text:
    Michael MACALUSA v. HARTFORD ACCIDENT AND INDEMNITY COMPANY.
    No. 8392.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.

      Garland R. Rolling, Metairie, for plaintiff-appellant.
    Paul P. Rutledge, Metairie, for defendant-appellee.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   REDMANN, Judge.

Plaintiff appeals from a summary judgment dismissing his claim for medical benefits under his automobile insurance policy.

Plaintiff was injured while using his automobile to start an airboat motor on a stand (as one starts another automobile, with battery cables). When the airboat motor started it pushed itself towards plaintiff and the car. He attempted to save himself from the propeller by (“to the best of my recollection”) putting his left arm up to brace the motor and his right arm on the car. But the propeller caught his right arm and “chopped up' the hood” of the car.

The insurance policy provides coverage for “injury . . . caused by accident (a) while occupying the owned automobile ... or (c) through being struck by an automobile . . . .” The policy defines “occupying” to .exclude its dictionary meaning of “using”-: “Occupying means in or upon or entering into or alighting from.” Plaintiff argues that he was “occupying” by being “upon” his car, or was “struck by” his car.

Plaintiff was not struck by his car, any more than an out-of-control car is struck by a telephone post; rather, he struck his car. And he was not injured by being struck by (or by striking) the car. He was injured by being struck by the airboat propeller.

Plaintiff was, however, injured while “occupying,” i.e., being “upon” the car, when he placed his arm upon the car in his unsuccessful effort to brace the airboat motor to prevent its falling over upon himself (if a trier of fact believes him).

Defendant argues that prior decisions have “extended” medical coverage only to situations closely related to normal car use, such as tire-changing.

We reason that coverage is not limited by the policy to typical automotive accidents. For example, one sitting atop his insured car watching a Mardi Gras parade is, within the express definition of the policy, “occupying” the ear because “upon” it. He is therefore covered for accidental injury by a thrown trinket from the parade (or by a drunken reveler’s thrown bottle, or by a low-flying airplane). If the underwriter desires not to afford coverage for every accidental injury whatsoever while “upon” the car the policy should not promise coverage in those terms. If we “extend” coverage, we do so only by deciding that one leaning with one arm against the car is “upon” it, and not by holding that an unusual accidental injury is an “injury . caused by accident”. And our view is that one who leans upon a car (for whatever purpose) is upon the car; we decline to rule, for example, that one’s center of gravity must be above and supported by the car for him to be upon it.

Reversed.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    LOUISIANA RESOURCES COMPANY v. William Arthur FISKE et al. LOUISIANA RESOURCES COMPANY v. Matilda Gray STREAM et al. LOUISIANA RESOURCES COMPANY v. Alice Kurtz ARGUELTO, Trustee, et al. LOUISIANA RESOURCES COMPANY v. Harold H. STREAM, III, Trustee, et al. LOUISIANA RESOURCES COMPANY v. Joseph D. ROBERTS et al.
    Nos. 5933 to 5936 and 5938.
    Court of Appeal of Louisiana, Third Circuit.
    March 18, 1977.

      Camp, Carmouche, Palmer, Carwile & Barsh by A. J. Gray, III, Lake Charles, for defendants-appellants.
    Jones & Jones by Jerry G. Jones, Cameron and Hargrave, Guyton, Ramey & Barlow by Ray A. Barlow and Michael R. Mang-ham, Shreveport, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   MOTION TO DISMISS

DOMENGEAUX, Judge.

The plaintiff-appellee, Louisiana Resources Company, moves to dismiss the un-lodged appeals of the defendants-appellants, William Arthur Fisk, et al., Harold H. Stream, III, Trustee, et al., Alice Kurtz Arguelto, Trustee, et al., Matilda Gray Stream, et al., and Joseph D. Roberts, et ux., on the grounds that the defendants-appellants did not timely perfect their appeal.

This motion to dismiss was heard on oral argument pursuant to our issuance of a rule to show cause.

The pertinent facts are as follows: Plaintiff-appellee, a privately owned utility company, filed a suit to expropriate a certain tract of property naming defendants-appellants as interested parties in that property. Pursuant to the provisions of LSA-R.S. 19:1, et seq., a judgment was signed on May 20, 1976, granting Louisiana Resources Company the right to acquire a right-of-way. The issue of compensation in accordance with LSA-R.S. 19:4, 8 was submitted to a jury. The jury trial was held on June 21, 22, and 23, 1976. The judgments determining compensation, as awarded by the jury, were signed by the trial court on June 24, 1976. The peripheral issue of costs was taken under advisement.

A motion for additur and new trial was timely filed by the defendants-appellants. This motion was denied in open court on July 6, 1976, at which time counsel for all parties were present. Notice of the denial was therefore not required.

Finally, a hearing was held on the remaining issue of costs, and on July 30, 1976, judgment was signed assessing costs proportionate to the original award against the defendants-appellants. No notice of this judgment was ever given. On October 28, 1976, defendants-appellants moved for and were granted a devolutive appeal.

We conclude that the judgment of June 24, 1976, is a final judgment and whether the appeal period of ninety days for devolutive appeal began running as of June 24th under the provision of LSA-R.S. 19:13 as contended by appellee, or as of July 6, 1976, this court is without jurisdiction to hear the merits of this case. The order of appeal of October 28, 1976, was well over ninety days from either date.

Even though defendants-appellants’ appeal on the merits is not viable, we opine that the issue of costs has been timely appealed. Plaintiff-appellee’s contention that the assessment of costs in the judgment of July 30, 1976, was incidental to the judgment awarding compensation of June 24, 1976, and therefore not separately ap-pealable, is not well taken. In the instant case the amount of expert witness fees taxed as costs are substantial. Following the judgment awarding compensation, the trial court took the matter of cpsts under advisement and conducted additional hearings as to who should bear the burden of these costs. On July 30, 1976, the district judge signed a judgment taxing these costs to defendants-appellants. Generally, costs of expert’s fees are incidental in nature to the main demand and if charged by decree prior to final judgment, would be considered non-appealable as interlocutory decrees. However, this is not the case where the “costs” are fixed and taxed post final judgment on the merits. The “costs” judgment of July 6,1976, is a separately appeal-able judgment. See Borenstein v. Joseph Fein Caterers, Inc., 240 So.2d 584 (La.App. 4th Cir. 1970).

For the reasons assigned the appeals of the defendants-appellants are dismissed insofar as they relate to the merits of these cases, but are maintained as to the judgment relating to costs.

APPEAL DISMISSED IN PART, MAINTAINED IN PART.

      . The case of Louisiana Resources Company v. Four M. Properties, Ltd., et al. (# 5937) on the docket of this court, which was among the other cases herein consolidated at trial, has been settled, and is consequently not involved in these appeals.

      . CCP 2087, prior to 1976 amendment.


text:
    Charles Franklin REED v. BURRAGE & HARRIS CRANE SERVICE and United States Fidelity & Guaranty Company.
    No. 49239.
    Supreme Court of Mississippi.
    March 9, 1977.
    Crawley & Ford, Michael H. Steele, Kosciusko, for appellant.
    Singley, Minniece, Hamilton, Neville & Hamill, Paul M. Neville, Meridian, for ap-pellee.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.


author: SUGG, Justice, for the Court:

text:
    Harvey D. HAMILTON and M. L. Farris v. Raymond POTEET and Donald R. McGill.
    No. 49479.
    Supreme Court of Mississippi.
    March 23, 1977.
    Billy J. Gilmore, Lexington, for appellants.
    Barrett, Barrett & Barrett, Pat M. Barrett, Jr., Lexington, for appellees.
    Before the Court En Banc.
   SUGG, Justice, for the Court:

ON MOTION TO DISMISS APPEAL

This case is before us on the second motion of appellees to dismiss the appeal or, in the alternative, to require appellants to file a proper abstract or abridgment of the record (hereinafter abstract) in accordance with Miss.Sup.Ct. Rule 41.

Appellants filed as a part of their brief a three page “Statement of Facts” and a three page “Introduction.” The statement of facts and introduction are the same except the statement of facts contains a short paragraph not included in the introduction.

Appellees’ first motion to dismiss the appeal, or, in the alternative, to require appellants to file a proper abstract and proper brief was disposed of as follows: “Motion to dismiss appeal overruled; motion to strike abstract of record sustained and appellant granted fifteen days to file abstract of record in compliance with Miss.Sup.Ct. Rule 41.”

Following the action of the Court appellants filed a document entitled “Abstract” which is a copy of the portion of his brief designated “Statement of Facts.” Appel-lees then filed the motion now before the Court. The abstract now filed does not comply with Rule 41. It does not contain an impartial condensation of the material parts of the pleadings, proceedings, facts, documents and other matters in the record necessary for a clear understanding of all questions presented to the Court for decision. No effort was made to abstract the testimony of any of the witnesses.

We have three cases dealing with abstracts and supplemental abstracts. See Litton Systems v. Burrows, 321 So.2d 297 (Miss.1975); Stevenson v. State, 312 So.2d 10 (Miss.1975); Neville v. Kelso, 242 So.2d 871 (Miss.1970). In Neville we held that a motion to strike an abstract will not lie and will not be considered in view of the fact that appellees who are dissatisfied with an appellant’s abstract of record, may file a supplemental abstract. Another reason stated in Neville for not considering motions to strike an abstract was that, if a motion to strike should be allowed, the Court would be required to read all or most of the record to determine if the abstract was proper, thus defeating the purpose of the rule.

In Stevenson we entertained a motion to file a proper abstract because the abstract of appellant failed to comply with Rule 41. In this case we stated that appellant’s abstract, “in no wise complies with Rule 41,” and required appellant to file a proper abstract. The abstract was a total departure from Rule 41 and this fact was apparent without referring to the record.

In Litton Systems we sustained a motion to strike a supplemental abstract holding that Neville, supra, dealt with an abstract prepared by appellant and not to a counter abstract prepared by appellee. Appellee filed a counter abstract without pointing out wherein appellant’s abstract was defective or insufficient. The deficiency of the supplemental abstract was apparent without the necessity of examining the record.

When our cases are compared, it is apparent that we have modified the rule in Neville, supra, without so stating. We have entertained motions to strike an abstract or motions to require a proper abstract where the defect or deficiency of the abstract was clearly apparent on the face of the abstract. We therefore acknowledge that Neville has been modified and we will entertain a motion to require appellant to file a proper abstract under Rule 41 if the deficiency in the abstract is apparent on the face of the abstract without requiring an examination of the record. We will also entertain a motion to dismiss an appeal if appellant does not file an abstract or if the abstract filed is so deficient it amounts to no abstract if such fact can be ascertained from the abstract itself without necessitating an examination of the record.

Neville should be modified because since Neville was decided, Rule 41 has been amended to provide for dismissal of an appeal when appellant fails to file an abstract. There is no difference in failing to file an abstract and filing one so deficient that it amounts to no abstract.

Another reason for modifying the rule in Neville is that appellant should not be permitted to shift the burden of preparing a proper abstract to the appellee under Rule 41(b). Appellant is required to make a good faith effort to file an abstract that complies with Rule 41. If there is a need for a supplemental abstract, it should not be a complete abstract of the whole record, but it should only supply the omissions in appellant’s abstract and point out any incorrect statements in appellant’s abstract.

In some cases where appellee cross appeals a supplemental abstract will be necessary. Appellant should abstract the record with reference to issues on direct appeal and cross appellant with reference to issues on cross appeal. In many cases the issues raised on cross appeal will be so intertwined that appellant’s abstract will of necessity include the part of the record necessary for proper consideration of the cross appeal.

For example, in a case where appellee has recovered a judgment for damages in a personal injury suit and one of the grounds of the direct appeal is that the verdict of the jury is excessive, and appellee cross appeals on the ground that the verdict of the jury is inadequate, it naturally follows that the abstract prepared by appellant would include all testimony with reference to damages. On the other hand, if appellant did not appeal on the question of excessive damages but appellee did appeal on the question of inadequacy of damages, it would be proper for appellant to omit any reference to evidence pertaining to dam.ages. Appellee on cross appeal would file a supplemental abstract covering the evidence on the question of damages.

There seems to be some misunderstanding about the contents of an abstract. We therefore deem it necessary to give some general directions about the preparation of an abstract in an effort to clear up the confusion that apparently exists and to insure uniformity in abstracts.

Following is an outline of the contents of an abstract in a typical tort case appealed from circuit court:

I. PLEADINGS
DECLARATION OF PLAINTIFF
ANSWER OF DEFENDANT'OR DEFENDANTS
PROCESS (IF AT-ISSUE ON APPEAL)
II. TRIAL
A. MOTIONS HEARD SEPARATELY
MOVANT’S EVIDENCE ON MOTION
1. General exhibits and stipulations
2. James Smith, defendant RESPONDENT’S EVIDENCE ON MOTION
1.Robert Jones, plaintiff •
RULINGS OF COURT ON MOTION.
B. PLAINTIFF’S DIRECT CASE.
1. General exhibits and stipulations Plat of scene of accident
2. Robert Jones, Plaintiff
Exhibits 1, 2, 3 Photographs
3. John Doe, eyewitness
4. Richard Sanford, examining physician
MOTION FOR DIRECTED VERDICT AND RULING OF COURT
(ONLY IF AT ISSUE ON APPEAL)
DEFENDANT’S CASE
1. General exhibits and stipulations
2. James Smith, defendant
3. Charles Turley, eyewitness
4. William Cartledge, medical expert PLAINTIFF’S REBUTTAL
(Here list witnesses as above)
REQUEST FOR PEREMPTORY INSTRUCTION AND RULING OF COURT
(Only if at issue on appeal)
INSTRUCTIONS
(If at issue, give instruction, objection and ruling of court)
VERDICT OF JURY AND JUDGMENT
III.POST JUDGMENT PROCEDURES MOTIONS
1. Judgment n. o. v.
2. New trial
3. Additur or remittitur
(Any other post judgment motions should be included if at issue on appeal)

Of course, the outline suggested above would have to be varied to conform to other cases. For an example, an abstract in a workmen’s compensation case or from an administrative agency, or a criminal case, or a chancery court ease should be varied to show the pleadings, motions and evidence in the particular case on appeal. Each abstract should be indexed similar to the outline above. Following are more detailed directions with reference to the contents of the three parts of an abstract.

The first part of the abstract should be a narrative summary of the pleadings in the case. The pleadings should not be copied in full, but condensed to show the allegations of the plaintiff and answer of the defendant, including affirmative defenses and matters pled in bar, if any.

The second part of the abstract should summarize the trial proceedings through the judgment. If any motions or other matters were heard separate from .the case in chief, and such matters are at issue on appeal, they should be included at the beginning of Part II.

The rule provides that the first person shall be used in abstracting the testimony of witnesses. This simply means that the name of the witness should be stated and his testimony summarized in narrative form. See footnote (1) for an example.

The rule also requires:

Whenever a map, plat, photograph, or other exhibit must be examined for an understanding of the testimony, the appellant should reproduce such exhibit by photography or other process when practical to do so and insert it at the appropriate place in the abstract.

If a photograph is included it would be helpful to include a notation stating the subject matter of the photograph and the direction the camera was pointing so that when we examine the photograph we would be properly oriented. Maps and plats should -have directions shown on them for the same reason. If lengthy exhibits such as contracts, insurance policies or other documents are included in the abstract and only one or two provisions of the instrument are at issue, the abstract should not contain a copy of the complete instrument, but should include only the portion which deals with the question at issue on appeal. In some cases it may be necessary to copy some instruments in full for a proper understanding of the issues on appeal.

The third part of the abstract should deal with proceedings after the judgment if at issue on appeal. This would include, but not be limited to, motions for judgments n. o. v., motions for a new trial, motions for an additur or remittitur, renewal of motions for continuance, or any other relevant proceeding following judgment where appellant contends the trial court erred with respect thereto.

Finally, we stress that an abstract must be an impartial condensation of the record without comment or emphasis. Attorneys may comment and argue in their briefs, but not in an abstract. The primary purpose of an abstract is to reduce the entire trial record so that the material matters necessary for a decision on appeal will be presented fairly and impartially.

Rule 41(a) requires that the abstract refer to the pages of the record. Under Rule 7(d) the briefs must refer to the abstract rather than the record and at the option of the briefing party, may also refer to the record; however, in no event, should the brief refer to the record only.

In the case at bar appellants were directed to file a proper abstract but because the rule requiring abstracts in all cases is relatively new and the abstracts filed since the amendment to the rule have not generally followed the outline herein set forth, we are of the opinion that justice will be served by allowing appellants fifteen days to file a proper abstract and brief.

MOTION TO DISMISS APPEAL DENIED AND APPELLANTS GRANTED FIFTEEN DAYS TO FILE ABSTRACT AND BRIEF.

      . The testimony of a witness in a tort case based on an intersection collision could be summarized in the following manner:
      JOHN DOE
      My name is John Doe and I reside in Jackson, Mississippi. I am 46 years of age and an accountant by profession. (R.20). On January 1, 1976 I witnessed a collision at the intersection of First Avenue and Second Street. I was proceeding north on Second Street and stopped for a traffic signal at the intersection. The traffic signal facing me was red. (R.21). Plaintiff was proceeding west in his lane of traffic on First Avenue and drove into the intersection. Defendant was traveling south on Second Street in his lane of traffic, entered the intersection, and his automobile struck the plaintiff’s automobile about the middle of the right side of plaintiff’s automobile. (R.22).
      CROSS-EXAMINATION
      I could not see the color of the traffic light that faced the plaintiff as he approached the intersection, neither could I see the color of the traffic light that faced the defendant when he approached the intersection. (R.23).
      REDIRECT EXAMINATION
      I could see the traffic signal facing me as I approached the intersection from the south. I stopped at the traffic light facing me because it was red. (R.24).


author: ROBERTSON, Justice, for the Court:

text:
    Essie Lee JETER et al. v. Roy L. CULP et al.
    No. 49163.
    Supreme Court of Mississippi.
    March 23, 1977.
    Fant, Crutcher, Moore & Spencer, L. G. Fant, Jr., Holly Springs, Smith, Downs, Coleman & Ross, Orma R. Smith, Jr., Corinth, O’Barr, Coleman & Burns, Okolona, for appellants.
    Tubb, Stevens & Morrison, Thomas M. Tubb, West Point, Moore & Moore, Calhoun City, for appellees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice, for the Court:

Essie Lee Jeter, other nephews and nieces, and W. H. Lineberry, a brother of Jasper Newt Lineberry, deceased, brought suit against Roy L. Culp and Perry A. Lineber-ry, Trustees under a trust agreement executed by Newt Lineberry, and other nephews and nieces of Newt Lineberry, in the Chancery Court of Calhoun County to set aside a trust agreement executed by Newt Lineberry on December 23, 1970.

The principal ground alleged for setting aside the trust agreement was that Newt’s nephews, Roy L. Culp and Perry A. Line-berry, occupied a confidential or fiduciary relationship with him and dominated or unduly influenced him in making the trust agreement.

After a 5-day trial, which produced a 7-volume record containing 1313 pages, the chancellor found that there was no confidential or fiduciary relationship existing between Newt Lineberry and his nephews, Roy L. Culp and Perry A. Lineberry, or any of the other defendants; that Roy and Perry did not dominate, influence or advise Newt Lineberry in the making of the trust agreement, but that Newt Lineberry executed the trust agreement on the advice of his tax attorney, John Pox of Houston, Mississippi, and that the agreement was a good and valid trust agreement and represented the will and wishes of Newt Lineberry alone, and that, rather than being set aside, it should be carried out according to Newt’s directions. The complainants appeal.

J. N. “Newt” Lineberry was born on October 28,1890. He was a long-time resident of Calhoun County, Mississippi, where for many years he had engaged in farming operations and the money-lending business. As a result of his industry, ability and sound business judgment, he had accumulated a very substantial estate consisting largely of real property, stocks and notes. Newt was never married and lived alone on his Calhoun County farm. At the time of his death, he had one aged brother still living and numerous nephews and nieces, all of whom are either complainants or defendants in this suit.

In the Fall of 1970, when Newt was approximately 80 years old, he became very ill and was taken to the Vardaman hospital in Calhoun County. Later he was transferred to the Veterans Hospital in Memphis, Tennessee, where he remained until his discharge on November 19, 1970. Since he was very weak as a result of his bout with pneumonia and other illnesses, he was not able to return to his home in Calhoun County and live alone, as he had done over the years, and since he needed to be close to the Memphis hospital for frequent checkups, he stayed in the home of a niece, Sue Culp Trull, in Linden, Tennessee. He remained in her home until March, 1971.

During this period from November, 1970, to March, 1971, he made frequent trips back to Mississippi to look after his property and money-lending business. Usually Roy Culp or Perry Lineberry, residents of Tennessee, drove him back to Mississippi and chauffeured him around to collect on his notes.

While he was so seriously ill and couldn’t attend to his business interests, Essie Lee Jeter and Roy Culp petitioned the Chancery Court of Calhoun County to appoint a guardian for Newt.

On October 26,1970, the same chancellor, who later heard the case at bar, appointed the Calhoun County Chancery Clerk, Guardian of Newt Lineberry. On December 4, 1970, the same chancellor discharged the guardian and closed the guardianship. In his decree he found:

“[I]t is apparent to this Court that the said J. N. Lineberry has made a complete recovery and is suffering no legal disabilities whatsoever, and as aforesaid, is entirely capable of seeing to his business and affairs.”

On December 23, 1970, Newt Lineberry had Roy Culp and Perry Lineberry drive him to the office of Paul Moore, his longtime attorney in Calhoun City, and at Newt’s direction and upon his instructions Moore prepared a will for him, carefully carrying out Newt’s specific instructions as to distribution among the various beneficiaries. Moore, Mr. E. C. Neely, III and Mr. Eugene Black witnessed the execution of this will as subscribing witnesses.

The next day, Newt Lineberry had his nephews, Roy and Perry, carry him to the office of John Fox in Houston, Mississippi, an attorney who Newt Lineberry understood to be a specialist in tax and estate matters. Mr. Fox carefully prepared a lengthy and detailed trust agreement. According to Newt’s instructions, Roy Culp and Perry Lineberry, his nephews, were named trustees. Again according to Newt’s instructions, Pox listed the thirteen beneficiaries and the exact percentage to be distributed to each. Fox testified that he and he alone advised Newt Lineberry as to the technical provisions of the trust agreement and the irrevocability of it in order to meet the requirements of the law, and the rules and regulations of the Internal Revenue Service. Fox further testified that he followed the provisions of the will prepared by Paul Moore as to beneficiaries and distribution among Newt’s brother, and specific nephews and nieces.

Both attorneys Paul Moore and John Fox testified that the will and trust agreement represented the will, directions and instructions of Newt alone.

The complainants say that the trust agreement should be set aside because:

I.The Court’s opinion is manifestly wrong particularly in which opinion the Court finds that Newt Lineber-ry was not dominated and unduly influenced by Roy Culp and Perry Lineberry in the execution of the trust.
II.The Court’s opinion is manifestly wrong, particularly in which opinion the Court finds that even though the trust agreement as executed may have been voidable, it was ratified by Mr. Lineberry and thereby made fully valid and enforceable.
III.The Court was manifestly wrong in recognizing the trust agreement as a valid and legal document and Perry Lineberry and Roy Culp cannot ask that it be upheld because they do not come to Court with clean hands.

In a long opinion, the Chancellor found:

“In my judgment there is no substantial evidence in this case that Mr. Line-berry was dominated and unduly influenced by anyone in the execution of the trust. It is also my judgment that, according to the evidence, he was mentally competent. . . . ”

In reaching this conclusion, the Chancellor reviewed the testimony of many witnesses who testified to characteristics of Newt, and observed:

“That he was an uneducated but intelligent person, sympathetic, conservative, honest, fair, a good business man, alert at all times except possibly when he was seriously ill, was liberal in making loans but not unreasonable in the terms, and wanted them repaid or extended; a pleasant person to be around.
“There was one characteristic that all or almost all of the witnesses agreed upon, and that was that he had a strong will, could not be influenced, and did not discuss his business affairs with others. Apparently he was unique, individualistic, frugal, a good business man, with a strong will and a mind of his own. I am convinced that he was not the type of man who could be easily or unduly influenced.”

We agree with the Chancellor in his size-up of Newt and his conclusion that there was no undue influence. His finding in this respect is supported by overwhelming evidence. No fiduciary or confidential relationship was found to exist, and there being no confidential relationship, no presumption of invalidity of the trust agreement arose.

The burden of proving the existence of a confidential relationship is on the party asserting it. Green v. Frazier, 242 Miss. 315, 135 So.2d 399 (1961); Wall v. Wall, 177 Miss. 743, 171 So. 675 (1937); Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41 (1932). The complainants did not meet that burden.

It is abundantly clear from all the evidence in this case that Newt Lineberry’s was ' the dominant "will and personality. Roy Culp and Perry Lineberry, his nephews, were his errand boys and chauffeurs.

Probably, after his very serious illness in October, 1970, Newt Lineberry suddenly realized that he was getting old, that he was a bachelor, that he had a very substantial estate, and that he had better take the long-ignored advice of his banker, his CPA, and his long-time lawyers, Henry Lackey and Paul Moore, that he needed to get an irrevocable trust agreement executed in order to save substantial estate and inheritance taxes, both federal and state.

Appellants next contend that the trust agreement was never made fully valid and enforceable. On April 18, 1972, Mrs. Jessie Boland, CPA and Newt Lineberry’s long-time tax consultant, at his instance and according to his instructions, prepared a detailed gift tax return and Newt paid to Internal Revenue Service $23,739.98 gift tax, and $1,436.10 interest, because of the late payment of the tax. When Newt Line-berry, a frugal, conservative and careful businessman, parted with and paid to the United States approximately $25,000 in gift taxes, he crossed the Rubicon and ratified and confirmed the trust agreement beyond a shadow of a doubt.

In their brief, appellants make this final contention:

“[T]he trust agreement executed by Newt Lineberry in the office of John Pox at a time when Perry Lineberry and Roy Culp were present was not a legal document, but to the contrary, was ‘a paper transaction’ the purpose of which was to defraud the United States Government of estate taxes which would have been due and payable upon the death of Newt Li-neberry.
“. . . Perry and Roy were very much a part of this scheme designed to circumvent the Internal Revenue Laws and the Mississippi State Tax Commission.”

While it is perhaps laudable for the appellants to seek to protect the interests of the Federal Government and State of Mississippi in the collection of estate and inheritance taxes from private citizens, it is not necessary. The Internal Revenue Service and the State Tax Commission are adequately staffed with attorneys and tax specialists, whose sole duty is to see that the tax laws of the United States and the State of Mississippi, and the rules and regulations of the Internal Revenue Service and the State Tax Commission are carefully followed in setting up trust agreements.

The decree of the chancery court, being supported by substantial evidence, is affirmed.

AFFIRMED.

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


author: GILLESPIE, Chief Justice:

text:
    JAMES REEVES, CONTRACTOR, INC., a Mississippi Corporation, and Lewis Long v. Mrs. Jepthania CHAIN.
    No. 49237.
    Supreme Court of Mississippi.
    March 23, 1977.

      Gibbes, Graves, Mullins, Bullock & Ferris, C. Denton Gibbes, Jr., Laurel, for appellants.
    John K. Keyes, Collins, A. A. Calhoun, Mount Olive, for appellee.
    Before GILLESPIE, SMITH and WALKER, JJ.
   GILLESPIE, Chief Justice:

Suit was filed by Mrs. Jepthania Chain in the Circuit Court of Covington County against James Reeves, Contractor, Inc., (Contractor) and its driver, Lewis Long (Long), for personal injuries. Judgment was entered for plaintiff and defendants appeal. Contractor and Long confessed liability and the sole question raised on this appeal is whether the verdict was grossly excessive.

Long was driving Contractor’s truck along the main street in Collins at a point where the railroad crosses the street at right angles. Mrs. Chain was driving her husband’s pickup truck and stopped at the railroad track. Long was operating Contractor’s truck about forty feet behind Mrs. Chain. When he applied his brakes the truck slid on the wet street and knocked the Chain truck forward about twenty or more feet. Both drivers drove their vehicles away from the scene of the accident. No charges were made by the police. Mrs. Chain drove her truck to a nearby service station where the fender which had been bent so as to rub the tire was pried back to avoid rubbing the tire. Mrs. Chain’s head struck the gun-rack mounted to the rear of the seat.

Prior to filing suit, Contractor paid to Mrs. Chain $6,985.20 for medical, hospital and other expenses. At the conclusion of the trial at which the jury was instructed to deduct the $6,985.20 from the total damages, the jury returned a verdict for $150,-000.

In addition to striking her head on the gun-rack, Mrs. Chain testified that she was thrown against the steering wheel and that “everything went black for a few minutes.” After the accident she checked with the children who were riding in the camper on the back of the truck and then proceeded to her home. The accident occurred on April 23, 1973. Mrs. Chain was about thirty years old, married and the mother of three children.

The only question is the amount of the damages. The plaintiff’s medical history after the accident and prior thereto and a summary of the results of her treatment are necessary to decide the issue.

On April 23, 1973, the same day of the collision, plaintiff went to the Covington County Hospital, and was examined by a nurse. No skin abrasions or broken bones were found and she was given a prescription for pain and discharged.

On April 24, 1973, she returned to the hospital and complained of pain in the rib cage area, back and head. X-rays were made of her back and neck, and she was discharged the same day.

On April 28, 1973, she was admitted to the hospital in Collins where she was treated by Dr. Tyler, a general practitioner, who treated her with antibiotics and pain injections for her neck and back. She was discharged on May 1, 1973.

On May 2, 1973, she was readmitted to the hospital in Collins because she was experiencing pain and swelling in her legs, which was diagnosed as phlebitis. She was discharged on May 5, 1973.

On May 10, 1973, she was admitted to Forrest General Hospital in Hattiesburg by Dr. Conerly, where she spent nineteen days under an aquapad in an attempt to reduce the swelling of the varicosities and the phlebitis. She complained of severe pain in her back, stomach, rib cage and back of her head. She was discharged on May 29.

On June 4, 1973, she was readmitted to Forrest General Hospital by Dr. Clark, an associate of Dr. Conerly, and she was still suffering from phlebitis in her legs, swelling in the abdomen, back pain and some blurred vision. She spent seven days under an aquapad. On June 11, Dr. Clark performed surgery across the lower abdomen and down both legs (vein stripping). She was discharged on June 18 and spent the next six weeks bandaged from the rib cage to her toes.

On September 26, 1973, she was again readmitted to Forrest General Hospital complaining of severe back pain. She was treated by Dr. Dyas who placed her in traction. This treatment produced nausea. She returned to her home on October 2.

On October 7, 1973, she was readmitted to Forrest General Hospital and was placed in traction until October 12. During this time she complained of extreme pain and a myelogram was performed. Dr. Dyas did not testify, but Mrs. Chain said he recommended either surgery or a chair back brace. She chose the back brace which she wears at all times except in bed.

On April 21, 1974, she was admitted to the Methodist Hospital by Dr. Attix, and she spent the next ten days under pelvic and cervical traction, being discharged on May 1, 1974. Dr. Attix did not recommend surgery.

In August, 1974, twenty-pound pelvic traction to be worn at night was prescribed. In October, 1974 ten-pound cervical traction was prescribed, and in November, a cervical collar was recommended.

Mrs. Chain has been treated by local doctors since the time of the accident, receiving pain injections, antibiotics, and vitamin injections to control weight loss.

Plaintiff had a long history of medical treatment and surgery before the accident. In 1960 she had surgery (vein stripping) where one vein was cut and tied; she also had a pilonidal cyst removed at this time. In 1963, an appendectomy was performed; again in 1963 or early 1964, Dr. Reeves performed surgery (vein stripping) on both her legs. Again in 1967, another vein stripping surgery was performed. In 1969, she had a hysterectomy.

Dr. Richard Harris Clark, a general surgeon, performed the vein operation after the accident. The vein stripping involved removal of the greater saphenous veins in both legs, which run from the groin to the ankle. Other veins in the legs and veins above the groin at the lower end of the abdominal wall were also removed. Dr. Clark was of the opinion that although Mrs. Chain was predisposed to having trouble with her veins, the trauma and the inactivity of being in the hospital after the accident precipitated the episode which required the surgery. She had a normal stay in the hospital and her post-operative experience was good. Dr. Clark testified that he did not foresee that the problem with her veins was going to be of a chronic nature, especially that precipitated by the accident.

Mrs. Chain’s other area of difficulty was her back. She first went to Dr. Edmund Dyas, an orthopedic surgeon, who caused a myelogram to be made and diagnosed her difficulty as degenerative arthritis L-5, S-l. A fusion operation or back brace was recommended. Mrs. Chain chose the back brace and later, according to her testimony, a Dr. Giles told her, after Dr. Dyas moved to Mobile, that she should try discarding the back brace but she testified that she could not do so because of the pain. Thereafter she went to Dr. Attix, who prescribed a cervical collar which she still wears.

Dr. Edward A. Attix first saw Mrs. Chain on April 21, 1974, which was about a year after the accident. She had some tenderness in the lower back and some pain with the movement of her neck and there was tenderness in the lower dorsal area of the back. The reflexes in her arms were normal and there was no loss of sensation or wasting of muscles in the legs, but there was a suggestion of nerve root compression on the left side. X-rays showed some restriction of motion of the neck, suggesting some muscle spasm and a narrowing of the lumbar discs. There appeared to be some instability in the disc space between the fourth and fifth vertabrae. Dr. Attix considered that since she was treated immediately following the accident and that those conditions have been continuous, he assumed they were secondary to the accident. Dr. Attix disagreed with the report of Dr. Dyas that Mrs. Chain was suffering from arthritis. Dr. Attix stated that the record of the myelogram made at the instance of Dr. Dyas suggested a herniated disc, but he did not recommend an operation. The disabilities he found in Mrs. Chain were compatible with those of an automobile accident described as having happened to her on April 23, 1973. Dr. Attix concluded that he felt there was some pressure on the nerve roots in the lumbosacral area and secondary to the herniation of interverte-bral discs in those areas, and that she will suffer, in his opinion, a ten percent disability to the body as a whole and will have some limitations on lifting heavy objects. He was further of the opinion that she would need conservative treatment for a few months with additional medical bills estimated to be about $200.

Mrs. Chain testified that she has suffered continuously from various ailments since the time of the accident; that she is unable to do her house work, do her church work, or play with her children as she had before because the pain in her neck, lower back and legs is constant and because of the wearing of the brace.

We have carefully studied this case in view of the only assignment of error, which is that the amount of the verdict is grossly excessive. We have also considered the various cases cited by the parties, none of which in our opinion have more than a general application to the case at bar. The verdict in this case was for $156,985.20 when the amount of medical bills already paid by the defendants is considered.

We are of the opinion that the verdict is grossly excessive. The test for determining whether a verdict is grossly excessive is whether it evinces passion, bias and prejudice on the part of the jury so as to shock the conscience. Some of our cases have the statement that the test is whether the jury has responded to reason or whether the evidence justified the amount of the verdict. Applying these tests we are of the opinion that this verdict is grossly excessive.

Mrs. Chain had two main areas of concern, phlebitis and her back pain. There is nothing to show that she was in any worse condition after she recovered from the operation on her veins than she was after any of the three previous operations that occurred prior to the accident. Her back difficulties were not of sufficient gravity to require an operation and Dr. Attix was of the opinion that his medical bills with reference to her back would not exceed $200 in the future, and that her disability was limited to ten percent. Her entire medical expenses amounted to $8,732.70, of which $6,985.20 have already been paid by the defendants. Mrs. Chain has had a limited work experience. She has a twelfth grade education. In 1973, she worked in Collins at the local high school as a substitute school teacher earning $12 each day that she substituted. She spent sixty days altogether in hospitals and has suffered substantial pain and will no doubt suffer some pain in the future. When the ultimate facts are viewed in the light most favorable to Mrs. Chain, we are of the opinion the verdict is grossly excessive by $50,000.

If plaintiff exercises her option to accept the remittitur within ten days after this judgment becomes final, the judgment will be affirmed for $100,000, plus interest from May 27,1975. Otherwise the judgment will be reversed and remanded for a new trial on damages only.

AFFIRMED ON CONDITION OF RE-MITTITUR.

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


text:
    Major Leon ROBERTS v. STATE of Mississippi.
    No. 49558.
    Supreme Court of Mississippi.
    March 30, 1977.
    Forrest A. Johnson, Natchez, for appellant.
    A. F. Summer, Atty. Gen., by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Amite County; Lenox L. Forman, Judge.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ., and RUFUS H. BROOME, Commissioner.

AFFIRMED.

PATTERSON and INZER, P. JJ., and ROBERTSON, SUGG, BROOM and LEE, JJ., concurring.


text:
    Bertha D. McGILL v. Andrew J. McGILL.
    No. 49040.
    Supreme Court of Mississippi.
    March 30, 1977.
    Boyce Holleman, Gaston H. Hewes, Jr., Gulfport, for appellant.
    Kelly McKoin, Biloxi, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before SMITH, ROBERTSON and WALKER, JJ., and LEON E. HANNA-FORD, Commissioner.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and ROBERTSON, SUGG, BROOM and LEE, JJ., concurring.


text:
    Marjorie W. ALEXANDER v. MISSISSIPPI POWER COMPANY.
    No. 49292.
    Supreme Court of Mississippi.
    March 30, 1977.
    Cumbest & Cumbest, Arvis V. Cumbest, Pascagoula, for appellant.
    Eaton, Cottrell, Galloway & Lang, Eaton A. Lang, Jr., Gulfport, James H. Colmer, Pascagoula, for appellee.
   Appeal from County Court, Jackson County; O. L. McLeod, Judge.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED AND REMANDED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concurring.


text:
    SLADE CONSTRUCTION COMPANY, INC., and Preston Slade v. James L. COUCH.
    No. 49253.
    Supreme Court of Mississippi.
    March 30, 1977.
    Megehee, Brown & Williams, Roy C. Williams, Pascagoula, for appellant.
    E. Foley Ranson, Bailey & Sadler, Ocean Springs, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

REVERSED AND REMANDED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concurring.


text:
    Bobby Joe McKEE v. STATE of Mississippi.
    No. 49575.
    Supreme Court of Mississippi.
    March 30, 1977.
    Liston, Crull & Gibson, Hugh Gibson, Eu-pora, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Webster County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concurring.


text:
    A. J. McMICHAEL et al. v. Zanny McMICHAEL et al.
    No. 49312.
    Supreme Court of Mississippi.
    March 30, 1977.
    Clarence E. Morgan, III, Kosciusko, for appellants.
    Thomas A. Coleman, Ackerman, for ap-pellees.
   Appeal from Chancery Court, Attala County; Edward C. Prisock, Chancellor.

Before PATTERSON, P. J., ROBERTSON and BROOM, JJ., and WOODROW W. BRAND, Jr., Commissioner.

AFFIRMED.


text:
    Mabel McCALLUM v. George BOLTON et al.
    No. 49317.
    Supreme Court of Mississippi.
    March 30, 1977.
    Kepper & Leggett, Lee S. Leggett, Hat-tiesburg, for appellant.
    Robert E. Arrington, Hattiesburg, for ap-pellees.
   Appeal from Chancery Court, Forrest County; John M. Dunnam, Chancellor.

Before PATTERSON, P. J., ROBERTSON and BROOM, JJ., and WOODROW W. BRAND, Jr., Commissioner.

AFFIRMED.


author: AFFIRMED.

text:
    In the Interest of Polly Karen ULMER, a minor.
    No. 49640.
    Supreme Court of Mississippi.
    March 30, 1977.
    B. T. Jack Amos, Bay Springs, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Youth Court, Jasper County; Osborn Guyton Idom, Chancellor.

Before GILLESPIE, C. J., and WALKER and SMITH, JJ.

AFFIRMED.


text:
    Keith JOHNSON v. STATE of Mississippi.
    No. 49598.
    Supreme Court of Mississippi.
    March 30, 1977.
    Thomas D. Lee, Forest, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Newton County; O. H. Barnett, Judge.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.

LEE, J., took no part.


text:
    Deborah Hall WALKER v. William A. WALKER.
    No. 49254.
    Supreme Court of Mississippi.
    March 30, 1977.
    Robertshaw & Merideth, H. L. Merideth, Jr., Greenville, for appellant.
    Mansour & Kilpatrick, Stephen L. Thomas, Greenville, for appellee.
   Appeal from Chancery Court, Washington County; Ernest Kellner, Chancellor.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    Mrs. Alzina CECIL v. CITY OF BILOXI.
    No. 49300.
    Supreme Court of Mississippi.
    March 30, 1977.
    O’Barr, Hurlbert & O’Barr, George F. Bloss, III, Clyde Hurlbert, Biloxi, for appellant.
    Page, Mannino & Peresich, Ronald G. Peresich, Paul J. Delcambre, Biloxi, for ap-pellee.
   Appeal from Circuit Court, Harrison County; Floyd J. Logan, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    Marjorie W. ALEXANDER v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 49301.
    Supreme Court of Mississippi.
    March 30, 1977.
    Cumbest & Cumbest, Arvis V. Cumbest, Pascagoula, for appellant.
    Franklin & Moore, Lester C. Franklin, Jr., Pascagoula, for appellee.
   Appeal from County Court, Jackson County; O. L. McLeod, Judge.

Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.

AFFIRMED.


text:
    Henry Lewis PORTER v. STATE of Mississippi.
    No. 49564.
    Supreme Court of Mississippi.
    March 30, 1977.

      Robert S. Reeves, McComb, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SMITH and WALKER, JJ., and BROOME, Commissioner.
   RUFUS BROOME, Commissioner, for the Court:

The appellant was convicted of the crime forcible rape in Pike County, sentenced to serve the remainder of his natural life in the State Penitentiary, and has appealed to this Court, assigning as error that the verdict of the jury was against the overwhelming weight of the evidence, that the state withheld evidence from the defendant which would have been exculpatory, in violation of the orders of the court and the court committed reversible error in denying certain instructions presented by the appellant.

We will only set out such facts as are necessary in this case and in considering the first assignment of error, the appellant’s finger prints were matched with prints lifted from the scene and the victim was able to observe the appellant in a well-lighted room for several minutes and positively identified him and we feel that this evidence, along with other evidence, was more than sufficient to support a jury verdict.

The appellant at the close of the trial in the lower court filed a motion for a new trial on grounds that a deputy sheriff was said to have drawn a composite picture of the appellant based on information given him by the victim and that this picture did not resemble the appellant and this would have been exculpatory. There is nothing in the record except that statement contained in the motion for a new trial, which was overruled by the trial judge, and we think properly so, in that no proof was offered, no affidavits were attached to the motion, there is nothing before the Court to show that the deputy sheriff had ability to make such a drawing, and we feel this assignment of error is without merit and the point was not properly preserved.

The instructions presented by the appellant which were denied by the trial court were comments on the evidence and the trial judge properly refused them.

Finding no reversible error, this case must be and is hereby affirmed.

AFFIRMED.

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

      . Sitting pursuant to Chapter 430, Laws i 1976. The above opinion is adopted as the opinion of the Court.


author: WRIGHT, Presiding Judge.

text:
    Daniel J. LUMPKIN v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC.
    Civ. 1054.
    Court of Civil Appeals of Alabama.
    March 23, 1977.
    W. Larry Ray, Opelika, for appellant.
    W. F. Horsley of Samford, Denson, Hors-ley & Petty, Opelika, for appellee.
   WRIGHT, Presiding Judge.

This appeal is from a directed verdict in favor of defendant and from denial of motion for new trial. We affirm.

Defendant was the insurer of plaintiff Daniel Lumpkin’s house against loss from fire or lightning with extended coverage providing protection against loss from windstorm.

On September 23, 1975, hurricane “Eloise” passed through the vicinity of Opelika and blew several large limbs onto plaintiff’s house. Plaintiff filed a claim for damages to his house. He was issued a draft for his loss.

Plaintiff was aware that another large limb had been broken by “Eloise,” but had not fallen. It remained hanging in a tree over his house. He contacted the National Guard, Alabama Power Company and the City of Opelika about removing the limb. He made no effort to remove the limb or to hire it removed.

After a small wind on April 13, 1976, the hanging limb fell. It pierced plaintiffs roof and went through the kitchen ceiling in two places. Plaintiff notified defendant of this damage and made a claim but defendant refused to pay, hence this suit.

The case proceeded to trial before a jury. After the jury had been impaneled and sworn, defendant amended its answer by pleading a release. At the close of plaintiff’s case defendant moved for directed verdict on the following grounds:

“1. Plaintiff has failed to make out a prima facie case.
2. A release has been proved.
3. It affirmatively appears from the evidence that plaintiff did not protect his property as required by the policy of insurance.
4. It affirmatively appears from the evidence that plaintiff’s loss was not a direct result of windstorm.
5. Proximate cause has not been proved by the plaintiff.
6. There is not a scintilla of evidence establishing proximate cause.
7. No damage proved.”

The trial court granted the motion without designating any specific ground. However, the record indicates the court believed the evidence of damage to be legally insufficient. Plaintiff moved for a new trial. The motion was denied. Plaintiff appeals.

A trial court does not commit reversible error in giving a directed verdict on an erroneous ground if the moving party is otherwise entitled to a directed verdict. King v. Winslett, 287 Ala. 98, 248 So.2d 566 (1971); Burke v. Curtis Aeroplane Motor Co., 204 Ala. 354, 85 So. 703 (1920). If directed verdict is proper under any of the grounds enumerated by defendant in its motion, no reversible error has been committed.

If the trial court directed a verdict for failure of plaintiff to sufficiently prove damage, it acted erroneously. The statements by the court indicated that the expenses of repair of the house and removal of the broken limb from the house were not sufficient because they were not shown to be reasonable. Under the terms of the policy, such proof was not required. State Farm Mut. Auto. Ins. Co. v. Barrow, 46 Ala.App. 392, 243 So.2d 376 (1971).

In view of our opinion that the direction of the verdict was correct under ground three of the motion, we will not further discuss the other grounds.

Ground three charged a violation of a material condition of the policy, i. e., that plaintiff failed to protect the property from damage.

The evidence was without dispute that the limb which fell from a tree overhanging plaintiff’s house on April 13, 1976 was broken by the winds of “Eloise” on September 23, 1975. The limb was known by plaintiff to be broken and hanging dangerously over his house. During the more than six months between its breaking and falling, plaintiff sought free removal of the limb by the City, Alabama Power Company, and the National Guard, none of whom were legally obligated to respond. Plaintiff admitted that he made no attempt to hire anyone to remove the limb but stood idly by and permitted it to fall through his house. Such inaction in the face of imminent and obvious danger of damage to his house violated the express obligation of the policy.

The pertinent provisions of the policy in this regard are as follows:

“Perils not included. This Company shall not be liable for loss by fire or other perils insured against in this policy caused, directly or indirectly, by:
(i) neglect of the insured to use all reasonable means to save and preserve the property at and after a loss
“Conditions suspending or restricting insurance. Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring, (a) while the hazard is increased by any means within the control or knowledge of the insured .
“Requirements in case loss occurs. The insured shall . . . protect the property from further damage .
“Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with . . . ”

We perceive it impossible for reasonable men to disagree from the evidence that plaintiff, with knowledge of the danger, unreasonably failed to protect the insured property from further loss from the winds of hurricane “Eloise.” Under such state of the evidence, the issue of violation of the policy becomes a question of law for the court and is a proper ground for a directed verdict. Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975); Commercial Union Fire Ins. Co. v. Parvin, 279 Ala. 645, 189 So.2d 330 (1966).

The issue presented that the court erred in permitting the pleading of an additional defense after pre-trial order and upon date of trial is, in this case, not well taken.

The issue arose as follows: After original pleading and pre-trial, but a month before trial, defendant by letter notified plaintiff that he intended to plead a release. Such release was the endorsed draft paid plaintiff by defendant in response to the initial claim for damages due to the winds of “Eloise.” Counsel for plaintiff was aware of the previous claim and was furnished a copy of the claimed release prior to trial. The trial court properly permitted the filing of the additional defense under Rule 15(b), ARCP. The plaintiff was in no way prejudiced by the amended defense.

Finding no reversible error, we affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: TYSON, Presiding Judge.

text:
    Charles NESBITT, alias v. STATE.
    5 Div. 323.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 1, 1977.
    Arnold W. Umbach, Jr., Walker, Hill, Gullage, Adams & Umbach, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged that the appellant “did knowingly and intentionally sell, furnish, or give away MARIHUANA, a controlled substance, to ALEX SMITH, contrary to the provisions of the Alabama Uniform Controlled Substances Act . ..” The jury found the appellant guilty of sale of marihuana and assessed fine of $5000.00. The trial court theri;set sentence in accordance with this verdict; and, in addition, imposed a fifteen year sentence.

Alex Smith, working as an undercover agent for the Lee County Sheriff’s Department, testified that on the evening of April 3, 1974, he and a Don Williams went to appellant’s apartment, No. 25 Campus Inn in Auburn, Alabama, to inquire about the possibility of purchasing marihuana from the appellant The appellant indicated to Smith and Williams that he could sell them some, but stated that the marihuana was at another location about a half mile from his apartment, and that he would need to get a ride to go get it. Smith offered to take the appellant in his automobile, and, shortly thereafter, Smith and appellant drove to a house located on Black Street in Auburn. Appellant informed Smith that the price of the Columbian marihuana would be twenty dollars per lid, and he received from Smith a twenty-dollar bill to cover the purchase price. Appellant then got out of the ear, walked up to the front door of the house, and knocked. When the door opened, appellant leaned “about half his body” inside and received a lid of marihuana from an occupant therein. Appellant returned to Smith’s automobile with the lid of marihuana, and the two men then drove back to appellant’s Campus Inn apartment. There appellant removed a small amount of the marihuana from the plastic sandwich bag and added it to his own “personal stash” which he kept inside a small medicine bottle. Appellant then rolled up the plastic bag, sealed it by moistening the outer flap, and handed the marihuana to Smith. After leaving appellant’s apartment, Smith attached an identification tag on the bag of marihuana, telephoned and requested that Lt. Ronnie Watkins of the Lee County Sheriff’s Department meet him behind the Kwik Chek store in Opelika, and there Smith turned over to Lt. Watkins the bag of marihuana he had purchased from appellant.

Appellant presented an alibi defense, and through several witnesses sought to establish that on the night in question he had been in the continuous presence of one Sidney Brewer from 7:00 p. m. to 1:00 a. m. Appellant stated that he had recently joined the Omega Psi Phi Fraternity at Auburn University, and, as part of his pledge training, he was required to go over to Sidney Brewer’s (the “Dean of Pledges”) apartment to learn the “ ‘Do’s and Don’ts of Pledging.’ ” This particular pledge program lasted until 9:00 p. m., and, thereafter, both appellant and Brewer left Brewer’s apartment to get beer and their dates for the evening, then drove to appellant’s apartment where they remained in each other’s company until 1:00 a. m. The appellant emphatically denied the sale of marihuana to State Witness Alex Smith.

• I

Following the trial judge’s oral charge, and his giving thirteen of appellant’s written requested charges, the record reveals that the foregoing transpired:

“MR. PETTEY: Your Honor, I was wondering if the Court was going to charge on simple possession?
“THE COURT: Oh, no. I’m not going to charge on simple possession. I’m just charging on guilt or innocence.
“MR. PETTEY: All right. Well, we’d like to object to that ruling of the Court and to the jury charges not given. “THE COURT: Huh?
“MR. PETTEY: We’d like to object to not charging on simple possession and to the jury charges not given.
“THE COURT: Yes.”

After trial and notice of appeal, the appellant, pursuant to Rule 10(f), ARAP, filed a “motion for correction of the record” alleging that there had been omitted from the completed trial record a refused written charge, the substance of which was as follows [Supplemental Transcript, page 4]:

“Defendant’s Requested Charge No. 21 “This Court charges the jury that an indictment for sale of marihuana also embraces the charge of possession of marihuana, as defined to you by the Court.”

A hearing on appellant’s motion was held before Honorable Judge G. H. Wright, Jr. after the trial judge in this cause, Honorable Judge L. J. Tyner, recused himself from hearing appellant’s motion. During the hearing, appellant’s trial counsel, Honorable Robert Pettey, testified that he submitted the written charge, No. 21 (above), along with his other requested charges to Judge Tyner during trial. Judge Tyner’s testimony at the hearing was to the effect that if the Charge No. 21 was submitted along with appellant’s other charges, he did not see it, and that it was his recollection that the request to charge on “possession” was made by oral motion which, as indicated by the record, he overruled [R. 177] [Supplemental Transcript, 32-55].

This dispute between the two able officers of the court was decided adversely to appellant’s contention by Judge Wright’s denial of appellant’s motion to correct the record. ■ .

We, therefore, need not and should not decide whether or not Charge No. 21 in question is a correct statement of law since that issue is not properly before this Court for review. The record, in light of Judge Wright’s ruling below, reflects that the request to charge on possession of marihuana was made to the trial judge by oral motion, which was denied. Consequently, no ap-pealable question on this matter has been reserved for our review. We note the observation of Presiding Judge Cates in Wilder v. State, 52 Ala.App. 157, 290 So.2d 225:

“The court below denied defense counsel’s oral motion to charge the jury as to assault with intent to rob being a lesser included offense. The record is unprotected on this point: Code 1940, T. 7, § 273, prescribes that charges must be moved for in writing. Where the supposed fault of the oral charge is an omission merely this cannot afford a basis for an appellate court’s exercising revisory power, unless a written charge is tendered. Davis v. State, 246 Ala. 101, 19 So.2d 358.”

II

Appellant next contends that an imposition of a fifteen year sentence (in addition to a $5000.00 fine) for the sale of 6.81 grams of marihuana constitutes cruel and unusual punishment, thus violative of his rights under the Eighth Amendment to the United States Constitution.

We need not express our views on the excessiveness of the sentence here imposed on this young appellant, since this Court is without authority to review this issue so long as the sentence imposed by the trial judge is within the limits prescribed by our Legislature. Terry v. State, 33 Ala. App. 21, 29 So.2d 884; Title 22, Section 258(47), Code of Alabama 1940.

In Hall v. State, 54 Ala.App. 198, 306 So.2d 290, we find:

“. . . [W]e must remind appellant that the trial judge was acting within his discretion, and that if we were to reverse and remand because we disagree with him we would be abusing our discretion or usurping discretion which we do not have. . . . ”

We have carefully considered the entire record, as required by Title 15, Section 389, Code of Alabama 1940, and find no error therein. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.

      . See Title 22, Sec. 258(47), Code of Alabama 1940.


author: BLOODWORTH, Justice.

text:
    Ex parte Charles NESBITT.
    SC 2415.
    Supreme Court of Alabama.
    April 1, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge,

text:
    Jerry W. JACOBS v. STATE.
    6 Div. 389.
    Court of Criminal Appeals of Alabama.
    March 22, 1977.
    Morris S. Dees, Jr., John L. Carroll, Montgomery, for appellant.
   On Motion to Recuse

The motion to recuse as filed in this cause on March 16, 1977, is denied on authority of Payne v. State, 48 Ala.App. 401, 265 So.2d 185, cert, denied, 288 Ala. 748, 265 So.2d 192, cert, denied, 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669.

MOTION DENIED.

TYSON, P. J., HARRIS, DeCARLO and BOOKOUT, JJ., and SIMMONS, Supernumerary Circuit Judge, by designation, concur.

BOWEN, J., not sitting.

TYSON, P. J., files opinion concurring specially.

TYSON, Presiding Judge,

concurring specially.

Jerry W. Jacobs, through his attorneys, presents this Court with a “Motion to Re-cuse” directed to the Honorable William M. Bowen as Judge and moves that he recuse himself from- considering the appellant’s-cause. His grounds for the motion assert essentially the following:

1. That Judge Bowen formerly served as an Assistant Attorney General of the State of Alabama on the staff of the Honorable William J. Baxley, Attorney General; that as a result of serving on Attorney General Baxley’s staff, Judge Bowen was “personally selected” to run against the Honorable Aubrey M. Cates as Judge by Mr. Baxley.

2. That Attorney General Baxley was his principal supporter and largest financial contributor and narrated a state-wide television program during the ensuing political campaign in Judge Bowen’s behalf.

3. That Attorney General Baxley and members of his staff were the principal authors of the present death penalty statutes (Title 15, Sections 342(3)-342(ll), Code of Alabama 1940, as amended 1975), the constitutionality of which will be before this Court on appeal in the appellant’s cause.

Judge Bowen, as an Assistant Attorney General, was not assigned to any duties with reference to the drafting of the present death penalty statutes (Title 15, Sections 342(3)-342(ll), Code of Alabama 1940, as amended 1975). In fact Judge Bowen did no legal research on these statutes, did not participate in the drafting of the same, nor did he appear before any legislative committee, nor contact any member of the Alabama Legislature with reference to the passage of same. Moreover, Judge Bowen has not appeared either prior to his investiture as Judge or subsequent thereto on any public forum wherein the constitutionality of these statutes has been debated.

Sir Matthew Hale (1609-1676), former Lord Chief Justice of the Court of King’s Bench, set forth the following rules for his own judicial guidance and that of his brother jurists:

“THINGS NECESSARY TO BE CONTINUALLY HAD IN REMEMBRANCE
I. That in the administration of justice I am entrusted for God, the king and country; and therefore,
II. That it be done, 1st, uprightly; 2dly, deliberately; 3dly, resolutely.
III. That I rest not upon my own understanding or strength, but implore and rest upon the direction and strength of God.
IV. That in the execution of justice I carefully lay aside my own passions, and do not give way to them, however provoked.
V. That I be wholly intent upon the business I am about, remitting all other cares and thoughts as unreasonable, and interruptions.
VI. That I suffer not myself to be prepossessed with any judgment at all, till the whole business, and both parties be heard.
VII. That I never engage myself in the beginning of a cause, but reserve myself unprejudiced till the whole be heard. o
VIII. That in business capital, though my nature prompt me to pity, yet to consider that there is also a pity due to the country.
IX. That I be not too rigid in matters purely conscientious, where all the harm is diversity of judgment.
X. That I be not biassed with compassion to the poor or favor to the rich, in point of justice.
XI. That popular or court applause, or distaste, have no influence upon anything I do in point of distribution of justice.
XII. Not to be solicitous what men will say or think, so long as I keep myself exactly according to the rules of justice.
XIII. If in criminals it be a measuring cast, to incline to mercy and acquittal.
XIV. In criminals that consist merely in words when no more harm ensues, moderation is no injustice.
XV. In criminals of blood, if the fact be evident, severity is justice.
XVI. To abhor all private solicitations, of what kind soever, and by whomsoever, in matters depending.
XVII. To charge my servants; 1st, not to interpose in any business whatsoever; 2d, not to take more than their known fees; 3d, not to give any undue precedence to causes; 4th, not to recommend counsel.
XVIII. To be short and sparing at meals, that I may be fitter for business.”

The great bard William Wordsworth, admonished in “The Happy Warrior”:

“ ’Tis he whose law is reason; who depends
Upon that law as on the best of friends; Whence, in a state where men are tempted still
To evil for a guard against worse ill, And what in quality or act is best Doth seldom on a right foundation rest, He labors good on good to fix, and owes To virtue every triumph that he knows: —Who, if he rise to station of command, Rises by open means; and there will stand
On honorable terms, or else retire,
And in himself possess his own desire; Who comprehends his trust, and to the same
Keeps faithful with a singleness of aim; And therefore does not stoop, nor lie in wait
For wealth, or honors, or for worldly state;
Whom they must follow; on whose head must fall,
Like showers of manna, if they come at all

The Canons of Judicial Ethics adopted by the House of Delegates of the American Bar Association, effective August 16, 1972, provide in pertinent part:

“CANON 3
A JUDGE SHOULD PERFORM THE DUTIES OF HIS OFFICE IMPARTIALLY AND DILIGENTLY
C. DISQUALIFICATION.
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it

The Canons of Judicial Ethics adopted February 1, 1976, by the Supreme Court of Alabama in pertinent part are as follows:

“CANON 3
A JUDGE SHOULD PERFORM THE DUTIES OF HIS OFFICE IMPARTIALLY AND DILIGENTLY
C. DISQUALIFICATION.
(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b). He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it.”

In Payne v. State, 48 Ala.App. 401, 408, 265 So.2d 185, cert, denied 288 Ala. 748, 265 So.2d 192, Presiding Judge Cates observed:

“The Attorney General and his staff are more than mere legal advisers. Thus, they have the power in the interest of justice, to confess error. The Attorney General is a public servant whose office is created by the constitution; he is selected by the voters from the state at large. Cons. 1901, §§ 114 and 137, Code 1940, T. 55, §§ 228-244, as amended. He and his staff are paid by salaries, not fees.
“Hence, notions of conflict of interest arising from being counsel in private litigation are not present. We do have constitutional and statutory grounds for judicial disqualification: Const. § 160 and Code 1940, T. 13, §§ 6 and 7. They are not here applicable.
“The basic guideline — aside from the specific ordainments, supra — rests on the common law principle that no judge ought to act where from interest or any other cause he is supposed to be partial to one of the suitors. Here we perceive no reason to impute a cause of bias. Thus, we readily distinguish Ex parte Cornwell, 144 Ala. 497, 39 So. 354.
“The holding of prosecutorial office as distinguished from working on a concrete piece of litigation is not alone disqualifying for one who later becomes a judge. Thus, in 46 Am.Jur.2d, Judges, (p. 219) we find:
“ ‘§ 193. As attorney general.
“ ‘A judge hearing an appeal is not required to disqualify himself because he had, as attorney general, rendered an opinion concerning one of the points involved in the litigation. Generally, a judge who had been employed in the office of the attorney general is not disqualified to sit on a case involving a party who had been up before the attorney general. Nor is a judge disqualified where the case before him, in which the state is a party, was under study while he was a deputy attorney general but was not assigned to him then or otherwise brought to his attention.
“ ‘A supreme court judge who, before his elevation to the bench, was attorney general when a criminal case was tried but had nothing whatever to do with the trial, is not disqualified from hearing the case on appeal. Similarly, an attorney general who permitted the institution of quo warranto proceedings on relation of the attorney general, but who took no personal or official part in the litigation, is not disqualified to hear the case as a supreme court judge.’ ”

Judgés are not political activists. The nature of the judicial process commands such abstention.

Judges must lay aside the slings and arrows and indeed must cast aside their snick-ersnees and retire to higher ground.

Their fundamental objective must be absolute fairness. Impartiality is indeed their hallmark. Such requirements are essential if their judgments are to reflect “equal justice under law.”

The motion before us bespeaks of political battles and misses therefore its intended mark. The complete objectivity of Judge Bowen is not therefore drawn into question. His demeanor in this cause, as in all before us, reflects a devotion to absolute integrity.

It therefore seems proper for us to observe that the petition before us presents no more than the fact that the Attorney General’s staff assisted in the preparation of the pertinent statute before its adoption by the Legislature of Alabama.

The fact that Judge Bowen was a member of this staff, though having nothing whatever to do with the preparation of it, is not basis for his disqualifying himself. The motion before us is utterly without legal merit and is therefore denied.

Judge Bowen took no part in the preparation of the State’s case, or trial of this cause.

Needless to say, Judge Bowen has refrained from participating in this opinion.

MOTION DENIED.