author: LEE, Justice:

text:
    STONEWALL INSURANCE COMPANY v. Arven L. McQUEEN et al.
    No. 48842.
    Supreme Court of Mississippi.
    Sept. 28, 1976.
    Bryant & Stennis, Roger T. Clark, Gulf-port, for appellant.
    Breland & Barnett, Gulfport, for appel-lees.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   LEE, Justice:

Judgment for ten thousand dollars ($10,-000.00) was entered in favor of Arven L. McQueen and Marie McQueen against Stonewall Insurance Company by the Circuit Court of Hancock County, and Stonewall appeals.

Appellees’ twenty-three-year-old son Gary Wayne McQueen, obtained a general liability insurance policy with the standard uninsured motorist clause from appellant on March 16, 1974. He was riding in a 1973 Oldsmobile automobile driven by seventeen-year-old Charles R. Shealy on September 12, 1974, when the automobile failed to go around a curve and hit a bridge railing. McQueen was killed instantly.

The sole question involved is whether or not the Shealy automobile was covered by liability insurance, or, stated differently, whether or not Shealy was an uninsured motorist.

Appellant admitted that it issued its policy of liability insurance with the standard uninsured motorist clause covering the McQueen vehicle, but entered a general denial that the Shealy automobile was not covered by liability insurance, which effectively joined that issue. [Mississippi Code Annotated § 11-7-59 (1972)]. The only witnesses who testified about insurance were Charles Renee Shealy, the driver, and Mrs. Melba Jean Shealy, his mother. Title to the automobile was in their father and husband, Charles E. Shealy, who worked on a barge and spent considerable time outside the continental United States. The year prior to September 12, 1974, he was home approximately four and one-half (iVz) months. During an undetermined part of that period, he purchased the automobile and occasionally drove it from their home in Picayune to the place where the barge was docked near Morgan City, Louisiana.

Charles Renee Shealy testified there was no insurance on his father’s automobile, but on cross-examination, he admitted he had little knowledge of liability insurance, and his testimony has little probative value. Mrs. Melba Jean Shealy testified as follows:

“Q. On September 12, 1974, did you all have liability insurance?
BY MR. GEX: To which we object.
BY THE COURT: Overruled.
BY THE WITNESS: We did not have any liability insurance. Can I explain it? Can I tell you why I didn’t, or does it matter.
BY THE COURT: It really doesn’t matter.
BY THE WITNESS: On September 12, 1974 we had no liability insurance on this car that was wrecked.”

On cross-examination, Mrs. Shealy testified as follows:

“Q. And you don’t know whether he [Mr. Shealy] might have purchased insurance while he was down there [Morgan City], do you?
A. Of course, I don’t know first-handedly, because I wasn’t there with him.”

When the appellees rested their case, appellant moved for a directed verdict, which motion was overruled by the court, and it then rested. The jury verdict was for ten thousand dollars ($10,000.00).

The appellant relies upon the case of State Farm Mutual Automobile Ins. Co. v. Stewart, 288 So.2d 723 (Miss.1974), wherein the sole question on appeal was whether or not the vehicle in which appellees were riding was covered by a policy of liability insurance. In that case, the only witnesses testifying about the uninsured status of the vehicle were Easterling, plaintiff’s attorney, and Joe E. Smith, the claims supervisor for Liberty Mutual Insurance Company, all of which testimony was hearsay. This Court held there was no competent evidence establishing that the vehicle was not covered by liability insurance, and the case was reversed and judgment rendered for the appellant.

We distinguish the present case from the Stewart case in the following respects:

(1) Charles E. Shealy, Mrs. Melba Jean Shealy and Charles Renee Shealy were residents of the same household, and, had there been a policy of liability insurance in effect, each of them would have been an insured.

(2) Charles Renee Shealy testified there was no liability insurance on the vehicle, although his knowledge of insurance was limited.

(3) Mrs. Melba Jean Shealy positively testified the vehicle was not covered by liability insurance on the date of the accident. On cross-examination, she admitted, “Of course, I don’t know first-handedly [that he did not obtain insurance in Louisiana] because I wasn’t there with him.” Mr. Shealy worked away from home most of the time, and the inferences are strong that his wife was the head of the household during his absence and that she was knowledgeable about the family business and attended to same. In fact, while testifying she said, “Can I tell you why I didn’t [get liability insurance] or does it matter.” She did not explain because the trial judge told her, “It doesn’t matter.”

The case of Montague v. Jones, 254 Miss. 104, 180 So.2d 316 (1965), cited by appellant, correctly states the rule on requests for a directed verdict and peremptory instruction as follows:

“It is a settled rule that when considering a motion for a directed verdict all evidence in favor of the party against whom the motion is made must be considered as true and the evidence in contradiction thereof must not be considered. If the evidence on behalf of the party against whom the motion is made and the reasonable inferences that may be drawn therefrom would support a verdict, the motion should be overruled.” 254 Miss. at 107, 180 So.2d at 317.

We think that the testimony of Charles Renee Shealy and Mrs. Melba Shealy, together with reasonable inferences therefrom, is sufficient to withstand the request for a peremptory instruction and the motion for judgment non obstante veredicto on the uninsured motorist issue. However, we hold that the verdict is against the weight of the evidence on that issue.

While the motion for judgment notwithstanding the verdict did not contain an alternative request for a new trial, ten errors were recited therein, being those usually assigned on motion for a new trial, including the assignment that the verdict was against the overwhelming weight of the evidence. This ground was brought to the attention of the trial court, and we treat the motion as a request for a new trial, and we reverse and remand the case for that purpose.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: BROOM, Justice,

license: Public Domain

text:
    Frances Simmons LEE, Executrix, et al. v. J. C. LEE, Conservator.
    No. 48809.
    Supreme Court of Mississippi.
    Sept. 28, 1976.

      M. M. Roberts, S. Wayne Easterling, Hat-tiesburg, for appellants.
    Holmes, Dukes & Welborn, Alfred B. Jer-nigan, Jr., Hattiesburg, for appellee.
    Before INZER, SMITH and BROOM, JJ.
   BROOM, Justice,

for the Court:

While his estate was under conservator-ship, Herbert Hall Lee (now deceased) executed his Last Will and Testament without court authority or knowledge of his conservator. The Chancery Court of Forrest County decreed that the Will was invalid, but we reverse.

The controlling issue is: May a person whose estate is under conservatorship execute a valid will without court authority or consent of the conservator?

In 1968 Herbert Hall Lee, because of old age and physical incapacity, was placed under conservatorship by a decree which limited the conservatorship to the property and estate of the deceased. In 1970, while the conservatorship was still pending, he executed his Last Will and Testament. On March 28, 1973, he died — still under the conservatorship. The will was duly admitted to probate upon affidavit of two of the three subscribing witnesses. Pursuant to the decree admitting, the will to probate, letters testamentary issued and notice to creditors was published. The will devised the homestead property to the widow and the remaining land in equal shares to her and the four children. Two of the children were of the first marriage of the decedent, and the other two were of his second marriage which was to Mrs. Frances Simmons Lee (one of the appellants).

By our per curiam affirmance in Lee v. Lee, Conservator of Estate of Herbert H. Lee, and Herbert H. Lee, 275 So.2d 851 (Miss.1973), we upheld the lower court’s ruling that one under conservatorship was without the necessary contractual power to execute a valid land deed. The deed which we held to be void in that case was dated May 9, 1970, the date of the Last Will and Testament involved in this suit. Argument is made that under Mississippi Code Annotated § 93-13-261 (1972), an individual under a conservatorship cannot accomplish by will that which is prohibited “directly by deed.”

Who has the power to execute a will is set forth in Mississippi Code Annotated § 91-5-1 (1972). Under that statute any person “of sound and disposing mind” who is twenty-one years of age, or a married minor eighteen years of age, may execute a will. The testator, Herbert Hall Lee, was within the purview of § 91-5-1 when he signed the will now before us. Our earlier decision in Miss., 275 So.2d 851 dealt with the right of an individual under a conservatorship to execute a land deed, which is a contract and distinguishable from a will. Generally a consideration is an essential ingredient of a contract, but such is not true as to a will. Whereas a will is gratuitous and revokable at the whim of the testator — not so of a deed. A will is a unilateral disposition of property which need not be delivered or accepted (during the life of its maker), and may exist without knowledge of one beneficiary to it, but a deed differs in these respects. Mindful of the elemental distinctions between wills and contracts, the legislature enacted the statutes referred to under which Herbert Hall Lee had the legal power to devise his estate if mentally competent.

In the decree admitting the will to probate, the court found that the deceased was of sound and disposing mind and memory at the time he executed the will. The record reveals no finding by the chancellor thát the testator was mentally incompetent. He based his decree on the theory that one under a conservatorship, pursuant to Mississippi Code Annotated § 93-13-251 (1972), simply cannot execute a valid will without the knowledge of the conservator or permission of the court. The general law (recognized by the chancellor) is that an insane person may execute a valid will “in a lucid interval.” Gholson v. Peters, 180 Miss. 256, 176 So. 605 (1937). Although the conservator in this case had legal control of the property and estate of the testator, this did not affect the testamentary capacity of the one whose property was under the conser-vatorship. The key to testamentary capacity is mental competency at the time the will is made. Scally v. Wardlaw, 123 Miss. 857, 86 So. 625 (1920). Regardless of the existence of the conservatorship, one whose property is under conservatorship may execute a valid will during lucidity, if possessed of the requisite understanding and mental capacity. The affidavits of the subscribing witnesses to the will indicate that the testator was of sound mind and disposing memory as was adjudicated by the court decree admitting the will to probate. Admission of the will to probate was of itself prima facie evidence of its validity.

The general rule is that testamentary capacity is in nowise cut off - by the existence of a conservatorship. Thomas v. Hamlin, 56 Tenn.App. 13, 404 S.W.2d 569 (1964). Though the existence of a guardianship of an insane person is notice to the world of his incapacity to make a valid contract, we are not here dealing with a contract but with a will which (unlike a contract) takes effect after death. Mississippi Code Annotated § 93-13-261 (1972) limits the contractual and conveyance powers of one involved in a conservatorship, but does not restrict his right, competency or power to execute a will. We hold that a person of sound and disposing mind whose property or estate has been placed under conservatorship may execute a valid will. Tucker v. Bowen, 345 Mass. 27, 234 N.E.2d 896 (1968). Accordingly, the decree appealed from must be reversed and judgment will be entered here to the effect that the will in question is valid and binding just as written. Upon remand the lower court will proceed in a manner not inconsistent with this opinion.

REVERSED AND REMANDED.

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


author: SUGG, Justice,

text:
    John B. HUFFMAN v. Janice GRIFFIN.
    No. 48601.
    Supreme Court of Mississippi.
    Sept. 28, 1976.

      Harry Lanier Foote, Jackson, for appellant.
    Johnston & Adams, Brandon, for appel-lee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

Janice Griffin, petitioner, filed a petition for writ of habeas corpus in the County Court of the First Judicial District of Hinds County against John B. Huffman, respondent, for the custody of Tammy Gene Huffman, the daughter of the parties who was born on July 12, 1970. Petitioner was awarded custody of the child and the appeal by respondent presents the following questions.

(1) Was an Alabama decree awarding custody of the child entitled to full faith and credit? (2) Did a child custody suit pending in chancery court deprive the county court of jurisdiction to hear the petition for writ of habeas corpus? (3) Did the habeas corpus court have jurisdiction when the child, whose custody was the subject matter of the suit, was physically absent from the state when the petition was filed and process issued, but was returned to the state by respondent before the hearing was concluded because the court threatened to punish him for contempt if he did not return the child to the state for the habeas corpus hearing? (4) Did the trial court err in holding that there had been no material and substantial change in circumstances requiring a modification of the Alabama decree of October 17, 1973?

I

WAS AN ALABAMA DECREE AWARDING CUSTODY OF THE CHILD ENTITLED TO FULL FAITH AND CREDIT?

Petitioner and respondent were formerly husband and wife and resided in Hinds County, Mississippi. About April 2, 1973, petitioner separated from respondent and carried the child of the parties with her to Coffee County, Alabama. She filed a bill of complaint in equity in the Circuit Court of Coffee County on April 4, 1973, seeking custody of the child and the exclusive use of an automobile. An order was entered on April 4 awarding petitioner custody of the child and exclusive use of an automobile pending final hearing of the cause.

On May 14 petitioner amended her bill of complaint and prayed for a divorce and support for the child. On the same day respondent filed an answer, waiver, consent, and a separation agreement executed by both parties. On the following day, May 15, the Alabama court granted petitioner a divorce from respondent. In addition to granting petitioner a divorce the decree contained the following provision:

“It is further ordered, adjudged and decreed by the Court that the agreement of the parties hereto be, and the same hereby is, incorporated into and made a part of this decree.

On September 17, 1973, respondent filed a motion to modify the decree of May 15, and alleged that petitioner was no longer a fit and proper person to have the care and custody of the child. Petitioner filed an answer and petition for rule nisi on October 16. On October 17 the circuit court heard evidence on the motion to modify, motion for rule nisi and answer. The court denied the relief sought by each party on its finding that there had been no material and substantial change in the circumstances of the parties since its decree of May 15.

This action of the court left in effect the custody provision of its former decree which awarded custody of the child to petitioner and required respondent to pay $125 per month child support. In odd numbered years respondent was to have the right to have the child visit him at his residence from June 15 to July 15 and in even numbered years for twenty-one days beginning on June 15 plus one week during Christmas. Respondent was also given the right to weekly visits with the child at reasonable times and places.

Respondent contends that the Alabama decree awarding custody of the child of the parties is not entitled to full faith and credit. This contention is based on the requirement of Section 29, Title 34, Alabama Code of 1940 (1973 Supp.) that a bill for divorce, when the defendant is a non resident, must allege that the complainant has been a bona fide resident of Alabama for six months before filing the bill. The failure of the petitioner to allege and prove that she had been a resident of Alabama for six months next before the filing of the bill causes the divorce decree to be invalid and subject to being set aside on collateral attack. McGough v. McGough, 47 Ala.App. 709, 261 So.2d 49 (Ct.Civ.App.1971), cert. den., 288 Ala. 746, 261 So.2d 53 (1972).

Because the divorce decree of May 15, 1973, is invalid and subject to collateral attack for the reasons stated in McGough, supra, it does not follow that the portion of the decree awarding custody of the child should not have been accorded full faith and credit by the Mississippi court. The rule in Alabama is that divorce decrees are divisible when custody of children is involved. In Stallworth v. Stallworth, 272 Ala. 449, 131 So.2d 867 (1961), the Supreme Court of Alabama held that a decree of divorce was void for want of jurisdiction, but refused to invalidate the custody provisions of the decree. The Court stated:

While we have condemned the portion of the court’s decree which awarded the divorce, this does not necessarily require us to invalidate the entire decree. Avery Freight Lines Inc. v. Persons et al., 250 Ala. 40, 32 So.2d 886. It is true that the court appears to have proceeded under the authority of § 35, Title 34, Code of 1940, to make an award of the custody of the children to the complainant. But this court has said that regardless of the statute, ‘whenever the welfare of the children is concerned and the jurisdiction of the court is invoked, the court has an inherent power to enter a decree for their custody and support.’ Butler v. Butler, 254 Ala. 375, 377, 48 So.2d 318, 319. (131 So.2d at 870).

Calhoun v. Calhoun, 46 Ala.App. 381, 243 So.2d 37 (1970) held that custody provisions in a divorce decree were enforceable although the divorce was not valid because the bill of complaint failed to aver that the plaintiff was a resident of the state for more than one year before filing the bill of complaint.

[T]he bill of complaint, while praying for divorce, also contained averments as to the custody and support of the children, sufficient to invoke the jurisdiction of the court for that purpose. The original order of the court of December 17, 1965, found and accepted jurisdiction only for that purpose. The decree of June 13, 1966, was in fact, only for temporary support of the children.
It has long been settled in this state that a court of equity is the inherent guardian and protector of minor children within its jurisdiction, and no technical requirements of pleading are necessary to invoke such jurisdiction. Stallworth v. Stallworth, 272 Ala. 449, 131 So.2d 867; Butler v. Butler, 254 Ala. 375, 48 So.2d 318; Scott v. Scott, 247 Ala. 598, 25 So.2d 673. (243 So.2d at 40).

The Alabama divorce decree is divisible, and although the divorce awarded by the decree may be subject to collateral attack, the portion of the decree dealing with child custody is valid and is not subject to collateral attack. Where a party appears in a case and is accorded full opportunity to contest the issues, including jurisdictional issues, the doctrine of res judicata may be applied to questions of jurisdiction arising in the case involving the full faith and credit clause where, under the law of the state in which the original judgment was rendered, such adjudication is not susceptible to collateral attack. Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451 (1945). We therefore hold that the custody and support provisions of the Alabama decree were not subject to collateral attack and the trial court properly accorded full faith and credit to the decree.

II

DID A CHILD CUSTODY SUIT PENDING IN CHANCERY COURT DEPRIVE THE COUNTY COURT OF JURISDICTION TO HEAR THE PETITION FOR WRIT OF HABEAS CORPUS?

On July 9, 1974, petitioner filed a petition for writ of habeas corpus in the County Court of the First Judicial District of Hinds County against respondent seeking custody of the child of the parties. Respondent filed a motion to dismiss the petition for writ of habeas corpus on several grounds, one being that there was pending in Hinds County Chancery Court a child custody suit filed by respondent against petitioner. The motion averred that the chancery court suit was filed and process served prior to the filing of the petition for writ of habeas corpus. Respondent identified a copy of a petition for child custody filed by him July 1, 1974, under the provisions of Mississippi Code Annotated section 93-11-65 (1972), but did not show that process had been issued or served in the chancery court case.

This motion raises the issue of priority jurisdiction between courts of concurrent jurisdiction. The principal of priority jurisdiction is that where two suits between the same parties over the same controversy are brought in courts of concurrent jurisdiction, the court which first acquires jurisdiction retains jurisdiction over the whole controversy to the exclusion or abatement of the second suit. Lee v. Lee, 232 So.2d 370, 373 (Miss.1970); Ladner v. Ladner, 206 So.2d 620, 625 (Miss.1968); 20 Am.Jur.2d Courts § 128, at 481 (1965); 1 C.J.S. Abatement and Revival § 33, at 58-59 (1936); 21 C.J.S. Courts § 492, at 745 (1940).

In this state priority of jurisdiction between courts of concurrent jurisdiction is determined by the date the initial pleading is filed, provided process issues in due course. Euclid-Mississippi v. Western Casualty and Surety Company, Inc., 249 Miss. 547, 559-60, 163 So.2d 676 (1964); Shackelford v. New York Underwriters Insurance Company, 189 Miss. 396, 407-08, 198 So. 31 (1940); Mississippi Code Annotated sections 11-7-33 and 11-7-1 (1972).

In order for respondent to prevail on his motion to dismiss it was necessary that he prove, not only that he had filed a suit in chancery court, but also that process had issued in the suit or, if process had not issued, respondent was not at fault. In Euclid-Mississippi, supra, movant introduced the declaration together with proof of process on defendant. This is the proper procedure. Respondent’s motion must fail because he did not introduce evidence that process was issued and served in due course or that he was not responsible for the failure to issue and serve the process.

III

DID THE HABEAS CORPUS COURT HAVE JURISDICTION WHEN THE CHILD, WHOSE CUSTODY WAS THE SUBJECT MATTER OF THE SUIT, WAS PHYSICALLY ABSENT FROM THE STATE WHEN THE PETITION WAS FILED AND PROCESS ISSUED, BUT WAS RETURNED TO THE STATE BY RESPONDENT BEFORE THE HEARING WAS CONCLUDED BECAUSE THE COURT THREATENED TO PUNISH HIM FOR CONTEMPT IF HE DID NOT RETURN THE CHILD TO THE STATE FOR THE HABEAS CORPUS HEARING?

Respondent brought the child to Mississippi from Alabama on June 15,1974, for an approved twenty-one day visit and refused to surrender custody at the end of the visitation period. Respondent sent the child out of the state on July 6, 1974, to visit relatives and the child had not been returned to the State of Mississippi when the petition for habeas corpus was filed on July 9, 1974. The child was in the state on July 1, 1974, when respondent invoked the jurisdiction of a court in this state by filing a petition in Hinds County Chancery Court for custody of the child. Respondent moved to dismiss the petition for writ of habeas corpus on the ground that the child was outside the state when the petition was filed, process served, and the case called for hearing.

Respondent invoked the jurisdiction of a court in this state to determine the custody of his child in a chancery suit, but moved to dismiss the habeas corpus proceedings brought by the mother on the ground that another court in the same county had no jurisdiction because the child was out of the state. The child was returned to the state before the hearing on the habeas corpus case was concluded. Under these facts we hold that the court had jurisdiction to proceed with the habeas corpus hearing and render a judgment.

Respondent contends further that the child was returned to the state only because he was coerced by the court under threat of citation for contempt and therefore the court did not acquire jurisdiction of the child.

We have not had occasion to address ourselves to the question of the authority of a court to require a resident defendant who has control of a child, and who has been personally served with process or made a voluntary appearance, to compel such person to produce the child before the court when such person has sent the child out of the state.

Rivers v. Mitchell, 57 Iowa 193, 10 N.W. 626 (1881), is a well reasoned case dealing with this question. Sophia B. Rivers filed a petition for writ of habeas corpus on July 10, 1880, against her husband, John D. Rivers. Respondent answered that he had possession and control of the children, but on July 5, 1880, he transferred the control to his mother, Mrs. John Rivers, his co-defendant and that she and the children were residing in the State of Missouri.

Petitioner moved to strike Rivers’ answer because it was equivocal and not responsive to the petition. The motion was sustained and respondent was given until the next day to file further pleadings. He filed motions which were overruled and on July 14, 1880, an order was entered finding that Rivers had disobeyed the writ by refusing to produce the children. He was committed to jail until he complied with the writ to produce the children. Rivers applied for and obtained a writ of certiorari for a review of the proceedings. The Court stated:

[D]id Rivers show good cause for not producing the children in court, as provided in section 3475 of the Code? We think he did not. These contests between husbands and wives, who are living separately and apart from each other, as to the custody of their minor children, are peculiar. Although denominated proceedings in habeas corpus, they are unlike the ordinary proceedings for the release of a party held upon a criminal charge. Although the minor child is denominated as the applicant for the writ, no contest is made by him. It is really a controversy between the father and mother, and the question for the court to determine is, which of the contestants is the more suitable person to have the control and custody of the child ? It was incumbent on Rivers to show good cause for not producing the children in obedience to the writ. They were presumably in his custody, and we think the court properly found that they were not beyond his control. He made no showing that he could not obey the writ.- The mere fact that he put them in possession of his mother, who took them over the state iine and into Missouri, is no showing of an inability to produce them. For aught that appears, he had the same power to bring them into the state that he had to send them over the state line and into the state of Missouri. Without some other showing than what was made, we think the court may have fairly found that the minors were taken out. of the state for the very purpose of evading any proceeding which the mother might institute to regain the custody of them.
Upon the main question, we think, the opinion of Mr. Justice Cooley, holding that the mere fact that the child was in a foreign jurisdiction is not a sufficient excuse for not producing him in obedience to the writ, is in accord with sound legal principles. In discussing the question, he very pertinently says: ‘The place of confinement is, therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the limits of the state, except as the greater distance affects it. The important question is, where is the power of control exercised?’
In U. S. v, Davis, [Vol. 25 Fed.Cas. No. 14,925, p. 775] 5 Cranch, 622, it was held that a return to a writ of habeas corpus that the person alleged to be detained was not within the control and custody of the party to whom the writ was directed, and that such person was beyond the jurisdiction of the court, was evasive and insufficient, it appearing that such person had been removed in anticipation of the issuing of the writ by the party to whom it was directed.
In re Stacey, 10 Johns. 327, [328] the return to the writ was, ‘that the within-named Samuel Stacey is not in my custody.’ This was held to be an evasive return, because it was not shown that Stacey was not in the possession or power of the respondent. So, in the case at bar, the return should have shown that Rivers did not have the power to produce the children in court in obedience to the writ. (Emphasis supplied). (10 N.W. at 627-28).

In Ex parte Endo, 323 U.S. 283, 305-306, 65 S.Ct. 208, 89 L.Ed. 243 (1944), the court held that a district court acquired jurisdiction upon filing a petition for a writ of habeas corpus and the removal of Endo did not cause it to lose jurisdiction where the person controlling her custody remained within the district. The Court noted that there were some expressions in cases indicating that the place of confinement must be within the Court’s territorial jurisdiction in order to enable it to issue the writ. However, the Court gave a strong indication that a writ of habeas corpus would lie if a respondent was within the reach of its process who had custody of the petitioner. The Court stated:

But we are of the view that the court may act if there is a respondent within reach of its process who has custody of the petitioner. As Judge Cooley stated in Matter of Jackson, 15 Mich. 417, 439, 440:
‘The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to, and served upon, not the person confined, but his jailer. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent.’ (323 U.S. at 306, 65 S.Ct. at 220, 89 L.Ed. at 258).

See Ex parte Hayes, 414 U.S. 1327, 94 S.Ct. 23, 38 L.Ed.2d 200 (1973); 39 C.J.S. Habeas Corpus § 54, at 598—99, notes 12-13 and 23 (1944).

Swigart v. Swigart, 193 Pa.Super. 174, 163 A.2d 716 (Pa.1960), was a proceeding to determine custody of minor children of defendant who had residence in Pennsylvania but who was living with the children in Brazil. The Pennsylvania Court held that where the domicile of the father, who had custody of and power to produce a child, was within the jurisdiction of the court, the court had jurisdiction of the custody proceeding although the child was physically outside the county and commonwealth. The Court stated:

“In People v. New York Juvenile Asylum [57 App. Div. 383], 68 N.Y.S. 279, cited with approval in the Rahal [Commonwealth ex rel. Rahal v. Rahal, 48 Pa.D. & C. 568] case and also by Judge Ervin in Commonwealth ex rel. Scholtes v. Scholtes, 187 Pa.Super. 22, at page 26 [142 A.2d 345] (1958), the court held: ‘Section 2015 of the Code of Civil Procedure provides that a person imprisoned or restrained of his liberty “within the state” is entitled to a writ of habeas corpus. That has been extended by the courts, and properly so, to authorize the court to require the release of a person who is not within the state if the defendant to whom the writ is addressed has the power to produce him and subject him to the power of the court."’ (Emphasis supplied). (163 A.2d at 718).

We are persuaded that the reasoning of the above cases is sound and a resident defendant who has control of a child, and who has been personally served with process or entered a voluntary appearance, may be compelled to produce the child before the court. It is common knowledge that many parents have been frustrated in their efforts to obtain a hearing in child custody cases because the person having control of the child moves the child from state to state causing delay, expense and perversion of justice. The jurisdiction of a court to resolve the question of the custody of a child should not become a game, subject to the clandestine activity of a party who moves a child from place to place in order to defeat jurisdiction.

In this case the father was a resident of this state, he participated in a child custody proceeding in Alabama, he brought the child to the state for a visit in accord with the Alabama decree, he filed a suit in Mississippi seeking custody of the child in the chancery court of the county of his residence, he sent the child for a visit to Albuquerque, New Mexico, he had control of the child and returned the child to Mississippi after the habeas corpus petition was filed under threat of being held in contempt of court. His defense that he was coerced into bringing the child within the jurisdiction of the state did not defeat the jurisdiction of the habeas corpus court to proceed with the case and render final judgment.

IV

DID THE TRIAL COURT ERR IN HOLDING THAT THERE HAD BEEN NO MATERIAL AND SUBSTANTIAL CHANGE IN' CIRCUMSTANCES REQUIRING A MODIFICATION OF THE ALABAMA DECREE OF OCTOBER 17, 1973?

Respondent argues that the court did not consider the change in circumstances and condition of the parties following the rendition of the Alabama decree of October 17, 1973. In his finding of fact, the trial judge stated:

Concerning change in circumstances, even if we were permitted to consider it, we face a situation in which we do not believe that the proof is sufficient to justify a finding of custody for changed circumstances, or is in effect, negligence on the part of the mother.

The action of the trial judge in affording full faith and credit to the Alabama custody decree is affirmed. His finding that he was bound by the Alabama decree and could not consider the question of a material change in circumstances or conditions was error; however, in spite of this, he permitted the respondent a full hearing and permitted respondent to introduce evidence pertaining to the question of changed conditions and circumstances.

Although the trial judge erroneously held he could not consider changed conditions and circumstances, nevertheless, he held that he did not find the proof sufficient to justify a change of custody based on a material change of circumstances and conditions.

We have carefully reviewed the record and have reached the conclusion that the trial judge was correct in refusing to change custody of the child, although he assigned the wrong reason for his action. The rule in this state is that a trial court will be affirmed if it reaches the right conclusion although the wrong reason is assigned. Yazoo & Mississippi Valley Railroad Co. v. Adams, 81 Miss. 90, 32 So. 937 (1902).

AFFIRMED.

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

      . This case involved a decree before the 1971 amendment to Section 29, Title 34 Alabama Code of 1940 which reduced the residency requirement from one year to six months.

      . Calhoun was decided before the 1971 amendment to Section 29, Title 34, Alabama Code of 1940.

      . In re Jackson, 15 Mich. 417 (1867).


author: GILLESPIE, Chief Justice, SMITH, Justice

text:
    Johnnie Fred WATKINS v. Mrs. Necie WATKINS.
    No. 48716.
    Supreme Court of Mississippi.
    Sept. 28, 1976.

      Gordon, Henry & Mangum, Union, for appellant.
    Alford, Mars & Thomas, Philadelphia, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   GILLESPIE, Chief Justice,

for the Court:

Johnnie Fred Watkins appealed from a decree of the Chancery Court of Neshoba County holding him in contempt of court for his failure to support his adult retarded son.

In 1964, Necie S. Watkins was granted a divorce from Johnnie Fred Watkins. She was awarded custody of a thirteen-year old child, Roy, born of the marriage, and $35 per month for Roy’s support. After Roy became twenty-one years of age, his father discontinued the child support payments. The mother had the father cited and the chancellor held him in contempt.

The proof indicated that Roy Watkins was retarded to the extent that he was not fully capable of supporting and taking care of himself but he was able to earn between $800 and $900 per year.

The 1964 decree for support was entered pursuant to Mississippi Code Annotated section 93-5-23 (1972), which provides that when a divorce is decreed the court may “make all orders touching the care, custody, and maintenance of the children of the marriage.” The statute does not by its terms limit the court’s power to children under twenty-one years of age. However, it is common knowledge that in the context of this statute the bench and bar have applied the term “children” to offspring who are less than twenty-one years of age. The Legislature enacted Chapter 268, Laws of 1960 (Mississippi Code Annotated section 93-11-65 [1972]), providing for remedies for the support, maintenance and custody of “minor” children “in addition” to the right to proceed under section 93-5-23, and “in addition” to the remedy of habeas corpus in proper cases. The limitation of the 1960 Act to minor children was a legislative recognition that in section 93-5 — 23 the term “children” was used to describe minor children.

We find no statute vesting jurisdiction in the chancery court to impose a duty on parents to support adult children. Code section 41-21 — 25 requires a parent to contribute, if they are able, to the care and maintenance of an adult patient in a mental institution. That statute does not authorize the procedure in the present case.

As a general rule, even in the absence of statute, parents are under a legal as well as a moral duty to support, maintain and care for minor children. 59 Am.Jur., Parent and Child § 50 (1971). In this State the duty is imposed on the mother as well as the father. Code §§ 93-5-23, 93-11-65. But at common law, the duty imposed on the parents to support their children ceased when the children reached majority. 59 Am.Jur .2d, Parent and Child § 102 (1972); Annot. 1 A.L.R.2d 910, § 3 (1948).

Some courts hold that where a child is of weak body or mind and because thereof is unable to care for himself after coming of age, the parental duties remain thereafter practically unchanged, and that the parents’ duty to support the child continues as before. 59 Am.Jur.2d, Parent and Child § 103 (1971).

We hold that when Roy Watkins reached twenty-one years of age the decree for his support terminated and was not thereafter operative. We further hold that the contempt proceeding was not an appropriate suit in which to determine whether Roy Watkins was retarded, and whether his father was liable for his support if he was. It is, therefore, inappropriate for the Court to express any opinion on the question of whether a parent has a duty to support an adult retarded child. Undoubtedly, there is a strong moral duty.

The decree holding Johnnie Fred Watkins in contempt of court is reversed and the contempt proceedings dismissed.

REVERSED AND RENDERED.

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

SMITH, Justice

(specially concurring):

I concur in the result announced in the opinion. However, since the question is not before us for decision in this case, I do not wish this to be considered as in any way foreshadowing my vote in some future case where the issue is the extent or degree of retardation of an adult offspring necessary to be established in order to impose upon its parents the legal duty of continuing support.


author: BEATTY, Justice. BEATTY, Justice.

text:
    P. M. GOODALL et al. v. PONDEROSA ESTATES, INC.
    SC 1695.
    Supreme Court of Alabama.
    Aug. 27, 1976.
    Rehearing Denied Sept. 24, 1976.
    John Martin Galese, Birmingham, for appellants.
    C. Stephen Trimmier and Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee.
   BEATTY, Justice.

Builder’s Management, Inc. and Southwestern Contracting Co., Inc., assignees of P. M. Goodall, defendant below, appeal the denial of their motion to vacate the final decree in the lower court, issued November 1, 1973. We affirm.

Ponderosa Estates, the plaintiff below, was owner of land mortgaged to H. N. Donahoo Contracting Co., Inc. Donahoo assigned the mortgage to Goodall who subsequently sold her interest to Builders and Southwestern.

On March 13, 1968 while Goodall held the mortgage, Ponderosa filed a complaint praying that it be allowed to redeem the land in question from the iriortgagee as-signee, Goodall, and that the court determine whether there existed any indebtedness on the mortgage. Ponderosa also asked that the mortgage foreclosure sale be declared void if the court found as a matter of fact that the mortgage indebtedness had been paid in full by Ponderosa to Donahoo prior to March 15, 1966.

On April 23, 1970, after Ponderosa filed its complaint, Goodall sold her interest in the real estate in question to Builders and Southwestern and this deed was filed in the office of the Judge of Probate of Jefferson County on August 5, 1970.

After filing the complaint, Ponderosa’s attorney attempted to serve Goodall. Although service was published against Goodall once a week for four consecutive weeks beginning January 28, 1972, meeting the statutory requisites, Code of Alabama, Tit. 7, § 204 (1940), personal service had been unsuccessfully attempted prior to that time. A decree pro confesso was entered against Goodall on February 20, 1973 and the final decree was entered November 1,1973. The final decree declared that the mortgage supposedly held by Goodall (actually sold by Goodall to Builders and Southwestern) was void and of no effect whatsoever and Ponderosa was owner of the real estate described in the complaint.

On August 20, 1975 Builders and Southwestern filed a motion to vacate the final decree. The motion alleged that they were grantees under a deed from Goodall recorded in Jefferson County Probate Court but that despite this fact they were never served. Further, they alleged that Ponde-rosa did not make a diligent search in an attempt to serve the parties involved, thus denying them notice guaranteed by the due process clause of the Fourteenth Amendment. They appeal the denial of their motion to vacate.

The crucial issue raised on this appeal is whether Ponderosa met the requisites of a diligent search in an effort to afford the defendants personal service. If Ponderosa did exercise due diligence the trial court should be affirmed. If Ponderosa failed to exercise such diligence, Builders and Southwestern have been denied property without due process of law.

From the recorded testimony of J. W. Patton, Jr. we find the following facts:

That Patton was Ponderosa’s attorney in the original action;
He attempted, to no avail, to obtain from George Witcher, attorney for Goodall, the location of P. M. Goodall;
Patton inquired of Witcher as to whether P. M. Goodall was a man or a woman, but that information was refused him;
Patton inquired of Witcher as to whether P. M. Goodall was a resident of Jefferson County and was told that Goodall was no longer living in this area, when actually she was a resident of Gar-dendale;
Despite this, Patton looked in the current telephone book and city directory in an effort to locate a P. M. Goodall;
Subsequently he filed an affidavit stating that he had made a reasonable and diligent search for the whereabouts of P. M. Goodall without success; and

He met the statutory requirements for notice by publication thereafter.

The record also reveals that during the entire pendency of the litigation, from the filing of Ponderosa’s complaint to the Chancellor’s final decree, George Witcher represented all parties — Goodall, Builders and Southwestern.

The issue before us, as admitted by both appellants and appellee, is a factual one. The trial judge, after examining the testimony and demeanor of the witnesses, found in favor of Ponderosa. This factual determination should be upheld under the ore tenus rule. As this Court stated in Martin v. Howard, 293 Ala. 36, at page 39, 299 So.2d 727, at page 729 (1974):

“The testimony having been taken ore tenus before the trial judge, his findings and conclusions thereon are given the same weight as the verdict of a jury, and will not be disturbed unless palpably wrong. (Citations omitted.)”

We must concur in the trial court’s finding that, under the facts of the case, Mr. Patton met the requirements of diligence. Diligence has been defined in this manner:

“ . . . Diligence is comparative, depending largely upon the circumstances calling for its use. The courts do not require the same from parties who are apparently lured to their injury or destruction by the misleading conduct of the adversary party and for which they are not responsible.” Cleveland, C. C. & St. L. Ry. v. Schneider, 40 Ind.App. 38, 80 N.E. 985, 988 (1907).

Here we have a defendant, Goodall, who was served by publication after her attorney was notified of the pendency of the litigation. Since the purpose of service is to notify or inform the defendant of the action being lodged against him, Glover v. Pugh, 40 Ala.App. 258, 122 So.2d 142, cert. den. 271 Ala. 64, 122 So.2d 147 (1960), it appears to us that Patton’s conversation with Witcher, together with the newspaper publication, met minimal constructive service requirements. Thus Goodall had notice of the action.

The record indicates that when Patton confronted Witcher about Goodall’s whereabouts, Witcher was the attorney not only for Goodall, but for those who then held the mortgage — Builders and Southwestern. Yet, being employed by and having information on all three parties interested in the action, he refused to aid, but did in fact confuse Patton. When one beclouds his whereabouts, he should not be allowed to benefit from the server’s consequent confusion. N. L. R. B. v. Clark, 468 F.2d 459 (5 Cir. 1972). The trial judge did not allow such benefit to accrue to the defendants from Witcher’s misleading and unresponsive replies to Patton’s inquiries, and we concur in his action.

Appellants’ brief suggests methods by which Patton might have identified the location of Goodall or the interest of Builders and Southwestern. But an attorney is not required to take every feasible action; he is required to be reasonable and diligent in his efforts to locate those whom he intends to serve. We hold that Patton, under the circumstances of this particular case, met those minimal requirements.

AFFIRMED.

HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.

ON REHEARING

BEATTY, Justice.

Appellants raise several points in their application for rehearing, each of which we have fully considered. Among these is the contention that we have misconstrued the record by observing that Patton looked in the city directory in an effort to locate a P. M. Goodall. The point is well taken that the record contains no positive evidence that this was done. What the record does reveal is that Mr. Patton testified: “I can’t say positively that I looked in the city directory. I wasn’t able to locate a P. M. Goodall.” And later, upon being asked: “Mr. Patton, did you check, I believe you said you were not sure if you checked any city directory?,” he replied, “No, I am not sure.” We believe this exchange creates the possibility that the city directory was one of the sources relied upon to determine the whereabouts of P. M. Goodall.

Appellants also suggest that our original opinion was written merely to chastize Mr. Witcher, who represented Southwestern and Builders during the pendency of the litigation. In respectfully denying any such motive, we point out that Mr. Witcher’s representation of Goodall, Builders and Southwestern, and Mr. Patton’s contact with him, appear from the record to have been material factual aspects of this case, affecting the course of action of Mr. Patton in his attempts to locate P. M. Goodall. Accordingly, we were bound to consider them in our review.

We have carefully addressed ourselves to the remaining points raised by appellants and are of the opinion now that they have been amply considered in our original opinion.

OPINION EXTENDED AND APPLICATION FOR REHEARING OVERRULED.

HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: FAULKNER, Justice.

text:
    NELSON-AMERICAN DEVELOPERS, LTD., etc., v. ENCO ENGINEERING CORPORATION, a corp.
    No. SC 1772.
    Supreme Court of Alabama.
    Sept. 3, 1976.
    Owen & Ball, Bay Minette, for appellant.
    Joe S. Pittman, Enterprise, for appellee.
   FAULKNER, Justice.

This is an appeal from an order of the Circuit Court of Baldwin County granting summary judgment against Nelson-American. We affirm.

The first appeal in this case was dismissed because it was not from a final judgment. Nelson-American Developers, Ltd. v. Eneo Engineering Corporation, 295 Ala. 185, 326 So.2d 103 (1976). This court held there that the dismissal did not preclude the trial court from vacating its prior order and entering one conforming with Rule 54(b). ' The trial court, on motion by Nelson-American joined in by Eneo, vacated and set aside its prior judgment. The trial court then made a finding, and entered judgment against Nelson-American and Union Mutual Life Insurance, pursuant to Rule 54(b) ARCP. Only Nelson-American filed an appeal from the order.

The Facts

Nelson-American contracted with Eneo, a general contractor, to build a shopping center on April 4, 1973. The contract called for periodic progress payments, and a final payment due 30 days after substantial completion. The architect made a final inspection of the project on July 8 and 9, 1974. A punch list of outstanding items was agreed upon; these were completed, and the architect was notified on July 16. On July 15, the managing partner of Nelson-American inspected the shopping center, and an estimate of the remaining balance due Eneo under the contract was given to him. On July 18, a final statement of $278,157.64 was sent to Nelson-American. Nelson-American notified Eneo that it was financially unable to pay the bill, and wrote a letter, dated August 20, offering to give Eneo a promissory note for the balance due on this project, plus the remainder due on a separate project in Selma. Meanwhile, Eneo, having completed the project on July 18, filed its notice of lien in the Probate Office on July 22, and filed suit to enforce its lien on July 30.

Nelson-American’s motion to dismiss having been overruled, it filed an answer alleging that the work done by Enco was not in a workmanlike manner; that numerous complaints had been received from sub-lessees about the defects in the construction, and that the lien statute, § 37, Title 33, Code of Alabama, is unconstitutional.

Eneo moved for summary judgment, based upon the pleadings, interrogatory answers, the deposition of Nelson-American’s managing partner, the affidavit of the Vice-President of Eneo, and exhibits attached thereto. The court, also, considered Nelson-American’s last amended answer, its counterclaim, and affidavits filed in opposition to the summary judgment.

In reviewing the evidence before the court, it appears that money was the root of the problem. Eneo needed its money under the contract, and Nelson-American, at the time of completion of the contract, did not have the financial ability to pay. The. “un-workmanlike manner” claim does not appear to have been an issue until the lien was filed, and suit filed to enforce it, although there were some complaints from the tenants. However, Nelson-American, in its final inspection neither complained of any unworkmanlike construction of the project, nor did it question the total balance due, until, in an affidavit by Henry Nelson on February 3, 1975, after his inspection on July 15, 1974, he said $255,000 was due, “assuming all items of work have been satisfactorily completed.” His testimony by deposition indicated he did not know the actual amount owed Eneo. He said that he had received complaints from the tenants, and that the permanent lenders had not yet accepted the work to the point of advancing him the remainder of the money.

The manager of Winn-Dixie Food Store, a tenant, by affidavit dated February 4, 1975, said a large concrete slab behind his building had been allowed to wash to the point that it had toppled and severed sewer lines, and endangered the severing of the natural gas line.

The Vice-President of Eneo filed a second affidavit, dated April 1, repudiating Nelson-American’s claim of additional work needed in completing the project.

The principal issues raised in this appeal are (1) the constitutionality of the lien statute; (2) whether Enco’s complaint stated a cause of action, and (3) whether the trial court correctly granted summary judgment against Nelson-American.

Constitutionality of the Mechanic’s Lien Statute

Provision for a lien for work and labor done, and materials furnished for construction go back almost to the beginning of Alabama statehood. The first statute providing for a mechanic’s lien was enacted in 1821. Act 9, Aikin’s Digest of the Laws of the State of Alabama (1821). This Act provided that masterbuilders and mechanics of every denomination contracting in writing and erecting a building of any description shall have a lien on the building for work, labor, and materials provided and used in its construction. The written contract had to be recorded in the clerk’s office of the county court, for the county where the contract was made within 30 days after the execution of the contract. Recording was for the purpose of inspection and examination of all persons whom it may concern. Enforcement of the lien could be done by arbitration, and a suit in a court of competent jurisdiction.

The mechanic’s lien statute appearing in the 1852 Code of Alabama provided:

1. Mechanic’s lien for labor and materials furnished for a building.
2. The contract must be in writing, signed by the parties, and registered in the Probate Office where the “lands lie” within 60 days after execution.
3. The lien was subordinate to existing mortgages, deed of trust or other in-cumbrances required by law to be recorded.
4. The lien could be discharged by giving the builder sufficient surety.
5. Changes in the contract did not impair the lien, and were effectual against freehold or less estate, and whether the title was legal or equitable.
6. The lien could be enforced in equity, or by execution after a judgment at law obtained. Other property of the contracting party could be levied upon.
7. The lien was barred unless proceedings in equity or at law were not commenced within 90 days after completion of the work, or supply of the materials.

Section 4754 of the 1907 Code and § 37, Title 33 of the 1940 Code are virtually identical in providing for a mechanic’s lien for work, or labor upon, or furnishing materials for, any building under a contract. In fact, the 1907 Code and the 1940 Code pertaining to mechanic’s liens are practically' the same.

Under § 37, T. 33 of the Code of Alabama 1940, there are two events giving rise to a lien: first, when the material is furnished under a contract or an effectual subsequent ratification of the contract, Richardson v. Little, 209 Ala. 351, 96 So. 144 (1923); second, when notice is given the owner that certain material will be furnished and he fails to give notice that he will not be responsible. Avondale Lumber Co. v. Hudson, 214 Ala. 128, 106 So. 803 (1926). To establish the mechanic’s lien, a verified statement must be filed in the Probate Judge’s office. § 41, Title 33, Code of Alabama 1940. The filing of the verified statement constitutes notice to purchasers and creditors. Fowler v. Mackentepe, 233 Ala. 458, 172 So. 266 (1937). This vérified statement must be filed within 6 months after the last item of work or material furnished, in the case of the original contractor, and suit to enforce the lien must be commenced within six months after maturity of the entire indebtedness (§ 42, Title 33), in the Circuit Court or a court of like jurisdiction, by summons and complaint. § 49, Title 33.

We hold the mechanic’s lien statute to be constitutional as it applies to realty cases. The statute provides notice, the fountainhead of due process, and an opportunity to be heard. The filing of a notice of a lien does not dispossess the owner of the property. In this regard, we note Nelson-American is in possession of the property, and collecting rents.

The consumer protection cases, Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) and Mitchell v. W. T. Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), cited by Nelson-American as its authority that the lien statute is unconstitutional, are, on the other hand, support for Enco’s position. In fact, Fuentes says notice and a right to be heard must be granted at a time when deprivation can be prevented. Our statute clearly provides for notice and a right to be heard before the owner loses his property. In Mitchell the Louisiana sequestration statute did not provide for notice or a hearing. Again, we say, our lien statute provides for those constitutional safeguards of notice, and a right to a hearing, before the taking of the property.

The Motion to Dismiss

The bill of complaint to enforce the lien alleged that the lien was claimed on property which was described; that notice had been filed in the Probate Judge’s office; that the lien was based upon a written contract for the construction of buildings on the described property; that the lien was for the unpaid balance due under the contract. Thus, the complaint sufficiently complied with the provision of § 49, Title 33, Code of Alabama 1940. Cf. Stoughton v. Cole Supply, Inc., 273 Ala. 383, 141 So.2d 173 (1962); Rule 8(a), (e), (f) ARCP.

The Summary Judgment

This court held in Folmar v. Montgomery Fair Co., Inc., 293 Ala. 686, 309 So.2d 818 (1975) that the party moving for summary judgment must clearly establish that the other party could not recover under any discernible circumstances. And, this court said in Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975), the mov-ant for summary judgment has the burden to show that there is no genuine issue of a material fact left in the case. We opine the movant in this case has met the burden. Here, the evidence of Eneo shows that it constructed buildings under a written contract which is unambiguous.

The work was performed pursuant to the contract, and Nelson-American admitted the balance due, and payable. At the completion of the contract, Nelson-American did not complain of any unworkmanlike work. Its punch list of incomplete items was agreed to and performed by Eneo. The trial court withheld judgment on Nelson-American’s counterclaim of $23,000. It is still pending. The defects alleged in a tenant’s affidavit can be repaired under the builder’s warranty, as well as any other defects in the buildings.

We hold that the evidence of the case shows there is no genuine issue as to any material fact, and Eneo is entitled to summary judgment as a matter of law.

AFFIRMED.

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


author: HEFLIN, Chief Justice.

text:
    Jack JORDAN v. EMPIREGAS, INC. OF BELLE MINA et al. James L. SISCO v. EMPIREGAS, INC. OF BELLE MINA et al.
    SC 1462, SC 1464.
    Supreme Court of Alabama.
    Sept. 17, 1976.

      Humphrey & Smith, Huntsville, for appellants.
    Elbert H. Parsons, Jr., Huntsville, Hobart A. McWhorter, Jr., Birmingham, for appel-lees.
   HEFLIN, Chief Justice.

These cases are on appeal from the granting of summary judgments for defendants in two malicious prosecution actions and have been consolidated before this court. The issues and defendants are identical. Therefore, the cases will be treated as one case herein.

The three defendants are Empire Gas Corporation, a Missouri corporation; Em-piregas, Inc. of Belle Mina, and Empiregas, Inc. of Huntsville, both Alabama corporations. Plaintiff Jack Jordan and plaintiff James L. Sisco brought identical suits containing three counts, two claiming damages for malicious prosecution of a civil action and one charging malicious continuation of the prosecution of a former action. Summary judgments were granted in favor of the defendants. Plaintiffs moved to set aside the summary judgments, but these motions were overruled by the trial court.

The prior action, upon which the present suits were based, was commenced by Em-piregas, Inc. of Belle Mina against Sisco and Jordan on August 21,1969. This action was terminated in favor of Jordan and Sis-co on February 24, 1971. The basis of that prior suit was that Sisco had entered into an employment contract containing a non-competition provision with Gas & Chemicals, Inc., the predecessor of Empiregas, Inc. of Belle Mina. The non-competition provision which James Sisco signed contained the following language:

“ * * . * not to engage in, for his own account or for others, in any manner whatsoever, the sale of or handling of LP-Gas and related items for a period of five (5) years from the date of termination of this Agreement within a fifty (50) mile radius of Jeff, Alabama.”

Empiregas, Inc. of Belle Mina contended that when Sisco went to work for Jack Jordan, d/b/a Jordan Gas Company, he violated the non-competition provision.

This court, in the case of Sisco v. Empiregas, Inc. of Belle Mina, 286 Ala. 72, 237 So.2d 463 (1970) reversed the trial court for failing to sustain the demurrers of Sisco and Jordan and directed that an injunction previously issued be dissolved on the grounds that the contract containing the non-competition provision was personal and could not be effectively assigned by Gas & Chemicals, Inc. to Empiregas, Inc. of Belle Mina. This court also reversed the trial court for granting a permanent injunction since the case was not ripe for such relief at the hearing on demurrer and motion to dissolve the temporary injunction. On remand the action was terminated favorably for Sisco and Jordan on February 24, 1971.

Jordan and Sisco each filed a complaint on February 23, 1972 seeking damages against Empire Gas Corp., Empiregas, Inc. of Belle Mina, and Empiregas, Inc. of Huntsville for maliciously instituting and maliciously continuing the prosecution of the injunction suits.

In their motion for a summary judgment, the defendants contended that: (1) this action was not properly or effectively commenced within the meaning of the laws of this State in force and effect at the time of the filing of this action; (2) since there were no allegations or proof that the trial court’s decree in the prior case, which was appealed, was obtained by fraud, perjury or other improper means, the trial court’s decree conclusively established probable cause for bringing the prior action; and (3) defendants Empire Gas Corporation and Em-piregas, Inc. of Huntsville were not parties to the original action upon which the action was based and since there was no allegation or proof that they were conspirators or aiders and abettors, they were entitled to summary judgment.

The motion for summary judgment was granted but the trial judge did not specify which of the grounds served as the basis for his ruling nor did he specify the grounds for overruling the motion to set aside the court’s granting of summary judgment.

In reviewing the trial court’s action in granting summary judgment, this court will first consider the issue of probable cause.

Defendants contend that the case of Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So.2d 555 (1959) supports the trial judge’s action in granting summary judgment on the issue of the existence of probable cause to maintain the prior action. This court concurs in this contention and therefore affirms the trial court.

This court in Boothby Realty Co. was faced with the question of what effect should a judgment obtained in a prior civil action be given in a malicious prosecution suit brought by the defendant Haygood. In the prior civil action Boothby Realty Company obtained a judgment against Mrs. Haygood for rent in an inferior court in Birmingham. Mrs. Haygood took an appeal to the Circuit Court of Jefferson County and obtained a favorable jury verdict which held that she did not have to pay the rent. In the malicious prosecution action subsequently brought by Mrs. Haygood, she was awarded damages in the trial court (the circuit court) but on the appeal this court held that Boothby Realty Company was entitled to a general affirmative charge. The basis for that holding was that the favorable judgment received by Boothby Realty Company in the inferior court in the prior action was conclusive as to the presence of probable cause since there was no evidence that the judgment in the inferior court was obtained by fraud, perjury or other improper means. This conclusion was reached even though the judgment of the inferior court was later reversed on appeal.

In order for a plaintiff to maintain an action for malicious prosecution the following elements are essential: (1) a prior judicial proceeding; (2) defendant instigated the proceeding; (3) want of probable cause; (4) malice (5) termination of the judicial proceeding favorable to the plaintiff; and (6) damages. Covington v. Robinson, 242 Ala. 337, 6 So. 421 (1942); Boothby Realty Co. v. Haygood, supra.

This court in Boothby Realty Co. set forth many reasons why there should be a different standard of “want of probable cause” in malicious prosecution suits where the prior action was a civil case as opposed to a criminal case. Justice Merrill, in Boothby Realty Co. stated as follows:

“The ‘settled rule for Alabama’ is ‘that the judgment of conviction, though later vacated and accused discharged, is prima facie evidence of the existence of probable cause for instituting the prosecution “which may be rebutted by any competent evidence which clearly overcomes the presumption arising from the fact of defendant’s conviction in the first instance.”’ Republic Steel Corp. v. Whitfield, 260 Ala. 333, 70 So.2d 424, 426; Kemp v. York, 16 Ala.App. 675, 81 So. 195, certiorari denied, 202 Ala. 425, 80 So. 809.
“The majority rule in malicious prosecution cases arising out of civil cases is that unless a judgment or decree in prior civil proceedings against the malicious prosecution plaintiff was obtained by fraud, perjury or other improper means, the judgment or decree [of the inferior court] establishes or shows conclusively the existence of probable cause for bringing the former action even though it was subsequently reversed or set aside. 58 A.L.R.2d 1430, § 5; 34 Am.Jur., Malicious Prosecution § 57; 54 C.J.S. Malicious Prosecution § 24b.” (Emphasis supplied.)

Boothby Realty Co. v. Haygood, 269 Ala. 549, 552, 114 So.2d 555, 557 (1959); see also Restatement of Torts, Vol. 3, §§ 675 (1938).

After adopting the majority rule for this state this court in Boothby Realty Co. stated that actions for malicious prosecutions were not “favored in law,” and that a malicious prosecution action should face stringent limitations. 54 C.J.S. Malicious Prosecution, § 3; American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176 (1927). In explaining this position Justice Merrill stated:

“One of the reasons for this rule is that public policy requires that all persons shall resort freely to the courts for redress of wrongs and to enforce their rights, and that this may be done without the peril of a suit for damages in the event of an unfavorable judgment by jury or judge. If this were not the case, a large proportion of unsuccessful civil actions would be followed by suits for malicious prosecution, and there would be a piling of litigation on litigation without end. Burt v. Smith, 181 N.Y. 1, 73 N.E. 495; Gore v. Condon, 87 Md. 368, 39 A. 1042, 40 L.R.A. 382, 67 Am.St.Rep. 352; Owens v. Graetzel, 149 Md. 689, 132 A. 265.”

Boothby Realty Co. v. Haygood, 269 Ala. 549, 554, 114 So.2d 555, 559 (1959).

In the case here on review, the defendants contend that the ruling of the trial court to maintain the injunction after an adversary hearing likewise conclusively establishes probable cause since there was no evidence of fraud, perjury or other improper means. Jordan and Sisco contend that there is a distinction between Boothby Realty Co. and this case in that this court in Sisco v. Empiregas, Inc. of Belle Mina, supra, reversed the case because the complaint failed to state a cause of action. The position of Jordan and Sisco is that if a complaint will not support a judgment, then the injunctive holding of the trial court cannot conclusively establish probable cause.

Sisco had agreed that he would not compete in the business of selling liquified petroleum gas within a 50-mile radius of Jeff, Alabama, for a period of five years if he left the employment of Gas & Chemicals, Inc., the predecessor and the assignor of the assets of Empiregas, Inc. of Belle Mina. He voluntarily terminated his employment with Empiregas, Inc. of Belle Mina on June 30, 1969, and shortly thereafter became an employee of Jack Jordan, d/b/a Jordan Gas Company, and was involved in competition for LP gas customers within the prohibited geographical area. The trial court granted an ex parte temporary injunction against Sisco and Jordan on August 21, 1969. Thereafter Sisco and Jordan filed demurrers, answers and motions to dissolve the temporary injunction. On September 12, 1969, a hearing was held that lasted approximately three days during which a number of witnesses for both sides testified. At the conclusion of the hearing, the trial court entered a decree dated September 22, 1969 containing a finding of facts, overruling the demurrers, denying the motion to dissolve and granting Empiregas, Inc. of Belle Mina a permanent injunction. The action of the trial court was appealed and this court reversed by sustaining the demurrer on the basis that the non-competition provision was personal and, therefore, non-assignable.

When it comes to a determination of the existence of probable cause, an erroneous lower court decree based on an improper interpretation of law, under the facts and law involved in this case, should not be afforded a different status than that given an erroneous finding of facts by an inferior court, as occurred in Boothby Realty Co.

This court holds that the continuation of the injunction after an adversary hearing under the facts of this case conclusively established probable cause and is, therefore, a defense to the counts charging malicious prosecution. Thus the trial judge did not err in granting summary judgment as to Counts One and Two.

Count Three of the complaint in the instant case alleges malicious continuation of the prosecution of the summary action. Jordan and Sisco contend this count is based on the defendant’s continuation of the prosecution after the reversal and re-mandment by this court of Sisco v. Empiregas, Inc. of Belle Mina, supra. This court sustained the demurrer on the grounds that the non-competition provision was not assignable and because of insufficient pleadings as to whether or not the complaint alleged a new contractual arrangement between Sisco and Empiregas, Inc. of Belle Mina after Empiregas, Inc. of Belle Mina took over from Gas & Chemicals, Inc. The opinion stated that the court reversed as to the trial court’s overruling of the demurrers without prejudice in order to give Empire-gas the right to amend its bill to state a cognizable equitable theory of relief.

Under the facts of this case the continuation of the prosecution of the case after this court reversed and remanded is so intertwined with the institution of the action that a distinction between the original bringing of the suit and the continuation after reversal and remandment does not surface. Further, the proceedings following this court’s remandment were in keeping with the language of the opinion of this court in that case. Thus this court cannot hold that the conclusive presumption of probable cause evaporated because Empire-gas, Inc. of Belle Mina did not immediately terminate the proceeding following the reversal of the granting of the injunction. Therefore the granting of summary judgment as to Count Three was also correct.

In order to affirm the trial court’s granting of summary judgment it is only necessary that this court find one of the grounds argued by the defendants to be valid. Having found that there was a conclusive presumption of probable cause, the court will not consider the other grounds argued by defendants. This case is due to be affirmed.

AFFIRMED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


text:
    FORD MOTOR COMPANY v. Boyd RODGERS.
    SC 1622.
    Supreme Court of Alabama.
    Sept. 24, 1976.

      Michael D. Knight, Mobile, for appellant.
    Charles C. Partin, III, Bay Minette, for appellee.
   HEFLIN, Chief Justice.

Appellant, Ford Motor Company, brings this appeal after suffering an adverse jury verdict which awarded damages to appellee, Boyd Rodgers, in the sum of $15,000. This judgment was rendered as compensation for injuries which Rodgers sustained when the hydraulic system of a Ford combine failed and the corn header attached to the combine and under which Rodgers was working fell on him. A corn header is a piece of equipment which weighs approximately 4,000 pounds and attaches to the front of a combine. It serves to mechanically harvest ears of corn and place them in a bin. A corn header has a revolving end that cuts like a lawn mower and brings what is cut into the machine and then separates the ears of corn from the foliage.

Rodgers’ amended complaint alleged that Ford Motor Company’s negligence was based on one of the following grounds: (1) Failing to use due care in the manufacture of the combine; or (2) Failing to properly design said combine; or (3) Failing to warn the plaintiff of the dangerous condition created when the corn header was raised.

In December, 1972, Rodgers purchased a 1968 Ford 630 self-propelled combine, one of 300 produced by a West German company and marketed by Ford Motor Company during June of 1968. Rodgers took delivery of the Ford 630 combine during “the last of May or first of June” 1973. The sales invoice listed the combine as a new machine although at the time of the purchase Rodgers was aware of the fact that the combine was a used one. One of the officials of the Ford dealer, Carl Grant Tractor Company, a co-defendant in the action below, testified that he told Rodgers at the time of purchase that the hydraulic system of the combine would raise and lower whatever corn header was attached to the combine and hold it in a raised position. In July, 1973, Rodgers purchased a used corn header from Grant.

On the morning of the accident, July 31, 1973, Rodgers testified that he started the engine on the combine, activated the hydraulic system controlling the position of the corn header and raised it to a sufficient height so that he could sit underneath the header and grease it. Rodgers then crawled underneath the header and had begun greasing it when he found it necessary to move out from underneath the header. While crawling out on his hands and knees, the header suddenly fell and struck Rodgers, causing a compression fracture of one of his vertebrae.

It was discovered that the hose of the hydraulic system had ruptured at the location where the hose went into a coupling, causing a loss of pressure and the header to fall. There was testimony from a witness who qualified as an expert that the coupling to the hose was insufficient in length, contending that if the sleeve of the coupling had been longer it would have had-more strength and been able to withstand greater hydraulic pressure. There was evidence the rupture occurred at the joinder of the hose with the coupling.

Another of the plaintiff’s claims was that the hydraulic system should have been equipped with a safety assembly or sleeve or device to prevent the header from falling if the hydraulic system malfunctioned while the header was in a raised position. If not, then Ford was under an obligation to warn of possible dangers from the hydraulic system.

Ford contends, first, that it was entitled to a directed verdict because Rodgers failed to prove at the time of the injury he was applying the equipment to a use for which it was manufactured and in a usual and customary manner. Ford relies on a number of Alabama cases, including Miles v. Chrysler Corporation, 238 Ala. 359, 191 So. 245 (1939), and Norton Company v. Harrelson, 278 Ala. 85, 176 So.2d 18 (1965). With respect to the doctrine of “manufacturers’ liability” the defendant contends the following language from Norton is applicable to the case:

“This doctrine is applicable in a limited number of situations. The defendant must be either the manufacturer or seller of the injury-producing article. There is no privity of contract between the defendant and the injured plaintiff. At the time complained of the article must have been applied to the use for which it was manufactured and sold and that use must be in the usual and customary manner. Where these circumstances exist the manufacturer or seller will be liable for an injury proximately resulting from the use of the article but only where the article is inherently or imminently dangerous to human life or health, or becomes so when put to its intended use in the proper manner. This liability arises from either the negligent manufacture of the article or negligence in selling it.” [Emphasis added]

278 Ala. 85, 88, 176 So.2d 18, 20-21.

Ford contends that the usual and customary manner of greasing the header was from above and if it were to be greased from below then it would be usual and customary to use a blocking device, such as a jack or a timber, to secure the header.

There was evidence that the machinery was being used in an open, rough field to harvest corn which was certainly the usual and customary use of the machinery. There was evidence that it was necessary that the corn header be in a raised position regardless of whether the greasing was being done from above or below; that greasing had to take place every 4 to 6 hours in the field while operating; that if the hydraulic system failed there would be a danger of being injured regardless of whether the greasing occurred while the person was above the machine or below the machine and that there were grease fittings beneath the header in which it was necessary to insert a grease gun. There was also evidence that in the operation of the corn header it was necessary to raise and lower the header with the combine’s hydraulic system for many purposes, including the greasing function.

Under the evidence in this case questions for determination by the trier of facts were correctly presented as to whether the machinery was being applied to a use for which it was manufactured and sold and whether that use was in a usual or customary manner.

Ford contends that the trial court erred in not granting its motion for directed verdict regarding Rodgers’ claim that Ford was negligent in failing to warn Rodgers of the dangerous condition created when the corn header was in a raised position. Ford asserts that it was under no duty to warn because the danger of going under the raised header was open and obvious.

A manufacturer is not under a duty to warn the user of every danger that may exist during use of his product. The objective of placing a duty to warn on the manufacturer or supplier is to inform a user of the danger for which he is not aware, therefore, there is no duty to warn when the danger is obvious. 72 C.J.S. Supp. Products Liability §§ 25, 26. See also Frumer and Friedman, Products Liability, Volume I, pp. 143-187 (1975).

This court recognized the duty of a manufacturer to warn in Altorfer Brothers Co. v. Green, 236 Ala. 427, 183 So. 415 (1938), when it stated that if a manufacturer places a machine on the market which is imminently dangerous when put to its intended purpose, then the manufacturer is chargeable with the duty “not to expose to such danger an ignorant public who will likely use it. And if defendant [manufacturer] knows that it is imminently dangerous when used in the customary manner, it is chargeable with anticipating such injury from its use without exercising reasonable diligence to make such danger known to the public likely to use it.” 236 Ala. 427, 429, 183 So. 415, 417. The court in Altorfer Brothers, after outlining the evidence that was most favorable to the injured plaintiff, held that the determination of whether the plaintiff had knowledge of the danger under the facts of that case was for the jury.

In the case of Kingsberry Homes Corporation v. Ralston, 285 Ala. 600, 235 So.2d 371 (1970), Ralston, an employee of AGS Railroad, was injured while using a stirrup or step of a boxcar to climb upon a loading platform of Kingsberry Homes Corp. when his fellow crewman backed the train into the boxcar and smashed him between the side of the car and the loading platform. The court allowed recovery against Kings-berry Homes Corp. on the theory that the loading platform was negligently maintained too close to the spur track, contrary to contractual prohibitions. The court stated as follows:

“As to Kingsberry’s contention that it was due the affirmative charge on the theory that a landowner is not liable for injury to an invitee from ‘open and obvious’ dangers or dangers known to the invitee and that plaintiff’s testimony conclusively showed that he knew of the danger, we conclude that this contention is untenable * * *.
“As we have already mentioned, it is settled that a scintilla of evidence for the plaintiff is sufficient to warrant submission of the issues to the jury. Admitting arguendo the applicability of the ‘open and obvious danger’ rule to the facts at bar, we think that there was at least a scintilla of evidence to show that plaintiff did not know of the danger.”

285 Ala. 600, 606, 235 So.2d 371, 376.

While Kingsberry Homes involves premise liability issues, nevertheless, the holding that it is for a jury to determine whether the danger was known to the plaintiff is applicable to the case under review in that certain basic issues are the same.

The evidence in this case was in conflict as to whether it was dangerous to go underneath the corn header when it was in a raised position. The defendant elicited testimony from an experienced farm equipment dealer, a professional farm mechanic, and Ford’s expert in farm equipment, that it would be dangerous.

There was evidence that Rodgers was unfamiliar with this Ford combine and header and that this was the first time that he had attempted to lubricate the header. He had seen employees of Carl Grant Tractor Company working under his combine and header in the field without blocking the header up. Lawrence Boeschen, a farmer who had considerable experience with combines, testified that he customarily went under a header while performing lubricating or greasing tasks after raising it and that he did not block it up for such purposes.

The plaintiff contends that under the facts in this case the determination of whether the danger was open and obvious should be based upon the knowledge of the person injured and not on whether it would be an open and obvious danger to an experienced farm equipment dealer, a professional farm mechanic or an expert in farm equipment.

In considering whether a danger is open and obvious, this court holds that under the facts of this case the jury was properly allowed to take into consideration whether the injured person had any special experience involving the condition from which he was injured, whether it would be commonly known that such a condition was dangerous, whether the danger should have been obvious to the injured person, and finally, whether the user had knowledge of the danger and appreciated it.

In determining the propriety of granting a motion for a directed verdict, the court must indulge every influence in favor of the nonmoving parties. ARCP, Rule 50; Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

The record in this case indicates that there was sufficient conflicting evidence to allow reasonable men to differ on whether the danger here was open and obvious and thus it was proper for the court to allow this issue to go to the jury.

This case was not tried under the new Alabama Extended Manufacturer’s Liability Doctrine (Casrell v. Altec Industries, Inc., 295 Ala. -, 335 So.2d 128 (1976) and Atkins v. American Motors Corp., 295 Ala. -, 335 So.2d 134 (1976)), since this doctrine was not adopted by this court at the time of the trial below. However, it should be noted that the duty to warn on the part of the manufacturer being obviated by a danger which is open and obvious will no longer be an issue in cases brought under the Alabama Extended Manufacturer’s Liability Doctrine. Instead, it is important to note that one of the affirmative defenses available to manufacturers and suppliers under this doctrine is a new concept under Alabama law, known as assumption of risk. In regards to establishing a defense of assumption of risk this court in Atkins stated: “The defendant may establish that he sold a product which was unavoidably unsafe and the danger was either apparent to the consumer or the seller adequately warned the consumer of the danger.” Ala., 335 So.2d 134, 143. (Emphasis supplied.)

Ford also asks this court to review the trial court’s overruling its objection to the testimony of a witness called by Rodgers to testify as an expert on the design of the Ford combine. Ford attacks the credentials of Rodgers’ expert on the grounds that, although he had performed general repair work on various combines over a span of 27 years, he had never worked on a Ford 630 Combine and had never made a hydraulic hose and fitting similar to the one involved in this case.

It is an established principle of Alabama jurisprudence that the determination of whether a witness is qualified to testify as an expert is primarily within the discretion of the trial judge and that the trial judge’s ruling will not be disturbed on appeal unless it is patently abusive. After reviewing the qualifications of Rodgers’ expert witness and reviewing the testimony elicited, this court concludes that the trial judge was well within the bounds of his discretionary prerogative in allowing this witness to testify as an expert. The discrepancies in the witness’ qualifications and testimony, alleged by Ford to be fatal, were clearly brought to the attention of the jury by counsel for Ford and it was for the jury to decide what weight should be given the testimony, of the witness. Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974); Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972); Baggett v. Allen, 273 Ala. 164, 137 So.2d 37 (1962); Alabama Consolidated Coal & Iron Co. v. Heald, 168 Ala. 626, 53 So. 162 (1910).

Ford also contends that the trial court committed reversible error in failing to give its requested charges numbered 4, 16, 19 and 25. In determining the merit of these contentions the court is guided by the following provision in Rule 51 of the Alabama Rules of Civil Procedure: “The refusal of a requested written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s oral charge or in charges given at the request of the parties. * * * ”

Ford’s requested charge number 18 which was given is substantially the same as charge number 4.

The court’s oral charge adequately apprised the jury in regard to the elements contained in Ford’s requested charges numbered 16 and 19 and, therefore, no reversible error was committed by the court’s refusing to give these charges.

Ford’s requested charge number 25 confuses the issue of usual and customary use of the combine with the defense of contributory negligence. Because a person’s conduct might not be usual and customary does not necessarily equate a lack of due care. In this instance the issue concerning contributory negligence was whether a reasonable prudent person under similar circumstances would work beneath the header without first providing for blocks or jacks to support said header.

For the reasons stated above this case is due to be affirmed.

AFFIRMED.

JONES, SHORES and BEATTY, JJ., concur.

MADDOX, J., concurs in result.