author: BROOM, Justice, for the Court: PATTERSON, Chief Justice,

text:
    LOCAL UNION NO. 845, UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, HOME ASSOCIATION, INC. v. LEE COUNTY BOARD OF SUPERVISORS.
    No. 50980.
    Supreme Court of Mississippi.
    March 28, 1979.
    Rehearing Denied April 25, 1979.

      Cupit & Maxey, John L. Maxey, II, Jackson, for appellant.
    Mitchell, Rogers, Eskridge, Yoge & Clayton, W. P. Mitchell, Tupelo, for appellee.
    Before PATTERSON, BROOM, and BOWLING, JJ.
   BROOM, Justice, for the Court:

Tax exemption status as a “fraternal and benevolent” organization under Miss.Code Ann. § 27-31 — 1(d) (1972), is asserted here by Local Union No. 845, United Rubber, Cork, Linoleum and Plastic Workers of America, Home Association, Inc. (Local 845 herein). The Lee County Board of Supervisors disallowed the ad valorem tax exemption claimed by Local 845, and the Circuit Court of Lee County affirmed. Local 845 appeals here, and we affirm.

Dispositive is the following question: Is the labor union Local 845 a “benevolent” organization upon the facts presented so as to exempt its building (meeting place) from ad valorem taxes pursuant to Miss.Code Ann. § 27-31 — 1(d) (1972), which, among other things, provides:

The following shall be exempt from taxation:
. All property, real or personal, owned and occupied by a fraternal and benevolent organization, when used by such organization, and from which no rentals or other profits accrue to the organization, but any part rented or from which revenue is received shall be taxed. (Emphasis added.)

In deciding whether Local 845 comes within the statute, we must consider the facts revealed by the record. William Bell, President of Local 845, in effect testified that its purpose was to negotiate and obtain for the union members high wages, fringe benefits, and better working conditions, as well as to advance their welfare. The Treasurer of the Home Association of Local 845, Mr. John Kendall, testified in substance that the purpose of the Home Association is to benefit the members of the union. In addition to the aforementioned activities, Local 845 performs other salutary functions when it elects to do so, such as assisting with alcoholism and health problems of people in the community, and makes financial contributions directly or indirectly for these purposes.

The record shows that the Attorney General and the State Tax Commission have at times considered labor unions as falling within the category of “fraternal and benevolent” organizations. However, we are not bound by their rulings or by the fact that Local 845 is allowed certain federal tax exemptions in accordance with federal statutes and regulations. We must judicially ascertain the intent of the Mississippi Legislature in passage of § 27-31 — 1, and, as is often the case, such ascertainment is somewhat difficult. It is interesting to note that the legislature in enacting § 27— 31-1 saw fit not to refer to labor unions specifically, although other entities were specifically designated, such as religious, ecclesiastical and historical bodies, et cetera.

The Supreme Court of Florida in Johnson v. Sparkman, 159 Fla. 276, 31 So.2d 863 (1947), addressed a similar issue. In Johnson, a labor union seeking tax exemption (for “educational” or “charitable” purposes) on its lodge hall and business office was turned down, and the denial was affirmed on appeal. Commenting on the fact that the union made some contributions to charity, the Florida Court pointed out that, such incidental contributions were not disposi-tive. In a similar manner, Local 845 participates to some extent in laudable charitable causes, but primarily the union seeks higher wages with better fringe benefits and working conditions. We held in Myers v. Mississippi-Alabama State Fair, 257 So.2d 233 (Miss.1972), that though a corporation which sponsored an annual fair made contributions to the community, making of the contributions did not automatically make it a “community fair” under tax exemption statutes.

Under our general rule, statutes exempting property from taxation are to be strictly construed in favor of the taxing authority and against the exemption. Accordingly, one seeking the benefit of the exemption must clearly show or demonstrate that he is within the letter of the exemption, all reasonable doubts generally being resolved against the exemption. City of Jackson v. Sly, 343 So.2d 473 (Miss.1977), Myers v. Mississippi-Alabama State Fair, supra, and Fuel Services, Inc. v. Rhoden, 245 So.2d 600 (Miss.1971), are some of our more recent cases so holding. We said in Rhoden :

An asserted tax exemption is to be construed strictly against the one who asserts a claim of exemption. The language of the statute must be construed most favorably to the taxing power, arid the claimant has the burden of showing clearly his right to an exemption. (245 So.2d at 602).

We conclude, upon the testimony presented, that Local 845 has failed to clearly establish that it is a “benevolent” organization, and that the statutory exemption was properly disallowed. There has not been made any challenge to the method or procedure followed by the parties, and this opinion does not deal with any question pertaining to the method or procedure which should be employed by those who seek tax exemptions at the administrative or appellate level. We reach this decision solely on the narrow issue as to whether, under the statute, Local 845 is entitled to an exemption. Furthermore, it is to be noted that we are not dealing with any question whatever as to whether the taxing authorities have or have not fairly and evenhandedly dealt with the application or construction of § 27-31-l(d) or any other statutory ground for tax exemption. No assertion was made in the record that the taxing authorities have unequally or unfairly granted tax exemptions in other instances. Our holding is merely that upon the testimony and record as made, the lower court did not err in upholding the supervisors’ disallowance of the tax exemption as sought.

AFFIRMED.

THIS CASE WAS CONSIDERED BY A CONFERENCE OF THE JUDGES EN BANC.

SMITH, and ROBERTSON, P. JJ., and LEE and COFER, JJ., concur.

PATTERSON, C. J., and SUGG, WALKER, and BOWLING, JJ., dissent.

PATTERSON, Chief Justice,

dissenting:

I do not share the view of the majority although I concede its opinion is in accord with the general laws of other states.

My dissent is based upon the disparity in treatment of Local Union # 845 United Rubber, Cork, Linoleum & Plastic Workers of America, Home Association, Inc. The litigants concede the union to be a fraternal organization, but disagree concerning the meaning of the word “benevolent.” If the word “benevolent” is to be defined as meaning most of the acts of the union must be of a charitable or benevolent nature, the majority is probably correct; but if the fraternal organization’s activities include benevolent acts, then it probably should have been granted the tax exemption. If we define “benevolent” as requiring a majority of the activities of the union to be of a benevolent nature, then the danger arises that other fraternal and beneficent organizations have been erroneously granted tax exemption because there is a probability that most of their acts are self-serving and therefore are not “benevolent” although some of their activities are beneficial to the organization and thus indirectly to the public.

I think the board of supervisors and the circuit court erred in denying the tax exemption’ to this appellant.

SUGG, WALKER and BOWLING, JJ., join in this dissent.

      . Home Association, Inc. is a nonprofit corporation formed to hold title to the building of Local 845; the association and Local 845 have the same members and officers. The “fraternal” characteristic of Local 845 is conceded here.

      . For an example, where the legislature,clearly evinced its intent to include “labor” organizations, see Miss.Code Ann. § 13-3-31(2) (Supp. 1972), in which the lawmakers caused the statute to read “labor or fraternal organization.”

      . North American Old Roman Catholic Diocese v. Havens, Sheriff and Tax Collector, 164 Miss. 119, 144 So. 473 (1932), is a case where “methods” and “procedures” of presenting a claim for tax exemption were at issue in contradistinction to our present situation.


source: Caselaw Access Project

author: COFER, Justice, for the Court:

license: Public Domain

text:
    Lummie Bobby COLLINS v. STATE of Mississippi.
    No. 51098.
    Supreme Court of Mississippi.
    April 4, 1979.
    Moore, Epps & Selph, W. S. Moore, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   COFER, Justice, for the Court:

Lummie Bobby Collins, appellant, was indicted and convicted in the Circuit Court of the First Judicial District of Hinds County on a charge of embezzlement of a rented car. From the conviction and sentence of ten years in the Mississippi Department of Corrections (with seven years suspended, five of which are under supervised probation), he has taken this appeal assigning as error (1) failure of the lower court to allow withdrawal of counsel and to grant appellant’s request for a continuance; (2) the lower court’s refusal to grant to him requested directed verdict and peremptory instruction; and (3) that the verdict is against the overwhelming weight of the evidence.

Collins had rented the vehicle for a forty-eight hour period ending at eleven o’clock a. m. on February 15, 1977. It was not returned and about the end of the month, Collins called the manager of the car rental agency stating he was in West Memphis, Arkansas, and wanted permission to pay a further rental to a similar agency in that area to permit his further retention of the vehicle. This was not approved, however, and the car was never redelivered to the owner. The vehicle was discovered on a street near the rental agency on March 1, 1977, with severe damage to a part of its body, and its possession was taken by the owner.

Collins used one witness, Johnny Austin, who testified that, on a Sunday night close to midnight, he could not say the month or the day of the month, Collins asked him to follow him to take the car to the garage, the rental office, and when he got there, the door was down, and he left the car there when he had placed the car keys and a note over the sun visor. (As pointed out above, the ear was not at this location when it was found.)

Collins was indicted on July 11, 1977. For some reason, he was not arraigned until about the middle of April 1978, at which time a speedy trial was requested and the case went to trial on May 10,1978. On that day, his attorney filed and presented a motion to quash the indictment. When the court overruled the motion, the attorney moved for permission to withdraw as Collins’ counsel, saying Collins felt he would be better served by another attorney. Collins said he had not had time to explain to the attorney about the case and to get all the necessary information so they wanted a continuance “until I could get all the witnesses I would have.” The attorney, who had been retained by Collins’ family, stated to the court that he had made thorough preparation for the trial and was of the opinion that he had present the witnesses necessary for the trial, but, if Collins so felt, perhaps he could not do the job Collins thought he should do. The motion was denied.

Under the circumstances detailed, it is our view that, if Collins wanted other counsel, he had abundant time and should have arranged therefor in advance of the day the trial was begun. The request was untimely. Ladnier v. State, 273 So.2d 169 (Miss.1973). Following the same reasoning, Collins’ motion for a continuance, if motion it was, was not worthy of favorable consideration. There was no compliance with Mississippi Code Annotated, section 99-15— 29 (1972), which contains requisites of such a motion. If all these steps had been met, however, the motion was untimely made and action on it lay in the sound discretion of the court, which ruled wisely. McClendon v. State, 335 So.2d 887 (Miss.1976).

The conviction and sentence were not contrary to the overwhelming weight of the evidence. There is, therefore, no persuasiveness in the assignments of error as to the weight of the evidence or as to the court’s refusal of directed verdict and peremptory instruction.

The case is affirmed.

AFFIRMED.

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


text:
    MISSISSIPPI STATE TAX COMMISSION v. PIGGLY WIGGLY ALABAMA DISTRIBUTING COMPANY, INC.
    No. 51088.
    Supreme Court of Mississippi.
    April 4, 1979.

      James H. Haddock, Joe D. Gallaspy, William N. Lovelady, Jr., Jackson, for appellant.
    Williams & Gunter, John Bell Williams, V. Douglas Gunter, Jackson, Hubert D. Stephens, Iuka, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   COFER, Justice, for the Court:

Appellant, Mississippi State Tax Commission (Commission) denied to appellee, Pig-gly Wiggly Alabama Distributing Company, Incorporated (Piggly Wiggly), a wholesaler’s tobacco license for 1978, and, on Piggly Wiggly’s appeal therefrom, the Circuit Court of the First Judicial District of Hinds County reversed the Commission’s order and directed issuance of the license. Commission has appealed from that adverse decision, and assigns here three errors, to-wit:

1. The lower court’s order reversing the order of the State Tax Commission did not cite any findings of fact or conclusions of law upon which its decision was founded and is therefore reversible error;

2. The order of the State Tax Commission denying a wholesale tobacco permit to the appellee was founded upon substantial evidence, was not arbitrary or capricious, an abuse of discretion, or in violation of the appellee’s statutory or constitutional rights, and therefore the lower court’s decision to reverse the commission was in error; and

3. The lower court’s decision was against the overwhelming weight of the evidence found in the record.

Piggly Wiggly is a Delaware corporation organized and owned by its franchise retail store owners, having as its primary purpose affording to its franchise stores a source for their wholesale merchandise items. It has its main location in Alabama but at all pertinent times has been qualified to do business in Mississippi. It carries merchandise with the Piggly Wiggly brand which can only be sold to its franchised outlets. Merchandise not so branded it can sell to any retailer.

On Piggly Wiggly’s application to the Commission for issuance of a wholesale license, it lodged with the Commission its corporate charter from which the Commission determined that the license should not be issued, because the charter limited wholesale sales to Piggly Wiggly’s franchised stores. Amendment was promptly procured to do away with this limitation, and such license was issued for the year 1974. Renewal for 1975 was denied but, after meeting of responsible parties and on Piggly Wiggly’s promise to furnish to Commission additional information as to its operations, a temporary permit was issued, which remained in force during that year. The license was renewed for the years 1976 and 1977 in what is described as a “routine” manner.

In November 1977 Commission notified Piggly Wiggly that the license would be denied for 1978. A meeting with the chairman of the Commission was had on December 28, 1977, again denying the license, followed by a meeting on December 29, 1977, whereat the Commission, after full hearing, entered its order of which the following is pertinent to this narration:

The Commission, after having heard the testimony and evidence presented and after considering the same, is of the opinion and so finds that the applicant herein, Piggly Wiggly Alabama Distributing Company, Inc., does not qualify as a wholesaler within the meaning of Section 27-69-3(;j), Mississippi Code of 1972, and is therefore not qualified to hold a wholesale tobacco permit.
IT IS, THEREFORE, HEREBY ORDERED AND ADJUDGED that the application for renewal of the wholesale tobacco permit issued to Piggly Wiggly Alabama Distributing Company, Inc., is denied. ■

The Circuit Court on June 21, 1978, entered its order on Piggly Wiggly’s appeal:

This day this cause came on for hearing in open Court, both sides represented by counsel, and argument made in open Court, and the Court having considered the written briefs filed herein, the Court is of the opinion that the appeal is well taken, and should be granted.
IT IS, THEREFORE, ORDERED AND ADJUDGED, that the order of the Mississippi State Tax Commission of December 29, 1977, is hereby reversed, and the Commission shall forthwith issue unto appellant herein its license and permit as a Wholesale Tobacco Dealer.

This appeal to the circuit court was on the record made in the December 29, 1977, meeting of the Commission, and, of course, was limited in its review scope to a determination of whether the Commission’s order:

(1) was supported by substantial evidence,
(2) was arbitrary or capricious
(3) was beyond the power of the Commission to make, or
(4) violated some statutory or constitutional right of [Piggly Wiggly].

Mississippi State Tax Commission v. Mississippi-Alabama State Fair, 222 So.2d 664, 665 (Miss.1969).

The Commission says that the circuit court’s reversal of the Commission’s order without citation of findings of fact or conclusions of law as basis for the reversal is reversible error. It would be more helpful to this Court had this been done, but it cannot well be said that the circuit court was able, from the Commission’s order, to determine basis for the Commission’s action without resort to an examination of the testimony before the Commission. [On the inconvenience of failure of administrative bodies to make detailed findings of fact as an aid to judicial review, see opinion under headnotes 3 and 4 in Mississippi Power Co. v. Mississippi Public Service Comm., 291 So.2d 541, 554-555 (Miss.1974)].

While it is true that the findings of fact by the Commission are taken as prima facie true, it is also correct that when the decision of the administrative body has been overturned in a judicial review, the burden is on the Commission here to point to the evidence supporting its order to show that it was not manifestly contrary to the weight of the evidence. Mississippi Public Service Comm. v. Mississippi Valley Gas Co., 327 So.2d 296, 297 (Miss.1976).

Not finding reversible error in the circuit court’s failure to detail findings of fact and conclusions of law, we notice the facts and the law.

While there have been in the record and briefs, from time to time references to Mississippi Code Annotated, section 75-23-1, et seq. (1972), the Unfair Cigarette Sales Law, and an attendant propensity to invoke that statute in defense of the Commission’s refusal to grant the 1978 license, we are of the opinion that, as its own order states, the Commission has bound itself to section 27— 69-3(j) as its authority in the premises. In that statute there is found lack of support for its denial of the license. That subsection (j) defines a wholesaler:

(j) The word “wholesaler”, as used herein, shall include dealers, whose principal business is that of a wholesale dealer or jobber, and who is known to the retail trade as such, and whose place of business is located in Mississippi or in a state which affords reciprocity to wholesalers domiciled in Mississippi, who shall sell any taxable tobacco to licensed retail dealers only for the purpose of resale, or giving it away, or exposing the same where it may be taken or purchased, or otherwise acquired by the retailer.

When the 1974 license was issued to Pig-gly Wiggly, the undisputed record shows that the licensee put three representatives in the area to be served by it, whose assignment was to cause Piggly Wiggly to be “known to the retail trade as such” — as a wholesale dealer or jobber — and these stayed in the field for a period of months discharging their familiarizing mission. Orders came in from some of the dealers and kept on coming until the middle of 1976, (admittedly, minute compared to the wholesaler’s overall sales) and it has continued to stand ready to sell any merchandise to any retailer whose credit would bear the order, Piggly Wiggly brands alone excluded.

Comprehension of the definition of “wholesaler” above quoted is not free from difficulty. The last words of the definition, “or otherwise acquired by the retailer,” might be appraised as an inadvertence and unfortunate, but they are afforded clarity by the last words of subsection (k) defining retailer, which say, “or otherwise acquired by the consumer.” (Emphasis added).

We interpret subsection (j) as making a wholesaler of a dealer who is known to the retail trade as a wholesaler who shall sell tobacco to licensed retail dealers, and only to licensed retail dealers, for the purpose of resale, or who shall give taxable tobacco away, or who shall expose taxable tobacco where it may be acquired by the retailer. In this conclusion we hold that a wholesaler does not have to have sales to show his status as such.

On May 25, 1951, the Attorney General rendered an opinion on this statute in its then form, wherein he held in part as follows:

The provision of the statute is plainly stated that a Wholesaler must meet the following qualifications:
(1) His principal business is that of a wholesale dealer or jobber, and who is known to the trade as such.
(2) He must sell to licensed retail dealers only for the purpose of resale, etc.
It is quite plain from this that a company cannot constitute itself a wholesaler for the purpose of selling only to its own individual or corporate outlets and to no other. Its sales must be available, under the terms of this statute, to “the trade” and they must sell to “dealers,” using the plural and not the singular.
An individual company, or association which does not make its sales available to retail dealers in general is not a wholesaler within the meaning of this statute, nor can they qualify by having only one retail outlet. (Emphasis added.) (Attorney General’s Biennial Reports, 1945-1957., p. 51).

We think that, taken by its four corners, the opinion includes as wholesalers those who “make their sales available to retail dealers in general,” and that, with limited actual selling success, Piggly Wiggly has done so. .

We conclude that the Commission erred in denying the license to Piggly Wiggly and that the circuit court correctly reversed the Commission’s order and we affirm the court’s decision.

AFFIRMED.

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


author: BOWLING, Justice, for the Court:

text:
    Ricky L. THORNTON v. STATE of Mississippi.
    No. 51092.
    Supreme Court of Mississippi.
    April 4, 1979.
    Marshall E. Hanbury, Jackson, and Washington, D. C., Stephen L. Beach, III, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice, for the Court:

Appellant was indicted and tried for the crime of murder in the Circuit Court of the First Judicial District of Hinds County. The jury found him guilty of manslaughter.

Numerous assignments of error have been propounded by appellant. We find that á disposition of the appeal is required under one assignment of error and we therefore need not discuss the others. Many of the other alleged errors have no significance and probably will not recur at another trial.

The dispositive assignment of error is that the trial court erroneously denied appellant’s motion to recess the trial at the conclusion of the state’s case and continued the trial until the late hours of the night, resulting in a situation which did not give appellant a fair trial and conflicted with constitutional safeguards.

The facts of the occurrences under the assignment of error are undisputed. They were presented both by affidavits attached to the motion for' a new trial and by witnesses who testified at a hearing on the motion.

The state rested its case in chief about six o’clock P.M. At that time, one attorney for appellant, in the absence of the jury, stated to the court that the defense had three witnesses whose testimony would consume between two and three hours. In addition, after any rebuttal evidence by the state, it would be time-consuming to present instructions to the court and argue the case to the jury; that by that time it would be extremely late to submit the case to a jury; and that the jurors and the attorneys were tired and exhausted and would be more so upon submission of the case. The motion also included the fact that two of defendant’s attorneys were approximately seventy years of age, were in the habit of retiring early, and at that time were very tired and exhausted.

The court overruled the motion for a recess, stating that he was doing so assuming that everything in the motion was correct and gave as his only reason that another case was set for trial the following day.

The three witnesses for the defense, including the defendant, then testified. The state,introduced one rebuttal witness. By this time it was approximately ten o’clock P.M. Appellant’s attorneys then renewed the motion for a recess, stating that they were exhausted and they felt sure the jury was also. It was called to the attention of the court that time still had to be consumed in approving or refusing instructions, instructing the jury, and arguing the case to the jury. Each side was given one hour for argument.

One of the attorneys for appellant made an opening argument which consumed approximately twenty minutes, leaving another attorney approximately forty minutes for a concluding argument. After the state’s argument, one of the aged attorneys for appellant had prepared and was selected prior to trial to make the closing argument for appellant. The record and testimony reveals, and it is undisputed, that after speaking five or six minutes, this attorney did what all judges and attorneys know to be very unusual in such a case. He picked up the instruction given the jury at the request of the state on the charge of murder and read it completely to the jury four successive times. He then took his seat near his son who was in the courtroom as an observer. The son immediately noticed that something was wrong with his father. He appeared completely disoriented and the son thought he was having a heart attack or some other type of emergency. The son immediately went to a telephone and called the family physician who advised him to bring his father to the emergency room of St. Dominic’s Hospital immediately, which was done.

By affidavit and by testimony on the hearing of the motion for a new trial, the physician, who was a reputable and experienced physician, testified that upon reaching the emergency room he found the attorney obviously disoriented and extremely confused. He did not know where he was or why he was there, and he had high blood pressure, rapid pulse, irregular and rapid respiration, was cool, clammy and appeared to be in shock. The physician called in a cardiologist and a neurologist in consultation. The diagnosis was that the attorney was suffering with a chronic organic brain syndrome because of stress. The attorney was confined to the intensive care unit, after which he was hospitalized a number of days.

As hereinbefore stated, the above brief summary of what occurred is undisputed. The Sixth Amendment to the Constitution of the United States and section 26 of the Mississippi Constitution • secure to an accused in criminal cases the right to assistance of counsel, and this is interpreted as “effective counsel.” McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Giasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), 84 A.L.R. 527 (1933); Stewart v. State, 229 So.2d 53 (Miss.1969).

This Court, in a number of cases, has reiterated the principle that the attorneys for an accused should have adequate time and opportunity for argument and summation before the jury. Ray v. State, 330 So.2d 580 (Miss.1976); Wingo v. State, 62 Miss. 311 (1884).

We have no choice but to hold that the appellant, because of the above recited occurrences, did not have constitutionally required effective counsel. The situation was called to the court’s attention from the outset. In addition to the physical abilities and condition of appellant’s attorneys, the jury, if all argument time had been used, would have received the case close to midnight. We realize that on exceptional occasions it is necessary for a court to extend its regular hours for various reasons. ' We do not think that an adequate presentation of a case, such as under an indictment for murder in the case at bar, can be made with an all-day trial, then half the night, and then being submitted to the jury. Even a panel of young jurors or an array of young attorneys would be prejudiced by going through such an ordeal. As stated above, we recognize the right of the excellent members of the judiciary in this state to control the procedure of that particular court and extend the trial within reasonable limits. Under the proof in this case, the extension of the trial under the undisputed circumstances was not reasonable and did not afford appellant the privileges constitutionally guaranteed to him.

The cause is therefore reversed and remanded for a new trial on a charge of manslaughter.

REVERSED AND REMANDED.

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


author: BROOM, Justice, for the Court:

text:
    Robert C. CLARY v. GLOBAL MARINE, INC.
    No. 51076.
    Supreme Court of Mississippi.
    April 4, 1979.

      Tyner & McMahan, Thomas W. Tyner, Hattiesburg, for appellant.
    Heidelberg, Sutherland & McKenzie, R. Web Heidelberg, Hattiesburg, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BROOM, Justice, for the Court:

Admiralty tort action (negligence) for personal injuries was filed by Robert C. Clary in the Chancery Court of Forrest County by way of attachment. Clary’s action against a non-resident corporation, Global Marine, Inc., resulted in a $21,600 money decree against Global Marine, from which Clary appeals, contending among other things that he should have been awarded a larger sum. Global cross-appealed on the grounds that Clary’s evidence was insufficient to make out a case, and that the chancellor made certain erroneous evi-dentiary rulings. We affirm as to liability but remand as to amount of damages.

Clary, a resident of Hattiesburg, was an employee of Exxon Company, USA, when he was injured October 28, 1974. As Exxon’s drilling superintendent, his responsibility was to see that its policies were followed on oil rigs. At the time of his injury, he was working on a vessel (located in navigable waters off-shore from Louisiana) owned and operated by Global for Exxon. Clary was standing on the drill floor of the ship, engaging in conversation with Global Marine’s representative, Moore, who was to the right and a little forward of Clary, when an employee of Global actuated a mechanism which pulled taut a nearby cable lying slackened across the floor. The cable caught Clary from behind the thigh and pitched him into the air. When he fell, he received serious personal injuries.

After Clary’s injuries, he was treated by several physicians and at trial, October 31, 1977, he continued to wear a steel brace. The chancellor found that Clary had received a permanent disability of five percent to the body as a whole as a result of the October 28, 1974 accident.

First, argues Clary, the chancellor erred in failing to award him expenses incurred as a result of the accident, consisting of doctor, hospital, drugs, travel expenses, and loss of wages, as well as the cost of future medical care. In this regard, it is undisputed that Clary’s employer, Exxon, had voluntarily paid these items to Clary, but Global argues, and the chancellor ruled, that Clary was not entitled to recover them from Global because Exxon had paid the items. We think the chancellor should have applied the “collateral source” rule and awarded Clary a sum to cover these items even though Exxon had paid them. Under this rule:

courts generally have held that benefits received by the plaintiff from a source wholly independent of and collateral to a wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. This is known as the “collateral source” rule. Thus, as a general rule, the fact that the plaintiff received gratuitous medical care, continued salary or wage payments, proceeds from insurance policies, or welfare and pension benefits, will not be taken into account when computing damages. (22 Am.Jur.2d Damages § 206 (1965)).

Further:

Accordingly, the plaintiff’s recovery will not be reduced by the fact that the medical expenses were paid by some source collateral to the defendant such as by a beneficial society, by members of the plaintiff’s family, by the plaintiff’s employer, or by an insurance company. Ibid, at § 207.

The “collateral source” rule is followed in the U. S. Court of Appeals, 5th Circuit:

It is well settled that there will not be any reduction of an award of damages for personal injuries by reason of payments made to an injured party from a collateral source independent of the wrongdoer. (A. H. Bull Steamship Co. v. Ligon, 285 F.2d 936 (1960).

Global points out that Exxon paid Clary his regular pay as well as reimbursement for any out-of-pocket travel and medical expenses plus doctors’ and hospital bills. To permit Clary to recover these expenses (already paid by Exxon) would, according to Global, amount to a windfall constituting an impermissible double recovery. We reject Global’s contention that the collateral source rule is only an evidentiary principle adopted to prevent the tortfeasor from obtaining credit for reparations made to the injured party from a source other than the wrongdoer.

Under the “collateral source” rule, the lower court should have awarded Clary an amount to cover medical expenses, loss of earnings, and related items pertaining to his injuries which he received in the accident. Exxon’s voluntary payment of these items should not have been allowed to operate in reduction of Clary’s recovery against Global. In this connection, we point out that Exxon, though originally a party to the action, was voluntarily non-suited by Clary. Exxon did not intervene in any way or assert any claim in the nature of subro-gation in the suit.

Because of the error of the lower court in failing to apply the “collateral source” rule, we must reverse in part and remand. Remand is for the limited purpose of determining upon proper proof the amount of damages (loss of wages, doctor, hospital, .drugs, travel expenses, and the like) to be awarded to Clary in addition to the amount already decreed.' Of course, after remand the lower court will award to Clary only such items as are causally related to the October 28, 1974, accident and such items will include only those which are reasonable upon the proof.

We find no merit to the contention raised by Clary that the court should have awarded him compensation based upon a permanent disability rating of twenty percent to the right upper extremity. Based upon the testimony heard by the chancellor, we cannot say that he erred in this feature of the case, or that his determination of Clary’s disability was not supported by substantial evidence. Neither is there any merit to Clary’s contention that the trial court erred in failing to award him damages for his inability to hunt, fish and work around his farm. Indeed the chancellor’s ruling indicates that he considered Clary’s damages in this regard. We also reject Clary’s contention that the amount of the award granted him is inadequate or so low as to be shocking to the conscience.

By way of cross-appeal, Global contends that the lower court erred in failing to find Clary guilty of contributory negligence. There is no merit to this contention because the chancellor’s ruling was based upon conflicting and contradictory testimony. It is true that Global presented testimony to the effect that Clary himself ordered the Global employee to activate or trigger the machinery which caused the cable to pitch Clary into the air and injure him. To the contrary is Clary’s testimony. Global says Clary did not deny giving the order but that is not controlling. Clary says that he had no warning from anyone that the operation was to be commenced and that it came as a complete surprise to him. Had he given the order referred to, he would, of course, not have been caught by surprise. The chancellor’s refusal to find Clary guilty of contributory negligence was not manifestly wrong or unsupported by substantial testimony. Likewise, we are not persuaded by Global’s contention that the lower court erred in finding that its employees were negligent, which negligence caused Clary’s injuries. As pointed out, Clary testified that Global’s employees, without any warning, suddenly triggered the mechanism, causing the slackened cable to become taut and thereby injure him.

Global further asserts that the trial court erred in finding that Clary had sustained a permanent disability of five percent to the body as a whole. Having carefully reviewed the testimony of the doctors who examined and treated Clary, we find the trial court’s determination of Clary’s permanent disability was based upon sufficient evidence.

Another assertion Global makes in its cross-appeal is that the trial court erred in not reducing its award to Clary because Clary was guilty of contributory negligence which caused or contributed to his injuries. Again we point out that the chancellor (trier of fact without a jury) heard the testimony of Clary that he was not negligent in any respect, which testimony the chancellor accepted rather than Global’s contradictory testimony. Confronted with such contradictory evidence, the chancellor decided the case in favor of Clary, and we cannot say that he committed reversible error in refusing to reduce the award due to any contributory negligence of Clary.

This is a rather rare type case, wherein a state court is called upon to try an admiralty tort action. We find no reversible error in the record except in the trial court’s failure to apply the “collateral source” rule, and the case is affirmed in all other respects. Remand is ordered for determination (in accordance with this opinion) of how much additional recovery should be awarded Clary under proper application of the “collateral source” rule pertaining to his loss of earnings, doctor, hospital, drugs, and travel expenses, together with the cost of future medical care. No reduction shall be made on account of the fact that some of these items were voluntarily paid to Clary by his employer, Exxon, who elected not to-intervene in this case or assert any claim whatever. The award will include only amounts causally related to the accident in question.

AFFIRMED AS TO LIABILITY; REMANDED FOR PROPER DETERMINATION OF DAMAGES.

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

      . Actions in admiralty are generally governed by federal law. 28 U.S.C. Ann., Admiralty, Maritime, Prize, § 1333 (1966), provides:
      The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
      (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. (Emphasis added.)

        Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813 (1926), interpreted the “saving” clause of the statute to vest jurisdiction of this type litigation in Federal Courts, and held “there is saved to suitors in all cases the right of a common law remedy where the common law is competent to give it.” We are not here called upon to decide if, under the Federal statute, state courts may try admiralty cases. No challenge is raised to the power of the lower state court to take jurisdiction of this admiralty cause.

      . Mississippi has a “collateral source” rule under which compensation received by a plaintiff from a collateral source wholly independent of wrongdoer cannot be set up in mitigation or reduction of damages. Coker v. Five-Two Taxi Serv., 211 Miss. 820, 52 So.2d 356 (1951).

      . Clary’s bill charged that the action was a “Jones Act” case but the court ruled otherwise, and neither side challenged the chancellor’s ruling in this respect.


text:
    Carl W. MANGUS et ux. v. Yeikko POLLANEN et al.
    No. 51170.
    Supreme Court of Mississippi.
    April 4, 1979.
    Rehearing Denied April 25, 1979.
    Larry L. Lenoir, Gulfport, for appellants.
    Favre, Genin & Scafide, John A. Scafide, Jr., Bay St. Louis, for appellees.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   AFFIRMED.


author: LEE, Justice, for the Court:

text:
    C. B. BLACKWELL and Lavell Dinkins v. DAIRYMEN, INC. DAIRYMEN, INC. v. Billy Joe McCUNE and DeSoto, Inc.
    No. 51178.
    Supreme Court of Mississippi.
    April 11, 1979.

      Leon Mangum, Decatur, for appellants.
    Watkins, Pyle, Ludlam, Winter & Stennis, William A. Pyle, Jackson, T. Kenneth Watts, Meridian, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice, for the Court:

Dairymen, Inc. filed suit in the Circuit Court of Newton County against C. B. Blackwell and Lavell Dinkins, his driver, and DeSoto, Inc. and Billy Joe McCune, its driver, for damages to a truck owned by Dairymen, Inc., resulting from a collision between it and a truck owned by Blackwell. The damage to Dairymen, Inc.’s truck wás stipulated at eight thousand six hundred ninety-two dollars thirty-four cents ($8,692.34), and the jury returned a verdict against all defendants in that amount. The trial judge sustained a motion of DeSoto, Inc. and Billy Joe McCune for judgment notwithstanding the verdict. Blackwell and Dinkins have appealed from liability in favor of Dairymen, Inc. and from the judgment notwithstanding the verdict in favor of DeSoto, Inc. and McCune. Dairymen, Inc. has appealed from the judgment notwithstanding the verdict.

L — II.

Was the verdict of the jury in favor of Dairymen, Inc. against C. B. Blackwell and Lavell Dinkins contrary to the overwhelming weight of the evidence?

Did the trial court err in sustaining the motion of Billy Joe McCune and DeSoto, Inc. for a judgment notwithstanding the verdict?

The evidence is uncontradicted that on December 23,1975, Lavell Dinkins was driving a tractor truck, loaded with seventy thousand (70,000) pounds of poles, in a southerly direction on Mississippi State Highway 15 near the south corporate limits of Union, Mississippi. Willie Barlow was driving a similarly loaded truck and was following Dinkins. The trucks stopped at a traffic signal just north of an overpass on said highway, then proceeded up an incline and down the southern slope of same. A road intersected the highway on the west a short distance from the crest of the incline. Dairymen, Inc.’s truck, driven by Leo Ham-mill, was proceeding in a northerly direction on said highway and the trucks were approaching each other.

Billy Joe McCune was driving a dump truck of DeSoto, Inc. in an easterly direction on the road intersecting from the west. He testified that he stopped at the intersection, there were no vehicles in sight approaching from the north, and that he drove into the highway and turned south.

Dinkins and Willie Barlow testified, in substance, that as Dinkins approached the intersecting west road and at a time when his vehicle was so close as to constitute an immediate hazard, the DeSoto, Inc. truck, driven by Billy Joe McCune, suddenly emerged into the highway, and, in order to avoid a collision with the vehicle, Dinkins drove into the northbound lane of said highway where he collided the vehicle with a truck driven by Leo Hammill.

C. B. Blackwell and Lavell Dinkins contend that the negligence of DeSoto, Inc. and Billy Joe McCune, in suddenly driving into the highway from the west, was the sole proximate cause of the collision, while DeSoto, Inc. and Billy Joe McCune contend that Lavell Dinkins was driving the Blackwell truck at an unreasonable and excessive rate of speed and failed to have control of same. Dairymen, Inc. contends that negligence on all said parties was a contributing proximate cause of the collision and the resulting damage to Dairymen’s truck.

On motion for directed verdict, all facts proved, together with reasonable inferences, are considered most favorable for the party against whom it is requested, and all evidence in conflict with the evidence of the party against whom it is requested is to be disregarded, and, if they are sufficient to support a verdict, the motion must be overruled. Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975). The same principle applies on motion for judgment notwithstanding the verdict. Fortune Furniture Mfg. Co., Inc. v. Mid-South Plastic Fabric Co., 310 So.2d 725 (Miss.1975); Gentry v. Ferrill, 288 So.2d 18 (Miss.1974); Hawkins v. Hillman, 245 Miss. 385, 149 So.2d 17 (1963).

We are of the opinion that the evidence constituted an issue for the jury to determine as to liability against all the defendants and that the trial judge erred in sustaining the motion for judgment notwithstanding the verdict. Consequently, the judgment of the trial court is affirmed as to C. B. Blackwell and Lavell Dinkins, and is reversed as to DeSoto, Inc. and Billy Joe McCune. The verdict of the jury is reinstated as to DeSoto, Inc. and Billy Joe McCune, and judgment is entered here against all said defendants, jointly and severally.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

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


text:
    James O. BARR v. William Leon DAVIS and Arthur Lee Doss.
    No. 51074.
    Supreme Court of Mississippi.
    April 11, 1979.

      Parker, Averill & Butts, David 0. Butts, Tupelo, for appellant.
    John P. Fox, Houston, for appellees.
    Before ROBERTSON, WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice, for the Court:

The Circuit Court of the First District of Chickasaw County, Mississippi, sustained the general demurrer of the defendants, Arthur Lee Doss, deputy sheriff, and William Leon Davis, sheriff of Chickasaw County, to the declaration of plaintiff, James 0. Barr.

Declining to plead further, Plaintiff Barr appeals, assigning as error the sustaining of defendants’ demurrer.

Barr alleged in his declaration that on August 17, 1977, he was a passenger in his 1974 Ford car, which was being driven by his wife, Alise, in a northerly direction on Mississippi Highway 45 Alternate; that as they approached the intersection of highway 45 with Egypt Road, which runs east and west, Defendant Doss, going in an easterly direction, crossed the intersection without observing the red stop light facing him; that Doss was on official business of Defendant William Leon Davis, sheriff of Chickasaw County, and that Doss was also acting within the scope of his employment as a deputy sheriff of Chickasaw County.

Plaintiff Barr further charged that Deputy Sheriff Doss:

“[D]id negligently and recklessly operate said automobile, said automobile being owned by the County of Chickasaw, Mississippi, and provided to the Sheriff’s Department thereof, ...”

Barr alleged that he sustained damages to his car and personal injuries as a direct and proximate result of Doss’s negligence while on official business for the sheriff and while acting within the scope of his employment as deputy sheriff.

The circuit court erred in sustaining defendants’ general demurrer to plaintiff’s declaration.

In Poole v. Brunt, 338 So.2d 991 (Miss.1976), we held that the Circuit Court of Quitman County erroneously sustained the demurrer of Defendant, Sheriff Lewis Q. Brunt of Quitman County, to the declaration of plaintiff, Mrs. Effie Poole. In Poole, this Court decided that Sheriff Brunt would be liable for the negligent driving of his deputy sheriff while on official business for his employer where his negligent driving was the proximate cause of an automobile collision causing personal injuries to the plaintiff.

In Poole, we quoted with approval from Smith v. State, For the Use and Benefit of Hicks, 247 So.2d 705 (Miss.1971), as follows:

“ ‘The determination of whether [Deputy Sheriff] Merritt was acting under color or by virtue of his office, in his official position with it, or whether his action was personal or private on the occasion complained of were facts to be found by the jury under the conflicting evidence.’ 247 So.2d at 706-707.” 338 So.2d at 993.

If Defendant Doss were on personal business he would be individually liable; if on official business for his employer, Sheriff Davis, then Davis also would be liable, if Doss’ negligence was the proximate cause of the collision.

The order of the trial court is reversed and this cause remanded for a trial on the merits.

REVERSED AND REMANDED.

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


text:
    George R. EVANS v. Arthur G. EVANS, Peggy E. Harbin, and Jack G. Evans.
    No. 51053.
    Supreme Court of Mississippi.
    April 11, 1979.
    Teller & Teller, Landman Teller, Jr., Vicksburg, for appellant.
    Ward, Martin, Terry & Way, W. C. Way, Vicksburg, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Warren County; J. D. Thames, Chancellor.

REVERSED IN PART, AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concurring.


text:
    Beverly NORMAN and Terry Norman, Minor, by James R. Norman, Father and Next Friend v. SIMPSON ENGINEERING SERVICES, INC.
    No. 51032.
    Supreme Court of Mississippi.
    April 11, 1979.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Charles M. Merkel, Clarks-dale, for appellant.
    William L. Rone, Mills E. Barbee, Her-nando, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, DeSoto County; Dick R. Thomas, Judge.

REVERSED AND REMANDED ON THE SOLE ISSUE OF DAMAGES.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


author: SUGG, J.,

text:
    Ramon THOMPSON v. STATE of Mississippi. Melvin MOORE v. STATE of Mississippi.
    Nos. 51274, 51275.
    Supreme Court of Mississippi.
    April 11, 1979.
    Rainer & Sumrall, William Andy Sumrall, Pearl, for appellant.
   SUGG, J.,

for the Court.

MOTIONS SUSTAINED.

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


text:
    Betty STANFORD v. FRED’S DOLLAR STORE.
    No. 51084.
    Supreme Court of Mississippi.
    April 11, 1979.
    Leslie D. King, Clell G. Ward, Greenville, for appellant.
    Lake, Tindall, Hunger & Thackston, E. Spivey Gault, Edwin W. Tindall, W. Wayne Drinkwater, Jr., Greenville, for appellee.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

AFFIRMED.

COFER, J., took no part.


text:
    William Dell ELLIS et al. v. Pat POPE.
    No. 51050.
    Supreme Court of Mississippi.
    April 11, 1979.
    Fred M. Witty, Greenwood, for appellants.
    Fraiser, Burgoon, Henson & Abraham, James W. Burgoon, Jr., Greenwood, for ap-pellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Leflore County; William H. Bizzell, Chancellor.

AFFIRMED.


text:
    FIRST NATIONAL BANK FINANCIAL COMPANY v. SWOOPE INSURANCE AGENCY, INC., et al.
    No. 51108.
    Supreme Court of Mississippi.
    April 11, 1979.
    Stone, Graham, Segrest & Johnson, Thomas L. Segrest, Columbus, for appellant.
    Threadgill & Smith, Gary L. Geeslin, Columbus, for appellees.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Lowndes County; Lenore L. Prather, Chancellor.

AFFIRMED.


author: BEATTY, Justice.

text:
    Robert L. WHITMORE et al. v. FIRST CITY NATIONAL BANK OF OXFORD, etc., et al.
    77-281.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Rehearing Denied April 6, 1979.

      Thomas E. Davis and Gary F. Burns of Burns, Shumaker & Davis, Gadsden, for appellants.
    Jack W. Torbert and Howard B. Warren, Gadsden, for appellee, First City National Bank of Oxford.
   BEATTY, Justice.

This is an appeal by Robert L. Whitmore and other plaintiffs from a judgment in their favor entered on four separate jury verdicts. We affirm.

The controversy arose out of a many-faceted multi-party construction project. It began with a tract of real estate owned by Tombo Corporation, one of whose principal stockholders was Tom Stinson. Tombo Corporation sold this tract of land to Alder Acres, Inc., a corporation (which later was dissolved and became Fitts and Rogers, Inc.). Alder Acres executed a mortgage on the property in favor of First City National Bank of Gadsden (which became First Alabama Bank). Tom Stinson was employed as a loan officer by that bank at the time this mortgage was executed, but at the time of the transaction in question he had become president of the First City National Bank of Oxford, Oxford, Alabama.

Sometime in April, 1975 Fred Fitts, a Gadsden developer and co-owner of Fitts and Rogers, Inc., approached Stinson concerning his project to construct a health spa. The spa was to be built on the tract of land described above and which Fitts and Rogers subsequently had sold to Regency Health Club, Inc. Fitts was also president of Regency.

On April 30, 1975 the First City National Bank of Oxford agreed to make a loan of $175,000.00 to Regency and its president for construction of the spa. The loan agreement between the bank and Regency provided, however, that the bank would not be obligated to advance more than $120,000.00 unless the bank were able to obtain the participation of some other financial institution for the balance of the loan amount. The loan was closed that day, with $100,-000.00 being advanced to Regency. Of that sum $39,777.55 went to satisfy the earlier mortgage indebtedness on the property which was owned by First Alabama Bank. The further sum of $46,069.76 of the proceeds was used by Fitts to purchase a certificate of deposit which was assigned to the bank as security for pre-existing debts of Fitts and Rogers, Inc. Another $7,603.63 of the proceeds was used to pay off a bank loan on Fitts’ automobile, and $922.75 of the proceeds was paid to the closing attorney. An additional $8,000.00 was advanced at a later date.

Sometime later Diversified Development Company, Inc. became interested in the construction of the spa. The evidence tends to show that Robert Whitmore, Vice-President of Diversified, contacted Fitts regarding Diversified’s participation in building it, and Fitts asked for an estimate of costs, which Diversified originally estimated at $180,000.00. In June or July, 1975, Whit-more inquired of Stinson about the bank’s loan to Fitts for the spa project. According to Stinson, he advised Whitmore to confer with Fitts regarding the details of the loan. Whitmore and Diversified’s president, Julius Pate, however, maintained that Stinson represented to them that Fitts had a loan of $175,000.00 and that Diversified was financially safe in proceeding with the spa project. In any case, Fitts authorized Diversified to begin construction and it began on July 1, 1975.

On September 12, 1975 Pate and Whit-more visited the Oxford bank to obtain a first installment on the Regency loan. Ultimately they did receive a check in the amount of $23,864.00 payable to Regency and Diversified, but only after they had executed a promissory note for the amount of that check. They were also supplied with a like note for Fitts’ signature. After Fitts executed his note to the bank in that amount, Whitmore and Pate were allowed to cancel their note in the same amount. At that time Stinson informed Pate and Whitmore that the bank would lend no more money for the spa project. Their later effort on or about October 1 to obtain additional bank funds was unsuccessful. When Pate and Whitmore communicated with Fitts about this, according to them Fitts stated to them:

He’s [Stinson] going to have to get you the money. I paid him under the table to set this deal up for me and he’s going to have to cooperate with us. I’ll call him and we’ll get your money.

Fitts denied making these statements.

At least one other meeting in Oxford was attended by all of these parties concerning the procurement of additional funds, and later they met in Gadsden seeking the participation of the First Alabama Bank. When these were not forthcoming, the construction project was halted. Pate, Whit-more and Diversified brought this action against First City National Bank of Oxford, Stinson, Fitts and The Regency Health Club, Inc. alleging breach of contract, conspiracy and fraud.

At the trial the court submitted the case to the jury on a count of contract between Diversified and Regency, and conspiracy and fraud against all defendants. The jury returned four separate verdicts. It found in favor of Diversified on its contract count and awarded $125,000.00 against Regency Health Club. It awarded $16,000.00 to Diversified against all defendants. Another verdict awarded $20,000.00 to Pate against Fitts and Regency. It also awarded Whit-more $20,000.00 against Fitts and Regency. In the aggregate the jury’s verdict was $181,000.00. Thus each of the plaintiffs obtained a jury verdict, either on the theory of contract or upon the theories of fraud and conspiracy. The plaintiffs moved for a new trial, and when that was denied them this appeal ensued.

Basically, there are four issues presented for review: Whether the trial court erred in:

(1) excluding evidence of an August 20, 1974 payment from Fred Fitts to Tom Stin-son and their alleged conversation regarding “under the table” payments;

(2) excluding evidence of the certificate of incorporation of Tombo Corporation and a deed from Tombo Corporation to Alder Acres;

(3) preparing the verdict forms submitted for the jury’s use, and

(4) in refusing to allow the plaintiffs to amend their complaint and the pretrial order.

With regard to the first item, we have concluded that the trial court did not err in excluding evidence of the August, 1974 payment from Fitts to Stinson and the alleged statement of Fitts, by way of either direct or cross-examination. In reaching this conclusion we have not overlooked the nature of a conspiracy or the kind of evidence which may prove its existence. The conduct of the alleged conspirators during the progress of the conspiracy and its end result in themselves usually establish the ultimate fact of the conspiracy itself. It is for this reason that our court has approved the introduction of evidence before and after the date of the combination. Barber v. Stephenson, 260 Ala. 151, 69 So.2d 251 (1953); O’Dell v. State, 270 Ala. 236, 117 So.2d 164 (1959). The proof, however, must tend to establish the ultimate fact, i. e., the conspiracy itself. Barber, supra. It is in that aspect that this evidence was inadmissible. When Fitts paid Stinson on August 20, 1974, neither the Regency Health Club, nor Pate nor Whitmore was even contemplated by Fitts or Stinson, for aught appearing. Fitts did not come forward with the proposal to build the spa until the following April. Stinson’s connection with the property, as principal stockholder of Tombo Corporation, had long since been removed when the construction idea was advanced. It does not appear that the mere payment to Stinson was an act unlawful in itself, and therefore,

where unlawful means are not used . the object or purpose of the combination must be to cause damage to the plaintiff. . [W]hat is required is that the combiners should have acted in order that . the plaintiff should suffer damage. If they did not act in order that the plaintiff should suffer damage they are not liable, . . . . [Snyder v. Faget, 295 Ala. 197, 203, 326 So.2d 113 (1976), quoting with approval from Winfield on Torts, Conspiracy 557, (8th ed. 1967)].

The reference to an “under the table” payment, by Fitts to Stinson referred to that 1974 payment from Fitts to Stinson and thus was offered to prove a conspiracy to damage the plaintiffs. Under the circumstances it furnished no reasonable inference of a purpose to injure these plaintiffs at the time it was made. Indeed, the plaintiffs’ argument seems to be that this payment represents a plan by Fitts and Stinson to have Diversified contract with Fitts to construct the spa, and then to have the venture fail with a resulting loss to Diversified (not to mention any loss to Fitts by reason of its failure). Without describing the evidence in detail, we have observed that the record contains evidence of extensive real estate transactions conducted by Fitts and Rogers prior to and at the time of the payment in question. Fitts testified, in fact, that this was a payment to Stinson for putting an earlier project together in which Stinson had made money for him. There was also evidence of many other debts owed by Fitts and Rogers to banks, other than to Stin-son’s employer, at the time of the payment in question. None of this evidence would help to qualify the earlier payment to Stin-son as relevant evidence tending to prove a conspiracy between Fitts and Stinson at that time to harm Diversified, Pate or Whitmore. Its exclusion by the trial court, therefore, was proper. Phoenix Insurance Co. of New York v. Leonard, 270 Ala. 427, 119 So.2d 217 (1960).

What we have stated with reference to the 1974 transaction between Stinson and Fitts applies equally as well to the exclusion from evidence of the Tombo Corporation charter and the warranty deed from Tombo to Alder Acres, Inc. Our examination of the charter discloses a description of an ordinary commercial enterprise with numerous objects and purposes, including the powers to purchase and sell real estate, to enter into contracts, and to borrow money. The charter was dated August 31, 1970 and apparently was recorded contemporaneously. Stinson was not even the majority stockholder. The warranty deed from Tombo to Alder Acres was dated August 8, 1973, and was executed by Albert S. Klyce, III, president and principal stockholder of Tombo. Each of these documents substantially antedated the initial approach by Fitts to Stinson concerning the proposal to construct the spa and, of course, well before the plaintiffs’ participation therein was contemplated. It was not error, therefore, for the trial judge to exclude this evidence. Cf. Independent Life & Accident Insurance Co. v. Maxwell, 53 Ala.App. 396, 301 So.2d 85, cert. den. 293 Ala. 759, 301 So.2d 93 (1974) (on remoteness and relevancy). On the trial court’s power to limit cross-examination on irrelevant matters see Powell v. Powell, 285 Ala. 230, 231 So.2d 103 (1970).

Next, the plaintiffs contend that the verdict forms submitted by the court to the jury were misleading and “tended to indicate” that the jury might have to find for one plaintiff and not the others. We cannot agree with that conclusion. The verdict forms submitted to the jury were the following:

We, the jury, find in favor of the plaintiff, Robert L. Whitmore and against the following defendants 1- 2-3_ 4_ and assess plaintiff’s damages at $ .We further find in favor of the following defendants 1-2_3_
We, the jury, find for all the defendants and against the plaintiff, Robert L. Whit-more.
We, the jury, find in favor of the plaintiff, Julius T. Pate, and against the following defendants 1- 2-3_ 4_ and assess plaintiff’s damages at $ .We further find in favor of the following defendants 1-2_3_
We, the jury, find for all defendants and against the plaintiff, Julius T. Pate.
We, the jury, find in favor of the plaintiff, Diversified Development Corporation and against the following defendants 1_ 2_ 3_ 4_ and assess plaintiff’s damages at $ .We further find in favor of the following defendants 1-2-3--
We, the jury, find for all the defendants and against the plaintiff, Diversified Development Corporation.
We, the jury, find in favor of the plaintiff, Diversified Development Corporation, and against the defendant, the Regency Health Club, Inc. and assess plaintiff’s damages at $ on the contract. We, the jury, find for the defendant Regency Health Club, Inc. and against the plaintiff, Diversified Development Corporation on the contract.
We, the jury, find for all defendants and against all of the plaintiffs.

As we have shown previously, this was a case of multiple plaintiffs proceeding against multiple defendants on three separate theories, contract, conspiracy and fraud. These verdict forms allowed the jury to find for all the defendants against all the plaintiffs, for all the plaintiffs against each of the defendants, either for or against Diversified on its contract with Regency, or for each of the plaintiffs against any or all of the defendants. The plaintiffs do not assert on appeal that the trial court committed any error in its oral charge pertaining to the respective liabilities of the defendants under the pleadings and proof, but only that the forms were misleading. The plaintiffs contend that the trial court should have submitted a general verdict form in favor of all plaintiffs against all defendants. However, such a finding was permissible under the forms, and in fact all plaintiffs were allowed a recovery. Indeed, the court charged the jury that it could find in favor of all the plaintiffs. The law does not require any particular form in which a verdict must be rendered so long as it responds substantially to the issues raised. “All else is form, which the court can supply with or without the consent of the jury.” Wilson v. Federal Land Bank of New Orleans, 230 Ala. 75, 79, 159 So. 493 (1935); see also Hall v. Defoor, 273 Ala. 597, 143 So.2d 449 (1962).

Finally, the plaintiffs contend that the trial court erred to reversal by refusing to allow on amendment to the plaintiffs’ complaint and to the pre-trial order. The offered amendment was in the form of two additional counts, each of which asserted a conspiracy on the part of Fitts and Stinson to defraud the plaintiffs and based that conspiracy upon the same $20,000.00 payment made on August 20, 1974.

Rule 15(a), ARCP provides inter alia: [A] party may amend his pleading without leave of court but subject to disallowance on the court’s own motion or motion to strike of an adverse party; but such amendments shall be freely allowed when justice so requires. .

In McElrath v. Consolidated Pipe & Supply Co., 351 So.2d 560 (Ala.1977) this Court set forth the applicable Alabama law on liberality of amendments. While recognizing that a trial court has broad discretion in determining what “the interests of justice” require, we noted that the trial court must not exercise its discretion in an arbitrary manner. On this point we instructed that the interests of justice require that amendments be freely allowed unless the adverse party shows that he would be prejudiced by the amendment or there is evidence that the amendment could have been made before trial. In that case there was no proof of prejudice made by the adverse party, nor did we find any such proof from the record. In this case, however, as our discussion above has shown, the evidence which the plaintiffs sought to make admissible by this amendment is substantively insufficient. Further, unlike McElrath, supra, where the disallowed amendments presented issues not theretofore raised, here the plaintiffs presented amendments which not only presented matters theretofore raised but theretofore disposed of as improper. In Severson v. Fleck, 148 F.Supp. 760 (D.N.D.1957) reversed on other grounds, 251 F.2d 920 (8th Cir. 1958), it was held that the motion to amend would be denied when the evidence under it would not be admissible to prove the proposed cause of action under any theory. See also, 6 Wright & Miller, Federal Practice and Procedure: Civil, § 1487 (1971). Therefore it appears that the adverse party in the instant action would be prejudiced by the allowance of such an amendment. Moreover, that there was adequate opportunity to present these amendments before the trial in this instance is also apparent. See Walker v. Traughber, 351 So.2d 917 (Ala.Civ.App. 1977). Hence the trial court did not abuse its discretion in denying the motion to amend.

In any case, we note that the original complaint averred:

[Tjhat the defendants have conspired to defraud your plaintiffs and have, . defrauded your plaintiffs by encouraging them to perform work at said building with the intention' that the plaintiffs not be paid for the work and labor done. That said defendants have conspired to foreclose said mortgage and prevent the plaintiffs from being able to collect any sums rightfully due them for work and labor by attaching said real estate, (emphasis added)

We note also that the extensive evidence appearing in the record shows that both parties fully litigated the issue of conspiracy. Furthermore, at the conclusion of the evidence, the trial court gave an extensive oral charge to the jury. That charge dealt with both fraud and conspiracy. Part of that charge was this:

[A]n action based on a conspiracy to defraud may be maintained to recover for any damage suffered through acts of the conspirators. This would include a loss resulting from a conspiracy to misrepresent the financial condition of a corporation, and a loss suffered through a conspiracy to defraud by concealment.

Although the defendant bank objected to this charge on conspiracy, the plaintiffs did not object. The effect of the charge was to place the issue of conspiracy to defraud before the jury with the exception of a conspiracy based upon the $20,000.00 payment which we have shown was improper. It follows then that the issue of conspiracy was pleaded, argued and placed before the jury, and in view of the favorable general verdicts which the plaintiffs received, there has been no injury to the plaintiffs in denying the motion to amend. Rule 45, ARCP.

Accordingly, there being no reversible error, the judgment must be, and is, affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Cliff B. HARRIS v. The BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE, a Public Corporation.
    77-472.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Rehearing Denied April 6, 1979.
    Joseph J. Boswell, Mobile, for appellant.
    W. Michael Atchison, Birmingham, for appellee.
   JONES, Justice.

Affirmed on the authority of ARCP 51. See also, Odom v. Linsey, 365 So.2d 664 (Ala.1978) 13 A.B.R. 283, and cases cited therein.

AFFIRMED.

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


text:
    J. H. BORLAND, Sr. and Sarah M. Borland v. SANDERS LEAD COMPANY, INC., a corporation.
    77-283.
    Supreme Court of Alabama.
    Feb. 9, 1979.
    Rehearing Denied April 6, 1979.

      Jack Crenshaw of Crenshaw, Minor & Carr, Montgomery, for appellants.
    N. J. Cervera of Cervera & Yancey, and Oliver W. Brantley of Brantley & Calhoun, Troy, for appellee.
   JONES, Justice.

This appeal involves the right of a property owner, in an action for trespass, to recover damages for pollution of his property. The case was tried ore tenas to the trial Judge without a jury, and judgment was rendered for the Defendant. We reverse and remand for a new trial.

J. H. Borland, Sr., and Sarah M. Borland, Appellants, own approximately 159 acres of land, located just south of Troy, Alabama, on Henderson Road. On this property, Appellants raise cattle, grow several different crops, and have a large pecan orchard.

In 1968, the Appellee, Sanders Lead Company, started an operation for the recovery of lead from used automobile batteries. This operation is conducted on property just east of the Borlands’ property across Henderson Road. The Appellee’s smelter was placed on the west edge of their property, that part nearest to the Appellants’ property. The smelter is used to reduce the plates from used automobile batteries. It is alleged by Appellants that the smelting process results in the emission of lead particulates and sulfoxide gases.

It is undisputed that Appellee installed a filter system, commonly known as a “bag house,” to intercept these lead-particulates which otherwise would be emitted into the atmosphere. The “bag house” is a building containing fiber bags. The smoke emitting from the furnace is passed through two cooling systems before passing through the “bag house” so that the fiber bags will not catch fire. If properly installed and used, an efficient “bag house” will recover over 99% of the lead emitted. On two occasions, the cooling system at Appellee’s smeltering plant has failed to function properly, resulting in the “bag house’s” catching fire on both occasions. There is a dispute as to the efficiency of Appellee’s “bag house” throughout its operation.

Appellants allege that, because of the problems with the “bag house,” their property has been damaged by a dangerous accumulation of lead particulates and sulfox-ide deposits on their property.

Admittedly, this is an ore tenus case and the law is well settled that, in such cases, this Court is precluded from altering a lower court’s findings unless those findings are clearly erroneous. Donnelly v. Doak, 346 So.2d 414 (Ala.1977). It is equally true, however, that this rule has never precluded this Court from reversing a case where the trial court erroneously applies the principles of law involved. Babcock v. Smith, 285 Ala. 557, 234 So.2d 573 (1970); St. Clair Industries, Inc. v. Harmon’s Pipe & Fitting Co., 282 Ala. 466, 213 So.2d 201 (1968).

As stated by the Court of Civil Appeals in the very recent case of Alabama Farm Bureau Mutual Ins. Co., Inc. v. Davis, 354 So.2d 15 (Ala.Civ.App.1978):

“[I]n cases of this nature there is a presumption in favor of findings of fact made by the trial court since it hears the disputed evidence ore tenus. This presumption precludes our reversal of the trial court’s judgment unless it is determined to be plainly and palpably wrong. . [T]his presumption is not applicable in situations where the trial judge takes an erroneous view of the law as applied to the facts . . . .” (Emphasis added.)

It is our opinion that the trial Judge has misapplied the law in this case.

In the trial Court’s final decree, it is stated:

“Any court is bound by the applicable laws in any case. In any society operating under manmade law there is inherent the possibility that the law will provide no appropriate remedy for grievances no matter how strongly the equitable conscience of the court and/or a community may feel the need for action.” (Emphasis in the original.)

Furthermore, the trial Court held:

“It is the opinion of the court that the plaintiffs not recover of the defendant. The court would comment that there is ample evidence (even from the testimony of plaintiff, J. H. Borland) that his land is significantly increased in value due to its proximity to the lead plant and has a much higher value as commercial property rather than residential or farm property . .

It is apparent from a further reading of the final decree that the trial Court was under the mistaken impression that compliance with the Alabama Air Pollution Control Act shielded the Defendant from liability for damages caused by pollutants emitting from its smelter. This is not the law in this State. Furthermore, the trial Court incorrectly applied the law of this State in concluding that, because there was evidence showing that the Plaintiffs’ farm had increased in value as industrial property, due to its proximity to the lead plant, Plaintiffs could not recover of the Defendant. Such a rule, in .effect, would permit private condemnation, which, unquestionably, is impermissible. A discussion of the applicable rule of damages appears later in this opinion.

The Alabama Air Pollution Control Act is codified at § 22-28-1, et seq., Alabama Code 1975. § 22-28-23, Alabama Code 1975, specifically provides:

[NJothing in this section shall be construed to limit or abrogate any private remedies now available to any person for the alleviation, abatement, control, correction or prevention of air pollution or restitution for damage resulting therefrom. (Emphasis added.)

Alabama law clearly provides an appropriate remedy for Plaintiffs who have been directly injured by the deleterious effects of pollutants created by another party’s acts.

In Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974), this Court held, in a case of first impression, that a trespass need not be inflicted directly on another’s realty, but may be committed by discharging foreign polluting matter at a point beyond the boundary of such realty. Rushing specifically held that a trespass is committed by one who knowingly discharges asphalt in such a manner that it will in due course invade a neighbor’s realty and cause harm.

In Rushing, this Court cited with approval Restatement, Second, Torts, § 158, and particularly emphasized a portion of the Comments under this section, which recites:

“ ‘In order that there may be a trespass under the rule stated in this Section, it is not necessary that the foreign matter should be thrown directly and immediately upon the other’s land. It is enough that an act is done with knowledge that it will to a substantial certainty result in entry of foreign matters.’ ”

Rushing further cited with approval the case of Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790, cert. denied, 362 U.S. 918, 80 S.Ct. 672, 4 L.Ed.2d 739 (1959). In Martin, a case remarkably similar to the present case, the Plaintiffs sought recovery from the Defendant, aluminum company, for trespass. The Plaintiffs in Martin alleged that the operation by Defendants of an aluminum reduction plant caused certain fluoride compounds in the form of gases and particulates, invisible to the naked eye, to become airborne and settle on Plaintiffs’ property, rendering it unfit for raising livestock. Plaintiffs in the present case allege that the operation of Defendant’s lead reduction plant causes an emission of lead particulates, and SO2, invisible to the naked eye, which emissions have settled on their property, making it unsuitable for raising cattle or growing crops.

The Defendants in Martin contended that there had not been a sufficient invasion of Plaintiffs’ property to constitute trespass, but, at most, Defendant’s acts constituted a nuisance. This would have allowed the Defendants to set up Oregon’s two-year statute of limitations applicable to non-posses-sory injuries to land rather than Oregon’s six-year statute for trespass to land.

The Martin Court pointed out that trespass and nuisance are separate torts for the protection of different interests invaded — trespass protecting the possessor’s interest in exclusive possession of property and nuisance protecting the interest in use and enjoyment. The Court noted, and we agree, that the same conduct on the part of a defendant may, and often does, result in the actionable invasion of both interests.

The confusion surrounding trespass and nuisance is due in a large part to the influence of common law forms of action. The modern action for trespass to land stemmed inexorably from the common law action for trespass which lay when the injury was both direct and substantial. Nuisance, on the other hand, would lie when injuries were indirect and less substantial. See Winfield, Nuisance as a Tort, 4 Camb. L.J., 189, 201-06 (1931). A fictitious “dimensional” test arose, which obviated the necessity of determining whether the intrusion was “direct” and “substantial.” If the intruding agent could be seen by the naked eye, the intrusion was considered a trespass. If the agent could not be seen, it was considered indirect.and less substantial, hence, a nuisance. See, e. g., 1 Harper & James, Torts, § 1.23 (1946) (where the dimensional or the tangible/intangible test is included in an earlier definition of trespass and nuisance).

In Martin v. Reynolds, supra, the Court stated:

“. . . The defendant asks us to take account of the difference in size of the physical agency through which the intrusion occurs and relegate entirely to the field of nuisance law certain invasions which do not meet the dimensional test, whatever that is.”

The Martin Court rejected the dimensional test and substituted in its place a force and energy test, stating:

“The view recognizing a trespassory invasion where there is no ‘thing’ which can be seen with the naked eye undoubtedly runs counter to the definition of trespass expressed in some quarters. 1 Restatement, Torts § 158, Comment H (1934); Prosser, Torts § 13 (2d Ed. 1955). It is quite possible that in an earlier day when science had not yet peered into the molecular and atomic world of small particles, the courts could not fit an invasion through unseen physical instrumentalities into the requirement that a trespass can result only from a direct invasion. But in this atomic age even the uneducated know the great and awful force contained in the atom and what it can do to a man’s property if it is released. In fact, the now famous equation E = me has taught us that mass and energy are equivalents and that our concept of ‘things’ must be reframed. If these observations on science in relation to the law of trespass should appear theoretical and unreal in the abstract, they become very practical and real to the possessor of land when the unseen force cracks the foundation of his house. The force is just as real if it is chemical in nature and must be awakened by the intervention of another agency before it does harm.
“If, then, we must look to the character of the instrumentality which is used in making an intrusion upon another’s land we prefer to emphasize the object’s energy or force rather than its size. Viewed in this way we may define trespass as an intrusion which invades the possessor’s protected interest in exclusive possession, whether that intrusion is by visible or invisible pieces of matter or by energy which can be measured only by the mathematical language of the physicist.
“We are of the opinion, therefore, that the intrusion of the fluoride particulates in the present case constituted a trespass.”

In deciding what acts constitute a trespass, the Oregon Supreme Court cited earlier cases recognizing that a trespass is committed by a defendant’s blasting operation when the vibrations and concussions to earth and air cause damage to the plaintiff’s property. Admittedly, as the Appel-lee contends, Alabama case law rejects the theory that mere concussion caused by blasting operations constitutes a trespass. Coalite, Inc. v. Aldridge, 285 Ala. 137, 229 So.2d 539 (1969). Coalite requires proof of negligence where a defendant’s blasting operation causes injury to the plaintiffs’ property, unless rocks or debris actually invade the confines of the plaintiffs’ land.

Judicial restraint compels us to await the appropriate case, in an adversary setting, to address any reconsideration of the trespass/negligence dichotomy presented by Coalite. Suffice it to say that here we are not dealing with a vibration/concussion case. Moreover, it is clear from a thorough reading of Martin that the reliance by the Oregon Supreme Court on the trespass theory of the earlier blasting case was not essential to the Martin holding that deposits of fluoride particulates constituted a trespass upon the plaintiffs’ land.

Having shown trespass and nuisance are not always mutually exclusive remedies, we do not wish to intimate that there is no longer a distinction in the two remedies. Indeed, this distinction is evident in the case of Wilson v. Parent, 228 Or. 354, 365 P.2d 72 (1961). There, Plaintiff alleged that her son-in-law, who resided on adjoining property, made vile and obscene gestures toward her and directed vile, obscene and profane language at her. The Plaintiff framed her complaint in nuisance, but a significant portion of the opinion was devoted to the question of whether the intrusions were trespasses.

The Wilson Court stated:

“[T]he judiciary, though not composed of atomic scientists, fully recognize that dust, smoke, invisible gas, light and sound, and atomic fallout, are propelled over and across the lands of another and sometimes rest thereon, but it seems reasonably obvious that the ether waves moving from the hands of the defendant to the eyes of the plaintiff and the sound waves from his vocal cords to her ears do not constitute trespass to land, even though the damage caused by them be far more than de minimis: added.) (Emphasis

This conclusion is “reasonably obvious” only when it is realized that the damage in Wilson was not the result of the intensity of the light and noise, but, instead, of its unique nature, i. e., the obnoxious meanings communicated by the words and gestures. Note, 19 Okla.L.Rev. 117 (1966). The facts in Wilson represent a de minimis invasion to the interest of possession, but a substantial invasion to the interest of use and enjoyment.

It might appear, at first blush, from our holding today that every property owner in this State would have a cause of action against any neighboring industry which emitted particulate matter into the atmosphere, or even a passing motorist, whose exhaust emissions come to rest upon another’s property. But we hasten to point out that there is a point where the entry is so lacking in substance that the law will refuse to recognize it, applying the maxim de minimis non curat lex — the law does not concern itself with trifles. In the present case, however, we are not faced with a trifling complaint. The Plaintiffs in this case have suffered, if the evidence is believed, a real and substantial invasion of a protected interest.

Although we view this decision as an application, and not an extension, of our present law of trespass, we feel that a brief restatement and summary of the principles involved in this area would be appropriate. Whether an invasion of a property interest is a trespass or a nuisance does not depend upon whether the intruding agent is “tangible” or “intangible.” Instead, an analysis must be made to determine the interest interfered with. If the intrusion interferes with the right to exclusive possession of property, the law of trespass applies. If the intrusion is to the interest in use and enjoyment of property, the law of nuisance applies. As previously observed, however, the remedies of trespass and nuisance are not necessarily mutually exclusive.

While the direct/indirect analysis of the nature of the intrusion is not a valid method of determining trespass vis-a-vis nuisance, this analysis must be made in order to determine the elements necessary to prove trespass. If the intrusion is direct, then, under our present law, actual damages need not be shown; nominal damages may be awarded and this will support punitive damages. This is true whether the intrusion is intentional or unintentional.

Under the modern theory of trespass, the law presently allows an action to be maintained in trespass for invasions that, at one time, were considered indirect and, hence, only a nuisance. In order to recover in trespass for this type of invasion [i. e., the asphalt piled in such a way as to run onto plaintiff’s property, or the pollution emitting from a defendant’s smoke stack, such as in the present case], a plaintiff must show 1) an invasion affecting an interest in the exclusive possession of his property; 2) an intentional doing of the act which results in the invasion; 3) reasonable foreseeability that the act done could result in an invasion of plaintiff’s possessory interest; and 4) substantial damages to the res.

A further clarification of our nuisance/indirect trespass dichotomy is appropriate at this point. In the traditional sense, the law of nuisance applies where the invasion results in no substantial damage to the res, but where there is .interference with the use and enjoyment of one’s property. The classic cases of the barking dog, the neighboring bawdy house, noise, smoke, fumes, or obnoxious odors generally invoke the doctrine of the law of nuisance. These intrusions do not typically result in any actionable damage to the res; the injury caused by such acts usually results in a diminution of the use value of the property causally related to the harmful conduct made the basis of the claim.

We emphasize that these intrusions are not relegated to the nuisance remedy simply because of their indirect nature; rather, they do not constitute a trespass because all of the requisite elements of trespass to land are not present. For an indirect invasion to amount to an actionable trespass, there must be an interference with plaintiff’s exclusive possessory interest; that is, through the defendant’s intentional conduct, and with reasonable foreseeability, some substance has entered upon the land itself, affecting its nature and character, and causing substantial actual damage to the res. For example, if the smoke or polluting substance emitting from a defendant’s operation causes discomfort and annoyance to the plaintiff in his use and enjoyment of the property, then the plaintiff’s remedy is for nuisance; but if, as a result of the defendant’s operation, the polluting substance is deposited upon the plaintiff’s property, thus interfering with his exclusive possessory interest by causing substantial damage to the res, then the plaintiff may seek his remedy in trespass, though his alternative remedy in nuisance may co-exist.

On remand, the issue of the proper measure of damages will undoubtedly arise. In its final decree, the trial Court held that the Plaintiffs’ property had increased in value as commercial property due to its proximity to the Defendant’s lead plant; therefore, Plaintiffs were not allowed to recover of the Defendant. As noted earlier, such a rule would allow industries, as here, to have absolute control over the use of another’s property. This clearly is not the rule for measuring damages in trespass cases. Moreover, it overlooks the fact that the appreciation factor is totally unrelated to the wrongful acts complained of.

It is often stated that the measure of damages in trespass cases is the difference between the value of the land before and after the trespass. In Alabama Power Company v. Thompson, 250 Ala. 7, 32 So.2d 795, 9 A.L.R.2d 974 (1947), this Court followed the general rule and pointed out that the adaptability of the property for a special purpose affecting its value is an element for the consideration of the jury in assessing damages. Similarly, the fact that Plaintiffs have used their property for a particular purpose (and may have no desire to sell their property at the higher commercial value) is an element to be considered in determining damages. It seems clear that if the “before and after” rule of damages applies, then, the value is not determined based on the best and highest use of the property, but on the owner’s desired or previous use.

We note, however, that this may not be a case where the damages are to be based on the difference in value before and after the trespass. This rule is subservient to the underlying proposition for measuring damages in trespass cases: The Plaintiff is ordinarily entitled to an amount which will compensate him for actual damages sustained. Thomas v. Bank of Hurtsboro, 243 Ala. 658, 11 So.2d 370 (1942). In 75 Am. Jur.2d, Trespass § 51, it is stated:

“No hard and fast principles can be laid down for the measurement of damages in this class of cases. Generally, the rules to be applied depend upon whether or not the injury is permanent or temporary in character. As is the rule generally, in the case of permanent injury, the recovery must include all damages, both past and future. The proper measure of damages is the difference between the value of the realty before the injury and its value after the injury, except where there is a total destruction, when the owner is entitled to recover the entire value.
“As to temporary injuries, the authorities are not in agreement as to the proper rule generally for their computation. Some courts have applied the rule in actions of trespass that the cost of restoring the property to its former condition is the proper measure of damages for a temporary injury thereto when this is less than the diminution of the market value of the whole property by reason of the injury, but where the cost of restoration is more than the diminution in the market value, the latter is generally the true measure of damages.' In general, the measure of damages for wrongfully depriving the plaintiff of the use of his property is the rental value or the reasonable value of the use of the property during the time he is deprived thereof. Thus for a wrongful ouster of the plaintiff from a portion of his farm, damages may be awarded equal to the difference in the rental value of the farm with and without such portion.” (Emphasis ours.)

Alabama has long accepted the dichotomy between permanent and continuous trespass, along with the factual distinctions incident to a determination of the appropriate measure of damages. In Louisville & Nashville Railroad Co. v. Higginbotham, 153 Ala. 334, 44 So. 872 (1907), it is stated:

“And where the trespass is a continuing one, and not of that class of permanent appropriations, to be assessed for all time at once, there may be successive actions for each continuance of the trespass.”

In Thomas v. Bank of Hurtsboro, supra, the Court held that where the trespass put the plaintiff out of possession — the measure of damages was the amount that would compensate for use and occupation (i. e., fair rental value).

In conclusion, in determining the amount of damages recoverable by a plaintiff whose property has been trespassed upon, the law is flexible and the rule simple: What will compensate the plaintiff for the injury he has received? In a case such as the present one, it must first be determined whether the alleged intrusion is of a permanent nature or of a continuing nature. If the injury is permanent, damages must be recovered for all time — past, present and future. The measure of damages means the difference in the fair market value of the property before and after the trespass, based on the plaintiff’s use of the property or adaptability of the property to a particular use prior to the trespass.

If the nature of the injury is continuous (i. e., during the tenure of the trespass), the plaintiff can recover for the use of his property or its fair rental value. (Also, plaintiff may be able to recover the cost of restoration if this, plus rental value, is less than the diminution in value.) Any damages for future loss must be recovered in a later action if and when a subsequent trespass occurs.

Additionally, as pointed out in Rushing, supra, plaintiffs are entitled to recover for the loss to personal property if the loss is proximately caused by the trespass.

REVERSED AND REMANDED.

All the Justices concur.

      . Indeed, because .of the comprehensive language of our nuisance statute (§ 6-5-120), conduct which rises to the level of trespass to land, generally speaking, would support a nuisance action; the converse, however, is not necessarily true.

      . We note that a number of jurisdictions have adopted the so-called “modern view” that when the trespass is nondeliberate [unintentional], damages need not be awarded where the trespass causes no actual injury. See 75 Am.Jur.2d Trespass, § 49, at 43. This Court to date, has not accepted this so-called “modem view.” The issue whether actual damages must be shown where the trespass is unintentional is not before this Court on this appeal. We leave any reconsideration of this point to a later case where the issue is directly presented.