text:
    Louis T. SCOTT and Willie Nathaniel Anderson v. STATE of Mississippi.
    No. 50931.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    Varner & Parker, J. Mack Varner, Vicksburg, for appellants.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellants, Louis Scott and Nathaniel Anderson, were indicted, tried and convicted in the Circuit Court of Warren County for the crime of armed robbery. In its verdict, the jury set the punishment for each at life imprisonment in the penitentiary.

The sole assignment of error in the appeal is that the verdict of the jury was against the overwhelming weight of the evidence. We affirm.

Mark Allen Holiness operated a store on the east side of U.S. Highway 61 about fourteen miles south of Vicksburg, Mississippi. As a part of the store operations there were two gasoline pumps in front of the store. Holiness testified that at about eight o’clock A.M. on the morning of the robbery he was inside the store for the purpose of receiving payment for gasoline from Peggy Ross, who was in a car with Cindy Hollowell and Marie Holiness on their way to work in Vicksburg. According to Holiness, another vehicle had driven up to the gasoline pump immediately prior to the three ladies leaving. Thereafter, one of the persons got out of the car that had stopped and came inside the store. This person told Holiness to “turn the gas pumps on.” Holiness stated that he had a clear view of the car and saw two black males therein, one was slim and tall and the other huge and fat. The slim person first came into the store and asked about food. The large person then came in the store, drew a pistol and placed the end of the barrel between the eyes of Holiness and told him, “If you don’t give my your money, I’ll blow your brains out.” Both defendants were positively identified by Holiness during his testimony. Neither man was disguised at the time of the robbery.

The large man began beating Holiness with the pistol and knocked him down behind the counter. Holiness then gave the man a bag of money containing $350. During this time the slim man was trying to put gas in the car, and the large man was holding the gun threatening to shoot Holiness, stating that “I’m going to go ahead and kill you now.” The men then decided to hurry away without getting the gasoline, saying they now had money to purchase it elsewhere. As they drove away, Holiness could see that the car had a Louisiana license plate. He then called the sheriff’s office and furnished them a description of the two men and the car.

Peggy Ross testified that she lived in a trailer near the store. She drove her car to the store to purchase gasoline, with Cindy Hollowell and Marie Holiness in the car with her. She testified that when she arrived at the gasoline pumps there was a car there with “two colored men” in it and the car was a Cougar. She did not see the rear of the car and was not able to identify the license plate. She positively identified a picture of appellant’s car as the one at the station. Further, she testified that one man got out of the car at the gasoline pump while she was there and that sitting in the car was a large man with big bulging cheeks. (The men had not gone into the store at that time.) Also, she stated she then drove away toward Vicksburg. Finally, this witness positively identified the appellants as the two men she saw in the Cougar automobile.

Next, Cindy Hollowell related about being in the car with Peggy Ross getting gasoline when the car containing the two men drove up to the store. She stated that the driver got out of the car first, admitting she did not see his face but remembered that he was tall and slim. She noticed the person sitting on the passenger side of the front seat and stated that he appeared to be an extremely large black male. The witness testified that she saw his face and identified him as appellant Louis T. Scott at the trial. Also, she identified the appellant’s car from a picture that had been introduced in evidence. As previously testified to, she stated the car containing the men was still at the store after they had driven away.

Jerry Powell testified that he worked at AAA Auto Service located on Highway 61 south of Vicksburg. The first he knew of the robbery at the Holiness store was when some officers came by the service station. Shortly before the officers came by, Powell stated that a gray Mercury Cougar had stopped at his station for gasoline. There were three black males in the car. A large man was on the passenger side in front and a slender man was driving, and there was a young black male on the rear seat of the car. They purchased $12 worth of gasoline and a road map. Powell also positively identified Scott at the trial as the large black male that was sitting on the passenger side of the front seat of the car.

Witness Bernard Forbes testified that he was eighteen years of age and grew up in New Orleans. He knew appellants Scott and Anderson. He testified that he was making the trip with them at the time the robbery occurred and when they drove up to the store he was lying down on the back seat of the car asleep. When the car stopped, he was awakened. He raised up and looked toward the store and both Scott and Anderson were inside the store. Forbes testified that he saw the robbery take place and saw Scott when he grabbed the man and “put the pistol to him.” According to Forbes, Anderson then tried to put gasoline in the car but was unable to do so. He testified that they were short of money and that Scott brought a sack of money out of the store with him. The trio then stopped at a service station “up the road” while they were driving in a northerly direction and bought gasoline. The money was in a little brown case secured in the robbery. They purchased $12 worth of gasoline and a road map; then they stopped at another store and bought some orange juice and peanuts. Scott gave him $10 of the money taken in the robbery. According to Forbes, they then proceeded through Vicksburg in a northerly direction on Highway 61. When they reached Leland, Mississippi, he noticed a police car stopped on the side of the road facing south. The police car turned around and “cut his siren on” and began pursuing the Cougar. Scott said, “just get ready,” and the car was stopped. The appellant immediately got out of the car and started “popping.” He explained that as shooting guns at the policeman. They then tried to drive away but something was wrong with the car. By that time other officers had arrived and all three were arrested. Forbes identified the pistol taken from Scott as Scott’s pistol and identified the photographs of the car as the one used in the robbery. He reiterated that he saw Scott strike the head of the man in the store with the pistol introduced in evidence.

Witness Paul Barrett was the Sheriff of Warren County. He was advised of the robbery shortly after eight o’clock A.M. After this notification he then got in his car and started to the scene — but the car stopped running and he had to get a ride with another person. They proceeded to the store and began their investigation. Shortly thereafter, a description of the car was broadcast by radio as being a silver Cougar with a Louisiana license plate, and Barrett secured a description of the two men who committed the robbery. He testified that Holiness had a blue spot and bumps on his head and his face was swollen where he was struck by the pistol.

Barrett then testified that towns along Highway 61 north of Vicksburg were called by telephone and alerted as to the robbery, and were likewise given a description of the car and the individuals. The first he knew of the arrest of appellants was when he secured information of a “gun battle” in Leland. He immediately called the Sheriff’s office in Washington County and learned what had occurred. He immediately secured an airplane and flew to Leland. Pictures were made of the car that later were introduced in evidence and identified by all of the witnesses.

Witness Robert McMasters was chief of police of the Town of Leland. He testified that on the day in question he received a communication over the police network in regard to the armed robbery south of Vicksburg. He had three officers on duty other than himself at the time and had three patrol units in addition to his car. McMasters testified that Police Officer Donald Kelly was alone in his vehicle. He received a communication over the radio that Policeman Kelly had apparently observed the car being sought and was in the process of pursuing it northerly toward Leland. McMasters immediately left the station to try and assist Officer Kelly at the location Kelly had given over his radio. When he arrived he found Officer Kelly’s car and the Mercury Cougar stopped. He observed Officer Kelly lying at the rear of his patrol car. The Cougar was attempted to be started and McMasters fired a shot at the left rear tire so that it could not be moved. All three black male individuals in the car were arrested. McMasters identified the car from the pictures that had been introduced in evidence. Also, he identified the appellants who were sitting at the counsel table. He testified that included in the weapons found in the car was “a sawed-off 12-gauge shotgun.” The pistol which had been used in the robbery was secured, and as hereinbefore stated, was introduced in evidence at the trial and identified by the witness Forbes.

From the above condensed discussion of the evidence, it is clear that the verdict of the jury was not against the overwhelming weight of the evidence and there is no merit in this sole assignment of error propounded by appellants.

AFFIRMED.

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


source: Caselaw Access Project

author: SUGG, Justice,

license: Public Domain

text:
    Leo PUGH v. T. D. EASTERLING.
    No. 50911.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    John W. Prewitt, Vicksburg, for appellant.
    Ramsey, Bodron, Thames & Robinson, Lee Davis Thames, Vicksburg, for appellee.
    Before SMITH, SUGG and COFER, JJ.
   SUGG, Justice,

for the Court:

Leo Pugh filed a malicious prosecution action in the Circuit Court of Warren County against T. D. Easterling and Big Ten Tires of Vicksburg, Inc. The suit was based on an affidavit filed by Easterling against Pugh charging Pugh with a misdemeanor. The circuit court dismissed the cause with prejudice against Big Ten and entered judgment against Easterling in the amount of $425. The plaintiff filed a direct appeal and defendant filed a cross-appeal. Plaintiff argues on his direct appeal that the jury’s verdict was unresponsive to the damages which the plaintiff suffered to the extent that the verdict evinced bias, passion and prejudice on the part of the jury, and that the circuit court erred in overruling his motion for an additur or, in the alternative, a new trial on the issue of damages only. The defendant, Easterling, filed a cross-appeal in which he contends that the circuit court erred in refusing to direct a verdict for the defendant. We have concluded that the defendant was entitled to a peremptory instruction so we reverse on cross-appeal thereby precluding the necessity of passing on the question of the adequacy of damages.

Defendant was the manager of Big Ten when Gary Lynn Harris, the son-in-law of plaintiff, purchased four tires for his pickup truck on April 16,1976. The assistant manager of Big Ten sold Harris the four tires and took the application of Harris for a loan to pay the balance due on the tires. Big Ten did not sell tires on credit, but for the convenience of customers who could not pay cash for tires, would take an application for a loan from Consumer Credit Company to pay for the tires. Big Ten did not guarantee payment to the credit company. Consumer Credit did not approve the application of Harris so the defendant co-signed the note in order to secure approval of the application by Consumer Credit. Harris did not make the payments due on the note and defendant paid the balance of the note upon demand from Consumer Credit.

On October 28, 1976, defendant went to the home of plaintiff where Harris was living at that time and where the truck was located. When defendant attempted to take the tires off the truck, an argument ensued. After a lengthy argument, defendant left the premises when the plaintiff secured his shotgun and ordered him to leave.

Defendant then filed an affidavit against plaintiff for exhibiting a deadly weapon under section 97-37-19 Mississippi Code Annotated (1972). Plaintiff was arrested, incarcerated in jail for about two hours, and released on bail. After a trial before Justice Court Judge Dorothy Breland without a jury, the following judgment was entered.

This cause this day coming on for trial and the defendant being arraigned in court on a charge of exhibiting a deadly weapon in a threatening manner and having pleaded not guilty and the court having heard the testimony and being of the opinion that the defendant is guilty it is therefore considered by the court and so ordered and adjudged that the defendant is guilty but both parties (Mr. Pugh and Mr. Easterling) conducted themselves disorderly so case dismissed.
Ordered and adjudged this the 9th day of November, 1976.
/s/ Dorothy H. Breland
Justice of the Peace,
First District, Warren County, Mississippi

Before addressing the issues in this case, we should look to our approach to suits for malicious prosecution based on criminal proceedings. In State, Use and Benefit of Foster v. Turner, 319 So.2d 233 (Miss.1975), we stated:

We would point out that actions for malicious prosecution are regarded by law with jealousy and they ought not to be favored but managed with great caution. Their tendency is to discourage prosecution for crime as they expose the prosecutor to civil suits, and the love of justice may not always be strong enough to induce individuals to commence prosecution when, if they fail, they may be subjected to the expenses of litigation even though they are not found liable for damages. Suits by which the complainant in a criminal prosecution is made liable to an action for damages, at the suit of the person complained of, are not to be favored in law, as they have a tendency to deter men who know of the breaches of the law from prosecuting offenders thereby endangering the order and peace of the community. Although the court should not discourage actions for malicious prosecution, by establishing harsh rules of evidence, or by the rigid principles of law, by force of which a party may be deprived of an important remedy for a real injury, at the same time, all proper guard and protection should be drawn around those who, in obedience to the mandates of duty, may be compelled to originate, carry on, aid or assist in a criminal prosecution which may from any cause terminate in favor of the accused. (319 So.2d at 235).

In keeping with the policy enunciated above we have established certain elements that a plaintiff must establish in order to recover in an action for malicious prosecution. State, Use and Benefit of Foster v. Turner, supra; Harvill v. Tabor et al., 240 Miss. 750, 128 So.2d 863 (1961). In Harvill, we said:

In order to maintain an action for malicious prosecution, the plaintiff must establish the following elements: (1) The institution or continuation of original judicial proceedings, either criminal or civil (the proceeding here is criminal); (2) by, or at the instance of the defendants; (3) the termination of such proceeding in plaintiff’s favor; (4) malice in instituting the proceeding; (5) want of probable cause for the proceedings; and (6) the suffering of damages as a result of the action or prosecution complained of. 34 Am.Jur., Malicious Prosecution, Section 6, page 706; 54 C.J.S. Malicious Prosecution, § 4, page 955. (240 Miss. at 753, 754; 128 So.2d at 864).

In other cases we have held that the third element set out in Harvill must be established in order to recover in an action for malicious prosecution. See Brown et al. v. Kisner, 192 Miss. 746, 6 So.2d 611 (1942); Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316 (1935); Jones v. Donald Co. et al., 137 Miss. 602, 102 So. 540 (1925).

It is evident from our cases that, when a suit for malicious prosecution is based on a criminal proceeding, the criminal proceeding must terminate in favor of the defendant before a defendant has a cause of action for malicious prosecution. A different expression was made in Brooks v. Super Service, Inc., 183 Miss. 833, 183 So. 484, suggestion of error overruled 185 So. 202 (1938). In Brooks, the trial court sustained a demurrer to the declaration which was reversed on appeal. The declaration alleged that Brooks was convicted in the justice of the peace court and on appeal to the county court, the county attorney, without the consent and over the objection of the plaintiff, refused to try the case but made a motion for a cesset processus. The county court entered the order of cesset processus and this Court held that the order, for all practical purposes, was the equivalent of a formal nolle prosequi. On petition for rehearing the Court stated by way of obiter dictum:

There are three lines of cases dealing with the effect of a judgment of conviction on the question of probable cause for instituting the prosecution.
(1) It is conclusive evidence thereof. (2) It is conclusive evidence thereof unless it was obtained by fraud, perjury, or other corrupt means. This is the rule of the majority of the cases and is that adopted in 3 Rest. Tort, Section 667. (3) It is only prima facie evidence thereof and may be rebutted by any competent evidence which clearly overcomes the presumption that arises from the fact of the defendant’s conviction. The first of this line of cases we unhesitatingly decline to follow, but it will not be necessary for us to here determine with which of the other two lines of cases we will align ourselves for the case presented by the declaration will come within both. If it be said, as to which we express no opinion, that if this court aligns itself with the second of these two lines of decision, a declaration setting forth a conviction in the prosecution complained of must allege that the conviction was procured by fraud, perjury, or other corrupt means, the declaration here so alleges sufficiently to withstand a demurrer. (183 Miss. at 844, 845, 185 So. at 202).

The above was not necessary for a decision in the case because the order of the county court was a termination of the criminal proceeding favorable to the plaintiff. We decline to follow the dictum because it is contrary to our other cases and the underlying reason for the conclusion reached is not sound.

If a defendant is convicted on evidence obtained by fraud, perjury or other corrupt means, adequate post conviction remedies exist whereby the conviction may be corrected. The Brooks court may have reached the conclusion that a conviction is not conclusive evidence of probable cause for instituting a criminal prosecution because of its desire to protect indigent defendants who might not be able to employ counsel to represent them in the criminal proceedings. If this was the reason for the rule, it is no longer valid because it is now well established that indigent defendants can require the state to furnish them with counsel in both felony and misdemeanor cases. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Under the Sixth Amendment to the United States Constitution, all defendants, whether indigent or not, have the right to legal counsel in any criminal proceeding filed against them, and any conviction obtained by fraud, perjury or other corrupt means may be corrected by proper post conviction remedies. Therefore, it is not unreasonable to require a plaintiff to show that the criminal proceeding terminated in his favor before allowing recovery in a malicious prosecution action based on such criminal proceeding. Stated differently, plaintiff should exhaust all available post conviction remedies and secure a termination of such criminal proceeding favorable to him before recovering in an action for malicious prosecution.

We hold that a conviction is conclusive evidence of probable cause for instituting a criminal prosecution, and a plaintiff, in a suit for malicious prosecution based on a criminal prosecution, must show that the criminal proceeding terminated in his favor as a condition precedent to recovery.

This brings us to the question of whether the criminal case was terminated in favor of the plaintiff. We have held that a case is terminated in the plaintiff’s favor when the prosecution is abandoned or the affidavit is withdrawn. Gandy et al. v. Palmer, 251 Miss. 398, 169 So.2d 819 (1964); Priest et al. v. Avent, 236 Miss. 202, 109 So.2d 643 (1959). We also held in Brooks v. Super Service, Inc., supra, that termination by a formal nolle prosequi is also a termination favorable to plaintiff. However, termination in the manner set forth in the above cases is not conclusive on the question of whether malice existed in instituting the prosecution.

In this case plaintiff contends the evidence shows that the criminal prosecution was terminated favorably to him. Following the hearing before Justice Court Judge Breland, plaintiff’s attorney transmitted to the justice court judge an order dismissing the case against plaintiff reciting that evidence was insufficient to support the charge against the plaintiff.

The justice court judge testified that she received the letter and the order of transmittal, signed the order, but before entering it on her docket noticed that the order provided that the case was dismissed due to insufficient evidence. She testified that the case was not dismissed because of insufficient evidence therefore she wrote “void” across the order furnished by plaintiff’s attorney. She further testified that she called, or had her secretary call, the plaintiff’s attorney to notify him that she would file the order with her record, but that she had written “void” across it because she signed it before she read it carefully. She further testified that no further effort was made to notify plaintiff’s attorney of her action.

She testified that she then prepared the order which is set forth above and entered it on her docket. She stated:

All right. In a Justice Court—and I know it is the lowest court. A lot of times we do this in community fusses or fights. And, of course, this was a little more than that. But we don’t see where a fine or anything helps the matter. Now I didn’t know we were going to have a big civil suit on this. And, I thought, Mr. Easterling should have gotten a civil paper and let my court pick up the tires. And he lost his temper. This man (indicating) got a gun. And he shouldn’t have gotten a gun. He should have called the law to help him out. So I felt like — at that time, I didn’t see where a fine would help anything. We all live here together. And I thought it would just work itself out with time. I grant you, if I’d known it was a big civil suit—
THE WITNESS: But that is the reason, Judge. And a lot of that information on that last sentence was for my own benefit, so I would remember what happened in court. But that is the reason I dismissed it.

It is evident that the docket reflects the action of the court and it is the record to which we look to determine the disposition of the case.

We are of the opinion that the judgment entered was a conviction of the plaintiff on the charge against him. A conviction on the merits relates to a plea or verdict of guilty, either of which ascertain and publish the fact of guilt; while the pronouncement of the judgment of the sentence denotes the action of the court in declaring the consequences of the fact thus ascertained. In other words, the sentence is not part of the conviction, but a conviction must precede a sentence. That being so, it follows in the present case that the action of the justice court judge in declining to sentence plaintiff because, “both parties (Mr. Pugh and Mr. Easterling) conducted themselves disorderly so case dismissed” did not have the effect of disturbing the conviction on the merits. We therefore hold that the criminal prosecution did not terminate favorably to the plaintiff and his suit for malicious prosecution must fail for that reason.

REVERSED AND RENDERED ON CROSS-APPEAL.

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


author: ROBERTSON, Presiding Justice,

text:
    TYSONS, INC. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 50845.
    Supreme Court of Mississippi.
    Feb. 21, 1979.

      McGehee, McGehee & Torrey, H. B. Mayes McGehee, Meadville, for appellant.
    R. L. Netterville, Natchez, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

The Mississippi State Highway Commission filed eminent domain proceedings against Tysons, Inc., in the Special Court of Eminent Domain of Franklin County, to condemn a 1.52 acre strip of land out of a 6-acre tract fronting on the south side of U.S. highways 84 and 98, between the towns of Bude and Meadville. U.S. highways 84 and 98 will be widened to four lanes and hereafter will be limited access highways.

The Petition also stated:

“Petitioner would represent and show that it needs and desires the Right of Immediate Possession as is provided by law.”

Petitioner requested:

“[TJhat this Court will appoint a disinterested, knowledgeable person qualified to make an appraisal of the property and report as provided by Section 11-27-83, Mississippi Code of 1972 Annotated; that upon a final hearing hereof a determination be made as to the amount Petitioner shall pay the Defendant as due compensation; that upon return of a verdict and payment as provided by law, Petitioner be authorized to take and use the property as hereinabove set out.”

Pursuant to the Petitioner’s request, the Court, on October 20, 1977, appointed a “disinterested, knowledgeable person” to appraise the property. The court-appointed appraiser filed his Statement of Values with the Clerk of the Court on October 31st, 1977, and on November 9, 1977, the Court entered its Order granting Petitioner the right of immediate possession, provided Petitioner deposit with the Clerk of Court 85% “of the amount of compensation and damages, as determined by said appraiser.”

On November 17,1977, the Court entered this Order to Disburse Funds:

“The petitioner having heretofore deposited with the Clerk the statutory amount of eighty-five per cent (85%) of the amount of the compensation damages as determined by the court-appointed appraiser;
“It is, therefore, ordered and adjudged that the Clerk be, and she is hereby, authorized and directed to disburse said proceeds as provided by law.”

Thereafter, this cause was tried on January 24,1978, and the jury returned a verdict for $9700 damages.

Appellant contends that there was a total variance between the pleadings filed by the Commission and the proof adduced by the Commission at the trial, that the verdict was not supported by credible evidence as to value, and that the verdict is grossly inadequate and contrary to the overwhelming weight of the evidence.

The Commission filed with the circuit clerk this statement of values:

STATEMENT OF VALUES
Comes now State Highway Commission of Mississippi pursuant to the provisions of Section 11-27-7, Mississippi Code of 1972 Annotated, and would represent and show that (1) the fair market value of the property to be condemned, as of the date of filing the Petition is $6,600.00; (2) the damages to the remainder is $1,100.00; and (3) the total compensation and damages to be due is $7,700.00.
The elements of damage are: Severance damage for loss of utility and temporary easement.
Petitioner would represent and show that the highest and best use of said land is commercial.

Before putting on its only appraiser, Lamar Hooker, counsel for the Commission, repeated, and dictated into the record, the statement of values filed by the Commission. The Commission’s counsel said:

“Judge, may I state for the record that the Appraisal Department for the State Highway Department has placed in the record their estimate of the fair market value of the property to be condemned as of the date of the filing of the petition as $6,600.00. Their position was that the damages to the remainder was $1,100.00, and they filed with their statement of value that the total compensation and damages due is $7,700.00. The appraiser also said that the elements of damages are severance damages for loss of utilities temporary easement and the appraiser for the State Highway Department also said that the petition would show that the — in their opinion — the highest and best use of the land is commercial.”

Lamar Hooker, the Commission’s only appraiser, testified that the total damages suffered by the landowner were $4660.00, that there was no severance damage, and no damage from denial of direct access to the highway.

On direct examination, Hooker also testified:

“Q. Now, the reason I asked you that question, the Highway Department’s appraiser put the highest and best use of the land as commercial. Would that affect you in any way in coming up with the value of it?
“A. I think he is dead wrong.”

Hooker’s appraisal was $3040 less (40% less) than the Commission’s appraisal contained in its filed statement of values.

Mississippi Code Annotated section 11-27-7 (1972) provides in part:

“The statements required by this section shall constitute the pleadings of the parties with respect to the issue of value, and shall be treated as pleadings are treated in civil causes in the circuit court.”

The Commission’s proof thus contradicted at every turn its pleadings. This the Commission cannot do with impunity. This constituted fatal error.

In Sarphie v. Mississippi State Highway Commission, 275 So.2d 381 (Miss.1973), this Court said:

“[A]n eminent domain suit is a peculiar type of action where the condemnor is under a heavy and non-delegable duty and responsibility to pay the defendant landowner the full fair market value of her property.” 275 So.2d at 383.

The Highway Commission failed to meet the burden of proof squarely placed upon it to provide credible evidence as to the value of the property to be taken. We note also that the jury did not view the property because of bad weather.

There is no basis in the record for the jury’s $9700 verdict. Therefore, the judgment of the trial court must be reversed.

A new trial will be granted, unless the Commission, within 15 days from the date this judgment becomes final, agrees to an additur of $5,600, thus making the total judgment $15,300. In the event the additur is approved by the Commission, the judgment will be affirmed, otherwise it will be reversed and the case remanded for a new trial.

AFFIRMED ON CONDITION OF AD-DITUR ON DIRECT APPEAL, OTHERWISE REVERSED AND REMANDED FOR A NEW TRIAL; AFFIRMED ON CROSS-APPEAL.

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


author: FAULKNER, Justice.

text:
    Mahallie SANDERS, mother and best friend of Eddie L. Sanders, a minor, v. Donald VINCENT.
    77-553.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    Rehearing Denied Feb. 23, 1979.
    Clifford W. Hardy, Jr., Bessemer, for appellant.
    Jake V. Bivona of Paden, Green & Paden, Bessemer, for appellee.
   FAULKNER, Justice.

Plaintiffs appeal from the granting of an amended motion for summary judgment in favor of defendant Donald Vincent, in accordance with Rule 54(b) A.R.C.P. We affirm.

Plaintiff Eddie Sanders was allegedly injured on September 2, 1973, in the scope of his employment at Ellison’s Standard Oil Service Station and Car Wash in Hueytown. On August 30, 1974, Sanders filed suit against Mike Ellison and, under the fictitious party provisions of Rule 9(h) ARCP, against X and Y, the owner and operator of the car wash, A, B, and C, an entity for whose benefit the work was being done, and L, M, and N, an entity responsible for the care, condition, or state of the area in which Sanders worked. On June 16, 1977, Sanders was allowed to substitute Donald Vincent, Ellison’s lessor, and others as defendants.

On November 30, Vincent filed an amended Motion for Summary Judgment asserting as grounds (1) the improper use of Rule 9(h) to add Vincent as a defendant and (2) a “failure to state a cause of action” against Vincent. The trial court granted the motion without specifying which ground it based its judgment on.

Sanders’ complaint contained the following allegations:

“1. On or about September 2, 1973, the plaintiff was working in the scope and line of duty of his employer, defendant, in the City of Hueytown, Jefferson County, Alabama, 914 Warrior Road, plaintiff was injured, at said time and place the defendants were in charge or control.
[Paragraph 2 details Sanders’ injuries.]
“3. Plaintiff avers that as a proximate consequence of said negligence of defendants the plaintiff was injured and damaged as hereinabove set forth in paragraph 2.
“4. Plaintiff avers that on said occasion in charge or control of the working area defendants wantonly injured the plaintiff, and as a proximate consequence of said wanton conduct of defendants the plaintiff was injured and damaged as hereinabove set forth in paragraph 2.”

An affidavit and answers to interrogatories accompanying Vincent’s motion indicated that Vincent’s only connection with the car wash or Sanders at the time of Sanders’ injuries was as the lessor of Sanders’ employer, Ellison, and as either the lessor or most-recent vendor of the used car wash equipment which was apparently involved in Sanders’ injuries. Vincent is not in the business of selling this sort of equipment. Consequently, in order to recover against Vincent, Sanders must prove a violation of some duty resulting from the landlord/tenant relationship.

Assuming arguendo that Sanders’ complaint sufficiently alleges a claim upon which relief can be granted, it is apparent that, based upon Vincent’s uncontroverted affidavit and answers to interrogatories, Vincent is entitled to judgment as a matter of law. Vincent’s affidavit specifically states, “[Tjhere was no agreement requiring me to repair or maintain the equipment sold to Mike Ellison . . . The equipment was sold to him ‘as is’ and it was his responsibility to maintain it.” Sanders has not disputed this.

The rule in Alabama is:

“[A]s to the tenant, his servant, guest or others entering under his title, in the absence of a covenant to repair, . the landlord is only liable for injuries resulting from latent defects, known to him at the time of the leasing, and which he concealed from the tenant.” Southern Apartments, Inc. v. Emmett, 269 Ala. 584, 114 So.2d 453 (1959).

See also Osborn v. Brown, 361 So.2d 82 (Ala.1978); Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975); Uhlig v. Moore, 265 Ala. 646, 93 So.2d 490 (1957). In this regard Vincent’s uncontroverted affidavit states, “I was not aware of any latent defect or any other defect in the equipment sold [or leased] to [Ellison].” Vincent’s answers to interrogatories added, “[T]he equipment was in the same condition when sold to Ellison as it was when I purchased it from Magic Tunnel Car Wash Corporation [3 months before].” Since Sanders did not, on the motion for summary judgment, deny any of these assertions, Vincent was entitled to prevail as a matter of law and the summary judgment was properly granted.

Vincent has also asserted that he was not properly added to the case through the use of Rule 9(h). Since we find that Vincent was entitled to summary judgment on the merits we do not reach this contention.

AFFIRMED.

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


text:
    Roland GUYSE et al. v. J. W. CHAPPELL, Sr., et al.
    77-297.
    Supreme Court of Alabama.
    Jan. 19, 1979.
    Rehearing Denied Feb. 23, 1979.

      Noble J. Russell and Robert Straub of Russell & Straub, Decatur, for appellants.
    Sherman B. Powell, Sr., Decatur, for ap-pellees.
   FAULKNER, Justice.

This appeal is from a judgment establishing a boundary line. We reverse.

The parties are coterminous landowners who have all taken their respective parcels of land by reference to government survey. In 1976, a dispute arose over the true boundary lines between them. Litigation ensued, and the trial court entered a decree, that in effect, relocated the interior subdivision lines of a government surveyed section on a line contended for by the Chappells.

The parcels of property in question all lie in Section 34, Township 7 South, Range 3 West in Morgan County. The Guyses purchased the W Vi of the SE Vi of the section (80 acres) in 1972. Their neighbor to the west, J. W. Chappell, Jr., owns the E Vi of the SW Vi of the section (80 acres). North of Chappell, Jr., and northwest of the Guys-es is plaintiff J. W. Chappell, Sr., who owns the SE Vi of the NW Vi of the section (40 acres), less two acres owned by Chappell, Sr.’s son, Jerry. Directly to the north of the Guyses and east of Chappell, Sr., is Robert Smith who owns the S Vi of the NE Vi of the section (80 acres). Smith failed to appear and suffered a default judgment. The parcels are situated so that the four landowners all share a common comer located in the center of the section. It is the exact location of this common comer which is the cause of the current dispute.

In 1976, the Guyses had a survey conducted to locate the boundaries of their property. The surveyor established a line between the property of the Guyses and Chap-pell, Jr. Problems arose when it was realized that the line, if extended north to establish the boundary between Chappell, Sr., and Smith, would pass through the house of Jerry Chappell. Consequently, Chappell, Sr., informed the Guyses and their surveyor, that a survey had been conducted in 1937, and a stob placed at the common corner of the parcels per the agreement of the owners at that time. This stob was located with the aid of a pin finder, and was found to be 68 feet south and 141 feet east of the common corner found by Guys-es’ surveyor. More importantly, a line drawn south from this stob would run directly through the Guyses’ house and barn. The validity of the Guyses’ survey was not challenged at trial. On the other hand, it was never revealed who conducted the 1937 survey or how.

The trial court’s final decree established the common corner of the parties as the stob placed in 1937. Moreover, the decree stated that the Guyses owned the W lh of the SE Vi of Section 34, and the other parties owned their respective parcels described by government survey, as set out above. Thus, the final decree purported to establish the 1937 stob as the true center of Section 34. In doing so, the trial court misapplied the law to the facts.

Our cases are clear that no agreement or act (e. g., adverse possession) of adjacent landowners can relocate the section lines, or interior subdivision lines established by government survey, for they are certain in legal contemplation. Sims v. Sims, 273 Ala. 103, 134 So.2d 757 (1961); Upton v. Read, 256 Ala. 593, 56 So.2d 644 (1952); Alford v. Rodgers, 242 Ala. 370, 6 So.2d 409 (1942). “[Recognition by adjoining owners of a false [government survey] line as the boundary between them is without effect, unless the party claiming beyond the true line also holds hostile possession up to the false line until the bar of the statute is complete.” Oliver v. Oliver, 187 Ala. 340, 343, 65 So. 373, 375 (1914). In the latter instance, the government survey is not changed. Instead, the boundary line between the landowners is changed so that the government survey line is no longer the location of the boundary. Godsey v. Anglin, 261 Ala. 19, 73 So.2d 92 (1954); Alford v. Rodgers, supra. Here it was undisputed that the Guyses’ survey correctly located the government survey lines. The trial court’s final decree would have the effect of relocating the government lines on the basis of an erroneous agreement among the prior landowners, and that it cannot do.

Following closing arguments, the plaintiffs amended their complaint to add a claim of adverse possession. Although the trial court’s decision obviously did not rely on a finding of adverse possession, the Chappells assert here that adverse possession was established and would support the result reached by the trial court. We disagree.

While Chappell, Sr., has owned his property for about thirty years, Chappell, Jr., purchased his eighty acres in 1968, so that he would have to rely on tacking to establish any claim through adverse possession. Recent cases have made it clear that tacking is permissible even though the conveyance does not describe the claimed property so long as the grantee is put into actual possession of the disputed area. Watson v. Price, 356 So.2d 625 (Ala.1978); Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975). In Carpenter, a fence was located along the line to which Mrs. Huffman claimed by adverse possession. Here there was a fence, too, but it was located generally along the line established by the Guyse survey. Chappell, Jr.’s activities east of this fence were sporadic. He cut some stove wood, and grew three, or four crops of strawberries. (The strawberries were later bush hogged by Guyse, apparently without objection.) Otherwise, all the indications to an observer were that the property east of the fence was part of the Guyse parcel.

“In adverse possession, the burden of proof rests on the claimant [cite omitted] to prove that his possession is actual, hostile, open, notorious, exclusive, and continuous for the statutory period.” Smith v. Claybrook, 349 So.2d 1087, 1089 (Ala.1977) [emphasis added]. Just as Chappell, Jr., failed to show the necessary elements of adverse possession, so did his father. This is patently obvious from the fact that the Guyses owned the property for four years before they were even aware that anyone else claimed an interest in it. In fact, Chappell, Sr.’s testimony revealed that the disputed area had been worked on several occasions throughout the years by the Guyses’ predecessors in title. Chappell, Sr., also stated that none of the area had been worked by anybody for about ten years. At best, control of the area has been confused. The proof simply failed to establish that either of the Chappells had actual, hostile, open, notorious, exclusive, and continuous possession of the property from the true government survey lines to the stob. The boundaries between the parties remained along the lines of the government survey.

Because the trial court’s decree attempted to relocate the government survey lines it is erroneous as a matter of law. Adverse possession was not shown. Consequently, the judgment must be reversed and remanded so that the trial court may enter a decree establishing the boundaries between the parties as determined by the Guyse survey.

REVERSED AND REMANDED.

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


author: BLOODWORTH, Justice. MADDOX, Justice

text:
    John A. JACKSON, Jr., et al v. Jesse E. FILLMORE.
    77-389.
    Supreme Court of Alabama.
    Jan. 19, 1979.
    Rehearing Denied Feb. 9, 1979.
    James E. Hart, Jr., Brewton, for appellants, John A. Jackson, Jr. and Thomas E. McMillan, Jr.
    Lee M. Otts and John Thaddeus Moore, Brewton, for appellee, Jesse E. Fillmore.
    T. M. Brantley of Brantley & Vargo, Bay Minette, for appellee, Mary E. Jackson.
   BLOODWORTH, Justice.

The sole issue in this ease is whether the rule announced in Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), should be applied retrospectively or prospectively to the facts of this case. We hold that it should be applied prospectively and affirm.

The facts, as clearly and concisely stated in the trial court’s judgment, are as follows:

“This is a suit to quiet title brought by Jesse E. Fillmore against John A. Jackson, Jr., Thomas E. McMillan, Jr., Mary E. Jackson and others, seeking to quiet title against the surface of lands described in his Bill of Complaint and an undivided one-half interest in the minerals, subject to a mortgage and an oil lease.

“The Defendant, Mary E. Jackson, by her answer, claimed an undivided one-half interest in the minerals under said property. By their answer, John A. Jackson, Jr. and Thomas E. McMillan, Jr. each claimed an undivided one-fourth interest in the surface and minerals of the property. Other defendants by their answers claimed various leasehold and royalty interest in said property. This cause was set for a hearing on the 14th day of October, 1977. Testimony was taken ore tenus and the matter was submitted to the Court on the pleadings of all the parties; testimony, which was taken ore tenus, documentary evidence attached to the pleading and introduced at the time of the trial and request for an admission of facts, and facts admitted' .

“Prior to December 1,1966, John A. Jackson was the owner in fee simple of the 160 acres of land which is the subject matter of this suit.

“By warranty deed dated December 1, 1966, John A. Jackson and wife, Mary E. Jackson conveyed this land to John A. Jackson and Mary E. Jackson as joint tenants with right of survivorship. Said deed was prepared in this manner by Hugh M. Caf-fey, Jr., Attorney at Law, Brewton, Alabama, at the request of both Mr. and Mrs. Jackson. From the testimony in this cause it appears that Mr. Caffey explained to Mr. and Mrs. Jackson that title would be held by them jointly during their lifetime and on the death of either, the survivor would then own the entire interest in the property.

“Subsequently, on July 17, 1967, John A. Jackson executed a deed which purported to convey his interest in subject property to his son, John A. Jackson, Jr. On the date of this deed to John A. Jackson, Jr., the grantor, John A. Jackson, was legally married to Mary E. Jackson, and this deed was not executed by Mary E. Jackson. No consideration was paid in connection with this conveyance.

“John A. Jackson (also known as John Allen Jackson), who was the husband of Mary E. Jackson, died intestate on January 27, 1968.

“In August, 1968, Jesse Fillmore entered into an agreement with Mary E. Jackson, whereby Mary E. Jackson agreed to sell subject property to Jesse E. Fillmore for the sum of $16,200.00, with the sales transaction to be closed on or before September 16, 1968. Mr. Fillmore paid Mrs. Jackson $500.00 and on August 16, 1968, Mrs. Jackson executed a warranty deed conveying said property to Mr. Fillmore. This deed was left with Mrs. Jackson’s attorney, Hugh M. Caffey, Jr., Brewton, Alabama, to hold in escrow pending receipt of the balance of the purchase money.

“The Citizens-Farmers & Merchants Bank of Brewton, Alabama, (now First National Bank) agreed to loan Mr. Fillmore the necessary funds with which to purchase subject property. As security Mr. Fillmore was to execute a mortgage to the bank listing as security subject property.

“Mr. Fillmore requested Mr. Caffey to examine the title to subject property and to address his opinion to the Citizens-Farmers & Merchants Bank. Mr. Caffey did render an opinion to the bank on September 9, 1968. In paragraph 2 of this opinion this attorney stated as follows:

“ ‘By deed dated December 1,1966, and recorded on February 10, 1967, in Deed Book 221, page 293, John A. Jackson and Mary A. Jackson conveyed the above described real estate to John A. Jackson and Mary A. Jackson jointly for life with the remainder to the survivor of them. Thereafter and on July 17, 1967, by warranty deed recorded on August 9, 1967, John A. Jackson attempted to convey his interest in subject real estate to his son, John A. Jackson, Jr., also known as John Allen Jackson. I personally know that John A. Jackson, Sr. died on January 27, 1968, and it is my opinion that in spite of his conveyance to John A. Jackson, Jr., as above pointed out, Mary E. Jackson under the express terms of the survivorship deed executed on December 1, 1967, acquired an absolute title in and to the above described real estate and that her present ownership is subject only to the mortgage mentioned as exception number 1.’

“It was stipulated by the parties that Hugh M. McCaffey, Jr. was well qualified as a real estate and title attorney and could be considered an expert in this field of the law.

“The testimony in this cause further reflects that Mr. Caffey at the request of Jesse Fillmore researched the law pertaining to survivorship deeds prior to rendering the title opinion mentioned above and in reliance upon the law of this State at that time as set out in the case of Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 [1965] and in many other cases on this subject by the Appellate Courts of this State this attorney prepared and delivered to the Plaintiff in this cause a title opinion stating that in spite of an attempted conveyance to John A. Jackson, Jr. that Mary E. Jackson under the law of this State and under the express terms of the survivorship deed executed on December 1, 1966, from John A. Jackson and Mary E. Jackson to John A. Jackson and Mary E. Jackson as joint tenants with right of survivorship that upon the death of John A. Jackson (Sr.), Mary E. Jackson acquired an absolute title to subject property.

“It further appears from the undisputed testimony in this cause that immediately after the closing of the transaction wherein on September 15, 1968, Mary E. Jackson sold all of the surface of the lands to the Plaintiff in this cause for $16,200.00 that said Plaintiff Jesse E. Fillmore went into possession of said property and since said purchase has expended many thousands of dollars and considerable time and labor in improving said property and rendering it more suitable for farming.”

There is an additional fact which should be noted. On September 10, 1975, John A. Jackson, Jr., and his wife purportedly conveyed an undivided one-fourth interest in the property to McMillan.

John A. Jackson, Jr., and those claiming under him, contend that the principle established in Nunn v. Keith, supra, that a statutory joint tenancy with right of survivor-ship is destructible as at common law, should be applied retrospectively. Applying this principle, they contend the 1967 deed from John A. Jackson to John A. Jackson, Jr., severed the joint tenancy and destroyed Mary Jackson’s right of survivorship. Therefore, Mrs. Jackson’s subsequent deed to Fillmore would convey only a one-half interest. We cannot agree with this contention.

All of the transactions described above, with the exception of the 1975 conveyance to McMillan, occurred after the decision in Bernhard and before the decision in Nunn v. Keith. The law as declared in Bernhard was that a statutory joint interest with survivorship was indestructible without consent of all the joint owners. This was a rule of property in Alabama up until our holding in Nunn v. Keith, overruling Bern-hard, and this was the law relied upon by Fillmore when he purchased the property and by the bank which financed the purchase.

When a rule established by judicial decision has existed long enough to be relied upon by those acquiring rights to, or title in, certain property, courts should be loath to destroy such rights when overruling prior decisions. See Majestic Coal Co. v. Anderson, 203 Ala. 233, 82 So. 483 (1919) and Bibb v. Bibb, 79 Ala. 437 (1886). In McVay’s Administrator v. Ijams, 27 Ala. 238, 243 (1855), this Court held:

“. . . When, however, a rule of property has been adopted by judicial decision, and may reasonably be supposed to have entered into the business transactions of the country, it is our duty to adhere to it, lest we should overturn titles founded upon it. . ”

We believe this principle to be as equally applicable to those cases which overrule pri- or cases as to those cases which refuse to do so.

Although it dealt with contract rights, the opinion in Farrior v. New England Mortgage Security Co., 92 Ala. 176, 179-82, 9 So. 532, 532-33 (1891), expresses sound and settled principles of law which apply to the property rights in the present case:

“The question presented for consideration is the effect of the later decisions upon contracts and rights of property acquired under the statute as construed by the former decisions, and while those decisions were in force.
“It has been repeatedly declared in repeated decisions by the highest tribunal in this country, and many eminent jurists, that a fixed and received construction of a statute, made by the Supreme Court of the State, makes a part of such statute law. . . . ”
******
“The case of Bibb v. Bibb, 79 Ala. 444, though limiting the principle in its application to the subject-matter of the particular litigation, clearly recognized the rights of parties acquired under decisions of the Supreme Court in the following pertinent language: ‘The quieting of litigation; the public peace and repose; respect for judicial administration of the law, and confidence in its reasonable certainty, stability, and consistency, and all considerations of public policy — call for permanently upholding acts done, contracts executed, rights vested, and titles to property acquired on the faith of decisions of the court of last resort.’
“Persons contracting are presumed to know the existing law, but neither they nor their legal advisers are expected to know the law better than the courts, or to know what the law will be at some future day. Any principle or rule which deprives a person of property acquired by him, or the benefit of a contract entered into, in reliance upon and strict compliance with the law in all respects as interpreted and promulgated by the court of last resort at the time of the transaction, and no fault can be imputed to him in the matter of. the contract, unless it be held a fault not to foresee and provide against future alterations in the construction of the law, must be radically wrong. Such a principle or rule of law would clog business transactions, unsettle titles, and destroy all confidence in the decisions of the Supreme Court of the State. We hold the doctrine to be sound and firmly established by the decisions of the Supreme Court of the United States, and enunciated by many eminent text-writers, that rights to property, and the benefits of investments acquired by contract, in reliance upon a statute as construed by the Supreme Court of the State, and which were valid contracts, under the statute as thus interpreted, when the contract or investments were made, can not be annulled or divested by subsequent decisions of the same court overruling the former decisions.” [Emphasis ours.]

See also Peddycoart v. City of Birmingham, 354 So.2d 808, 815 (Ala.1978) (Torbert, C. J., concurring specially), where Chief Justice Torbert pointed out that “[t]he principle of prospective application is not of recent vintage, but was recognized by this court as early as 1890. Farrior v. New England Mortgage Security Co., 92 Ala. 176, 9 So. 532 (1890).”

In light of the evidence in this case demonstrating reliance upon the rule of Bernhard, the decision of the trial court to apply Nunn v. Keith in this case prospectively, rather than retrospectively, is correct and is due to be affirmed.

AFFIRMED.

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

MADDOX and SHORES, JJ., dissent.

MADDOX, Justice

(dissenting).

I thought Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972) had given Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965), a decent burial; now, the majority resurrects it.

In my opinion, Nunn applied retroactively. Justice Coleman, in his dissent in Nunn, argued that holders of survivorship deeds were entitled to rely on Bernhard as “defining the rights which the grantees received by such deeds.” 289 Ala. at 427, 268 So.2d 801. Therefore, even though the Nunn opinion does not address its retroactivity, I think the dissent in Nunn leaves little doubt that the majority in Nunn intended for that decision to overrule Bernhard completely. Consequently, I dissent.

SHORES, J., concurs.


author: PER CURIAM.

text:
    Virginia SWANN d/b/a Graysville Package Store v. CITY OF GRAYSVILLE et al.
    77-481.
    Supreme Court of Alabama.
    Feb. 23, 1979.
    M. Wayne Wheeler, Birmingham, for appellant.
    N. Daniel Rogers, Jr. and David F. Ovson, Birmingham, for appellees.
   PER CURIAM.

The issue in this appeal is whether or not appellant Virginia Swann was denied equal protection of the laws when the City of Graysville refused to issue her a license for the sale of table wine and beer for off-premises consumption.

Mrs. Swann originally applied to Grays-ville for a retail off-premises beer and wine license on 1 July 1977. On 19 July the application was withdrawn. On 26 July it was resubmitted. On 2 August, Ordinance No. 322 was adopted by the City of Grays-ville:

“City Council of the City of Graysville, Alabama, has determined that the regulation of retail businesses selling or dispensing malt or brewed beverages or wine is essential in order to provide for the safety, preserve the health, to promote prosperity to promote temperance and suppress intemperance and to improve the morals, order, comfort and convenience of the inhabitants of the City of Graysville, Alabama, and to that end enacts this ordinance:
No retail business where malt, brewed beverages or wine are sold or dispensed, shall be located less than 500 feet of any church, school, school ground, public park or public playground. For the purposes of this ordinance, the term ‘church’ shall be construed to include all the premises occupied by or utilized by the church and shall not be limited to the church building. For the purposes of this ordinance, ther [sic] term ‘school’ shall be construed to include the entire premises on which the school buildings and facilities are located, including school athletic fields, play grounds and recreational areas. No privilege license to operate a retail business selling or dispensing malt, brewed beverages or wine shall be issued to any retail business which is located within the prescribed areas defined in this ordinance.”

Thereafter, on 13 August, a public hearing was held by the City regarding Mrs. Swann’s application; it was denied on 6 September. She obtained a license for the sale of beer and wine from the Alabama Alcoholic Beverage Control Board on 22 February 1978.

After the City of Graysville denied Mrs. Swann the license she sought, a petition for the writ of mandamus was filed by her against the City, Maurice West, its mayor, and Irene Matthews, its clerk. The alternative writ was issued, an answer filed, trial without a jury was had, and judgment denying Mrs. Swann relief was entered from which this appeal was taken.

The evidence discloses that at the time the regulatory ordinance was adopted, there were three licensees of the city purveying beer and wine within the prohibited distance from a church. Each of those licenses has been renewed or reissued since adoption of the ordinance.

Mrs. Swann contends that under this state of facts refusal to issue her a license because her place of business is located within the prohibited distance of a church denies her equal protection of the laws.

The City, its mayor, and its clerk contend that Mrs. Sv/ann was properly refused a license because she had withdrawn her application and did not timely resubmit it and failed to give the correct address of her store in the application. Further, they say she was not denied equal protection because those licensed before adoption of the ordinance are entitled to renewal or reissuance of their licenses in spite of location of their businesses within the proscribed 500 feet.

We think it evident from the record that Mrs. Swann was refused a license on the basis that the proposed location of her business lay within the distance from a church prohibited by the ordinance. The lack of proper address in the application to the City, or the fact that the address was different from that contained in the license issued by the State, seems from examination of the record to be more of a rationalization of, rather, than a basis for, the refusal to issue her a license. From the record it is quite clear that everyone concerned was aware of the actual location of the proposed business regardless of the street number by which it was designated. It is not at all clear that there were actually any numbers affixed to the structures on the street where the Swann building was located.

In the exercise of the police powers granted it by § 11-45-1, Code 1975, a municipality may regulate and control the sale of beer and wine. The State has not preempted this power of control and regulation. Norwood v. Capps, 278 Ala. 218, 177 So.2d 324 (1965); Lawrence v. Gayle, 294 Ala. 91, 312 So.2d 385 (1975); USA Oil Corp. v. City of Lipscomb, 293 Ala. 103, 300 So.2d 362 (1974); Paulson’s Steerhead Restaurant v. Morgan, 273 Ala. 235, 139 So.2d 330 (1962); State v. Centanne, 265 Ala. 35, 89 So.2d 570 (1956); Capps v. Bozeman, 272 Ala. 249, 130 So.2d 376 (1961). An ordinance such as that here involved is a proper exercise of the City of Graysville’s power of control and regulation but that power may not be exercised in an arbitrary or discriminatory manner. To apply the ordinance dissimilarly to those similarly situated is a denial of equal protection of law. Mrs. Swann has been thus denied equal protection of law when refused a license in this case. See Harrison v. Buckhalt, 364 So.2d 283 (Ala.1978); City of Hueytown v. Jiffy Chek Co., 342 So.2d 761 (Ala.1977). Permitting those licensed at the time Ordinance No. 322 was adopted to continue to sell intoxicating liquors, or beer and wine, while at the same time refusing Mrs. Swann a license, in the mistaken belief that it was required to both permit those already licensed to continue such sales as well as to renew their licenses, were the operative facts of denial of equal protection to Mrs. Swann. This court in USA Oil quoted with approval McQuillin, Municipal Corporations, 3rd Ed., Vol. 6, § 24.172, p. 737:

“ ‘ * * * Such an ordinance [as No. 322] is constitutional as applied to those selling intoxicating liquors at the time and before its enactment as well as to those who thereafter commence the business. This is true because there are no vested rights against a due exercise of the police power, and, for that matter, there is no vested or inherent right to sell or otherwise traffic in intoxicating liquors * * * ” ’ * * * ”

We hold this to be the law of Alabama.

This case is reversed and remanded for rendition and entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Willie Chester McELROY v. CONTINENTAL TENNESSEE LINES, INC., et al.
    77-683.
    Supreme Court of Alabama.
    Feb. 23, 1979.

      Lloyd W. Gathings of Emond & Vines, Birmingham, for appellant.
    William O’Neal Whitt, Jr. and Frank M. Bainbridge, Birmingham, for appellees.
   FAULKNER, Justice.

McElroy brought suit for injuries received when he was struck by a hit and run driver after deboarding defendants’ bus and leaving their premises. The trial court granted a summary judgment for the defendants. We affirm.

McElroy was a passenger-for-hire on defendants’ Trailways bus from Huntsville to Sheffield. Defendant Hughey, the original bus driver, testified in his deposition that when McElroy first boarded the bus in Huntsville he could smell “a little” alcohol on him, although McElroy did not appear drunk. Hughey was relieved in Florence by another driver, defendant Bradley, who was not informed that McElroy had been drinking. Bradley stated that before departing he checked the passengers and noticed that McElroy was asleep. McElroy did not create a disturbance at any time during the trip, nor did he do anything to draw particular attention to himself. Upon arrival in Sheffield, McElroy deboarded at the bus station which was closed at that time. He apparently staggered slightly as he exited the bus but did not require assistance. He then crossed the highway and entered a fruit stand. As the bus prepared to leave, McElroy, who had recrossed the highway, rapped on the door, entered, and retrieved his forgotten duffel bag. While crossing the highway the third time McElroy was struck by a hit and run driver.

McElroy’s original complaint alleged that McElroy was intoxicated but that defendants’ common carriers, with actual or constructive knowledge of his intoxication, negligently and/or wantonly discharged him from the bus without any assistance so that he was immediately run over. A second count sought recovery under Trailways’ uninsured motorist coverage. Defendants moved for summary judgment based on the pleadings and the depositions of McElroy, Hughey, and Bradley. McEl-roy then amended his complaint to allege that defendants failed to provide a safe place to discharge him and breached an implied contract in fact to transport and discharge him safely. Summary judgment was subsequently granted for defendants on all counts.

In this state the duty of a common carrier to deboarding passengers is as follows: “It is the duty of common carriers of passengers ... to exercise the highest degree of care in providing reasonably safe and convenient places for the disembarkation of their passengers.” Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867 (1925); Mobile Light and R. R. v. Therrell, 205 Ala. 553, 88 So. 677 (1921). “The relation of carrier and passenger does not cease at the moment the passenger alights from the carrier’s vehicle, by its invitation, at a place selected by the carrier at the point of destination, but continues until the passenger has had a reasonable opportunity to leave the carrier’s premises in the proper manner and by the route usual and proper in such cases.” Waldrop v. Nashville, C. & St. L. Ry., 183 Ala. 226, 62 So. 769 (1913). “If afterwards the passenger walks into danger or harm overtakes him by reason of the intervention of an independent agent the carrier cannot be held for that.” Hammett v. Birmingham Ry., Light & Power Co., 202 Ala. 520, 81 So. 22 (1918).

Plaintiff asserts that the bus station in Sheffield was not a reasonably safe place for McElroy to disembark since it was closed at the time, thereby forcing McElroy to cross the highway if he wished to call for a ride. It is clear, however, that a common carrier such as a bus company has no duty to provide its passengers with full-scale 24 hour depot service. It may, in fact, deposit passengers along the roadside, provided it is in a reasonably safe place. See Hall, supra; Therrell, supra. This is a frequent and desirable practice in rural areas. Nothing indicated that defendants’ depot was itself unsafe, other than the fact that it was closed, and that fact alone is not enough to impose liability in this state. It is equally apparent from the cases quoted above that defendants were no longer responsible for their passengers once they finally quitted defendants’ premises, as McElroy had done when he was struck and injured.

Plaintiff argues, however, that because of McElroy’s “incapacitation” by intoxication the defendants owed a higher duty to him than to their other passengers. It is true that, “[w]hile a carrier is under no duty to accept as a passenger a person who is physically unable to take care of [himself] unattended by a caretaker, yet if such a person, without an attendant, is accepted by the carrier as a passenger, and his disability is apparent or made known at the time of his application for carriage to the servants of the carrier, it becomes the duty of the carrier to render to such person such special care and assistance as his condition may require in order that he may be safely transported.” Williams v. Louisville & N. R.R., 150 Ala. 324, 43 So. 576 (1907). The incapacitation may result from intoxication. Central of Ga. Ry. v. Carleton, 163 Ala. 62, 51 So. 27 (1909). The key, however, is some degree of incapacitation, which plaintiff has produced no evidence of. .A person may have a smell of alcohol about him without being intoxicated or incapacitated in any way. According to the depositions considered on summary judgment McElroy did not appear drunk. He deboarded successfully without assistance, although it appears he staggered slightly, and crossed the highway without mishap. McElroy then recrossed the highway and again boarded and deboarded the bus, all without revealing any sign of “incapacitation.” To hold defendants responsible for this man as an “incapacitated” passenger would be to make common carriers the insurers of the safety of passengers who had had no more than a swig of alcohol. We decline to so extend the duty of a common carrier in this state. While McElroy’s accident and injuries were tragic, the defendants were in no way responsible, consequently, the summary judgment was properly granted.

AFFIRMED.

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


text:
    C. C. LAMB v. OPELIKA PRODUCTION CREDIT ASSOCIATION, a corporation.
    77-691.
    Supreme Court of Alabama.
    Feb. 23, 1979.

      Gary E. Davis, Phenix City, C. Mike Benson, Auburn, for appellant.
    Guy F. Gunter, III, Opelika, for appellee.
   FAULKNER, Justice.

Opelika Production Credit Association (OPCA) brought suit against Lamb on five promissory notes and Lamb counterclaimed for fraud. After a trial without a jury, judgment was entered for OPCA. We affirm.

. OPCA is an instrumentality of the United States organized under the Farm Credit Act of 1933. The Federal Intermediate Credit Bank of New Orleans has direct supervision of all Production Credit Associations in Alabama, Mississippi, and Louisiana. Lamb is a soybean and cattle farmer in Russell County. His farm was originally subject to a real estate mortgage held by the former owners, Brent and Young. In the process of financing his operation Lamb has executed six promissory notes to OPCA.

The first note, dated June 9, 1975, was a renewal of a loan originally made on May 29, 1974, and included three advances made in the interim for cattle and crop operating expenses. The renewal note also included an additional advance for farm operating expenses. Lamb in turn gave a security interest in all cattle and crops planted or growing within one year. Lamb’s loan application of June 9 shows that Lamb agreed to give OPCA a first mortgage to 756 acres of the Russell County real estate. Additional advances for cattle and crop operating expenses were made on August 8 and October 14, 1975, for which Lamb executed two promissory notes.

On December 19, 1975, Lamb executed three additional promissory notes to OPCA. That same day Lamb and his wife gave OPCA a mortgage to 756 acres in Russell County to secure the six promissory notes. The transactions occurred at Lamb’s home and the parties present, Lamb, his wife, and Wesley Slay, a loan officer of OPCA, gave conflicting accounts of what occurred and why. OPCA satisfied Lamb’s obligations to Brent and Young and on February 9, 1976, Brent and Young executed a deed conveying 851.28 acres in Russell County to Lamb and his wife in joint tenancy.

On July 30,1976, OPCA made demand for payment in full on five of the promissory notes. One of the notes executed on December 19 was not included as not in default. OPCA did not at that time file suit on the mortgage. OPCA also moved to seize and sell Lamb’s cattle. Lamb answered and counterclaimed for fraud. On September 20, 1976, the sheriff seized 215 mixed head of cattle which were then sold and the proceeds applied to reduce Lamb’s indebtedness.

The case was tried on July 28, 1977, before a judge without a jury. The court gave judgment for OPCA in the sum of $243,065.42 plus $10,000 attorney’s fees and granted OPCA full rights to proceed with foreclosure of the mortgage. Lamb’s counterclaims were “dismissed” after trial and Lamb appealed. Shortly thereafter OPCA foreclosed its mortgage and purchased the property at public sale. Lamb then redeemed the property with the proceeds of a loan obtained through the Farmer’s Home Administration, but made it clear that he did so involuntarily and under protest. OPCA moved to dismiss the appeal, alleging that the judgment had been satisfied and the mortgage released. We deny that motion and proceed to a consideration of the merits of this appeal.

As an initial basis for reversal Lamb asserts that OPCA could not bring suit on the promissory notes as it was not the real party in interest. Each note included a pre-stamped restrictive endorsement to the Federal Intermediate Credit Bank of New Orleans (FICB). The notes, however, remained in OPCA’s vaults. § 7-3-301, Code 1975, provides:

“The holder of an instrument whether or not he is the owner may transfer or negotiate it and, except as otherwise provided in section 7-3-603 on payment or satisfaction, discharge it or enforce payment in his own name.”

Thus the question is whether or not OPCA is the holder of the notes. We think that it is. The notes were issued to OPCA and remained in its possession, bringing it within the definition of a “holder” in § 7-1— 201(20), Code 1975. Although the notes carried an endorsement to FICB they had not been delivered. Without delivery FICB could not be the holder of the notes. § 7-3-202(1). Thus OPCA remained the holder and was entitled to bring suit under § 7-3-301.

Lamb next contends that the notes are not enforceable as they contain a variable interest provision and are usurious. This position is not well-taken. Federal law, which must, of course, take precedence over our own state law in the event of a conflict, specifically allows a Production Credit Association to charge interest at a variable rate. 12 U.S.C.A. § 2096 (1971). Similarly, Production Credit Associations, as federally chartered lending institutions designed for a particular limited purpose, are not bound by state limitations on interest rates. See Beatrice Production Credit Association v. Vieselmeyer, 376 F.Supp. 1391 (D.C.Neb.1973). OPCA presented at trial a complete journal detailing the accrual of interest on Lamb’s notes. The accuracy of this journal and the computations derived from it were not challenged by Lamb. This journal provided an adequate basis for the trial court’s money judgment.

As a third ground for reversal Lamb asserts that the mortgage could not operate to convey his wife’s interest in the real estate as it secured notes executed solely by her husband. The prohibition against a wife standing as surety for her husband was repealed by the legislature over twenty years ago. 1957 Ala. Act No. 62, p. 101. Such transactions are still subject, however, to the rules of law governing contracts between persons in confidential relationships. § 30-4-9, Code 1975. Here there was sufficient evidence for the court to believe that the wife voluntarily executed the mortgage and was fully aware of what she was doing. The trial court did not err in allowing OPCA to proceed with the foreclosure against both Lamb and his wife.

Finally, Lamb argues that his counterclaim for fraud in the execution of the mortgage should not have been dismissed. The counterclaim was based upon § 6-5-101, Code 1975, which provides:

“Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.”

The party seeking relief on the ground of fraud bears the burden of proof. Mangina v. Bush, 286 Ala. 90, 237 So.2d 479 (1970). Fraud, which is never presumed, must be clearly and satisfactorily proven. Southern Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293 (1909). The trial judge heard the conflicting evidence ore tenus and found that no fraud was committed. After a review of the record we will not disturb that finding as it was not plainly erroneously or manifestly unjust.

At the urging of appellant we have recalculated the amount due on the five promissory notes, taking into account payments made by Lamb, and find the trial judge’s figures to be correct. Consequently, the judgment is affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Boggan R. WRIGHT and Juanita W. Davison v. J. Douglas WATERS.
    77-463.
    Supreme Court of Alabama.
    March 23, 1979.
    Robert F. Vargo of Brantley & Vargo, Bay Minette, for appellants.
    Kenneth Cooper, Bay Minette, for appel-lee.
   EMBRY, Justice.

This is an appeal from a judgment refusing to declare that a road over the lands of Boggan R. Wright, Juanita W. Davison and J. Douglas Waters was a public one and further refusing to order an obstruction removed from that road.

Appellants, Boggan R. Wright and Juanita W. Davison, and appellee, J. Douglas Waters are coterminous landowners. On 8 March 1977, Wright and Davison brought suit in the Circuit Court of Baldwin County, Alabama, against Waters seeking to establish a public road over the parties’ contiguous lands and to enjoin the obstruction of the road by Waters. The case was tried to a jury, special findings were submitted, and the jury determined that the road was not a public one. Judgment for Waters was entered accordingly on 17 January 1978. Appellants filed a motion for a new trial which was denied. This appeal ensued.

Appellants contend:

(1) the great preponderance of the evidence as to the character and use of the road in question will not support the verdict;

(2) the trial court erred in refusing to grant appellants’ motion for a directed verdict;

(3) the trial court' committed reversible error in giving orally the charge requested by Waters in written instruction No. 16, to-wit: “The Court charges you, members of the Jury, that an easement cannot be obtained by prescription unless the user be exclusive, adverse, uninterrupted, and inconsistent with the rights of the owner to its use and enjoyment”;

(4) the trial court committed reversible error in refusing to give appellants’ instruction No. 10 which states: “The general use of a roadway by the public for twenty years, if unexplained, raises a presumption of the existence of all the other elements and conditions necessary to create a highway by prescription”;

(5) the trial court erred in limiting appellants’ counsel to four to five minutes for the verification, introduction, and orientation of 47 photographs which were not cumulative and which dealt with a main or controlling fact or issue.

We have reviewed the record and cannot agree that appellants’ motion for directed verdict was improperly denied or that the verdict is not supported by the evidence. On appeal from refusal of the trial court to give the affirmative charge (now a directed verdict) for appellants, evi-

dence must be viewed in a light most favorable to appellee, and the action of the trial court will be affirmed if a reasonable inference adverse to appellants may be drawn from the evidence. Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978). Similarly, where, as in the instant case, the jury’s verdict is based on evidence or reasonable inferences thereon, it is not the function of this court to consider other conclusions which might have been reached. Id.

We now turn to appellants’ contentions that error was committed by the trial court in instructing the jury. Because no error was preserved by proper objection, we find it impossible to determine with sufficient specificity the errors of which appellants complain. The only semblance in the record of an attempt to preserve error is found following the trial judge’s oral charge, and the reading of the requested charges, at which point counsel for plaintiff s-appellants stated:

“Judge, in your charge to the jury you described the necessity of it being adverse and then you described all the limits of possession under the rules of prescription, and I respectfully except to that portion of the court’s oral charge.”

As the Committee Comments to Rule 51, ARCP indicate, and our case law requires, objection to the court’s charge must be “stated in other than general terms.” Appellants’ objection does not sufficiently identify that portion of the charge to which objection is made or adequately specify the grounds. Thus, appellants’ objection fails to meet the requirements of Rule 51, ARCP.

Appellants’ final contention is that the trial court erred in limiting appellants’ counsel to four to five minutes for the verification, introduction, and orientation of 47 photographs. Because the record contains no mention of such limitation and a supplemental record was not certified and transmitted pursuant to Rule 10(f), ARAP, we cannot reach the merits of this contention.

For the reasons stated herein, the judgment of the trial court is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Marvin G. COXWELL and Louise Coxwell v. Charles WHATLEY and Earnest Whatley.
    77-794.
    Supreme Court of Alabama.
    Feb. 23, 1979.
    Gary E. Davis, Phenix City, for appellants.
    Hoyt W. Hill, Opelika, for appellees.
   BLOODWORTH, Justice.

The question on this appeal is whether defendants are liable to plaintiffs for damages resulting from a collision of plaintiffs’ automobile with defendants’ cow on a public highway, not within a municipality or its police jurisdiction, when there is no evidence that the defendants knowingly or wilfully put or placed the cow upon the highway. We answer in the negative and affirm the trial court’s judgment for defendants.

A complaint filed by the plaintiffs alleges that plaintiff Marvin G. Coxwell was operating a motor vehicle with his wife Louise Coxwell as a passenger on October 12, 1975, upon a public highway in Lee County when the vehicle struck a cow owned by defendants. The complaint charges the defendants knowingly or wilfully put or placed said cow upon said public highway and that as a proximate consequence of the collision, the plaintiffs suffered personal injuries and damages.

To the complaint, defendants pled not guilty, the averments of the complaint are untrue, neither of the defendants “knowingly or wilfully put or placed” the cow upon the public highway, and contributory negligence.

Plaintiffs stipulated that there was no evidence that the defendants “knowingly or willfully put or placed said cow upon said public highway” and “that the locale in question was not within any municipality or its police jurisdiction.” The case was submitted to the Court on the pleading, pretrial order and the written stipulations.

Whereupon, the court entered final judgment finding for the defendants. Thereupon, the plaintiffs appealed.

The plaintiffs assert that the only issue presented to us for review “is whether the proviso contained in Section 3-5-3, Code of Alabama, 1975, precludes an action against the owner of livestock for negligently allowing such livestock to go at large upon a highway and cause an automobile-cow collision.” The defendants correctly assert that this is not the issue since it was not raised by the pleadings and proof.

The allegations of the complaint are that defendants “knowingly or willfully put or placed said cow upon said public highway,” clearly bringing the cause of action within the terms of § 3-5-3, supra, which provides as follows:

“(a) The owner of such livestock or animal being or running at large upon the premises of another or upon the public lands, roads, highways or streets in the state of Alabama shall be liable for all damages done to crops, shade or fruit trees or ornamental shrubs and flowers of any person, to be recovered before any court of competent jurisdiction; provided, that the owner of any stock or animal shall not be liable for any damages to any motor vehicle or any occupant thereof suffered, caused by or resulting from a collision with such stock or other animal, unless it be proven that such owner knowingly or wilfully put or placed such stock upon such public highway, road or street where such damages were occasioned.
“(b) The judgment of the court against the owner of such livestock or animal so depredating shall be a lien superior to all other liens on the livestock or animal causing the damage, except as to taxes.” [Emphasis ours.]

Plaintiffs appear on this appeal to be trying to raise the applicability of § 3-5 — 2, which provides as follows:

“(a) It shall be unlawful for the owner of any livestock or animal, as defined in Section 3-5-1, to knowingly, voluntarily, negligently or wilfully permit any such livestock or animal to go at large in the state of Alabama either upon the premises of another or upon the public lands, highways, roads or streets in the state of Alabama.”

In brief, they argue that we should reconsider our line of cases regarding the “stock laws” and hold that only negligence on the part of an animal owner “need be shown before recovery can be obtained as a result of an automobile-livestock collision.”

Since this issue is not presented to us by the pleadings and proof, we are not obliged to reexamine our cases.

However, Presiding Judge Harwood (later a member of this Court) in Randle v. Payne, 39 Ala.App. 652, 107 So.2d 907 (1958), cert. denied, 268 Ala. 697, 107 So.2d 913 (1959), undertook to trace the history of the “open” and “closed” range laws in this state, and the applicability of the comprehensive livestock law passed by the legislature in 1939, [then codified as Tit. 3, §§ 77-101, Code of 1940, now 3-5-1, Code 1975, et seq.]. The majority of that court concluded that the livestock owner was not liable for damage to an automobile in an automobile-livestock collision on the public highway unless there was proof that the owner placed the livestock upon the public highway knowingly or wilfully. Plaintiffs have urged that we adopt Judge Cates’ dissent in that case. We point out that the law of that case has been consistently followed in Alabama for the past twenty years. See the recent decision authored for this Court by Justice Maddox in Chandler v. Waugh, 290 Ala. 70, 274 So.2d 46 (1973).

The result we reach is dictated by the rule of our cases that there is nothing for this Court to review when there is no proof offered to establish the allegations of the complaint. Hanna v. Riggs, 333 So.2d 563 (Ala.1976).

In the case at bar, just as in Randle v. Payne, supra, there is no proof that the defendants placed the cow upon the highway knowingly or wilfully; therefore, plaintiffs have failed to offer proof to support the allegations of their own complaint. The stipulations' stated the locale in question was not within a municipality or police jurisdiction. The case is therefore due to be affirmed.

AFFIRMED.

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