product Service, provided the court with the following definitions:

“A misfire is a cartridge in which the primer has been struck, ignition does not take place, and the bullet or shot remains within the cartridge case.
A delayed fire is one whereby a person has attempted to fire a cartridge and for some reason the arm itself hung up and then the firing pin and hammer let go to a later date or time.
The knowledge and term hangfire is one whereby it might occur up to three-hundredths of a second, three-hundredths of a second.”

Richard A. Sahlin, a 35-year employee of Remington Arms Company, Inc., and currently chief processing engineer, testified that the normal time lag between the striking of the firing pin on the primer of a cartridge and the actual firing thereof is one and one-half to two milliseconds (thousandths of a second). He further stated that it was impossible to have a time lag of four to five seconds and that the longest he had ever experienced was 15 milliseconds.

The most eminently qualified expert who testified at trial was Col. Edward B. Cross-man, a nationally renowned writer and expert in the field of firearms and ammunition. Colonel Crossman defined the term “hang fire” as follows:

“. . . a delayed perceptual to the shooter during the time the firing pin strikes the primer, until the bullet or shot charge leaves the muzzle of the gun. In practical purposes this means, a delay of approximately 40 milliseconds.”

The following testimony was elicited from this expert:

“Q. Now you have done extensive research into misfires, haven’t you? I mean hangfires?
A. Yes, sir.
Q. Communicated with experts around the world in ammunitions, haven’t you?
A. I talked to them, yes.
Q. And you have written at least one article on the phenomenon, haven’t you?
A. Yes, sir.
Q. And in your professional opinion, based on your years of experience and. all your research, is it possible with modern day ammunition, such as is involved in this case, to have a delay between the time the firing pin strikes the rim and the explosion of a shell, for 4, 5, or 6 seconds?
A. No, sir. Its impossible. Its impossible, it can’t happen.
Q. Tell the court what a misfire is?
A. Well, a misfire is failure of a cartridge to fire when the primer had been struck. It may come due to an ammunition fault, or its most proba-' bly due to a gun defect, a gun fault.
Q. But it’s where the pin strikes and it does not fire?
A. For some reason the primer does not fire.
Now with the modern ammunition such as is involved in this case, lead styphnate that was testified to by Mr. Sahlin, is it your opinion that the action time, with that ammunition, if it fires at all, has to be less than say 10 milliseconds? <©
Yes. >
There is no way it can be a second or two seconds, or three? <©
In my opinion no. >
Would you agree it was like breaking a piece of glass, it either breaks or it doesn’t break, but it doesn’t break real slow?
It’s like breaking a piece of wood.”

An analysis of the foregoing testimony supports the following conclusions. A “misfire” occurs when the cartridge primer is struck by the firing pin without subsequent ignition. The cartridge is, in effect, a “dud”. A “hang fire” takes place when there is a slight lag between the time the primer is struck and the powder ignites. This lag is restricted to a few fractions of a second. Finally, a “delayed fire” exists when the actual firing mechanism of the weapon itself fails to strike the cartridge primer at the proper time but may do so at any point thereafter. A delayed fire is the result of a mechanical defect in the weapon itself and not the ammunition.

Obviously plaintiffs’ theory of recovery is predicated upon the occurrence of a “hang fire”. However, the record indicates and the trial judge so found, that more than one minute elapsed from the time that Mr. Schoeffler attempted to fire the final round until the instant of the accidental discharge which injured Mrs. Schoeffler. All of the above quoted expert testimony indicates strongly that it is beyond the realm of physical possibility for a hang fire to occur after such a passage of time.

In the noteworthy decision of Weber v. Fidelity and Casuaity Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971), our Supreme Court stated:

“A manufacturer of a product which involved a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacturer of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.” (Citations omitted) (Emphasis added).

The trial judge concluded that the necessary causal link between the alleged manufacturing defect and plaintiff’s injuries had not been established. Such is a factual finding, and after a careful review of the evidence as outlined above, we find no manifest error in his determination. See Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Hence, finding defendants free of negligence, the allegations of plaintiffs’ contributory negligence are no longer material, and we do not address ourselves to that issue.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . Mr. Schoeffler sued on behalf of the community for lost income and services (from Mrs. Schoeffler) and past, present and future medical expenses.


author: HUMPHRIES, Judge.

text:
    PAN AMERICAN LIFE INSURANCE CO., Plaintiff-Appellee, v. Hazel JACK and Elton Leday, Defendant-Appellant.
    No. 5708.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 18, 1976.
    W. Glenn Soileau, Breaux Bridge, for defendant-appellant.
    Fredric G. Hayes, Lafayette, James T. Guglielmo, Opelousas, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   HUMPHRIES, Judge.

Defendant-appellant, Hazel Jack, neither appeared nor filed a brief in this case prior to the time the case was called for oral argument. Pursuant to Rule VII, Section 5(b), Uniform Rules, Courts of Appeal, this appeal is considered abandoned, and is hereby dismissed at appellant’s cost.

Appeal dismissed.


author: SUGG, Justice, for the Court:

text:
    Lawrence G. HINES v. STATE of Mississippi.
    No. 49376.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Joseph M. Stinson, Tylertown, for appellant.

      A. F. Summer, Atty. Gen. by Vera Madel Speakes, Sp. Asst. Atty. Gen., and Karen Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   SUGG, Justice, for the Court:

This is an appeal from the Circuit Court of Walthall County. Defendant, Lawrence G. Hines, was tried and convicted of armed robbery and sentenced to serve a term of life imprisonment in the Mississippi State Penitentiary.

On the evening of June 11, 1974, three black men entered Webb’s Grocery in Lexie, Mississippi, armed with a pistol. The men held the proprietors of the store, Mr. and Mrs. Webb, at gunpoint before leaving with an undetermined amount of cash and valuables. Defendant’s conviction was based entirely on the Webb’s identification of the defendant as one of the robbers. Several issues raised by the defendant merit discussion.

Defendant’s first assignment of error concerns the following remarks made at defendant’s trial by the assistant district attorney during voir dire of the jury, “Do each of you realize that the defendant has the right not to testify in this case? You are not to draw any inference as to guilt or innocence of the defendant whether he does or does not take the stand.” Counsel for the defense immediately objected and moved for a mistrial. The motion was overruled and the defendant did not testify.

Mississippi Code Annotated section 13-1-9 (1972), reads as follows:

The accused shall be a competent witness for himself in any prosecution for crime against him. The failure of the accused, in any case, to testify shall not however operate to his prejudice or be commented on by counsel.

In the instant case the prosecuting attorney commented on defendant’s right not to testify. The reasons for the prosecuting attorney’s remarks are not apparent, but perhaps he felt that the defendant could be provoked into testifying because of the statement. In any event the prosecutor’s remarks, coupled with the defendant’s subsequent decision not to testify is tantamount to a comment on the defendant’s failure to testify and is therefore in violation of section 13-1-9.

This Court has consistently held that any comment by the prosecutor on an accused’s failure to testify is error. Clark v. State, 260 So.2d 445 (Miss.1972); Lambert v. State, 199 Miss. 790, 25 So.2d 477 (1946); Yarbrough v. State, 70 Miss. 593, 12 So. 551 (1893). We are not prepared to deviate from these prior decisions. The trial court committed reversible error by not granting the defendant’s motion for a mistrial following the assistant district attorney’s remarks.

Defendant also contends that his right to cross-examination was violated by the trial court’s action in denying an attempted experiment by counsel for the defense. Mrs. Webb was called as a witness for the state and identified the defendant as one of the robbers. On cross-examination counsel for the defense attempted to require Mrs. Webb to look in the opposite direction from the trial judge while describing the physical characteristics of the judge. The purpose of this experiment was to test Mrs. Webb’s ability to observe and recall descriptions.

The determination of whether to allow experiments and demonstrations during trial rests within the sound discretion of the trial judge. Experiments of this type should be viewed with caution because of the high risk of obtaining unreliable evidence. Whenever possible the experiment should be based on circumstances and conditions similar to those existing at the time of the offense. 23 C.J.S. Criminal Law § 967, at 870-871 (1961).

The experiment proposed in the present case involved completely different conditions from those testified about. Obviously, a victim’s identification of an armed robber during a robbery versus a description of a judge in court lacks similarity. The trial court did not abuse its discretion in sustaining the state’s objection and thereby refusing to allow the experiment. See McCain v. State, 46 Ala.App. 627, 247 So.2d 383 (1971).

Defendant argues that Instructions No. 13 and No. 19 were erroneously refused by the trial court. We find no merit in this argument.

Instruction No. 13 advised the jury that no class of testimony is more uncertain and less reliable than that of identity, and that extreme care should be used in scrutinizing this identification of the defendant.

Mississippi Code Annotated section 99-17-35 (1972), prohibits a trial judge from commenting on the testimony or instructing the jury as to the weight of the evidence. Defendant’s requested instruction was in violation of this statute. Ragan v. State, 318 So.2d 879 (Miss.1975). Instruction No. 13 was properly refused as being a comment on the evidence and giving undue weight to a particular class of evidence.

The obvious intent of defendant’s Instruction No. 19 was to require that every reasonable hypothesis consistent with defendant’s innocence be extinguished before a verdict of guilty may be returned by the jury. We recently held in Irvin v. State, 258 So.2d 241 (Miss.1972), that a similar instruction is not proper in a case where the elements of the crime are established by direct evidence. This instruction should be granted only when the evidence presented by the state is circumstantial. McCray v. State, 320 So.2d 806 (Miss.1975). In the instant case the evidence presented by the state was the testimony of two eyewitnesses who identified the defendant as one of the armed robbers. Defendant’s conviction did not depend on circumstantial evidence; therefore, the trial court properly refused the requested instruction.

The defendant’s last assignment of error concerns the prosecutor’s reference during closing argument to writing on the back of a photograph which showed that defendant had previously been convicted of possession of marijuana. The picture had been introduced into evidence by the defendant. We do not feel compelled to respond to this question since the case must be reversed on other grounds and the defendant will have an opportunity to insure that this situation does not recur.

REVERSED AND REMANDED FOR A NEW TRIAL.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.


text:
    Don Lee REYNOLDS v. STATE of Mississippi.
    No. 49302.
    Supreme Court of Mississippi.
    Nov. 16, 1976.
    Richard B. Brown, Jr., Gulfport, for appellant.
    A. F. Summer, Atty. Gen., by Catherine J. Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

Before GILLESPIE, C. J., and SUGG and BROOM, JJ.

AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER and LEE, JJ., concur.


text:
    Hubert Jackson GROGAN v. STATE of Mississippi.
    No. 49358.
    Supreme Court of Mississippi.
    Nov. 16, 1976.
    H. Bernard Gautier, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Before PATTERSON, P. J., SMITH and LEE, JJ., and JOSEPH C. FEDUCCIA, Commissioner.

AFFIRMED.


text:
    H. D. MONTAGUE v. TENNESSEE RIVER PULP AND PAPER COMPANY, INC.
    No. 48968.
    Supreme Court of Mississippi.
    Nov. 16, 1976.
    Hugh L. Bailey, Winona, for appellant.
    Sumner & Sumner, James C. Sumner, Winona, for appellee.
   Appeal from Chancery Court, Montgomery County; Kermit R. Cofer, Chancellor.

Before PATTERSON, P. J., SMITH and LEE, JJ., and KENNETH B. ROBERTSON, Commissioner.

AFFIRMED.


text:
    Sharon Hope RENFROE v. Wayne Morris RENFROE.
    No. 48982.
    Supreme Court of Mississippi.
    Nov. 16, 1976.
    E. Grant Tharpe, Jackson, for appellant.
    Self, Bailey & Jordan, Earl P. Jordan, Jr., Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; H. Wingfield Glover, Jr., Special Chancellor.

Before GILLESPIE, C. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Melvin SMITH v. STATE of Mississippi.
    No. 49211.
    Supreme Court of Mississippi.
    Nov. 16, 1976.
    Helen J. McDade, DeKalb, for appellant.
    A. F. Summer, Atty. Gen., by Catherine J. Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Neshoba County; Roy Noble Lee, Judge.

Before GILLESPIE, C. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Stanley HOWELL v. STATE of Mississippi.
    No. 49345.
    Supreme Court of Mississippi.
    Nov. 16, 1976.
    Alton Massey, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, P. J., and SMITH and LEE, JJ.

AFFIRMED.


author: ROBERTSON, Justice, for the Court:

text:
    Ernest M. GRAHAM v. The CITY OF KOSCIUSKO, Mississippi, and United States Fidelity and Guaranty Company.
    No. 48848.
    Supreme Court of Mississippi.
    Nov. 16, 1976.
    Crawley & Ford, David E. Crawley, Jr., William R. Ford, Kosciusko, for appellant.
    Brooks & Guyton, William D. Brooks, John D. Guyton, Kosciusko, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   ROBERTSON, Justice, for the Court:

This is a workmen’s compensation case. The question presented for decision is one of first impression in Mississippi.

' The claimant and appellant, Ernest M. Graham, appeals from the order of the Circuit Court of Attala County reversing an order of the Workmen’s Compensation Commission which approved an award of $60,347.15 to Mary M. Graham, his wife, for nursing services rendered in the home from July 8, 1964 through December 18, 1973.

The circuit court found that no notice of the necessity for nursing services and no request for such services were given to the employer, City of Kosciusko, or the carrier, United States Fidelity and Guaranty Company, until February 23, 1972, and that payment for such nursing services should not begin until February 23, 1972. The court further found that the overwhelming weight of the evidence was that only four hours nursing services per day were needed by the claimant, and that claimant’s wife was entitled to payment for four hours nursing services per day at $2.25 per hour for each day from and after February 23, 1972, less a period of sixteen days when claimant was hospitalized.

On July 8, 1964, claimant suffered an industrial accident while working as an electrical lineman for the city of Kosciusko. He was left a paraplegic, paralyzed from the waist down. The first request for nursing services was made by letter, dated February 23,1972, from Crawley and Ford, claimant’s attorneys, to,United States Fidelity & Guaranty Company, Greenwood, Mississippi. That letter stated:

Attention: Mr. Jack Toler
Re: Mr. Ernest Graham, Ethel, Mississippi v. City of Kosciusko, Employer, and U. S. Fidelity & Guaranty Co., Carrier
Dear Jack:
You will please find attached hereto a copy of a letter which has just been delivered to us by Mrs. Mary Graham, wife of Mr. Ernest Graham, above named whom we represent, dated 22 February, 1972, signed by Dr. Charles L. Neill, Neurosurgeon of Jackson, Mississippi, which is self-explanatory.
Mrs. Graham has just advised us that it is going to be absolutely necessary for either one of two things to be done with reference to the care of the physical needs of her husband. They are (1) employ an LPN for at least one 8 hour shift every day or, (2) pay her for her services in rendering and caring for her husband’s physical needs because of his paraplegic condition.
We have checked and determined that the local rate charged by an LPN is $1.50 per hour, or $12.00 for an 8 hour shift. This would amount to an average of approximately $362.00' per month. Mrs. Graham has authorized us to advise that she is willing to accept the sum of $250.00 per month in lieu of your employing and paying an LPN.
In view of the above, we are hereby formally requesting that you initiate the immediate payment to Mrs. Graham of $250.00 per month for her services under the statutory obligation you have for the furnishing of necessary medical care and paying necessary medical expenses.
Please advise.
DOCTORS NEILL, NEILL AND HODGES
Neurological Surgery
Suite 214 Medical Arts Building
Jackson, Mississippi 39201
February 22,1972
TO WHOM IT MAY CONCERN
RE: Mr. Ernest Graham Because Mr. Ernest Graham has been paraplegic since his accident in 1964, Mrs. Graham’s time has been fully occupied with his nursing care and attention over the past several years.
This nursing care will continue as a responsibility. Mrs. Graham is unable to do any outside gainful employment because of the demanding responsibility of Mr. Graham’s condition.
SIGNED:
/s/ Charles L. Neill, M.D.
Charles L. Neill, M.D.

On June 19, 1972, Graham filed his first petition to be furnished nursing services. In his petition claimant stated that the carrier had paid him the workmen’s compensation benefits to which he was entitled and that the carrier was paying his doctors’ and drug expenses in accordance with the workmen’s compensation act.

Claimant then stated in his petition:

“3. Your said claimant would further show unto this Honorable Commission that he has called upon the said United States Fidelity & Guaranty Company, carrier herein named, to also furnish him with the attendance of at least a licensed practical nurse for a period of time not less than eight (8) hours per day for the reason that his physical condition has deteriorated to that point where he is in absolute medical need thereof inasmuch as he is completely paralyzed from his waist down and without any physical control whatsoever over that part of his body and the physical functions of his urinary and bowel tracts.” (Emphasis added).

Claimant closed his petition with the prayer that the carrier:

“[W]ill be ordered and directed to either furnish your said claimant with the nursing care his condition requires or that it pay unto his wife, Mrs. Mary Graham, the sum of $392.87 per month for her services so rendered.”

The petition uses only the present and future tenses; nowhere does it request payment for past nursing services or for services prior to February 23, 1972. The first hearing was on August 7, 1972, and at this and all subsequent hearings the testimony adduced was as to present and future nursing needs.

On January 30,1973, the attorney-referee rendered his opinion. He found that the employer and carrier should pay to claimant’s wife:

“[F]or her tending to, caring for and being present with claimant, in lieu of special nursing attention, not to exceed sixteen (16) hours per day for the period commencing July 8, 1964, until September 12, 1972, the date of his surgery by Dr. W. H. Merrell, and, further, not to exceed eight (8) hours per day from and after September 12, 1972, all at the rate of the average weekly wage paid to licensed practical nurses, provided, however, that the defendants shall not be liable for such expenses, as ordered herein, during the periods from and after July 8, 1964, when claimant was and is confined to a hospital or other such place where he may receive active nurse’s care;

Upon review by the full Commission, the Commission by a two-to-one vote affirmed the order of the attorney-referee, but remanded the cause to the attorney-referee:

“[F]or a hearing to obtain evidence so as to allow his entering a supplemental order making more specific the Attorney Referee Order of January 30, 1973, including, but limited to, the following matters:
1. The rate of pay and the specific number of hours for which payment is to be made for nursing services commencing July 8,1964, and ending on the date prior to the Attorney Referee hearing to be held in this cause, thereby establishing a total dollar amount due the wife of the claimant herein for her providing of nursing services from the date of July 8,1964, through the day prior to the date of the next hearing in this cause. The maximum number of hours per day shall be limited to that set out in the Attorney Referee Order of January 30, 1973.
2. The rate of pay which shall be paid to the wife of the claimant herein for the providing of nursing services from the date of the next hearing of this cause; such rate of pay shall be based upon the gross average weekly wage paid licensed practical nurses in the general area of the claimant’s domicile and shall be paid for eight hours per day, seven days per week.
“IT IS FURTHER ORDERED that the hourly rate of pay to which claimant’s wife shall be entitled shall be adjusted on January 1, 1974, and on the same date of each succeeding year, and such adjustment shall correspond to the percentage of increase or decrease in the cost of living for the previous year, as evidenced by the National Consumer Price Index.”

Following this Order of the two Commissioners is this statement of J. T. Hill, Chairman of the Commission:

“Chairman Hill concurs in remanding this cause to an Attorney Referee for the purposes stated hereinabove with the exception that payment to the wife of the claimant herein for her providing nursing services should commence on the date the Motion to Controvert was filed or on a prior date that a formal demand, if any, was made for such services, and not from July 8, 1964.”

Upon remand to the attorney-referee, the claimant moved to file an amended petition to pray for nursing services from and after July 8, 1964, and the employer and carrier renewed their Motion for Leave to Amend their Pleadings.

The attorney-referee was of the opinion that he was limited in the remand order of the Commission to receiving testimony only on the number of hours per day required for nursing services since July 8, 1964, and the hourly rate of pay for a licensed practical nurse since July 8, 1964. He, therefore, overruled both the claimant’s and the employer’s and carrier’s motions to amend their pleadings, and limited testimony to the number of hours of nursing services rendered in the home and the rate of pay for licensed practical nurses.

On March 8, 1974, the attorney-referee entered his Order finding that Mrs. Ernest M. Graham, wife of claimant, was entitled to a total of $60,347.15 for nursing services performed by her in the home for the period commencing July 8, 1964 and ending December 18,1973, broken down as follows:

In spite of the fact that the claimant only prayed for $392.87 per month for Mrs. Graham, beginning February 23, 1972, the attorney-referee found that Mrs. Graham was entitled to these amounts:

On July 8, 1974, the Commission, by a two-to-one vote, affirmed the attorney-referee’s supplemental order of March 8, 1974, Chairman Hill again voting to affirm the payment for nursing services subsequent to February 24,1972, but voting to reverse the order of the attorney-referee for the payment of nursing services rendered prior to February 24, 1972.

Dr. Charles L. Neill, neurosurgeon and claimant’s principal doctor, .testified on cross-examination that four hours a day would be sufficient to take care of Graham’s nursing needs, if there were “somebody to cook his meals and feed him and that sort of thing.”

Dr. S. L. Bailey, general practitioner and claimant’s family physician, testified that there should be someone available to answer his needs within a reasonably short period of time. , .

Dr. W. H. Merrell, a urologist of Jackson, Mississippi, testified that on September 12, 1972, he operated on the claimant and removed the obstruction in the bladder neck which mostly remedied his urological problem. Dr. Merrell testified that strictly from a urological standpoint, the claimant needed no nursing services after he returned home.

The claimant and his wife both testified that Mrs. Graham had to give the claimant an enema every two or three days, which required at least an hour’s work on her part each time. For a rather long period of time there was daily catherization and additional cleanup of the claimant and his bed.

The Grahams had three children. Mrs. Graham had no domestic help and, by dent of working long hours every day, was able to look after the children, the home, and the special nursing needs of her husband. Her testimony and that of the claimant hopelessly intermingled his special nursing needs with her general household duties of preparing meals, washing clothes and cleaning the home.

The question of paying a wife for special nursing services rendered her husband in the home is a matter of first impression in Mississippi. Larson makes this observation:

“The commonest controversy is the question whether practical nursing services performed by the claimant’s own wife may be made the subject of a claim for nursing expenses. The earlier cases denied the allowance, [footnote omitted, on the ground that the wife did no more than she was bound to do as an affectionate spouse. Later cases, however, have permitted the charge, on the reasoning that the employer, by statute, has the affirmative duty of furnishing this kind of nursing service, [footnote omitted]. If he has not done so, and if the wife then takes over these duties in addition to her regular household work and does exactly what a hired nurse would have had to do, the charge is proper.” 2 Larson Workmen’s Compensation Law, § 61.13 (1976).

Mississippi’s statute on this subject [Mississippi Code Annotated section 71-3-15 (1972)], provides in part:

“(1) The employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require. If the employer fails to provide the same after request by the injured employee, such injured employee may do so at the expense of the employer. The employee shall not be entitled to recover any amount expended by him for such treatment or services, except in emergency cases, unless he shall have requested the employer to furnish the same and the employer shall have refused or neglected to do so, or unless the nature of the injury required such treatment and services and the employer or his superintendent or foreman, having knowledge of such injury, shall have neglected to provide the same. Nor shall any claim for medical or surgical treatment be valid and enforceable, as against such employer, unless within twenty (20) days following the first treatment the physician giving such treatment furnish to the employer and the commission a report of such injury and treatment, on a form prescribed by the commission. The commission may, however, excuse the failure to furnish such report within twenty (20) days when it finds it to be in the interest of justice to do so, and may, upon application by a party in interest, make an award for the reasonable value of such medical or surgical treatment so obtained by the employee.”

It is undisputed that the claimant did not request his employer or carrier to furnish him nursing services in his home until February 23, 1972, and even then his request was couched in language that indicated that it was for present and future nursing needs. The only alternative to notice and request is outlined in this language of the statute:

“[0]r unless the nature of the injury required such treatment and services and the employer or his superintendent or foreman, having knowledge of such injury, shall have neglected to provide the same.”

But all paraplegics do not require or need the same attention and treatment, nor do they need the same nursing services. One paraplegic might leave home, drive himself to work, work all day, and drive himself home, without a moment’s trouble. Another might need almost constant attention and treatment. Each case must be considered on its own merits; there is no standard solution for every case regardless of the facts.

The defendants were never heard on their defenses of no notice, no request, no doctor’s prescription, nor on their defenses of the several statutes of limitation.

When the claimant tried to file an amended petition to cover nursing services for the past eight years, and when the defendants tried to amend their answer to assert these defenses, the attorney-referee overruled their motions to amend, under the impression that the Commission on remand to him had limited the further hearing to the hours worked each day and the rate of pay per hour in the community.

We are not able to decide these matters because they were not heard and litigated below. The record is lacking in testimony and evidence on these crucial issues.

We have no difficulty in finding that the order of the circuit court providing that Mrs. Graham be paid $2.25 per hour for four hours nursing service a day from and after February 23, 1972, to Marfch 26, 1975, less a period of 16 days during which claimant was hospitalized, should be affirmed. The overwhelming weight of the evidence supports this finding.

However, we are of the opinion that the circuit court should be reversed and this cause remanded to the Workmen’s Compensation Commission so that the claimant can file an amended petition to put in issue payment for nursing services rendered by his wife to him in the home from July 8, 1964, to February 23, 1972. The employer and carrier should be allowed to file an amended answer raising all defenses that they desire to make. A full hearing should be afforded both sides. Required nursing services should be separated from general household duties and work that a wife ordinarily performs in and about the home in looking after and caring for her husband and children. There should be testimony from doctors as to how many hours per day would be required for special nursing services for the claimant from July 8, 1964, to February 23, 1972.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ„ and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Fred JETT, father of his deceased son, Richard Dale Jett v. HONDA MOTOR COMPANY, LTD., et al.
    SC 1809.
    Supreme Court of Alabama.
    Oct. 29, 1976.
    Rehearing Denied Nov. 24, 1976.
    John T. Roach, Jr., Birmingham, for appellant.
    Reid B. Barnes and John B. Gamble, Jr., Birmingham, for Honda Motor Co., Ltd. and American Honda Motor Co., Inc.
    Roy W. Scholl, Jr., Birmingham, for Tom and Sarge Cycle, Inc.
   BLOODWORTH, Justice.

Plaintiff appeals from dismissal of a wrongful death action for failure to state a claim upon which relief can be granted. Rule 12(b)(6), ARCP.

The complaint sought relief on the basis of “strict liability in tort,” a theory not recognized in any form in Alabama at the time of the dismissal. Defendants are the manufacturer, the distributor, and the seller of the motorcycle on which plaintiff’s intestate was riding when he was killed.

We reverse and remand for reconsideration in light of our decisions in Casrell v. Altec Industries, Inc., Ala., 335 So.2d 128 (1976), and Atkins v. American Motors Corp., Ala., 335 So.2d 134 (1976). See Sherman Concrete Pipe Machinery, Inc. v. Gadsden Pipe Co., Ala., 335 So.2d 125 (1976).

Defendants contend that plaintiff’s complaint is insufficient even in view of Casrell and Atkins. We do not rule on this contention because plaintiff drafted his complaint prior to our adoption of the “Alabama Extended Manufacturers’ Liability Doctrine” in Casrell and Atkins.

REVERSED AND REMANDED.

HEFLIN, C. J., and JONES, ALMON and EMBRY, JJ., concur.


author: JONES, Justice.

text:
    ALCOHOLIC BEVERAGE CONTROL BOARD v. Sam TAYLOR, as Judge of the Montgomery County Court of Common Pleas.
    SC 1914.
    Supreme Court of Alabama.
    Oct. 29, 1976.

      William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State ABC Bd.
    Clyde A. Smith, Montgomery, for appel-lee.
   JONES, Justice.

This is an appeal from an order of the Circuit Court of Montgomery County denying the Alcoholic Beverage Control Board’s Petition for a Writ of Mandamus to Judge Sam Taylor, Judge of the Montgomery County Court of Common Pleas. We set forth the order appealed from in haec ver-ba:

“This matter having come on for hearing on May 25, 1976 upon an application by the Alcoholic Beverage Control Board praying that this Court set aside the Order of the Honorable Sam Taylor, Judge of the Montgomery County Court of Common Pleas, in the cases of the State of Alabama vs. Chauncey B. Whitehead, Case No. 6919, and State of Alabama v. William O. Ezell, Case No. 7367, in which Judge Taylor ruled that the possession of liquor which was purchased at Maxwell Air Force Base and did not bear Alabama tax stamps, and defendants were arrested in Montgomery but off the base did not constitute a crime under existing Alabama law, and at the conclusion of the two cases, Judge Taylor ordered the ABC Board to return the confiscated evidence to the defendants, Ezell and Whitehead.
“On April 15, 1976, the applicant here filed in Judge Taylor’s court a Motion to Modify or Vacate Order for Return of Evidence, and upon a hearing on April 26, 1976, Judge Taylor denied the applicant’s motion. At the time Judge Taylor entered his order, all parties were before the Court. It is the opinion of this Court that since all parties were before the Court, and since Judge Taylor found the defendants not guilty and ordered the property returned, an order should not be entered to require Judge Taylor to reverse his position. It is therefore,
“ORDERED that the relief prayed for by the ABC Board be and hereby is denied.
“DONE this the 15th day of June, 1976.
s/ Perry 0. Hooper
CIRCUIT JUDGE”

The State acknowledges that an appeal will not lie on behalf of the State to review Judge Taylor’s ruling. The threshold issue, then, is whether the State of Alabama may seek appellate review of an adverse ruling in criminal proceedings via petition for writ of mandamus. The trial Court found that, because all parties were before the Court and Judge Taylor exercised his jurisdiction to determine the issue, mandamus would not lie to require Judge Taylor to reverse his position. We agree.

In the exercise of its supervisory power, the appellate courts may issue writs of mandamus to lower courts to compel the latter to entertain and exercise the jurisdiction entrusted to them, to correct any abuse of jurisdiction, and to enforce the performance by them of purely ministerial duties. But petitions for writs of mandamus cannot be substituted for appeal to review adverse legal rulings of lower courts. See Alabama Digest, Mandamus, @=»26.

We affirm.

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: HOLMES, Judge.

text:
    Ernest BURNETT v. Danylu BURNETT.
    Civ. 850.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1976.
    Rehearing Denied Oct. 13, 1976.
    Jetton & Ogden, Guntersville, for appellant.
    Lusk & Lusk, Guntersville, for appellee.
   HOLMES, Judge.

This is an appeal from a judgment of the Circuit Court of Marshall County.

After a hearing ore tenus, the learned trial judge found the husband to be in contempt of court for failure to pay certain periodic alimony payments and child support as previously ordered by the trial court. The trial court in pertinent part stated that the periodic alimony payments were changed to an award of alimony in gross. In addition to the above, the trial court made certain other orders regarding support. From this decree the husband appeals.

The dispositive issue before this court is whether the trial court did in fact, after a final decree of divorce, change an award to the wife of periodic alimony payments to an award of alimony in gross. We find that it did not make such a change of awards as to require reversal and we affirm.

The pertinent facts reveal that the parties were divorced in March of 1974. The husband was ordered to pay to the wife $200 per month as periodic alimony and a division of property was made. In addition, the husband was required to make child support payments and otherwise ordered to perform certain acts on behalf of the wife and child.

Thereafter, in September of 1975, the wife filed a petition alleging that the husband was in arrears regarding the alimony payments and the child support. The trial court found the husband to be in arrears and in addition to certain other things decreed as follows:

“2. That, in lieu of periodic alimony as provided in paragraph 6 of the final judgment of the court, the plaintiff be and is hereby awarded, as alimony in gross, the following:
“(b) That the plaintiff be and is hereby awarded the further sum of $10,000.00 as alimony in gross and the same is declared by the court to be secured by a lien on any real estate which the defendant owns or has any interest in located in Marion County of the State of Alabama, and the plaintiff herein, after the expiration of six months, may proceed to foreclosure said lien and secure the payment of said sum. Interest shall accrue from the date of this judgment on said award of $10,000.00 at the rate of 8% per annum on the unpaid balance thereof.” [Emphasis added.]

The dispositive issue then becomes, as stated above: Did the trial court, in this instance, change periodic alimony payments to an award of alimony in gross? We find he did not.

For a detailed and erudite discussion of the characteristics of alimony, both periodic and in gross, see Hager v. Hager, 293 Ala. 47, 299 So.2d 743. Suffice it to say that throughout Hager, supra, the following definition is found:

“ ‘Alimony in gross’ is the present value of the wife’s inchoate marital rights— dower, homestead, quarantine, and distributive share. It is payable out of the husband’s present estate as it exists at the time of divorce. . . . ” [Emphasis added.] (293 Ala. at 55, 299 So.2d at 750)

See also Borton v. Borton, 230 Ala. 630, 162 So. 529.

It is clear that in this instance an award of alimony in gross, as defined above, could not be made. The appellee at the time of the decree in question, some one year after the original decree of divorce, had no inchoate marital rights upon which an award of alimony in gross could be founded, as they had been extinguished by the decree of divorce.

However, in this instance, viewing the trial court’s decree with the attendant presumption of correctness, we do not find that the trial court made an award of alimony in gross as discussed in Hager, supra. We are aware that the trial court in his decree stated the award was one of “alimony in gross.” However, we find the award not to be an award of alimony in gross as discussed above, but rather to be a modification of periodic alimony. Put another way, the trial court simply changed the method of payment of the periodic alimony from installments to a lump sum, to wit, $10,000. Clearly, the trial court may modify a decree of alimony payable in monthly installments. Aiken v. Aiken, 221 Ala. 67, 127 So. 819. Also see 28 Ala.Dig. Divorce <$==>245(1) and cases cited therein. Additionally, we note that, as mentioned above, at the time of the original decree of divorce a division of property was made. Clearly, the trial court would not, over one year after the decree of divorce, attempt to make a further division of property or award alimony in gross.

Furthermore, we find in this instance no abuse of discretion in so modifying the method of payment. Clearly, the husband had not made payments of the previously ordered alimony. Furthermore, he, from one view of the evidence, had the means by which to make a lump sum payment, i. e., he owned land of a considerable value.

We do not deem it necessary to detail the facts concerning other aspects of the trial court’s decree; however, we do find there is evidence to support the conclusion that the husband does have the ability to pay alimony and is therefore in contempt. See Gwin v. Gwin, 55 Ala.App. 601, 318 So.2d 299. Specifically, he is an able bodied man, a college graduate, and as alluded to earlier, had considerable property.

The case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    In re Ernest BURNETT v. Danylu BURNETT. Ex parte Ernest Burnett.
    SC 2133.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    E. Charles Ogden, Guntersville, for petitioner.
    None for respondent.
   BLOODWORTH, Justice.

Petition of Ernest Burnett for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Burnett v. Burnett, Ala.Civ.App., 339 So.2d 68.

WRIT DENIED.

HEFLIN, C. J., and JONES, ALMON and EMBRY, JJ., concur.


text:
    William M. COLEY v. Robert L. LANG et al.
    Civ. 845.
    Court of Civil Appeals of Alabama.
    Nov. 3, 1976.

      Vickers, Riis, Murray & Curran and J. W. Goodloe, Jr., Mobile, for appellant.
    Billy C. Bedsole, Mobile, for appellees.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Mobile County’s action awarding damages to appellee-Lang for breach of agreement. The appellant-Coley appeals.

The record reveals the following: Lang sued Coley for specific performance. Lang’s complaint alleged that Coley and Lang had entered into an agreement whereby Coley was to purchase the stock of Lang’s corporation. The price was to be $60,000. The specific performance prayed for was the payment of $60,000. The complaint was later amended to include a claim for damages incurred by Lang in reliance on Coley’s promise to buy the stock.

After a hearing ore tenus the trial court entered a judgment for Lang in the amount of $7,500 “due to their [Lang’s] reliance upon the representation of the agreement by respondent [Coley] that he would purchase the stock . . As noted earlier, Coley appeals from this judgment.

The issues as presented by appellant for this court’s consideration are: (1) Did the “letter agreement” entered into by the parties contractually bind the parties? (2) Can the award be supported on the basis of promissory estoppel or reliance on a promise?

Viewing the trial court’s decree with the attendant presumption of correctness, our review of the testimony as shown by the transcript of the evidence reveals the following:

Coley, in late August of 1972, entered into discussions with Lang concerning the purchase of IAS Corporation. Lang owned the vast majority of the stock of IAS. Coley did not desire to purchase the assets of IAS, but only desired to purchase the name and good will of IAS. Coley’s purpose in acquiring the corporation was to enable Coley to be in a favorable position to bid on government contracts.

During the negotiation, the parties contacted an attorney, who represented Coley, and the following document was drafted and signed by each party:

“September 1, 1972
“Mr. Robert J. Lang, President
International Aerospace Services, Inc.
Post Office Box 9516
Charleston, South Carolina 29410
“Dear Bob:
“This letter is to express the agreement which we have reached today.
“Subject to the approval of your Board of Directors and stockholders, you have agreed to sell to nominee to buy, all of the outstanding stock of every kind of International Aerospace Services, Inc. (“IAS”). The purchase price for the stock shall be the sum of Sixty Thousand Dollars ($60,000.00) payable as follows:
“$10,000 on the date of sale;
$8,000 on December 31, 1972;
$21,000 on December 31, 1973,
and $21,000 on December 31, 1974. “The unpaid portion of the purchase price shall be represented by á promissory note executed by me, or guaranteed by me for execution by my nominee. Principal payments due on the note shall not bear interest to their stated maturity, but any past due payments shall bear interest at the rate of 10% per annum.
“It is our understanding that prior to the sale of the IAS stock to me you will cause IAS to transfer all of its assets and liabilities (other than its corporate name and the right to use that corporate name in foreign jurisdictions, and its corporate franchise) to a new corporation or partnership as you and the other present stockholders of IAS may determine. The new corporation or partnership, herein called IASCO, shall indemnify IAS against all liabilities of IAS which it has assumed. If IASCO fails to perform this indemnity and IAS is required to pay off liabilities assumed by IASCO, then I shall have the right to setoff any such payments against amounts due on the note representing the purchase price of the IAS stock. IAS will, of course, be responsible for any liabilities which it creates or incurs after you sell the stock to me. All work and contracts in progress of IAS shall be transferred to IASCO at the same time as the transfer of assets and liabilities.
“I recognize that you must consider the method to complete this transaction to the best advantage of you and the other shareholders of IAS. We agree together that on or before September 18, this letter agreement will be reduced to a definitive agreement binding upon all of the parties hereto and accomplishing the sale and purchase contemplated by this agreement.
“You agree that until we reach a definitive agreement I may request bid sets from the government and attend bidding conferences on behalf of an in the name of IAS.
“If the foregoing correctly reflects our agreement, please execute and return to me the enclosed copy of this letter.
“Yours very truly,
/s/ William H. Coley
“Agreed to and accepted.
/s/ R. L. Lang

Both parties testified at great length regarding their understanding of the “letter agreement.” Suffice it to say that Lang testified that the agreement was binding and only certain details remained to be done. Additionally, Lang testified that stockholder approval was obtained and further, that the corporation (Lang) had lost $30,000 as a result of the reliance on the “letter agreement.” We should note that details of the loss are not spelled out with any degree of specificity.

Coley testified that the letter agreement was only a basic outline of points which had been agreed upon; that there remained many items that had to be worked out; and further, that time was of the essence.

Specifically, Coley testified that Lang had not sought approval of the IRS concerning a pension and profit sharing plan nor had certain details with the government been completed. And that because of this he (Coley) realized that the sale would not work out within the contemplated time frame. Coley, on September 18, 1972, notified Lang of this fact.

We note that Coley did attend certain bid conferences conducted by the U.S. Government and registered with the government as a representative of Lang’s corporation. This action occurred after the “letter agreement” had been executed.

The attorney who drafted the “letter agreement” testified that he informed both parties that the document in question was not binding. Lang denied that the attorney so informed him.

The trial court, with the above before it, entered a decree which in pertinent part provided as follows:

“THAT the Complainants are the stockholders and owners of the International Aerospace Services, Inc., and that heretofore on, to-wit, September 1, 1972, they, by and through their President, Robert J. Lang, entered into a preliminary agreement with the Respondent, William H. Coley to sell to the Respondent all of the outstanding stock of every kind of International Aerospace Services, Inc., with the purchase price being the sum of $60,000 to be paid in the following manner:
“$10,000.00 on the date of the sale;
$8,000.00 on December 31, 1972;
$21,000.00 on December 31, 1973; and
$21,000.00 on December 31, 1974.
“THAT as a part of said preliminary agreement all of the assets and liabilities of International Aerospace Services, Inc., were to be transferred to a new corporation; the said Respondent was to purchase all of the stock, goodwill, and reputation of International Aerospace Services, Inc., a corporation, and the Respondent was authorized to request bids set for the United States Federal Government and attend bidding and conferences on behalf of and in the name of International Aerospace Services, Inc. The Court finds as a matter of fact that the Respondent or his said representative did attend pre-bid conferences and did use the name of International Aerospace Services, Inc.; that the said Respondent has failed and refused and continues to fail and refuse to pay any sum of money or to carry out any of the terms of the above mentioned agreement; that the Complainants have incurred certain expenses and have made certain preparations and plans to transfer all of the said outstanding stock to the Respondent; and to carry out the terms and provisions of the aforesaid preliminary agreement between the Complainants and the Respondent.
“The Court finds as a matter of fact, and it is hereby ORDERED, ADJUDGED and DECREED by the Court that the Bill for Specific Performance as filed by the Complainants is hereby denied.
“It is further ORDERED, ADJUDGED and DECREED that the Complainants have and recover of the Respondent the sum of $7,500.00 as damages which the Complainants have suffered due to their reliánce upon the representation of the agreement by the Respondent that he would purchase the stock of International Aerospace Services, Inc., including certain attorney’s fees, accountants fees, loss of business, loss of income, loss of goodwill and reputation, by the Complainants.”

I

We do not find as a matter of law that the “letter agreement” is an agreement upon which specific performance can be based.

Suffice it to say that the language found in Onyx Oils & Resins v. Moss, 367 Pa. 416, 80 A.2d 815, and quoted to this court by appellant-Coley, in his excellent brief, is a correct statement of the law.

“Aside,from the intention of the parties to reduce their agreement to writing, it is admitted that there was no full and definite agreement on terms. In Nicholls v. Granger, 1896, 7 App.Div. 113, 40 N.Y.S. 99, 101, the court pertinently stated, ‘It is undoubtedly true that a stipulation to reduce a valid contract to some other form does not affect its validity, and that although it is in contemplation of the parties that a more formal contract shall be executed, . . . . But it is an essential to the enforcement of such an informal contract that the minds of the parties should meet upon all the terms, as well as the subject matter, of the contract; and, if anything is left open for future consideration, the informal paper cannot form the basis of a binding contract.
“We cannot enforce a portion of an agreement which failed to materialize; nor can we supply the terms of this contract.”

Additionally, we find the language of Elmore, Quillian and Co. v. Parish Bros., 170 Ala. 499, 54 So. 203, to be appropriate in this instance:

“[A]n agreement to enter into an agreement upon terms to be afterwards settled between the parties, is a contradiction in terms, and amounts to nothing.” 170 Ala. at 503, 54 So. at 204.

However, as seen from the above, the trial court did not base its judgment on a finding that the “letter agreement” was a binding agreement upon which specific performance could be enforced.

Therefore, we find no reversible error in this regard.

II

The court decreed complainants recover $7,500 as damages suffered “due to their reliance upon the representation of the agreement by the Respondents.” The record viewed in the most favorable light for Mr. Lang does not support such a decree, irrespective of whether premised on a theory of equitable estoppel or promissory estoppel.

The purpose of the former doctrine is to prevent inconsistency and fraud resulting from injustice. Fiscus v. Young, 243 Ala. 39, 8 So.2d 514. “ ‘It rests at last for its vindication on the manifest idea that to allow such representation to be gainsaid would be fraud on him who had thus acted, believing it to be true.’ ” Cosby v. Moore, 259 Ala. 41, 47, 65 So.2d 178, 182; Leinkauff v. Munter, 76 Ala. 194, 198. The record in this case shows no misrepresentation or deliberate conduct designed to consciously and unfairly mislead Mr. Lang. The most that can be said is that Mr. Coley and Mr. Lang conducted negotiations which both parties hoped would eventually result in consummation of a contract. That the negotiations proved unfruitful does not warrant application of equitable estoppel. For cases applying the doctrine see Dunn v. Fletcher, 266 Ala. 273, 96 So.2d 257; Birmingham Trust and Savings Co. v. Strong, 239 Ala. 118, 194 So. 200, wherein the facts markedly differ from those herein. As stated by the Alabama Supreme Court in Messer v. City of Birmingham, 243 Ala. 520, 524, 10 So.2d 760, 763, “A mere breach of promise cannot constitute an estoppel en pais.” (Emphasis supplied.)

Neither do we deem promissory es-toppel applicable. Restatement (First) of Contracts, § 90 (1932) states:

“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Accord Bush v. Bush, 278 Ala. 244, 245, 177 So.2d 568, 570.

Assuming the existence of a promise on the part of Mr. Coley to purchase the name and stock of IAS, the record discloses no “action or forbearance of a definite and substantial character” on the part of Mr. Lang. The total time during which Mr. Lang could have curtailed his profit generating activities due to his reliance on Mr. Coley’s promise extended only from September 1, 1972, the date of the signing of the documents by the parties, to September 18, 1972, when the negotiations were terminated. Moreover, Mr. Lang could testify with certainty only that he missed opportunities to bid on two contracts during the period. There was no evidence showing the probability that IAS’s bid would have been the lowest in either instance. Furthermore, Mr. Lang attended at least one prebid conference during the eighteen-day period; and, presumably, he could have attended others. The circumstances of this case do not constitute the “substantial” forbearance or action in reliance contemplated by the Restatement. See Hoffman v. Red Owl Stores, Inc., 26 Wis.2d 683, 133 N.W.2d 267; Wheeler v. White, Tex., 398 S.W.2d 93.

It follows that the trial court misapplied the law to the facts in this case. King v. Earley, 274 Ala. 116, 145 So.2d 831; Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496; Fulton Bag & Cotton Mills v. Leder Oil Co., 207 Ala. 350, 92 So. 613.

Disposition of other issues is rendered unnecessary by our resolution of this issue.

The case is due to be and is, accordingly, reversed.

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

WRIGHT, P. J., and BRADLEY, J., concur.


author: WRIGHT, Presiding Judge.

text:
    Jimmie SPEARS v. Mary Edison BISHOP, now known as Mary Lou Newman.
    Civ. 864.
    Court of Civil Appeals of Alabama.
    Nov. 3, 1976.

      Cloud, Berry, Abies, Blanton & Tatum, and James T. Baxter, III, Huntsville, for appellant.
    Joe B. Smith, Camp, Williams & Spurrier, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff appeals from denial of a motion for new trial on the ground of inadequacy of damages. We reverse and remand.

Plaintiff’s automobile was struck from the rear by the automobile of defendant. The undisputed evidence was that though plaintiff did not think he was injured at the time, pain in the lower back commenced the next day. He was examined by his family physician and was hospitalized for some 10 days. After leaving the hospital for five or six days, plaintiff returned to his doctor and was referred to an orthopedist. The orthopedist, after examination and tests, placed him in the hospital where he remained for 17 days. He was treated with traction, physiotherapy and medication for pain. He underwent a myelogram which failed to indicate any spinal disorder. He was discharged with objective improvement in movement and reflex action and lessened pain.

The orthopedist made a diagnosis of lum-bosacral strain with sciatic nerve irritation and referral pain in the left leg. When plaintiff returned after hospitalization continuing to complain of pain and numbness in his back and leg, he was referred to a neurosurgeon in Birmingham. The orthopedist was informed in the medical history of plaintiff that he had suffered two back injuries before. The first occurred in 1961 and required removal of two discs in 1965. The second was a whiplash injury in 1968. It was the opinion of the orthopedist that the plaintiff had a 35% permanent disability to the body as a whole, 15% of which he attributed to the injury caused by defendant. It was further his opinion that plaintiff would continue to suffer pain from his injury.

Plaintiff lost 20 days from his employment as a teacher and coach. He was unable to continue his duties as a coach and suffered a $600 per year decrease in pay. He suffered much pain and loss of sleep. He was unable to help his wife at home as he had done in the past. His sexual relation with, his wife was adversely affected. His medical bills were $2,532, and damage to his automobile, $300.

After hearing the unconflicting testimony and receiving the charge of the court, the jury returned a verdict in favor of plaintiff for $200.

The sole issue is whether the trial court erred in denying a new trial to plaintiff because of the inadequacy of the verdict.

This court in the ease of King v. Sturgis, 45 Ala.App. 553, 233 So.2d 495 quoted at length from the case of Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447 to illustrate the basic rules relative to review of a refusal or the granting of a motion for new trial on the issue of inadequacy or exeessiveness of the verdict. Those rules are a corollary to the principles set out in the famed case of Cobb v. Malone, 92 Ala. 630, 9 So. 738, relating to the granting or refusal of a motion for new trial on the ground that the verdict of the jury is contrary to the evidence or that the evidence is insufficient to support the verdict.

We discern no benefit in reiterating the statements and quotations made by us in King v. Sturgis, supra. That decision is expressive of our opinion in this case; though the injuries here are not as extensive and substantial as those related there, we nevertheless are compelled to the same conclusion.

There is no evidence to support the specific verdict of $200 in this case. The testimony as to extent of injury and cost of treatment is without conflict. Though it is the general rule that a verdict of a jury is presumed correct and should not be set aside on the ground of excessiveness or inadequacy alone unless the amount is so excessive or inadequate as to plainly indicate that the verdict was the result of passion, bias, prejudice or improper motive. Central of Georgia R. Co. v. Steed, 287 Ala. 64, 248 So.2d 110.

“This rule does not deny that there may be cases, even of injuries not measurable by any legal standard, where the proven injuries are so severe and extensive that a court would be fully justified in setting aside a grossly inadequate verdict; that is, one which fails to give substantial compensation for substantial injuries.” Alabama Great Southern R. Co. v. Randle, 215 Ala. 535, 112 So. 112.
“The basic reason for disturbing the verdict of a jury because of excessive or inadequate damages is precisely the same as for disturbing it because not supported by the evidence, or because opposed to the clear and convincing weight of the evidence. In the one case the inquiry is directed to one feature of the verdict; the damages awarded.” Yarbrough v. Mallory, supra.

The jury found in this case that the defendant negligently injured plaintiff. It determined further that plaintiff suffered resulting damages. The testimony as to injuries with a measurable standard, without conflict, showed damage many times that awarded. The verdict itself, in light of the evidence, is sufficient to show bias, prejudice, mistake or failure to comprehend and appreciate the awarding of compensa-ble damages. Montgomery Light & Traction Co. v. King, 187 Ala. 619, 65 So. 998; Birmingham News Co. v. Lester, 222 Ala. 503, 133 So. 270.

We therefore find, after allowing all reasonable presumption of the correctness of the denial by the trial court of the motion for new trial, the preponderance of the evidence against the verdict is so decided as to clearly convince this court that it is wrong and unjust and that the substantial ends of justice require the consideration of the case by another jury. Cobb v. Malone, supra.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Kathleen I. NOVAK v. Frankie NOVAK.
    Civ. 888.
    Court of Civil Appeals of Alabama.
    Nov. 3, 1976.

      McDermott & Deas, Mobile, for appellant.
    Reynolds T. Alonzo, Jr., Mobile, for appel-lee.
   WRIGHT, Presiding Judge.

Kathleen I. Novak and appellee, Frankie Novak, were divorced for incompatibility. The court divided jointly-owned real and personal property and denied alimony and attorney fees to the wife. She appeals.

The issue is whether the trial court abused its discretion in the division of property, denial of alimony and attorney fees.

The parties had been married for some 24 years. They had two children which have now attained majority. Each had worked during the. marriage. For some two years the marriage had been deteriorating. Though living in the same home connubial conjugality had ceased. In view of the issue on appeal, further reference to the vicissitudes of the marriage would serve no useful purpose;

Appellant-wife recognizes that the awarding of alimony, attorney fees and division of property are all matters within the discretion of the court. Horsley v. Horsley, 50 Ala.App. 445, 280 So.2d 150. The manner in which the court exercises its discretion in these matters must be viewed in light of the evidence in each ease in order to determine any abuse. Pettis v. Pettis, Ala.Civ.App., 334 So.2d 913. The evidence in this case disclosed that the parties earned approximately the same salary. The wife earned slightly more in a position with the Federal Civil Service. Her retirement benefits were calculated to be better than those of the husband. She received the piece of real property with the greatest equity value and which produced income of $125 per month. She was given most of the cash assets of the parties.

Viewing the evidence in light of the presumption of correctness which accompanies the judgment of the trial court after oral hearing of the testimony, we cannot find such judgment unsupported by credible evidence nor clearly wrong and unjust. We do not review the exercise of the discretion of the trial court, using as a scale what we might have done had we been sitting as he was.

The request of appellant for a grant of attorney fees on appeal is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Glenn R. REID and Mavis R. Reid v. J. M. CASEY, d/b/a Southern Auction Company.
    Civ. 918.
    Court of Civil Appeals of Alabama.
    Nov. 3, 1976.
    James F. Berry, Cullman, for appellants.
    Henslee & Bradley, Gadsden, William A. McCrary, for appellee.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Cullman County’s action interpreting a contract in favor of the plaintiff Casey and against the defendant Reid.

ISSUE

The defendants on appeal contend they are not liable under the terms of the contract for an auctioneer’s fee. This court finds the trial court’s action in awarding a judgment in the amount of $3,500 to Casey, the auctioneer, sustainable, and we affirm.

FACTS

The appellants, Mr. Glenn R. Reid and his wife, Mavis Reid, are residents of Cullman, Alabama, where Mr. Reid is engaged in the real estate business. The appellee, Mr. J. M. Casey, does business as Southern Auction Company (hereinafter Southern).

On May 30, 1975, Mr. Casey, Mr. Frank M. Campbell, an employee of Southern, and Mr. Reid met in the latter’s office to make arrangements for Southern to conduct an auction of certain of Mr. and Mrs. Reid’s real estate holdings. The realty consisted of unimproved subdivision lots and a rental house. Pursuant to the discussions Mr. Casey, on that day, presented a form entitled “CONTRACT” to Mr. Reid. It stated that in consideration of one dollar the owners of the property sold Southern the exclusive right to sell at an auction on July 12, 1975, the Reid property, to wit:

“All that tract or parcel of land lying and being in the County of Cullman State of Alabama and being more particularly described as follows: All of Leighwood Acres Subdivision, City of Cullman, except Lots 15, 16, 17, 19, 20, and 23. Bulk area south of Leighwood Subdivision consisting of approximately 30 lots.
“The real estate above described shall be offered at auction upon the terms of 25% down, such payment to be made by cash or check with the balance due in 30 days.
“Auctioneer agrees to advertise and promote the auction in its usual way, to furnish necessary help to conduct the auction and pay expenses of same and owner agrees that no other expenses connected in any way with the auction is to be paid by auctioneer and that auctioneer’s duties and responsibility will end at completion of auction.
“The owner agrees to pay and auctioneer agrees to accept as its full compensation for its services Ten (10%) per cent of the total selling price, said commission to be paid immediately after the auction has been conducted, and the owner agrees that auctioneer may deduct this percentage from the gross proceeds of the sale as its commission. If sale of property is not confirmed by owner a fee of $3500.00 will be paid to auctioneer immediately after auction has been conducted for auctioneer’s expenses and time. . .

The emphasized language was handwritten in blanks on the form by the parties.

On May 30,1975, the contract was signed by Mr. Casey for Southern but was not signed by either Mr. Reid or Mrs. Reid.

The contract remained in the possession of Mr. Reid for a short period of time, a week or two, until the parties again met so that Mr. Reid could show Mr. Casey the property he desired to sell. Mr. Reid told Mr. Casey that Mrs. Reid did not wish to sell the property unless the sale price at the auction would be sufficient to pay off an existing mortgage on the property of $42,-500 plus the auctioneer’s commission.

To this end, Mr. Casey added the following language to the contract:

“15 Lots and approx 30 Lots subject to mortgage of approx $42,500 plus commission.”

This language was incorporated so that the pertinent provision of the contract in its final version read as follows:

“All that tract or parcel of land lying and being in the County of Cullman State of Alabama and being more particularly described as follows: All of Leighwood Acres Subdivision, City of Cullman, except Lots 15, 16, 17, 19, 20, and 23. Bulk area south of Leighwood Subdivision consisting of approximately 30 lots. 15 Lots and approx 30 Lots subject to mortgage of approx $42,500 plus commission.
“The real estate above described shall be offered at auction upon the terms of 25% down, such payment to be made by cash or check with the balance due in 30 days.
“Auctioneer agrees to advertise and promote the auction in its usual way, to furnish necessary help to conduct the auction and pay expenses of same and owner agrees that no other expenses connected in any way with the auction is to be paid by auctioneer and that auctioneer’s duties and responsibility will end at completion of auction.
“The owner agrees to pay and auctioneer agrees to accept as its full compensation for its services Ten (10%) per cent of the total selling price, said commission to be paid immediately after the auction has been conducted, and the owner agrees that auctioneer may deduct this percentage from the gross proceeds of the sale as its commission. If sale of property is not confirmed by owner a fee of $3500.00 will be paid to auctioneer immediately after auction has been conducted for auctioneer’s expenses and time. . . .”

After Mr. Reid watched Mr. Casey insert the provision, the two men returned to Mr. Reid’s home where Mrs. Reid signed the contract. Mr. Reid also signed the contract after Mr. Casey inserted the above quoted language.

The following testimony concerning the intent of the parties as to the pertinent provision of the contract was admitted without objection in the trial court:

Mr. Casey, the appellee, stated that the provision he added was to insure that the Reids could refuse to sell the property for any bid received of less than $42,500 plus his commission. He stated the language he added in no manner affected his “no sale fee” of $3,500, which he was to receive for expenses and conducting the auction irrespective of whether the sale was confirmed by Mr. Reid. He stated the additional language was inserted to allow Mr. and Mrs. Reid to refuse to accept offers of less than $42,500 plus the 10% commission, even though his (Mr. Casey’s) sales commission would have been greater than the no sale fee.

Mr. Reid’s testimony concerning the contract differs significantly from Mr. Casey’s in only one respect. He asserts the insertion negated the provision of the contract relating to a no sale fee. He intended for the auctioneer’s fee to be paid only if bids received equaled $46,750. ($42,500 plus 10% auctioneer’s fee.)

Subsequent to execution of the contract Southern had brochures containing information about the property printed and also advertised the property in the Cullman Times and a Birmingham newspaper. Southern erected a tent at the auction site, placed sale signs on the various lots and provided a sound vehicle to announce the sale. Additionally, at least four Southern employees were at the auction to solicit bids from those in attendance. Mr. Casey was the auctioneer.

Approximately 25 to 30 attended the auction. Bids taken on the various lots within the subdivision, sold individually, totaled $38,655. Additionally, a bid of $40,000 on the entire subdivision, if sold in one parcel, was received. No interest was displayed by the bidders in bidding on the rental house. Mr. Reid refused to accept the bids. Hence, no land was sold at the auction.

Mr. Reid refused to pay Southern, and Mr. Casey instituted proceedings to collect the $3,500 fee.

Against this background the trial court decreed:

“It does not appear that the provisions of this Contract are in conflict, nor does it appear that the parties intended that the Plaintiff would not be compensated for his services in connection with the auction in the event that the Defendants did not confirm this sale. Certainly, it is obvious that the Defendants did not intend to sell the property in the event that it did not bring the amount of the mortgage, plus commission, however, Defendants could have confirmed a sale for less than this amount, but did not and Defendants are still the owners of the land, or were such immediately after the auction, and all that was left for them to do was to compensate the Plaintiff for their expenses and time, which was set forth in the Contract and which was not described therein as a commission. It may be that the sum of Three Thousand Five Hundred and 00/100 ($3,500.00) Dollars is an excessive fee for the Plaintiff’s expenses and time, however, there was no evidence to this effect and that is not the question before the Court.
“It is, therefore, ORDERED and ADJUDGED that a Judgment be and the same is hereby entered in favor of the Plaintiff and against the Defendants in the amount of Three Thousand Five Hundred and 00/100 ($3,500.00) Dollars,

Mr. Reid takes this appeal from that judgment.

I

We note at the outset that the finding of the trial court based on evidence ore tenus is viewed with a presumption of correctness upon appeal. Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695; Caldwell v. Caldwell, 54 Ala.App. 479, 309 So.2d 833. In this instance, we need look no further than the contract itself to sustain the finding below.

It is the duty of the court to analyze and determine the meaning of a contract when its terms are clear and certain. Birmingham Trust National Bank v. Midfield Park, Inc., 295 Ala. 136, 325 So.2d 133. Moreover, where the terms of a contract are “. . . plain and unambiguous, there is no room for interpretation, and the parties- thereto ‘may stand upon the letter’ of the contract.” Dunlap v. Macke, 233 Ala. 297, 300, 171 So. 721, 724. Here, the terms are unequivocal.

If a sale was consummated, Mr. and Mrs. Reid were liable to Southern in an amount equal to 10% of the sale price. If sale of the property was not confirmed, the Reids were liable for $3,500 for “auctioneer’s expenses and time.”

The insertion merely allowed the Reids to refuse to accept a bid price of less than $42,500 plus the value of the auctioneer’s sales commission without incurring liability to Southern for the excess of 10% of the bid price over the $3,500 no sale fee.

All provisions of a contract must, if possible, be given effect. Land Title Co. of Alabama v. State ex rel. Porter, 292 Ala. 691, 299 So.2d 289. Here, the plain meaning of the additional language does not obviate the no sale fee clause. Neither does it, in our reading, alter the latter clause one iota. Indeed, the contractual language interpreted in conjunction with the services rendered by Southern compels our agreement with the trial court’s finding that the contract contemplated that compensation be paid to Southern for substantial services performed, irrespective of whether the sale was confirmed by the Reids.

Even a finding that the terms of the contract are uncertain and ambiguous would not alter the above conclusion; for if there is uncertainty and ambiguity in the contract, it is the duty of the court to construe the contract so as to express the intent of the parties. Johnson-Rast and Hays, Inc. v. Cole, 294 Ala. 32, 310 So.2d 885; Southern Cafeteria Operating Company, Inc. v. Eley, 52 Ala.App. 656, 296 So.2d 743.

The Alabama Supreme Court, in Flagg-Utica Corporation v. City of Florence, 275 Ala. 475, 480, 156 So.2d 338, 342, stated:

“It is a long established principle of law obtaining in this state that if the language of a written agreement is on its face ambiguous, the courts will look at the surrounding circumstances, at the situation of the parties, and the subject matter of the contract for aid in giving a construction to its language.”

Evidence relevant to these factors was admitted in the trial court. As shown above, ample testimony was adduced to sustain the judgment rendered therein.

It follows that the judgment of the trial court is to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: BRADLEY, Judge.

text:
    Clifford E. RAY v. Ammie M. RAY.
    Civ. 798.
    Court of Civil Appeals of Alabama.
    Nov. 10, 1976.

      David Barnes, Bessemer, for appellant.
    W. Gerald Stone, Bessemer, for appellee.
   BRADLEY, Judge.

An appeal has been perfected to this court by plaintiff from that part of a divorce decree rendered by the Circuit Court of Jefferson County, Bessemer Division, awarding defendant certain property, alimony in gross and attorney’s fee, and the denial of a motion for new trial.

The record on appeal contains the complaint, various motions, defendant’s answer, the trial court’s decree and certain post-judgment motions and rulings. There is no transcript of testimony prepared by the court reporter in the record; in fact, the record on appeal shows there was no court reporter in this case.

Plaintiff, in brief, argues that the trial court’s decree awarding certain property and alimony in gross to defendant is unsupported by the evidence and should be set aside.

This court recently held in Adams v. Adams, Ala.Civ.App., 335 So.2d 174 (1976) that in the absence of all the evidence heard and received by the trial court, and on which it based its decision, the trial court’s decree would be presumed to be supported by sufficient evidence so as to require af-firmance on appeal.

It appears from plaintiff’s belated attempt to supply this court with a synopsis of each witness’s testimony that the trial court did hear testimony from several witnesses. The testimony of those witnesses is not included in the record on appeal, either by virtue of a court reporter’s transcript or by a Rule 10(d) ARAP proceeding. Such a situation requires this court to affirm the decree of the trial court.

We think a comment on plaintiff’s abortive attempt to get the testimony before this court appropriate for future appeals.

Rule 10(d) ARAP provides as follows:

“If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means source, including his recollection. The statement shall be served within 49 days (7 weeks) after notice of appeal on the appellee, who may serve objections or propose amendments thereto within 7 days (1 week) after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be filed with and included by the clerk of the trial court in the record on appeal.”

In the present case plaintiff filed a version of the witnesses’ testimony with this court along with his brief, rather than with the trial court pursuant to Rule 10(d). Defendant filed in this court her objections to plaintiffs statement of the evidence. In response to these two actions, this court issued an order to the effect that the rules governing time for completing the record on appeal were suspended to allow plaintiff to file a statement of the evidence in compliance with Rule 10(d). Plaintiff replied that he would proceed under Rule 10(d). After some time and further correspondence from this court, another notice was sent to plaintiff stating he had seven days within which to complete the record or have the case reviewed on the pleadings. Plaintiff did nothing. Thus, the failure to comply with Rule 10(d) in this respect precludes a consideration of the proposed statement of the evidence submitted by the plaintiff.

Inasmuch as the record contains no transcript of the evidence, we have no choice but to affirm the decree of the trial court.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.