author: PATTERSON, Chief Justice,

text:
    Charles S. BELL v. STATE of Mississippi.
    No. 50170.
    Supreme Court of Mississippi.
    Nov. 9, 1977.
    Rehearing Denied Jan. 25, 1978.

      Paul Richard Lambert, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

.Charles S. Bell appeals from a conviction of capital murder and life sentence by the Circuit Court of Forrest County.

At approximately eight o’clock on the evening of May 29, 1976, Charles S. Bell entered a Mr. Quik store in Hattiesburg, Mississippi. Michael Romanoff, the store manager, was behind the cash register and John Thomas, an employee, was in the kitchen. Thomas testified for the state that he heard the front door of the store and one of the cooler doors open and close. He also heard a voice command, “Open the cash register,” whereupon he entered the public portion of the store and saw Bell pointing a pistol at Romanoff. When his presence was observed by Bell, he was directed to put up his hands. Bell reiterated his demand of Romanoff and fired a shot by his head. When the manager failed to respond a third time, Thomas asked Roma-noff what he should do. Romanoff replied that he could hit the floor and seized a carton of beer and threw it at Bell who reacted by shooting Romanoff and fleeing the scene. Romanoff died shortly afterward- from three bullet wounds. Bell was later identified by Thomas in a lineup in St. Louis, Missouri, where he had been apprehended on other charges.

The court permitted an amendment of the indictment prior to trial so that it might cite Mississippi Code Annotated section 97-3-19(2)(e) (Supp.1977) upon which the charge of capital murder was based and thereafter overruled defendant’s motion to quash the indictment on the grounds the statute cited was unconstitutional.

Bell testified in his own behalf during the trial, stating he was nineteen years of age when the crime occurred and admitting previous convictions of two armed robberies, aggravated assault and second degree burglary. After considering the evidence, the jury returned a guilty verdict of capital murder, but was unable to agree on the sentence after hearing the aggravating and mitigating circumstances in the separate sentencing proceeding. Therefore the court sentenced Bell to life imprisonment and then overruled a motion for a new trial.

The appellant first complains the indictment should have been quashed because it failed to cite and define the offense charged. The indictment as initially written and without its formal parts charged: “ . . . did willfully, unlawfully, and fe-loniously, and of his malice aforethought, kill and murder Michael Romanoff, a human being, while in the commission of the crime of armed robbery, or in an attempt to commit armed robbery.” It was amended prior to trial so as to charge: “ . did willfully, unlawfully, and feloniously, and of his malice aforethought, kill and murder Michael Romanoff, a human being, while in the commission of the crime of armed robbery, or in an attempt to commit armed robbery, in violation of Section 97-8-19 (2)(e) of the Mississippi Code of 1972, as Amended, . . . ” (Emphasis added.) It thus satisfies Mississippi Code Annotated section 99-17-20 (1972) which requires the indictment of any crime punishable by death to cite the section and subsection of the code defining the offense alleged to have been committed. See Varnado v. State, 338 So.2d 1239 (Miss.1976). As the amended indictment correctly cites the statute defining capital murder when homicide occurs during the commission or attempted commission of a robbery, we conclude this assignment of error is without merit.

Bell next argues the indictment should have been quashed because his true age was not established during the proceedings against him thereby violating his constitutional rights under the Fourteenth Amendment of the United States Constitution. He now contends he was actually seventeen years of age at the time of the crime and therefore was subject to the jurisdiction of the youth court. Although we follow the established principle that objections and exceptions not jurisdictional cannot be raised for the first time on appeal, we nevertheless think a statement concerning jurisdiction to be appropriate. Bell’s age of seventeen, if this be correct, was not a jurisdictional defect because Mississippi Code Annotated section 43-21-31 (1972) vests the circuit court with exclusive jurisdiction of a minor thirteen years or older if he be charged with a crime punishable by life imprisonment or death. Wansley v. State, 339 So.2d 989 (Miss.1976). We are of the opinion this assignment of error is without merit.

Lastly, Bell attacks the application of the bifurcated trial promulgated in Jackson v. State, 337 So.2d 1242 (Miss.1976), and contends the Jackson standard imposed an ex post facto law upon him thereby violating his due process rights. We observe, however, that he was first provided a trial to determine his guilt or innocence and upon being found guilty was provided a separate hearing to determine his sentence where both the state and the appellant presented evidence of aggravating and mitigating circumstances in accord with Jackson. We are of the opinion that Bell failed to demonstrate any prejudice to his due process rights by this procedure, but rather benefited by it because the law before Jackson mandated the death penalty under similar indictment and facts.

Moreover, the requirements of Jackson affect procedure and not substance and on the whole are ameliorative. In such case, the appellant is not subjected to an ex post facto violation. In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the murders for which Dobbert was convicted and sentenced to death occurred prior to the United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). At that time Florida law mandated that a person convicted of a capital felony be punished by death unless the jury, by majority vote, recommended mercy, in which event the court was required to impose a life sentence. After the Florida Supreme Court held the death penalty statutes unconstitutional under Furman, that state’s legislature enacted a new death penalty procedure, upheld in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), under which Dobbert was tried. After conviction and sentence to death, the case reached the United States Supreme Court which rejected Dobbert’s claim that the changes in the death penalty statute between the time of the murders and the trial were ex post facto laws. The Court concluded that the changes in the law were procedural, and on the whole ameliorative, and there was no ex post facto violation.

In making this determination, it emphasized the old and new laws must be compared in toto and noted the former procedure mandated the death penalty “unless the jury, in its unbridled discretion, made a recommendation for mercy.” It observed that the new procedure providing the constitutional safeguards subsequent to Fur-man included a separate sentencing procedure benefiting a defendant because it permitted mitigating evidence relevant to sentence without prejudice to the guilt determination. A portion of Chief Justice Burger’s concurring opinion is appropriate:

. A crucial factor in this case, for me, is that, as the Court’s opinion recites, when petitioner committed the crime, a Florida statute permitted the death penalty for the offense. Petitioner was at least constructively on notice that this penalty might indeed follow his actions. During the time which elapsed between the commission of the offense and the trial, the statute was changed to provide different procedures for determining whether death was an appropriate punishment. But these new procedures, taken as a whole, were, if anything, more favorable to the petitioner; consequently the change cannot be read otherwise than as the Court’s opinion suggests.

(432 U.S. at 303, 97 S.Ct. at 2303, 53 L.Ed.2d at 363).

Similarly, Bell’s position is benefited inasmuch as subsequent to Jackson the jury is required to “unanimously find in writing that after weighing the mitigating circumstances and the aggravating circumstances one against the other that the mitigating circumstances do not outweigh the aggravating circumstances and that the defendant should suffer the penalty of death.” (337 So.2d at 1256) The life sentence evidences the fact that Bell benefited by the procedures required by Jackson rather than being prejudiced by them. We conclude this assignment of error is also without merit.

We have studied this record in its entirety and find no error therein, but rather overwhelming evidence of a brutal homicide committed in an attempted robbery. The conviction and sentence are affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. Mary SANDERS v. Mrs. J. Doyle SARTAIN.
    No. 49870.
    Supreme Court of Mississippi.
    Jan. 11, 1978.
    Ottis B. Crocker, Jr., Bruce, for appellant.
    Jon M. Barnwell, Clarksdale, for appellee.
   Appeal from Chancery Court, Calhoun County; William H. Anderson, Chancellor.

Before PATTERSON, C. J., BROOM and BOWLING, JJ., and O. GUYTON IDOM, Commissioner.

AFFIRMED.


text:
    Kenneth Ray TURNER v. John C. WATKINS, Warden, Mississippi State Penitentiary.
    No. 50372.
    Supreme Court of Mississippi.
    Jan. 11, 1978.
    Kenneth Ray Turner, pro se.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Before PATTERSON, C. J., and BROOM and LEE, JJ.

AFFIRMED.

BOWLING, J., took no part.


text:
    Mack BROWN v. STATE of Mississippi.
    No. 50096.
    Supreme Court of Mississippi.
    Jan. 11, 1978.
    Houghton F. EKas, Jr., Cleveland, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    J. B. HESTER v. STATE of Mississippi.
    No. 50097.
    Supreme Court of Mississippi.
    Jan. 11, 1978.
    Alton Massey, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Joseph W. PRIVETT v. STATE of Mississippi.
    No. 49702.
    Supreme Court of Mississippi.
    Jan. 11, 1978.
    Blair & Mackey, Oscar P. Mackey, Oxford, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lafayette County; W. W. Brown, Judge.

Before PATTERSON, C. J., INZER and SMITH, P. JJ., ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., and JACK B. WELDY, Commissioner.

AFFIRMED.

BOWLING, J., took no part.


author: JAMES E. BOST, Commissioner

text:
    Harold L. BERRY v. MASONITE CORPORATION.
    No. 49687.
    Supreme Court of Mississippi.
    Jan. 11, 1978.

      Hall, Callender & Dantin, Maurice Dan-tin, Columbia, for appellant.
    Gibbes, Graves, Mullins, Bullock & Ferris, William S. Mullins, III, Jones H. Hoskins, Laurel, for appellee.
    Before INZER, P. J., ROBERTSON and BOWLING, JJ., and BOST, Commissioner.
   JAMES E. BOST, Commissioner

for the Court:

Masonite Corporation filed its bill of complaint against Harold L. Berry in the Chancery Court of Lawrence County, praying that the court grant unto complainant a reasonable extension of time within which to cut and remove the timber sold to Masonite by Berry or, in the alternative, to direct the defendant to return the $60,-778.95 consideration paid for the timber.

Berry filed a general demurrer asserting no equity on the face of the bill, and the court overruled. Berry then moved for allowance of appeal under the provisions of Mississippi Code Annotated, Section 11-51-7 (1972), assigning as his reason therefor that such appeal would settle all controlling principles involved. Appeal from the order overruling the demurrer was allowed, and this Court is now presented with two issues: (1) Was there error in allowing the interlocutory appeal? (2) Was there error in overruling the general demurrer? In view of our decision on the first issue, that the interlocutory appeal was improperly granted, we do not reach the second issue.

Mississippi Code Annotated, Section 11-51-7 (1972) provides for the granting of appeals from interlocutory orders or decrees under certain conditions. The statute contemplates that an interlocutory appeal will be granted only if all the controlling principles in the case may be settled, or to avoid expense and delay. Interlocutory appeals are to be granted with caution. Burns v. Arrington, 251 Miss. 247, 169 So.2d 831 (1964); Martin v. Reed, 232 Miss. 258, 98 So.2d 765 (1957); Prine v. Smith, 226 Miss. 701, 85 So.2d 210 (1956); Stirling v. Whitney National Bank, 170 Miss. 674, 150 So. 654 (1933).

All the controlling principles cannot be settled on this appeal. Accordingly, allowance of this interlocutory appeal was error.

The order granting an interlocutory appeal is reversed and this case is remanded for a hearing on the merits.

REVERSED AND REMANDED.

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

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


author: JONES, Justice.

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, INC. v. AMERICAN COUNTRY CLUBS, INC., et al.
    SC 2293.
    Supreme Court of Alabama.
    Nov. 18, 1977.
    Rehearing Denied Jan. 27, 1978.
    Thomas E. Maxwell, Birmingham, for Hartford Acc. & Indem. Co., Inc.
    J. N. Holt, Birmingham, for John A. Thames, Trustee in Bankruptcy of American Country Clubs, Inc., et al.
    Dan P. Barber, Birmingham, for Isadore Weinstein and Sara A. Weinstein.
   JONES, Justice.

This case involves an appeal from the Circuit Court of Jefferson County which denied Hartford Accident and Indemnity Company’s lien claimed upon a leasehold of American Country Clubs, Inc. We affirm.

American contracted with Marsh & Daniel, Inc., a general contracting firm, to perform renovations and improvements upon its leasehold known as the Morris House (a restaurant and lounge located on Morris Avenue in Birmingham). Pursuant to this contract, Hartford entered into a payment performance bond surety relationship for Marsh & Daniel.

Because American was unable to meet its debts to Marsh & Daniel as they came due, Marsh & Daniel assigned all its rights to Hartford on April 23, 1975, and filed a lien statement on April 24. This initial lien statement was insufficient in that it incorrectly stated the owner and description of the property. Suit was filed on April 25, 1975, seeking money damages and enforcement of the lien.

On August 18, the lien statement was amended to include Isadore and Sara Wein-stein as the owners of the premises. The statement was amended again on September 9, 1975, to correctly state the legal description of one of the parcels of land involved.

American filed a voluntary petition in bankruptcy on October 7,1975. On November 25, the Honorable Steven B. Coleman, Bankruptcy Judge, granted leave for Hartford to proceed in Circuit Court to determine the validity and amount of the lien claimed.

The trial Court held that American was indebted to Hartford in the amount of $95,-924.77, but that it was not entitled to a lien. The refusal to recognize the lien was based upon the Court’s holding that no effective lien was filed until the September 9 amendment; that the evidence failed to show the date the debt matured or the date of last performance by Marsh & Daniel; and, that the evidence failed to show the parcel where the Morris House was located.

The term “mechanic’s lien” is the generic name for any lien on realty in favor of persons furnishing labor or materials in, or for, the erection of buildings, or for the making of improvements on realty. Emanuel v. Underwood Coal & Supply Co., 244 Ala. 436, 14 So.2d 151 (1943). When this lien is upon a building on leased property, as here, it extends only to the leasehold and the improvements. Tit. 33, § 39, Code.

The requirements of a mechanic’s or ma-terialman’s lien are found in Tit. 33, §§ 37 et seq., Code. These requirements include the filing of a lien statement containing the amount secured by the lien; a description of the property; and the name of the owner or proprietor of the property in question. Tit. 33, § 41, Code. Furthermore, § 42 indicates that to be effective, the .statement must not be filed more than six months “after the last item of work or labor has been performed.”

Because this statute is in derogation of the common law, it must be strictly construed. Emanuel, supra; Snellings Lumber Co. v. Porter, 225 Ala. 164, 142 So. 560 (1932); and 53 C.J.S. Liens § 5b.

“Our statutory system provides the only lien legal or equitable available to a materialman as such . . . This cannot be enlarged except by contract express or implied, or by some established equitable principle based on the maxims of equity on a consideration of right and justice.” Security Federal Savings & Loan Ass’n. v. Underwood Coal & Supply Co., 245 Ala. 56, 61, 16 So.2d 100, 102 (1943).

Absent a contract or “some established equitable principle” (neither of which is here claimed), for a court to enforce a lien, then, the party seeking enforcement must prove the statutory prerequisites. As stated, one of the requisites is the filing of a lien statement within six months from the date the last work was performed on the project. Home Federal Savings & Loan Ass’n. v. Williams, 276 Ala. 37, 158 So.2d 678 (1963); and Mazel v. Bain, 272 Ala. 640, 133 So.2d 44 (1961).

The lien statement filed on April 24, 1975, was not effective because it incorrectly stated the names of the owners and the legal description of the property. This insufficiency may be corrected, however, should all the requisite information be correctly filed, or the original statement amended, within the statutory period. Any statement or amendment filed after such six-month period is ineffective. Tucker v. Trussville Convalescent Home, Inc., 289 Ala. 366, 267 So.2d 438 (1972); and Guaranty Pest Control, Inc. v. Commercial Investment & Development Corp., 288 Ala. 604, 264 So.2d 163 (1972).

Therefore, as we view the situation, it was strictly a question of fact whether the lien statement was filed before the statutory period had expired. Thus viewed, the evidence presented becomes of paramount concern. Howell v. Hallett Manufacturing Co., Inc., 278 Ala. 316, 178 So.2d 94 (1965).

James L. Marsh, president of Marsh & Daniel, testified as follows:

“Q. When was the last work that was done on the project?
“A. When was the last?
“Q. Yes, by Marsh & Daniel, Inc.
“A. I don’t recall.”

He went further and stated on cross-examination:

“Q. Now, in connection with that, were you on the job every day?
“A. I was not.
“Q. And of your own knowledge, do you know, or can you state positively when the last work was done prior to March 14? “A. I cannot.”
Later, Marsh stated:
“Q. Right. But you don’t recall when that was?
“A. No sir, I don’t recall the date. It was AEA week.”

As will be shown, the calendar of the Jefferson County Board of Education, of which Hartford seeks judicial notice by this Court to determine the inclusive dates of A.E.A. week, is immaterial. A question of fact is raised regardless of our ruling on this matter.

Mr. John Samford’s testimony contradicted Marsh’s as follows:

“Q. Do you have any recollection if that was the day you paid him?
“A. This was the day he was paid. The check is dated 3-6-1975 to Jack Higgin-botham.
“Q. All right. Based on that, do you have any independent recollection as to when the last work that Marsh’s men worked on your nightclub?
“A. To my recollection, they were pulling off the job on about this time.
“Q. On that date?
“A. On or about that day, yes, sir.”

No precise, affirmative evidence was elicited as to what was the last day work was performed. Obviously, this date was in dispute, and its determination must be left to the trier of fact.

When the trial Court sits without a jury and determines questions of fact which are in dispute, the ore tenus rule of review must be applied. Robertson v. Fincher, 348 So.2d 466 (Ala.1977). By this rule, a reviewing court must indulge all reasonable presumptions in favor of the trial court’s findings. Howell, supra.

It is well settled that a mechanic’s lien is not perfected until every requirement of the statute is complied with. Lily Flagg Building Supply Co. v. J. M. Medlin & Co., 285 Ala. 402, 232 So.2d 643 (1970). A failure to file the lien statement within the statutory period either precludes its existence or renders it void and unenforceable. Tit. 33, § 42, Code; 53 Am.Jur.2d, Mechanics Lien, § 208. See also Davis v. Alvord, 94 U.S. 545, 24 L.Ed. 283 (1876).

The trial Court determined that there was insufficient evidence to determine when work was last performed by Marsh & Daniel on the Morris House project. Stated otherwise, the trial Judge determined that Marsh & Daniel failed to meet its burden as to the requisite statutory elements. Because of our rule of ore tenus, we are obliged to follow this determination regardless of whether we would come to the same conclusion. Under the posture of this case, it is not a question of law as to whether the evidence was sufficient; rather, it was a question of fact for the trial Judge. In the absence of this factual determination, no effective lien is possible.

Hartford contends that Marsh’s testimony is positive in nature and is “the only positive evidence establishing the date.” As such, Hartford contends, it “overrides” testimony of Samford. We disagree. No positive evidence as to the last day of work was elicited from either Marsh or Samford. Neither party was present at the job site to make this determination. The terminology and phraseology of the testimony is not determinative of its nature. Instead, it is the circumstances surrounding the evidence which resolve this question whether a conflict in the evidence was created. Callaway v. Eason, 248 Ala. 523, 28 So.2d 560 (1946).

The trial Judge was not reasonably satisfied from the evidence that the timeliness requirement of Section 42 had been met. If work stopped on March 6, the September 9 amendment was not timely filed; if work stopped after March 9, it was. Because of the ambivalent nature of the testimony, the trial Judge was unable to make this determination, thus rendering the lien statement ineffective. The trial Court is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


text:
    Martha W. ACKER, E. S. McGehee, John F. DeBuys, J. Shiers Jones, Henry Burnett Bell, Jr., and June S. Harris v. PROTECTIVE LIFE INSURANCE COMPANY, a corporation.
    SC 2455.
    Supreme Court of Alabama.
    Nov. 18, 1977.
    Rehearing Denied Jan. 27, 1978.

      William M. Acker, John F. DeBuys, Jr., James J. Odom, Jr., Clarence L. McDorman, Jr., Claude McCain Moncus, Birmingham, for appellants.
    Drayton Nabers, Jr., George G. Lynn, Birmingham, for appellee.
   JONES, Justice.

This appeal arises from the denial of an injunction sought by homeowners to prevent the chiming of certain electronic bell tones (incorrectly referred to in the record and herein as a “carillon”). We affirm.

Protective Life Insurance Company constructed a bar carillon at its offices in downtown Birmingham in 1961. When these offices were moved south of town, to the Office Park area, in an enclave of Jefferson County between the cities of Mountain Brook and Homewood, in 1976, a new carillon was constructed. The bell sounds are broadcast through 16 loudspeakers, and at peak amplification, can be heard up to three miles away. After an initial cacophonous period, the chimes have been played at approximately half volume, and for only one fifteen-minute period (beginning at 12:15 P.M.) per day — five days a week.

Plaintiffs-Appellants all live within the Watkins Road area which is in close proximity to Protective’s offices and carillon. (Though separated by a two-lane street, known as Cahaba Road, and a narrow, wooded area, known as Jemison Park, the Watkins Road area and the carillon are on adjacent hillsides.) Appellants sought an injunction to prevent the playing of the carillon, contending that it is both “offensive” and injurious to them. The evidence shows, however, that the bells could be but faintly heard in this “quiet and peaceful residential neighborhood.” Appellants contend that the playing of the carillon is both a nuisance and a breach of their right of privacy.

The trial Court, in its findings of fact, held that:

“The Protective carillon does not cause any discomfort, inconvenience, hurt or damage; ... it has not caused any injury or damage to the person or property of any of the Plaintiffs or anyone else; it has not caused any material annoyance or inconvenience to the occupants of dwellings in the Watkins Road area rendering them physically uncomfortable; it does not materially interfere with the ordinary comfort of human existence
“There is no credible evidence to support any inference that any future use of the carillon by Protective will constitute a nuisance.”

A general statement of the common law of nuisance is incorporated in Tit. 7, § 1081, Code, as follows:

A nuisance is anything that worketh hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful, or such as would affect only one of fastidious taste, but it should be such as would affect an ordinary reasonable man.

The law of nuisance rests upon the principle that every man must so use his property as not to injure that of his neighbor. Farris & McCurdy v. Dudley, 78 Ala. 124, 127 (1884). This statement, however, presupposes a finding of injury to the complainant, and the trial Court has found none in the case before us.

It is undisputed that noise may constitute a nuisance. Alabama Power Co. v. Stringfellow, 228 Ala. 422, 153 So. 629 (1934); Harris v. Randolph Lumber Co., 175 Ala. 148, 57 So. 453 (1912); 58 Am.Jur.2d, Nuisances, § 63; and 66 C.J.S. Nuisances § 22. It is not every unpleasant noise, however, which creates a cause of action; and this for the reason that some injury must obtain.

As has been shown, the trial Court found no injury. This was a highly disputed fact, and, under our ore tenus rule of review, the Court’s finding must not be disturbed where it is supported by credible evidence, unless it is palpably wrong and manifestly unjust. Robertson v. Fincher, 348 So.2d 466 (Ala.1977); Francis v. Tucker, 341 So.2d 710 (Ala.1977), and Alabama Power Co. v. Martin, 341 So.2d 695 (Ala.1977).

Support for the trial Court’s decree is manifest on the record. The several Appellants, after the initial adjustment period, heard the carillon only a few times. Even more rarely could it be heard indoors. Though disputed, testimony revealed that the value of the Appellant’s property was not reduced. Therefore, because there is ample evidence in support of the trial Court’s decree, it cannot be set aside.

Moreover, an injunction is not a matter of right; instead, it is one of grace. City of Mobile v. Farrell, 229 Ala. 582, 158 So. 539 (1934). The determination of whether to grant an injunction rests within the sound discretion of the trial Court, and, absent abuse, this will not be set aside on appeal. Pritchett v. Wade, 261 Ala. 156, 73 So.2d 533 (1954), and Corte v. State, 259 Ala. 536, 67 So.2d 782 (1953). No evidence of abuse has been shown, however.

Thus, Appellants are met at the outset with two independent, determinant doctrines which require the affirmance of the trial Court’s decree. This is not to say that future raucous chimings may not be enjoined. The trial Court found evidence of future interferences merely speculative, and, therefore, no injunction would lie. Tit. 7, § 1083, Code (“consequences not merely possible, but to a reasonable degree certain.”). See City of Tuscaloosa v. Standard Oil Co., 221 Ala. 670, 130 So. 186 (1930); Higgins & Courtney v. Bloch, 216 Ala. 153, 112 So. 739 (1927), and McHan v. McMurry, 173 Ala. 182, 55 So. 793 (1911). Should there be any material rise in volume, so as to cause injury, an injunction may well be the proper instrument to abate the nuisance. The fact that Protective deems these chimes a pleasant and sonorous interlude is not, of course, prohibitive of such action.

The Appellants next contend that the trial Court must amend its findings of fact to recite certain uncontroverted evidence. Rule 52(b), ARCP, states that “the court may amend its findings.” (Emphasis added.) Such language is in no respect mandatory. Findings of fact, where made by the trial Court, need merely substantially cover the findings made the basis of the court’s decision. 5A Moore’s, Federal Practice, ¶ 52.11[2] (1975); and Wright and Miller, Federal Practice and Procedure, § 2582 (1971). Additional findings, necessitated by the decree, will be presumed, where the evidence of record is supportive of such findings. White v. White, 11 A.B.R. 2688 (Ala.1977).

The Comparative Injury Doctrine is not applicable to the situation before us; and this for the reason that a prerequisite to its utilization—i. e., a preliminary determination that a nuisance has been effectuated—is absent. This doctrine is used to determine whether the nuisance, once established, is actionable. Clifton Iron Co. v. Dye, 87 Ala. 468, 6 So. 192 (1888); and Prosser, Torts, § 90 (4th Ed. 1971). See also Daniels v. Chapuis, 344 So.2d 500 (Ala.1977).

Moreover, even should this doctrine be utilized, a reversal of this case is not mandated. The trial Court found, upon the evidence (the testimony of William J. Rush-ton, III), that the carillon produced good will for Protective. While the evidence in this regard is scanty and somewhat contradictory, it more than offsets the position of the Appellants because they were found to have suffered no injury. Thus, a balancing of the equities results in a decree of dismissal.

The final issue raised by the Appellants concerns the alleged invasion of their right of privacy. Though it would be better practice for the trial Court to specifically rule on this matter, a failure to do so is not reversible error where the cause is not well placed.

The right of privacy is based upon rights guaranteed by the Fifth, Ninth and Fourteenth Amendments of the United States Constitution. Greenwald, Environmental Law, Practice and Procedure Handbook (1976). It is State action, however, which the Fourteenth Amendment proscribes. Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), and Rainey v. Ford Motor Credit, 294 Ala. 139, 313 So.2d 179 (1975). The fact that a building permit was granted to Protective to construct the carillon does not call into play the substantial State interest required. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 33 L.Ed.2d 627 (1972).

Because the trial Court found that the Appellants suffered no injury, the instant decree is due to be affirmed. We most strenuously emphasize, however, that even “bells sweetly ringing” may, under proper circumstances, constitute an actionable nuisance; for, surely, what is “music” to one ear may well be “noise” to another.

AFFIRMED.

TORBERT, C. J., and MADDOX, J., concur.

BLOODWORTH and BEATTY, JJ., concur in result.

      . For the most recent announcement of this Court as to the caution used in enjoining pro-' spective nuisances, see Johnson v. Bryant, 11 A.B.R. 2813 (Oct. 13, 1977).


text:
    Cleta M. FROST, Executrix of the Estate of Carmon A. Frost v. Carson WHITFIELD, Jimmy Whitfield, et al.
    SC 2636.
    Supreme Court of Alabama.
    Nov. 18, 1977.
    Rehearing Denied Jan. 27, 1978.
    Rodney B. Slusher, Florence, for appellant.
    Roger H. Bedford of Bedford & Bedford, Russellville, for appellees.
   JONES, Justice.

This appeal, in a personal injury claim arising out of an automobile accident, challenges the propriety of the trial Judge’s grant of the defendants’ motion for directed verdict. We affirm as to the appellee, Jimmy Whitfield, and reverse and remand for a new trial as to the appellee, Carson Whitfield.

Because this case may be retried on remand, a brief summary of the evidence will suffice for our purpose of review. This three-car collision occurred on a two-lane highway in northeast Mississippi a few miles from the Alabama-Mississippi state line. Each car was occupied by its driver only — Doris Davidson, Carson Whitfield, and Carmon A. Frost.

The only evidence adduced at trial relating to the issue of liability was the testimony of the Mississippi state highway patrolman who investigated the accident. He testified his investigation disclosed that, just before the collision, Car No. 1 (Davidson) was traveling in a north-bound direction; Car No. 2 (Frost) was traveling in a south-bound direction and had come to a stop in preparation to turn left onto a gravel road; and Car No. 3 (Whitfield) was traveling south following Car No. 2. The front of Car No. 3 struck the left rear of Car No. 2, knocked it across the northbound lane and into the path of Car No. 1, which, in turn, struck Car No. 2 on its right side.

The patrolman further testified that Mrs. Whitfield stated to him she did not realize that the Frost car had stopped, or was stopping, and this was the reason she struck the rear of his ear. The patrolman described the weather as cloudy and “misting” rain, but estimated the unobstructed view from the gravel road in the direction from which Mrs. Whitfield was traveling was between 150 and 200 yards.

The Appellant states the single issue presented thusly:

“Whether the evidence . . . was sufficient to present a jury question as to the negligence of the defendant, Carson Whitfield, as charged in the complaint.”

Implicit in this statement of the issue is appellant’s concession that the trial Court did not err in directing a verdict in favor of all defendants other than Mrs. Whitfield. We agree and affirm as to the appellee Jimmy Whitfield. The record discloses no evidence of any connection, either directly or vicariously, between Jimmy Whitfield and the accident in question.

We are hardput, however, to perceive any possible theory or rationale on which the trial Court based its grant of Mrs. Whitfield’s motion for a directed verdict. The legal principles governing the trial Court’s grant or denial of a motion for a directed verdict are well established and our law reports are replete with cases reviewing the application of these principles to varying fact situations. Perhaps the best statement of the legal test by which such motions are gauged, in the negligence context, is found in Harbin v. Moore, 234 Ala. 266, 268, 175 So. 264, 265 (1937):

“ ‘ “Proof which goes no further than to show an injury could have occurred in an alleged way does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause. [Southern R. Co. v. Dickson, 211 Ala. 481, 100 So. 665 (1924.]” ’
“ ‘But a nice discrimination must be exercised in the application of this principle. As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence. [Georgia Power Co. v. Edmunds, 233 Ala. 273, 171 So. 256, 258 (1936).]’
“Each case turns upon its own peculiar facts, and other cases are helpful only by way of analogy.”.

Our case law, applying this test in rather close factual situations, employs the traditional “scintilla rule” vis-a-vis “mere speculation” frame of reference. The following language from Harbin, supra, exemplifies the point:

“It is of course well recognized that in no case is negligence assumed from the mere fact of an injury, and that the scintilla doctrine prevailing in this state does not conflict with the well-known rule that a conclusion as to liability that rests upon speculation or mere conjecture is not the proper basis for a verdict.” 234 Ala., at 268, 175 So.2d at 265.

Other cases avoid reference to the scintilla rule and employ what is perhaps more preferable language, as shown in Reaves v. Maybank, 193 Ala. 614, 618, 69 So. 137 (1915), which quoted with approval from Grand Trunk Railway Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485 (1892).

“ ‘There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms “ordinary care,” “reasonable prudence,” and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.’ ”

Compare also the following language by Mr. Justice Simpson in Patterson v. Seibenhener, 273 Ala. 204, 206, 137 So.2d 758, 760 (1962):

“. . . where not only the facts constituting the conduct of the parties, but also the standard of care which they should have exercised, are to be determined the case is entirely one of fact to be decided by the jury. When the proof discloses such a state of facts, whether controverted or not, that, in essaying to fix responsibility for the injury or damage, different minds may arrive reasonably at different conclusions or may disagree reasonably as to the inferences to be drawn from the facts, the right of a party in a negligence action to have a jury pass upon the question of liability becomes absolute.”

But this dichotomy, in whatever frame of reference — because of the one-sided nature of the evidence — is here unnecessary and, indeed, inappropriate. See Gribble v. Cox, 349 So.2d 1141 (Ala.1977), 11 ABR 2578; Leeth v. Roberts, 295 Ala. 27, 322 So.2d 679 (1975). See also Langley Bus Co. v. Messer, 222 Ala. 533, 133 So. 287 (1931).

This is not to say, of course, that upon retrial of this case the defendant is foreclosed from countering plaintiff’s prima facie case. If evidence, direct or circumstantial, is proffered from which the jury may reasonably infer facts constituting a legal defense (e, g., contributory negligence), then the issue of liability, along with the issue of damages, should be submitted to the jury under appropriate instructions.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.

      . The record, as to identity of parties involved, is especially confusing until one realizes that “Doris” is a man, “Carson” is a woman, and that plaintiff, Cleta M. Frost, Executrix of the estate of Carmon A. Frost, deceased, was substituted by amendment for the original plaintiff, Carmon A. Frost, who, subsequent to the accident and filing of the suit, died from causes totally unrelated to the accident.

      . Other evidence offered by the plaintiff — all relating to Mr. Frost’s injuries — consists of testimony of Mrs. Frost, Mr. Frost’s treating physician, and the hospital records. The defense motion for directed verdict came at the close of plaintiffs case.

      . Because this accident occurred in Mississippi, if properly pleaded, the law of Mississippi— comparative negligence — would be applicable. See ARCP 44.1.


author: SHORES, Justice.

text:
    Lawrence Gilbert ALLAN, Jr. v. Lawrence Gilbert ALLAN, Sr.
    SC 2460.
    Supreme Court of Alabama.
    Dec. 2, 1977.
    Rehearing Denied Jan. 27, 1978.
    W. Gerald Stone, of Stone, Patton & Fierce, Bessemer, for appellant.
    William A. Short, Jr. and Norman K. Browm, Bessemer, for appellee.
   SHORES, Justice.

This is a will contest. The decedent, Mrs. Bessie Louise Allan and her husband, Lawrence Gilbert Allan, Sr. (hereinafter proponent), executed reciprocal wills in 1960. Mrs. Allan died in 1975. The proponent offered the 1960 will of his wife for probate. He proved the execution of the will by the testatrix in the presence of two witnesses who affixed their names to the instrument in the presence of the testatrix. The son of Mr. and Mrs. Allan, Lawrence Gilbert Allan, Jr., contested the 1960 will contending that it had been revoked by a subsequent will. The trial court directed a verdict for the proponent and the contestant appeals.

Title 61, § 26, Code, provides the method of revoking wills. To show revocation of a will by the execution of a subsequent will, the following is required: (1) The will must be in writing; (2) it must be signed by the testator, or someone for him; (3) it must be attested by at least two witnesses; and (4) the witnesses must subscribe their names in the presence of the testator. Brooks v. Everett, 271 Ala. 354, 124 So.2d 105 (1960); Bruce v. Sierra, 175 Ala. 517, 57 So. 709 (1912). The burden of proving revocation as prescribed by law is on the contestant. Luther v. Luther, 211 Ala. 352, 100 So. 497 (1924); Hodge v. Joy, 207 Ala. 198, 92 So. 171 (1921).

The only evidence offered by the contestant to show revocation of the 1960 will was his testimony that his mother had told him several years before her death that she had executed a new will in which she left everything to him instead of to his father. He testified that he saw an instrument with his mother’s name on it and the names of two other people. He did not read the instrument, nor was it read to him. A neighbor of the Allans also testified that, some years before her death, Mrs. Allan told her that she had made a new will in which she left everything to her son instead of to her husband. This neighbor testified that she, too, saw an instrument with Mrs. Allan’s signature on it, and the names of two other people. Neither the son nor the neighbor could recall the names of the two people.

There is no evidence whatever that the instrument which the witnesses said they saw had been executed in the presence of two witnesses, nor that such witnesses had executed the same in the presence of the testatrix. No will other than the 1960 will offered for probate has been located. Evidence of revocation of the 1960 will was limited to statements made by the testatrix after the execution of that will and the statements of the two witnesses referred to above as to having seen an instrument described by the testatrix as a will. Under these circumstances, the rule restated in Allen v. Scruggs, 190 Ala. 654, 673, 674, 67 So. 301, 308 (1914), applies:

“In Woodruff v. Hundley, 127 Ala. 640, 653-655, 29 So. 98 . . . [it was held that] ‘All declarations of the testatrix subsequent to the making of this will, tending to show that she had revoked it, were clearly incompetent; no act of revocation having been shown. ... In Law v. Law, 83 Ala. [432] 434, 3 So. [752] 753, it is said: “That no revocation can be effected by mere word of mouth or nun-cupative declaration, any more than could be done under the English statute of frauds. It requires one or more of the specific acts mentioned in the statute — a burning, tearing, canceling or obliterating, with the intention to revoke, or a new- will or codicil, properly executed and attested.” . . .’
“. . . The burden of proof was therefore upon contestants to establish the revocation of the will. Other than asserted, subsequent declarations of Noble [testator] that he had destroyed his will . . . there is no evidence of any revocatory act by Noble to that end. It is noted in McBeth v. McBeth, [11 Ala. 596] supra [Weeks v. McBeth, 14 Ala. 474 (1848)], that testators frequently make declarations touching their testamentary acts ‘for the purpose of misleading, and of stifling the importunity of relatives and friends.’ . . . ”

The contestant here has shown no act of revocation by his mother of her 1960 will. There is no evidence that it was executed as prescribed by statute. He has, therefore, failed to carry the burden which the law says he must.

The contestant concedes that he has not proved that the testatrix executed a subsequent will as prescribed by the statute; but he says that, because the proponent had custody of the subsequent will, the law presumes due execution. We cannot agree. The evidentiary rule stated in McCleery v. McCleery, 200 Ala. 4, 75 So. 316 (1917), has no application here. In that case, it was shown that a deed in the possession of the defendant had been destroyed by the defendant. It was not shown that the destroyed deed was attested or acknowledged as prescribed by statute. There the court held:

“. . . In the circumstances disclosed by the stated evidence, the rule of evidence described in the maxim, ‘Every presumption is made against the wrongdoer’ (omnia praesumuntur contra spolia-torem; omnia praesumuntur in odium spoliatoris), was due to be applied with the effect of casting upon the defendant the burden of proof either to disprove his culpability in respect of the destruction of the instrument, or to disprove the effectual execution and delivery of the instrument, which, if it operated to pass title to the plaintiff, was prejudicial to the interest of the defendant either as an heir at law of the common father, or as a successor to the title to the premises. To state but one of many applications of the rule of the maxim: Against a party who has purposely and wrongfully destroyed documentary evidence that the spoliator knows is pertinent and material to the interest of his opponent, whether an action is then pending or not, a rebuttal evidence presumption arises, or, as some state it, an inference is indulged, unfavorable to the spoliator. . . (200 Ala. at 5, 75 So. at 317) (Emphasis Supplied)

There is no evidence in this case that the proponent of the 1960 will destroyed a subsequent will made by the testatrix. Therefore, the above rule is inapplicable.

The judgment appealed from is affirmed.

AFFIRMED.

MADDOX, FAULKNER, JONES and BEATTY, JJ., concur.


text:
    Everett L. ALMON v. Thomas Harold SANDLIN.
    SC 2615.
    Supreme Court of Alabama.
    Dec. 9, 1977.
    Rehearing Denied Jan. 27, 1978.
    J. Wilfred Tucker, Cullman, for appellant.
    Bruce A. Burttram and A. Dozier Williams, Birmingham, for appellee.
   SHORES, Justice.

Relying upon a quitclaim deed from the State of Alabama dated February 18, 1976, the plaintiff brought an action of ejectment for the recovery of forty acres of land in the possession of the defendant in Blount County. The defendant denied the plaintiff’s claim and sought to have the court quiet title in the defendant. The court granted the defendant’s motion for summary judgment and the plaintiff appealed. The following facts are undisputed:

On June 13, 1921, the state bid in for alleged delinquent taxes of $7.80 on the forty acres involved; it issued the quitclaim deed dated February 18,1976, to the plaintiff; on September 2, 1976, the Tax Collector of Blount County certified that the 1921 tax sale was erroneous; on October 29, 1976, the State Land Commissioner approved the cancellation of the 1921 sale and authorized the probate judge to cancel the same upon the records; and on March 2, 1977, the probate judge entered a cancellation of the 1921 sale; all pursuant to Title 51, § 338(1), Code:

“Where real estate is erroneously sold for taxes, and the state became the purchaser thereof, it shall be the duty of the tax collector of the county in which the real estate is situated to prepare and issue a certificate setting forth the following facts: (a) a correct description of the real estate sold and purchased by the state, (b) that the sale was erroneous and the reason therefor and (c) the present owner of the property, if known. This certificate shall be forthwith forwarded to the land commissioner of the state and, if it is determined by him that the facts therein set out are true and correct, he shall approve the same and forward the same to the judge of probate of the county in which the property is situated, who shall note on the margin of the record of such sale the fact that the land commissioner has approved the cancellation of the same and he shall mark the sale void and sign his name as judge of probate to his certificate voiding the same.”

It is not disputed that this statute has been complied with, to the letter. The plaintiff, therefore, cannot recover, as a matter of law, in his action of ejectment based upon the quitclaim deed from the state:

“. . .A prerequisite to recovery in a statutory ejectment action is that it must appear that the plaintiff held legal title when the suit was commenced and on to the time of trial. . . . ” Enterprise Lodge No. 352 v. First Baptist Church, 288 Ala. 592, 594, 264 So.2d 153 (1972); citing Morris v. Yancey, 267 Ala. 657, 104 So.2d 553 (1958); Wilson v. Federal Land Bank of New Orleans, 230 Ala. 75, 159 So. 493 (1935); Carpenter v. Joiner, 151 Ala. 454, 44 So. 424 (1907); Bruce v. Bradshaw, 69 Ala. 360 (1881); and Scranton v. Ballard, 64 Ala. 402 (1879).

The plaintiff, by the quitclaim deed, took only such title as the state had. Since the state had no legal title to the property because the tax sale was erroneous, it follows that the plaintiff had none at the time the court granted the defendant’s motion for summary judgment. Under these circumstances, the plaintiff cannot recover whether the defendant’s title is valid or not. Stephens v. Moore, 116 Ala. 397, 22 So. 542 (1896).

The judgment appealed from is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Everett L. ALMON v. H. F. SANDLIN.
    SC 2616.
    Supreme Court of Alabama.
    Dec. 9, 1977.
    Rehearing Denied Jan. 27, 1978.
    J. Wilfred Tucker, Cullman, for appellant.
    Bruce A. Burttram and A. Dozier Williams, Birmingham, for appellee.
   SHORES, Justice.

The issues in this case are identical to those raised in Almon v. Sandlin (Ms.), 353 So.2d 1159, this day decided. The judgment appealed from is affirmed under the authority contained in that opinion.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    C. D. NORRIS, Jr. v. George G. SEIBELS et al.
    Civ. 1013.
    Court of Civil Appeals of Alabama.
    March 9, 1977.
    Rehearing Denied April 12, 1977.

      C. V. Stelzenmuller and Mark L. Taliafer-ro, Jr., Birmingham, for appellant.
    Charles T. Bradshaw, Birmingham, for appellees.
   WRIGHT, Presiding Judge.

This case arises from the decision of ap-pellees as members of the Board of Managers of the City of Birmingham Retirement and Relief System to deny an extraordinary disability allowance to C. D. Norris, Jr. The Circuit Court upheld that decision on mandamus. We affirm.

Appellant Norris was employed by the City of Birmingham as a fireman for almost 30 years. On October 3,1973, he applied to the Board of Managers for an extraordinary disability allowance. The Board denied his request on October 10. Norris was later granted an ordinary disability allowance. On January 7, 1974, Norris petitioned the circuit court for a writ of mandamus to review the decision denying extraordinary benefits. Appendix, Sec. 1557, Code of Alabama (1940) (Recomp.1958) (Supp.1973). The case proceeded to trial before the judge sitting without a jury on August 2, 1976. Judgment that the decision of the Board of Managers was manifestly correct was entered by the court along with the following findings: that appellant’s disability resulted from the condition developed over a long period of time; that the condition was not caused by an accident occurring at a definite time and place and arising out of and in the course of employment. From that judgment and its findings Norris appeals.

Norris is entitled to an extraordinary disability allowance only if he applies therefor within 12 months of an accident, arising out of and in the course of employment, which resulted in total disability to perform his customary duties. Appendix, Sec. 1567(al3).

For four months prior to June of 1972, Norris experienced chest pains whenever he was involved in strenuous exercise at home or at work. At that time a cardiologist determined that he was suffering from angina pectoris and myocardial ischemia. During the week of April 13-16, 1973, he assisted in a seminar for visiting fire chiefs. His duties included entertaining the visitors, showing fire department facilities and printing program materials. When the seminar ended, he returned to work as a fire fighter for a complete 24-hour shift during which nothing unusual happened. On April 19 at 1:30 A.M. severe chest pains roused him from his sleep at home. It was later determined that he had suffered an acute myocardial infarction. He was also found to be suffering from arteriosclerosis which had almost completely stopped the flow of blood through one artery. Utilizing accumulated sick leave and vacation time, he did not return to work before he retired on October 31, 1973.

Appellant’s first issue is whether the trial court erred in concluding his disability was not caused by an accident arising out of and in the course of employment. Appellant contends his disability resulted from the April 19 heart attack and that it was an accident under Sec. 1567(al3).

Sec. 1567(al3) states:

“In the event a participant shall become totally disabled to perform his customary duties by reason of personal injury received as a result of an accident arising out of and in the course of the employment in the service and occurring at a definite time and place, then in the event such total disability shall continue until the participant ceases to draw salary as an employee of the city such disabled participant shall be entitled to a monthly allowance from the fund equal to seventy percent (70%) of his monthly salary at the time of the accident which resulted in such total disability.”

While there was evidence that Norris engaged in activity related to his job prior to April 19 which caused fatigue, the testimony of his physician was that the myocardial infarction resulted from progressive heart disease. We cannot say the trial court was plainly and palpably wrong in its finding that appellant’s disability was the result of a condition which had progressed over a long period of time. Appellant failed to prove a causal connection between his employment and his heart attack. See City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975).

Sec. 1567(al4) states:

“With respect to extraordinary disability allowances, hypertension, heart disease or respiratory disease shall not be considered as caused by accident so as to entitle a participant to an extraordinary disability allowance, nor shall any participant or any other person claiming under or by reason of relationship to a participant be entitled to an extraordinary disability allowance as a result of disability caused by hypertension, heart disease or respiratory disease, any other law, general or local, to the contrary notwithstanding.”

We find Sec. 1567(al4) was properly applied to deny extraordinary benefits to appellant because his disability was the result of progressive heart disease.

Appellant’s second issue is whether the operation of the exclusionary clause of Sec. 1567(al4) as set out above denied him equal protection of the law in light of Tit. 37, Sec. 450(4).

That section states:

“(4) If a fire fighter who qualifies for benefits under the provisions of this section suffers disability as a result of a fire fighter’s occupational disease [i. e., any condition or impairment of health caused by hypertension, heart disease or respiratory disease] his disability shall be com-pensable the same as any service connected disability under any law which provides benefits for fire fighters of such city injured in the line of duty.” No. 570 [1967] Ala.Acts 1323-24.

In 1969 the legislature amended the pension law for cities over 250,000 in population and included an exclusionary provision which was the predecessor of Sec. 1567(al4). Sec. 3, Act No. 1209, [1969] Ala.Acts 2265-67. This provision was continued unchanged in the 1971 revision. Sec. 3, Act No. 1214, [1971] Ala.Acts 2126-28. It was slightly changed in 1973 into the form found in Sec. 1567(al4), but not materially altered. Art. VI, Sec. 9, Act No. 1272, [1973] Ala.Acts 2143-44. In 1975 the exclusionary provision was repealed. Sec. 8, Act No. 791, [1975] Ala.Acts 1594-95.

Appellant contends the effect of these statutes is to arbitrarily create a class of firemen in Birmingham (the only city to which Sec. 1567(al4) was applicable) to whom the provisions of Sec. 450(4)(4) do not apply. He contends this class consists of those firemen retiring after the effective date of Act 570 but while the exclusionary provision was in effect between 1969 and 1975.

Appellant misstates the class to which Sec. 1567(al4) applies. It covers not only firemen but all municipal employees who participate in the system. Secs. 1546,1559-66.

The legislature has the right to create a comprehensive pension system for cities over 250,000 in population and to treat all municipal employees similarly in the administration of that system. We do not find the classification made by the legislature to be either arbitrary or unreasonable. Thus the operation of the statute does not deny appellant equal protection of the law. Board of Trustees of Employees’ Retirement System of City of Montgomery v. Talley, 291 Ala. 307, 280 So.2d 553 (1973); State v. Pure Oil Co., 256 Ala. 534, 55 So.2d 843 (1952); Woco Pep Co. v. City of Montgomery, 213 Ala. 452, 105 So. 214 (1925).

Appellant’s third issue is whether the enactments of the pension law to the extent they contained the exclusionary provision violated Sec. 45 of the constitution in that the partial repeal of Tit. 37, Sec. 450(4) is not stated in the title.

The pension laws are general acts of local application. Such acts based on population classification are considered as if they were local laws although general in form. Connor v. State on Information of Boutwell, 275 Ala. 230, 153 So.2d 787 (1963); Donoghue v. Bunkley, 247 Ala. 423, 25 So.2d 61 (1946).

Both Sec. 1567(al4) and Sec. 450(4) relate to benefits accruing from service connected disability which has resulted from hypertension, heart disease or respiratory disease. Sec. 1567(al4) creates an exception to the operation of the conflicting provisions of Sec. 450(4) in cities over 250,000 in population. Thus to the extent of the re-pugnancy Sec. 1567(al4) repeals by implication the general law in the territory in which the local law is operative. Pitts v. Culpepper, 229 Ala. 449, 157 So. 841 (1934); 82 C.J.S. Statutes § 299.

The title to Act 1272 states:

“To amend Act No. 929 of the Regular Session of the Legislature of Alabama of 1951, approved September 12, 1951 (General Acts of Alabama 1951, page 1579, et seq.) entitled as amended “An act to create or provide in or for each and every city of the State of Alabama having a population of two hundred and fifty thousand or more inhabitants according to the last or any succeeding federal census a pension and relief or retirement and relief system for officers and employees of such city and their widows and children; to make the provisions of such system retrospective as well as prospective; and, subordinately, to define officers and employees of "the Board of Health of any county in which any such city may be located as officers and employees of such city for the purpose of retrospective and prospective application of the terms or provisions of such system; to make the provisions of such system applicable on and after September 1, 1969, to classified service employees of the Civil Defense Agency whose territorial jurisdiction or responsibilities include the territory of any such city, and to provide membership in the system for certain employees of a Civic Center Authority in any county in which any such city may be located.’ ”

We see no need to set out the titles to Acts 1209 and 1214 as they do not materially differ.

The subject of this act is expressed in general terms. To make a complete enactment it was necessary to set different qualifications for disability allowances that were service-connected from those that were not. We find the exclusionary provision of Sec. 1567(al4) is included within and authorized by the title. Thus it does not violate Sec. 45 of the Constitution. Dearborn v. Johnson, 234 Ala. 84, 173 So. 864 (1937).

Appellant also contends the pension laws as local laws violate Secs. 105 and 106 of the Constitution. Sec. 105 does not inhibit the passage of local laws on subjects not prohibited by Sec. 104 of the Constitution merely because the local law is different and works a partial repeal of the general laws of the state in the territory affected. Johnson v. State ex rel. City of Birmingham, 245 Ala. 499, 17 So.2d 662 (1944); Talley v. Webster, 225 Ala. 384, 143 So. 555 (1932). Neither do we find a violation of Sec. 106. We assume the legislature acted in good faith in creating this classification of pension laws for cities of over 250,000 people. Cobbs v. Home Ins. Co. of New York, 18 Ala.App. 206, 91 So. 627, cert. denied 207 Ala. 712, 91 So. 922 (1921). Based upon a substantial difference in population, it provides a reasonable basis for a difference in legislation concerning classifications. Dearborn v. Johnson, supra.

Appellant’s fourth issue is whether the trial court erred in excluding evidence that other Birmingham municipal employees disabled by heart attacks did receive extraordinary disability benefits.

Certainly one may prove denial of equal protection in the operation and administration of a statute as well as on its face. Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935).

Appellant failed to show in his offer of proof to the court that these other employees were similarly situated. In brief he discusses three cases which he offered. In one the trial court specifically found the disability did not come within the exclusionary provision of Sec. 1567(al4). In the other two it appears the individuals retired prior to the effective date of the exclusionary provision in 1969. Even had these cases been admitted, we find them unpersuasive because of substantially different facts. Appellant has introduced no evidence nor offered any proof that any other individual who retired while the exclusionary provision was in effect was awarded extraordinary benefits even though his disability was the result of heart disease. He has failed to meet his burden of proof. Board of Trustees v. Talley, supra.

Upon due consideration of the various objections raised by appellant, we affirm the judgment of the trial court that the decision of the Board of Managers was not plainly and manifestly wrong.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BEATTY, Justice.

text:
    In re C. D. NORRIS, Jr. v. George G. SEIBELS et al. Ex parte C. D. Norris, Jr.
    SC 2516.
    Supreme Court of Alabama.
    Dec. 9, 1977.

      C. V. Stelzenmuller, Birmingham, for petitioner.
    Charles T. Bradshaw, Birmingham, opposed.
    John S. Foster in behalf of Professional Fire Fighters Assn, of Ala. and Birmingham Fire Fighters Assn. Local Union No. 117, amicus curiae.
   BEATTY, Justice.

Certiorari was granted to resolve a purported conflict between the Court of Civil Appeals’ decision in the instant case and City of Tuscaloosa, v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975), and to consider the constitutionality of certain provisions of Act No. 1272 [1973] Ala.Acts 2143-44, specifically Appx. § 1567(a14), Alabama Code (Supp. 1973). We reverse and remand.

The first issue is whether the latter section may limit the disability compensation of a Birmingham fireman in view of the provisions of Title 37, § 450(4), Alabama Code (Supp. 1973).

Section 450(4) was enacted in 1967 as a law applicable to all cities, regardless of population, and to all municipal firemen within the state. It provided that hypertension and heart disease were a “fire fighters occupational disease,” and were to be compensable “as any service connected disability under any law which provides benefits for fire fighters of such city injured in the line of duty." (emphasis added) In construing this language, the Court of Civil Appeals .stated in Howard:

If he is disabled by heart disease he is entitled to “benefits” provided by the city through a monetary allowance or through a pension system in the same manner as he is for any other service-connected disability under any law other than the Fireman’s Heart and Lung Act. The obvious intent of the Act is to insure that disability from heart disease is recognized as a disability incurred in the line of duty and shall be recognized as such under any law which provides benefits for fire fighters of the city injured in the line of duty. (emphasis added)

We agree that this is a proper statement of the legislative intent as manifested by the language of the Act.

The successive amendments to the municipal pension laws which began in 1969 and which, in 1973, culminated in § 1567(al4) contained exclusionary provisions, the gist of which denied “extraordinary disability allowances,” payable as a result of accident arising out of the course of employment, when disability is based upon heart disease or hypertension.

Section 1567(al4) limits the application of § 450(4) by excluding cities with populations of 250,000 or more, e. g., the City of Birmingham. If a fireman in any other city contracts heart disease and becomes disabled, his municipal pension system must treat him as having become disabled in line of duty, and must compensate him as though he had been injured in line of duty. In Birmingham, however, his heart disease is not to be considered as an accident sustained in the course of his duty. Section 1567(al4), then, creates a separate class of firemen, such as those employed by the City of Birmingham, from those referred to in § 450(4).

Considering the preamble to the bill which became § 450(4)(Act No. 570, Acts of Alabama, 1967, p. 1323), it is evident that its purpose was to mandate that a municipal firefighter’s heart disease was to be considered as service connected. It dealt specifically with the effect of that disability upon the application of municipal pension laws to firemen. When § 1567(al4) was enacted later, on the other hand, it dealt with the effect of heart disease upon the application of the municipal pension law to employees generally. In other words, § 1567(al4) is an enactment generally applicable to all employees, while § 450(4) applies only to firemen.

The Court of Civil Appeals has held that the general law (§ 450(4)) has been repealed by implication by the local law (§ 1567(al4)). In this we believe that the Court of Civil Appeals was incorrect. Section 450(4) is a general statute which concerns the subject of firemen’s disability benefits as they are affected by heart disease. This general statute cannot be repealed by implication found in the local statute unless the legislative intent to effect such a repeal is clearly manifested. A perusal of Act No. 1272 (containing § 1567(al4)) provides no express purpose to repeal § 450(4). The section which refers to retrospective operation refers only to statutes containing a population classification of 250,000 or more. Accordingly, there is no express repeal of the special statute which clearly was intended to establish a state-wide system of uniform application. However, it does contain language implying that § 450(4) shall not apply to Birmingham firemen:

§ 1567(al4).
With respect to extraordinary disability allowances, hypertension, heart disease or respiratory disease shall not be considered as caused by accident, so as to entitle a participant to an extraordinary disability allowance, nor shall any participant . be entitled to an extraordinary disability allowance as a result of disability caused by hypertension, heart disease or respiratory disease, any other law, general or local, to the contrary notwithstanding. . (emphasis added)

This limitation certainly manifests a legislative intention to withhold the application of § 450(4) to the firemen employed under the system created by Act No. 1272, even though the latter did not expressly repeal the former in so many words. Accordingly, the Court of Civil Appeals was correct when it held that the general provisions of § 450(4) were by implication repealed by the local law, § 1567(al4).

We disagree with the conclusion of that Court, however, upon the issue of the constitutionality of § 1567(al4) as it applies to firemen. Whether the classification established in that local law violates the requirement of equal protection of the laws, as mandated by the United States Constitution, Amendment Fourteen, depends upon whether it is unreasonable or arbitrary. The inquiry is not foreclosed by the fact that § 1567(al4) pertains not only to firemen but to all other municipal employees as well because the effect of this legislation nevertheless is to create a separate class of firemen from those covered by § 450(4). In other words, all municipal firemen except those falling within the terms of Act No. 1272 (containing § 1567(al4)) are to receive line of duty disability benefits for heart disease.

What we stated in City of Birmingham v. Moore, 248 Ala. 422, 27 So.2d 869 (1946) concerning acts resting upon a population classification controls here. That case dealt with a general act of local application based upon a population classification. The Act itself authorized the creation of Redevelopment Agencies and was modeled after the general state law which related to the creation and operation of municipal housing authorities. The material difference between the two laws was that the general law of local application did not allow public housing bodies to construct and operate housing projects, which the general state law authorized. This Court struck down the Act because it was based upon “an arbitrary classification without proper relation to the subject matter.” This is the deficiency here.

The purpose of Act 1272 is to provide for a comprehensive pension and relief or retirement and relief system for officers and employees (and their dependents) in cities having 250,000 or more, inhabitants according to the last or succeeding federal census. To the extent that it applies to firemen, the conditions under which they are to qualify for disability benefits due to heart disease are restricted. Why? We may paraphrase Moore by stating that the fact that the municipality affected is the largest in the state bears no reasonable relationship to the purpose of the Act, for if the Act’s purpose is to provide protection from disability to firemen disabled by occupational disease, the size of the city can bear little or no relationship to the diseases inherent in the performance of that occupation. While we recognize that there is no constitutional proscription against state treatment of classes of persons in different ways, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), the different treatment must be a rational one in order to avoid proscription under the federal constitution. Is it to be assumed that the fires are less hazardous, the water warmer, the days and nights shorter, and the hours easier, simply because the corporate boundaries extend over more people?

The appellees suggest that the legislature could have determined that it would be unfair to require policemen to be injured in order to receive the benefits involved here, and at the same time allow those identical benefits to a fireman who developed progressive heart disease. We do not have any policemen’s pension laws before us except the one implicit in Act 1272, but we point out that any situation which has caused such a disparity has been created by the legislature itself when it enacted the Act in question while at the same time leaving § 450(4) on the statute books. And this Court has on numerous occasions announced the guidelines under which the classification system must operate. In State v. Pure Oil Co., 256 Ala. 534, 538, 55 So.2d 843 (1951) we stated that the classification:

(4) must be based on substantial distinctions which make one class different from another; and (5) must be reasonable under the facts of the case, and not oppressive and prohibitive. .

Those guidelines had been utilized previously. Opinion of the Justices, 252 Ala. 527, 41 So.2d 775 (1949). Those standards were applied also in Board of Trustees v. Talley, 291 Ala. 307, 280 So.2d 553 (1973). Moreover, we struck down a classification contained in a general law, in Comer v. City of Mobile, 337 So.2d 742 (Ala.1976) because the classification bore no reasonable relationship to the purpose to be effected by the legislation.

In the instant case, as we have observed, there are no substantial distinctions perceptible between the firemen in the cities covered and those in all other cities, making that one class different from the others. Rather than being a reasonable approach to whatever job distinctions exist between occupations, Act 1272 has lumped firemen with all others, even though the legislature previously had found that firemen in all municipalities were entitled to line of duty compensation when disabled by heart disease. Such a grouping, when based upon a population classification, is arbitrary rather than reasonable in denying to Birmingham firemen those benefits which all other municipal firemen statutorily receive. And when one bears in mind that the purpose of this legislation was to establish a pension and retirement plan for firemen (and others) as an exception to the benefits provided for firemen by prior legislation of general application, we confront a population classification bearing no reasonable relationship to the plan, exempting some simply because their municipal employer is of a certain size.

Thus we hold that Act 1272, as it applies to firemen, is invalid under the federal Constitution and cannot be administered in a manner which denies to that class of employees the benefits conferred by Title 37, § 450(4). We do not address ourselves to the validity vel non of Act 1272 in any other respect. And because on that issue the case must be remanded to the Court of Civil Appeals for an order by that Court consistent with this opinion, it is unnecessary to address the other issues raised by the appellant.

REVERSED AND REMANDED.

All the Justices concur.


text:
    C. D. NORRIS, Jr. v. George G. SEIBELS et al.
    Civ. 1013.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1978.
   WRIGHT, Presiding Judge.

In conformance with the judgment of the Supreme Court of Alabama dated December 9, 1977, 353 So.2d 1165, the judgment of the Circuit Court of Jefferson County, Albama, of August 2, 1976, is reversed and this case is remanded to that court for further proceedings therein.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ, concur.


text:
    Joan GALLUPS, as widow and dependent of Tommy L. Gallups, Deceased v. UNITED STATES STEEL CORPORATION.
    Civ. 1223.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1978.

      John Martin Galese and William P. Prosch, Jr., Birmingham, for appellant.
    Robert G. Tate and T. Thomas Cotting-ham, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from denial of a Rule 60(b) motion, ARCP. We affirm.

The judgment sought to be set aside by a Rule 60(b) motion denied workmen’s compensation benefits to Joan Gallups as the widow of the deceased employee of United States Steel Corporation. The basis for denial of benefits was that the deceased’s own conduct (intoxication) was the proximate cause of his death.

The 60(b) motion was filed by counsel other than trial counsel less than ninety days after judgment. The motion stated that it was filed under 60(b)(2) and 60(b)(6). The 60(b)(2) ground of newly discovered evidence was delineated as a report of an investigation of the accident resulting in the death of the deceased made by the Occupational Safety and Health Administration (OSHA). The report was alleged to establish or tend to establish that the death of the deceased was caused by road conditions rather than intoxication. It was further alleged that the report contained statements of multiple witnesses which rebutted the intoxication of the deceased and that U. S. Steel knew of the information in the report at the time of trial and failed to disclose it.

The trial court heard and considered the motion with the exhibits attached and certain stipulations and exhibits presented in response to the motion. The motion was denied.

Preparatory to discussion of the issues presented, we will briefly refer to the evidence presented in the original case.

The deceased was a 32-year-old employee of U. S. Steel. On February 13, 1976, he was employed as driver of a heavy truck moving hot slag from the area of a furnace producing steel to a disposal yard some mile or more distance away. The entire trip was within the property of U. S. Steel. At the time of the accident, the truck with load weighed about 70,000 pounds and was proceeding on an unpaved road with a slight downgrade. As the truck entered a slight curve it continued in a straight line without evidence of braking, over an 18-inch berme and turned bottom up into a 10-foot ditch. The hot slag ignited the cab of the truck and the deceased burned to death.

Deceased had reported to work on the day of his death at about 2:30 P.M. after consuming at least two bottles of beer with his lunch. Blood sample taken at autopsy and examined by the Department of Toxicology disclosed ethyl alcohol content of 0.29%. This was sufficient alcohol to cause extreme intoxication.

It was from such evidence that the trial court determined death to have been caused by intoxication. It is to be recognized that this appeal presents for review only the correctness of the judgment denying the 60(b) motion and in no manner reviews the correctness of the final judgment after trial. Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975). In considering the action of the court upon a Rule 60(b) motion we look only to determine if there has been an abuse of discretion. Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975).

Appellant contends that the discovery of the OSHA report presents sufficient ground for relief from the judgment under 60(b)(2). Without commentary upon the reliability or admissibility of the contents of that report, the court did not erroneously reject it as “newly discovered” evidence. That report was issued on April 28, 1976, slightly over two months from the date of the accident. The case was tried on November 8, 1976 with appellant being represented by one of the most capable partners in one of the most outstanding plaintiff law firms in the state. There is no indication that the matters referred to in the OSHA report were not fully investigated and considered by trial counsel. There certainly is no indication that such information could not have been discovered by due diligence. The evidence termed “newly discovered” by the rule is that which was not known at time of trial and could not have been discovered by due diligence in time to move for a new trial. Moody v. State, 344 So.2d 160 (Ala.1977). The burden is on the moving party to show that he now has such “newly discovered” evidence and why through due diligence it was not discovered in time to seek a new trial under Rule 59, ARCP. Plisco v. Union R. R., 379 F.2d 15 (3rd Cir. 1967). The trial court did not abuse its discretion in determining that the ground of newly discovered evidence was not sufficiently established.

Appellant further contends that relief from the judgment was due her under Rule 60(b)(3) (fraud and misrepresentation). She charges that U. S. Steel substantially altered the road and scene of the accident thereafter.

We are unable to follow this contention. Even if it were shown to be true that U. S. Steel altered the road after the accident and such alteration was admissible in evidence, we are unable to discern fraud unless such alteration was for the purpose of presenting false information or conclusions as to the conditions at the scene when the accident occurred. Appellant does not allege nor show that the condition of the scene was misrepresented by U. S. Steel or that such alteration was clandestine and made for the purpose of hiding the true condition. For aught that appears the work stated to have been done was to repair for further use. We find no basis for error there.

Appellant next contends right to relief under 60(b)(6). The essence of this contention is that the finding of cause of death due to intoxication in the judgment is not supported by legal evidence. This contention is nothing more than an effort to substitute Rule 60(b)(6) for an appeal. Rule 60(b)(6) is an extreme and powerful remedy and should be used only under extraordinary circumstances. Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950). It is not available to relieve from failure of a party to exercise the right of appeal. Tichansky v. Tichansky, 54 Ala.App. 209, 307 So.2d 20 (1974).

Though unnecessary, we state that we do not agree that the evidence of the amount of alcohol in the blood of deceased was illegal for any reason argued by appellant.

We find no abuse of discretion in the denial of appellant’s Rule 60(b) motion ánd affirm the judgment of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Stephen WILLIAMS and Lugrether Williams v. WILLIAMSON TRUCK LINES, INC.
    Civ. 1232 and 1232-A.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1978.

      Hubbard H. Harvey, Demopolis, for appellants.
    W. W. Dinning for Lloyd, Dinning & Boggs, Demopolis, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal by plaintiffs from the denial of a motion for new trial. The only issue is the inadequacy of the damages awarded.

The cases of Stephen Williams and his wife, Lugrether Williams were consolidated for trial and for appeal. The cases arose Out of an automobile accident. After trial the jury returned a verdict in favor of Stephen Williams in the amount of $5,515.59 and one in favor of Mrs. Williams in the amount of $1,224.40. Motion for new trial on the inadequacy of each verdict was denied.

The essence of plaintiffs’ argument is that the amounts of the verdicts are precisely the amounts of the proven specials and nothing was awarded for injury and pain and suffering. In Mr. Williams’ case the undisputed amount of medical expense was $1,436.59. His testimony was that he lost wages of $2,800.00 and his truck was a total loss and was of the value of $1,200.00. These figures total $5,436.59, only $79.00 less than the verdict of the jury.

Mrs. Williams’ medical expenses totaled $1,017.40 including a stated error of $6.00 in the hospital bill. She stated she lost $207.00 in wages before she was able to return to work. The total of these figures is $1,224.40, the exact amount of the verdict in her case.

Plaintiffs submit that verdicts in these amounts require the conclusion that damages were awarded only for medical and earnings loss with no award for the permanent impairment nor for pain and suffering.

Defendant suggests that though the amounts of the medical bills were undisputed, there was conflict in the evidence as to whether Mr. Williams lost wages and whether his valuation of his truck was correct. The contended conflict as to loss of wages really was as to whether he was employed. Mr. Williams stated he was employed as a janitor at a salary of $200 per month when injured and he was unable to perform such work afterward. Defendant presented a witness who knew Williams and had been in close contact with him for several years. The witness stated that so far as he knew Williams was not employed other than on his small farm. However, the witness admitted the possibility that he could have been employed without his knowledge.

Defendant further contends conflict in the testimony as to the truck. Williams stated the model year to be 1969 with a value of $1,200. The highway patrolman who investigated the accident stated the model year of the truck was 1965.

It is suggested by defendant that the jury, after consideration of the evidence, could have determined that Williams was not employed and had suffered no loss of wages, and that the jury could have determined that the truck was a 1965 model and not worth the $1,200 set by plaintiff as the value of a 1969 model. If it made one or both of these determinations, the verdict could include an award for pain and suffering and for permanent injury.

It has been stated that the verdict of a jury is clothed with a presumption of correctness and such presumption is strengthened by a denial of a motion for new trial. Prescott v. Martin, 331 So.2d 240 (Ala.1976). It has further been the rule in this state since Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1890) that such presumptions are considered when a jury award is challenged on the ground of inadequacy of damages and the reviewing court will reverse only if the preponderance of the evidence against the verdict is so great as to convince the court that it is wrong and unjust. Grayson v. Alexander, 347 So.2d 108 (Ala.Civ.App. 1977).

In applying the rule of Cobb v. Malone & Collins, supra, various views have been expressed. One test applied has been whether the verdict gives substantial compensation for substantial injury. Walker v. Henderson, 275 Ala. 541, 156 So.2d 633 (1963); Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447 (1932). A second test is whether the verdict is enough to compensate for proven expenses. Alabama G. S. RR. v. Randle, 215 Ala. 535, 112 So. 112 (1927). Another test is whether after covering proven expenses the verdict compensates for proven pain and suffering. King v. Sturgis, 45 Ala.App. 553, 233 So.2d 495 (1970).

These tests are easily applied, where the evidence is without conflict and is documented; however, when some of the evidence is opinion and only one opinion, there arises the question of what latitude the jury has in weighing such evidence. It has been said that opinion evidence, even of experts and without conflict, is not conclusive upon the jury. O’Neill v. City of Birmingham, 221 Ala. 580, 130 So. 87 (1930).

“It is the duty of the jury to duly weigh and consider all evidence offered in the cause, but if upon due consideration they are not impressed with the expert evidence, which is not binding on them, then they may disregard the same.” Batterton v. City of Birmingham, 218 Ala. 489, 119 So. 13 (1928).

Thus we were formerly impressed that though there was unconflicting opinion evidence of value or damage, the jury was yet not bound to that amount but could return a verdict for a lesser amount in light of their own knowledge and experience in determining values. O’Neill v. City of Birmingham, supra.

In light of recent decisions of the Supreme Court, our impression of the right of the jury to reach its own conclusion of value in spite of unconflicting opinion evidence has changed.

In the recent case of Stone v. Echols, 351 So.2d 902 (Ala.1977), there was uncontra-dicted testimony by the owner that his totally destroyed 1972 Pontiac automobile was of the value of $4,500. The jury returned a verdict for $4,000. The Supreme Court, citing the decision in Farmers & Ginners Cotton Oil Co. v. Reliance Ins. Co., 341 So.2d 147 (Ala.1976) said:

“The jury’s verdict of $4,000.00 in light of uncontradicted testimony that the car was worth $4,500.00 is unsupported by the evidence and must be set aside. Farmers & Ginners Cotton Oil, supra.”

The only reasonable conclusion to be reached from these decisions is that a jury verdict for damages cannot stand if it varies from an uncontradicted opinion of value.

Therefore, we find that the testimony of the witness that he knew of no employment by plaintiff Williams did not contradict the testimony of plaintiff as to his loss of wages. Neither did the testimony of the trooper that the truck was a 1965 model contradict plaintiff’s opinion that his truck was of the value of $1,200.00. With such finding we must conclude that the jury, having determined defendant to be liable in damages, could find his special damages to be no less than the sum of the medical bills, the lost wages and the opinion value of the truck, said sum being $5,436.59. That being the case, the verdict of $5,515.59 must be set aside. It awards only $79.00 for pain and suffering of his injuries and aggravation of his arthritic condition and permanent injury. Such an award is so little in today’s inflated economy as to amount to no award at all. Yarbrough v. Mallory, supra. The verdict in Mrs. Williams’ case is even less arguably proper than that of her husband. The verdict in her case was in the exact amount of the sum of her medical bills and testimony of lost wages. The argument of defendant that her testimony was subject to an inference that she did not have to remain off her work so long due to her injury is not reasonable. Though her injuries were not extreme, she was bruised and shaken, and spent some ten days in the hospital. Her injuries must be considered to have been accompanied by some compensable pain and suffering. Such injury, coupled with the fact that her verdict was in the amount of her specials to the penny, clearly indicates that the verdict was arrived at by adding up the specials without provision for pain and suffering. The verdict falls within the decisions of Dunn v. Easley, 42 Ala.App. 51, 151 So.2d 791 (1963); Yarbrough v. Mallory, supra, and Lipham v. McElroy, 57 Ala.App. 96, 326 So.2d 290 (1976) and must be set aside.

The judgments in each case are reversed and the cases remanded.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.