text:
    Ronald Anthony DAVION v. Paul WILLIAMS.
    No. 49718.
    Supreme Court of Mississippi.
    Nov. 30, 1977.

      Harold J. DeMetz, Larry L. Lenoir, Gulf-port, for appellant.
    Johnson & Ward, Michael H. Ward, Gulf-port, for appellee.
    Before PATTERSON, C. J., ROBERTSON and SUGG, JJ., and IDOM, Commissioner.
   O. GUYTON IDOM, Commissioner for the Court:

This is a Will contest suit brought in the Chancery Court of the First Judicial District of Harrison County. Paul Williams probated a Will purporting to be that of Alda Williams Balot on February 26, 1976. Subsequently a petition to contest the Will was filed by Ronald Anthony Davion on the grounds that a later Will had revoked the Will admitted to probate. Williams answered, alleging that the later Will was void due to existence of undue influence or lack of testamentary capacity.

A jury trial produced a verdict for Paul Williams, proponent of the first Will. Chancellor Frank Alexander denied a motion for a judgment notwithstanding the verdict for a new trial. The appellant assigned as error the granting of appellee’s instructions eight and ten, and that the verdict was against the overwhelming weight of the evidence.

The issue presented on appeal is:

Whether or not there was undue influence exercised upon testatrix by the Da-vions, who were the beneficiaries under the Last Will, to such an extent as to deprive the testatrix of her desire and substitute therefore the desire and will of the beneficiaries, and whether the jury was properly instructed as to the law regarding presumptions, and burden of proof in overcoming presumptions in law.

Since the presumption of undue influence requires proof of a confidential relationship and suspicious circumstance in the execution of a Will, is it reversible error to grant an instruction imposing the presumption and requiring clear and convincing evidence to overcome it, without first submitting to the jury the factual issue as to existence of a confidential relationship?

The Will first probated was holographic and had been executed on March 9, 1969. It left Alda Balot’s estate to her brother, Paul Williams. No issue was raised as to the facial validity or proper execution of the Will, rather the contention was it had been revoked by a later Will.

The second Will was formally executed on September 13, 1974. This Will left Alda Balot’s estate to her neighbor, Ronald Anthony Davion. This latter Will expressly revoked all prior Wills, and no issue was raised as to its facial validity or the formality of execution. The sole contention is that it was executed without testamentary capacity or was the product of undue influence.

At trial, evidence was put on to show the existence of a confidential relationship between testatrix and the beneficiary, Da-vion, along with evidence to show suspicious circumstance in the execution of the Will. The objective was to invoke a presumption of undue influence which Davion would then have to overcome by clear and convincing evidence.

It was proven that Davion and his family lived next door to Alda for many years and had a close personal relationship with her. Her own next of kin, her brother, lived a good distance away, in another state, and did not visit frequently. Among other things, the Davion family performed such services as yard work, driving, and odd errands. On several occasions Alda had told social friends that she considered the Da-vions as “her family” and that she wanted to leave everything to them.

As to actual business transactions, there is no evidence of the Davions being business confidants before the Will was drawn. Approximately six days after the second Will was drawn, Alda had the Davions’ names put on her checking account. According to a bank official, after he explained to Alda the effect of the joint account, she acknowledged she understood and stated she wanted their names on the account so they could take care of her business if anything happened to her. There is no evidence in the record that the Davions ever used this account during the considerable time between then and Alda’s subsequent death. Other evidence which might indicate a confidential relationship concerned the fact that Davion was the one who first went to an attorney and gave him the details to put in Alda’s Will. The attorney’s testimony reflects that Davion said Alda requested him to do this. Also bearing on the nature of the relationship was evidence which, while inconclusive, indicated during the time in question Alda drank to excess, either occasionally or frequently depending on the light in which the evidence is viewed. The testimony is clear, however, that on the occasion of the execution of the second Will, she was under no disability and no misapprehensions, but that her mind was clear and that she had control of all of her faculties and knew exactly what she wanted to do concerning her property, and, also, that there was no evidence of her drinking on that occasion or of her being under the influence of drink.

Numerous witnesses for Davion stated that Alda was a strong person with a mind of her own. Even the witnesses for Williams agreed she was a strong, intelligent, capable person when not drinking. There is also testimony that Alda on occasions had expressed a desire to disinherit her brother’s family and stated reasons. Alda, herself, when executing her Will in the attorney’s office, acknowledged she was aware the Will would exclude her next of kin, and that the Will as drawn expressed her desires.

The challenged instructions Number 8 and Number 10 are as follows:

Instruction No. 8
The Court instructs the Jury that mere proof that Alda Williams Balot signed the alleged Will dated September 13, 1974, and acknowledged and published and declared the same as her Will in the presence of the witnesses to said Will of September 13, 1974, and that said witnesses signed the alleged Will in her presence, is not enough to justify you in returning a verdict in favor of the Petitioner-Contestant, Ronald Anthony Davion; but before you would be justified in returning such a verdict, the said Ronald Anthony Davion must go further and show to you by a preponderance of the evidence in this case, if any, that at the time of the execution of the Will in question the said Alda Williams Balot was then and there of sound and disposing mind and must further show you by clear and convincing evidence that the making of the alleged Will of September 13,1974, was a voluntary act done without undue influence of anyone, and if from the whole evidence in this case you are unable to determine whether the said Alda Williams Balot was of sound and disposing mind at the time of the execution of the said Will or if you are not satisfied by clear and convincing evidence that Alda Williams Balot executed said Will without the undue influence of anyone, then it is your sworn duty to find for the Proponent-Respondent, Paul Williams. (Emphasis Added).
Instruction No. 10
The Court instructs the Jury that the burden of proof in this case rests upon the Petitioner-Contestant, Ronald Anthony Davion, to prove by clear and convincing evidence that the making and signing by Alda Williams Balot of the alleged Will of September 13, 1974, were the result of the unmolested free will of the said Alda Williams Balot and not as a result of any undue influence by the Petitioner-Contestant, Ronald Anthony Da-vion or of the wife of Ronald Anthony Davion, or of any other person, and unless you so find, your verdict must be for the Proponent-Respondent, Paul Williams. (Emphasis Added).

The instructions as given assume the establishment of a confidential relationship and attendant suspicious circumstance in the execution of the Will. The effect is to peremptorily impose upon the appellant the presumption of undue influence without first allowing the jury to determine the factual issue of existence of a confidential relationship.

In Croft v. Adler, 237 Miss. 713, 115 So.2d 683 (1959), it was pointed out that the presumption of undue influence

“ ‘. . . extends to every possible case in which a fiduciary relation exists as a fact, in which there is a confidence reposed on one side and the resulting superiority and influence on the other. The relation and duties involved in it need not be legal, it may be moral, social, domestic, or merely personal.’ ” [Citing 2 Pomeroy Equity Jurisprudence (4th Ed.) § 956]. (Emphasis Added).

Prior to Croft the existence of a confidential relationship for the purpose of invoking the presumption had largely been limited to legal fiduciary relationships and were held to exist as a matter of law rather than being dependent upon a factual determination. Meek v. Perry, 36 Miss. 190 (1858) [Guardian and Ward] Hitt v. Terry, 92 Miss. 671, 46 So. 829 (1908) [Physician and Patient], Ham v. Ham, 146 Miss. 161, 110 So. 583 (1926) [Business Partners], In Re Will of Moses, 227 So.2d 829 (Miss.1969) [Attorney and Client, a case subsequent to Croft v. Alder, but as with prior cases, ruling a confidential relation based on legal duties].

In Croft, and subsequently, the type of confidential relationship for invoking the presumption was broadened to include those of a “moral, social, domestic or merely personal nature”, but here, as pointed out in Croft, the finding of such relationships is dependent upon its existence as a fact. O’Bannon v. Henrich, 191 Miss. 815, 4 So.2d 208 (1941) [Testator and Fiance (prior to Croft)], Croft v. Alder, 237 Miss. 713, 115 So.2d 683 1959) [Testator and Nephew], Mingo v. Mingo, 244 Miss. 833, 146 So.2d 742 (1962) [Testator and Brother], Genna v. Harrington, 254 So.2d 525 (1971) [Husband and Wife], Bilello v. Bilello, 317 So.2d 916 (1975) [Testator and Sister].

In such a case as the present, where the alleged confidential relationship is that between next door neighbors, it is the duty of the Court to determine “if a fiduciary relation exists as a fact, in which there is confidence reposed on one side and the resulting superiority and influence on the other.” (Emphasis added). If the trial is by jury, and if the existence of such a relationship is a matter about which reasonable men could differ based on the facts presented, then the issue should be submitted to the jury.

In the present case, concerning a relationship between neighbors, given the testimony as to the strong willed nature of Alda, her independent execution of the Will, and testimony at least indicating the beneficiary occupied a subservient role in the relationship; it must be held that a question arose particularly suitable for determination by a jury.

Since instructions eight and ten deprived the jury of that determination, and the result was to prejudice the appellant by peremptorily imposing upon him the burden of overcoming a presumption by clear and convincing evidence; the instructions as granted constitute reversible error.

This Court does not now address the remaining assignments of error as it is anticipated they will be resolved upon remand for a new trial.

REVERSED AND REMANDED.

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

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


source: Caselaw Access Project

author: LEE, Justice,

license: Public Domain

text:
    Paula Johnson LONGTIN, T. B. Ray, Administrator of Estate of Robert Paul Johnson v. Miss Nannie WITCHER.
    No. 49741.
    Supreme Court of Mississippi.
    Nov. 30, 1977.

      Parsons & Matthews, Thomas M. Matthews, Jr., Wiggins, for appellant.
    Thornton & Dorrill, George L. Dorrill, Kosciusko, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

The Chancery Court of Choctaw County entered a decree adjudging Miss Nannie Witcher to be the owner of certain real and personal property and Paula Johnson Long-tin and T. B. Ray, Administrator of the Estate of Robert Paul Johnson, appeal.

Appellants assign the following errors in the trial below:

(1) The court erred in finding that a gift of the municipal bonds was made to Nannie Witcher by Robert Paul Johnson during his lifetime.

(2) The court erred in finding that the transfer by Robert Paul Johnson to Nannie Witcher of the store and washeteria, the travel trailer, and the Chevrolet vehicle was not the result of Nannie Witcher’s abuse by undue influence of her confidential and fiduciary relationship with Robert Paul Johnson.

(3) The court erred in failing to sustain appellants’ motion to exclude the evidence and direct a verdict for them after appellee rested her case.

(4) The court erred in allowing introduction into evidence of a bill of complaint for divorce filed in Hinds County on October 1, 1968, by Robert Paul Johnson against Bennie Jean Johnson, his wife, and in allowing introduction into evidence of the decree granting the divorce entered December 6, 1968.

The property involved in this case is (1) a twenty-foot house trailer, (2) a 1962 Chevrolet truck, (3) savings account in Jackson Savings & Loan Association, (4) a 1971 Chrysler automobile, and (5) one hundred nineteen thousand dollars ($119,000) in municipal bonds. Robert Paul Johnson, age sixty-one (61) at the time of his death, operated a mercantile business near Weir, Mississippi. His living quarters were located in the store building. In 1949, Nannie Witcher, aged nineteen (19) years, moved from French Camp, where she had finished high school, to the Johnson place and began to work for him in the store. For the first year she lived in a trailer, belonging to Johnson, situated at the rear of the store. After the first year, she moved into the living quarters of the store building where she occupied one bedroom and Johnson occupied another. She had full and complete charge of everything pertaining to the operation of the store and the gasoline business. In addition, she cooked for Johnson, performed the household chores, and took care of him during the years of his failing health from 1969 until his death in. 1974.

On June 19, 1970, Johnson executed a general warranty deed to Nannie Witcher conveying unto her the store building and property. The instrument was duly recorded in the Chancery Clerk’s office of Choctaw County. At the same time, Johnson conveyed the house trailer to her by a properly executed bill of sale. On the 11th day of February, 1971, he transferred the Chevrolet half-ton" pickup truck to her and, subsequently, on November 17, 1972, he purchased for her and placed in her'name, a 1971 Chrysler automobile. The store business was operated by Miss Witcher in her own name, the county privilege license, firearms license (from Department of Treasury’s Bureau of Alcohol, Tobacco and Firearms), and Mississippi State Permit to Engage in Business, were all issued in her name and all checks drawn in the operation of the business had her name printed thereon and were signed by her.

Mr. Johnson was divorced from his wife on December 6, 1968. The only child born of the marriage was Paula Johnson Long-tin, one of the appellants. She was twelve (12) years old when the divorce was granted. From that time until Johnson’s death, there were strained feelings and friction between his daughter and him, she visited him infrequently and she declined to live with him, although he had requested her to do so. In the late summer of 1974, Johnson’s nephew, Jacob Lamar Adcock, convinced Johnson that he should go to Albuquerque, New Mexico, where Adcock lived, and submit to heart surgery. Adcock came to Mississippi by airplane for the purpose of driving Johnson and Miss Witcher to Albuquerque. On August 8, 1974, in the presence of Adcock, Johnson placed the municipal bonds in a paper sack while at the store (they had previously been kept by Miss Witcher in her own lock box) with the statement that they were her bonds and that she should place them in her lock box. Johnson, Adcock and Miss Witcher went to her bank in Ackerman, Adcock waited on the inside of the bank, and Johnson and Miss Witcher went to her lock box and returned without the bonds. During this time, appellant Longtin was at the store and had spent the previous night there accompanied by her sister-in-law. Johnson had the windows and doors of the store building nailed up with boards and he, Ad-cock and Miss Witcher started for Albuquerque in her Chrysler automobile. Appellant Longtin and her sister-in-law were left outside the building where they waited approximately an hour for a friend to take them home.

Johnson was in Albuquerque several days and died before entering the hospital. He was buried in Albuquerque at his request. After the funeral, Adcock and Miss Witcher came to Mississippi by airplane, she entered her lock box, got the bonds, and they flew back to Albuquerque where an inventory of the bonds was made by Adcock.

I.

Did the trial court err in finding that a gift of the municipal bonds was made to Nannie Witcher by Robert Paul Johnson during his lifetime?

II.

Did the court err in finding that the transfer by Robert Paul Johnson to Nannie Witcher of the store and washeteria, the travel trailer, and the Chevrolet vehicle was not the result of Nannie Witcher’s abuse by undue influence, or her confidential and fiduciary relationship with Robert Paul Johnson?

III.

Did the court err in failing to sustain appellants’ motion to exclude the evidence and direct a verdict for them after appellee rested her case?

Appellants contend that a valid inter vi-vos gift of the municipal bonds was not made to Miss Witcher and that the bonds and conveyances of real and personal property were obtained by undue influence. They further contend that a confidential relationship existed between Miss Witcher and Johnson, and that, therefore, the gifts and transfers are presumed to be obtained through undue influence because of that relationship. It is not necessary to decide whether a confidential relationship existed for the reason that the evidence is clear and convincing that the gifts were made freely, in good faith, with full knowledge, and with independent consent and action. This Court said in Ham v. Ham, 146 Miss. 161, 110 So. 583 (1926):

“The transaction is not necessarily voidable, it may be valid, but a presumption of its invalidity arises which can only be overcome, if at all, by clear evidence of good faith, of full knowledge, and of independent consent and action.” 146 Miss, at 173, 110 So. at 584.

In Hickey v. Anderson, 210 Miss. 455, 49 So.2d 713 (1951), the Court stated:

“It is well established in Mississippi and elsewhere that where a confidential relationship is shown to exist between parties to the deed, and where the grantee, who is the beneficiary, is the dominant spirit in the transaction, the law raises a presumption of undue influence . . . .” 210 Miss, at 462, 49 So.2d at 716.

The Court discussed what constitutes influence in Burnett v. Smith, 93 Miss. 566, 47 So. 117 (1908):

“[N]ot every influence is undue, and undue influence cannot be predicated of any act unless free agency is destroyed, and that influence exerted ‘by means of advice, arguments, persuasion, solicitation, suggestion, or entreaty is not undue, unless it be so importunate and persistent, or otherwise so operate, as to subdue and subordinate the will and take away its free agency. Nor is influence ordinarily considered undue which arises out of sympathy, kindness, attention, attachment or affection, gratitude for past services, desire of gratifying the wishes of another or of relieving distress, claims of kindred and family or other intimate personal relations, love, esteem, social relations, prejudices, or flattery.’ ” 93 Miss, at 572, 47 So. at 118.

The great weight of the evidence indicates that Johnson was an independent, strong-willed and aggressive person, while Miss Witcher was shy and retiring, and the record reflects that she was dominated by him rather than that he was influenced by her.

The essentials of a valid inter vivos gift require that there is a donor competent to make a gift, there is a voluntary act on his part with the intention to make a gift, the gift must be complete with nothing left to be done, the property must be delivered by the donor and accepted by the donee, and the gift must be gratuitous and irrevocable. Jenkins v. Jenkins, 278 So.2d 446 (Miss.1973).

The chancellor made the following findings of fact:

“The Court further finds that the charge of undue influence against Miss Nannie Witcher on Robert Paul Johnson was not established by the evidence and in fact the Court is of the opinion and so finds that there was none exerted on her part on the said Robert Paul Johnson. Robert Paul Johnson, according to the evidence, was a strong willed man, was a man of good judgment, a shrewd trader and businessman, and one that would be difficult to influence. The Court finds, therefore, that all of the property herein-above identified, except that hereinafter mentioned, was given by Robert Paul Johnson to Miss Nannie Witcher freely and voluntarily and that it was gratuitous and irrevocable; that he was a man of mental competency and fully capable of knowing what he was doing, and that Miss Nannie Witcher was thoroughly capable of knowing and understanding what was going on and was competent to receive saidgifts. The Court finds that all of the essential elements of inter vivos gifts under the laws of the State of Mississippi were present in this case; that the donor was competent to make the gift or gifts; that they were free and voluntary on his part; that he intended to make said gifts and frequently expressed his intention to so do; that the donee was capable of taking the gifts and that the gifts were complete and nothing was left to be done; that the property that was the subject of the gift or gifts was delivered by the donor and accepted by the donee; that the gifts took immediate effect from the time that they were made; that they were absolute, gratuitous and irrevocable; that all of the property which was the subject of these two lawsuits is now the property, both personal and real, of Miss Nannie Witcher with the exception of the following: the stock of goods and other personal property making up the Johnson Grocery Store and the three rings. Miss Nannie Witch-er made no claim to the rings but they were delivered by her during the progress of the trial to Paula Johnson Longtin.”

The chancellor found for every essential of a valid inter vivos gift and that the gifts and conveyances were not made as a result of undue influence, but were freely, voluntarily and knowingly made. We are unable to say that the chancellor was manifestly wrong in such findings. Consequently, there is no error in the above assignments.

IV.

Did the court err in allowing introduction into evidence of a bill of complaint for divorce filed in Hinds County on October 1,1968, by Robert Paul Johnson against Bennie Jean Johnson, his wife, and in allowing introduction into evidence of the decree granting the divorce entered December 6, 1968?

The purpose of introducing the bill of complaint, which charged desertion and adultery, and the decree of divorce apparently was to show the estrangement and ill will which existed between Johnson and his wife, and that, as a result of same, Johnson’s daughter probably was influenced against him. However, it is not necessary to decide whether the instruments were admissible on the collateral issue of estrangement for the reason that contempt citations and writs of garnishment were admitted in evidence, without objection, indicating process was obtained from the court to enforce the decree pertaining to child support. Further, there was testimony, without objection, relating to allegations contained in the bill of complaint and to parts of the decree. Also, the proof without such evidence was sufficient to sustain the decree and the result reached by the chancellor is the same had the instruments not been admitted. Consequently, if there were error, it is not reversible error. Gunter v. Reeves, 198 Miss. 31, 21 So.2d 468 (1945); Sample v. Romine, 193 Miss. 706, 8 So.2d 257, Sugg, of Error overruled, 193 Miss. 706, 9 So.2d 643, corrected 193 Miss. 706, 10 So.2d 346 (1942); Melton Hardware Co. v. Heidelberg, 91 Miss. 598, 44 So. 857 (1907).

For the reasons stated, the decree must be and is affirmed.

AFFIRMED.

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


text:
    H. W. BANES, father and next friend of Christie Banes, a minor v. David K. THOMPSON and Estate of Louis L. Banes, Deceased.
    No. 49757.
    Supreme Court of Mississippi.
    Nov. 30, 1977.

      Adams & Odom, Joe R. Odom, Meridian, for appellant.
    T. Kenneth Watts, Williams & Glover, David Williams, Meridian, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Christie Banes appeals from a judgment of the Circuit Court of Lauderdale County in favor of David K. Thompson and Louis L. Banes, denying damages for alleged personal injuries. Louis L. Banes cross-appeals.

Appellant contends (1) that the verdict of the jury in favor of both appellants is against the overwhelming weight of the evidence, (2) that the jury did not follow the instructions of the court, and (3) that certain instructions requested by the plaintiff should have been granted.

The case was tried twice. Originally, the declaration charged negligence against David K. Thompson, and, at the conclusion of the evidence, the court directed a verdict in favor of appellant. The jury returned a verdict in the sum of. five hundred dollars ($500.00). However, the court granted a new trial because of an instruction to the jury that damages could be apportioned as to Thompson and Banes, driver of the car in which appellant was riding. Banes (the ninety-year-old grandfather of appellant) was not then a party to the suit. Before the second trial, the declaration was amended to include Banes as a party defendant and it was charged that the collision occurred as a result of the joint negligence of Thompson and Banes.

Appellant was thirteen (13) years old at the time of the accident and eighteen (18) years old at the time of trial. The testimony indicates that the Banes and Thompson automobiles were proceeding in a northerly direction on U. S. Highway 45. A distance of approximately one hundred fifty (150) yards separated them, and there were three other vehicles between Thompson and Banes traveling in the same direction. Banes turned left off the highway into his private driveway. Testimony of appellant was to the effect that the left turn blinker was operating. The testimony of Thompson was to the effect that the blinker was not operating. Thompson attempted to pass all vehicles between Banes and him, and when he was approximately one hundred (100) feet from the Banes vehicle, according to his testimony, it slowly turned to the left, Thompson applied his brakes and blew his horn, but the vehicles collided partially on the east lane and partially in the drive, the front of the Thompson vehicle striking the left rear side of the Banes vehicle.

Damage to both vehicles was minimal. None of the occupants of either vehicle thought they were injured, and, in fact, appellant told Thompson she was not hurt and also told the highway patrolman who investigated the collision that she was not hurt. Approximately thirty (30) minutes later, appellant complained to her mother that her mouth was hurting, and the next morning her mouth and gums were bruised and swollen. The following day she was taken to a dentist, who found that her mouth and gums were injured. He attributed the injuries to trauma sustained in the collision.

I.

Was the verdict of the jury against the great weight of the evidence?

Without question, appellant was not guilty of any negligence. The collision was not unavoidable and it was caused by the negligence of either Thompson or Banes, or both.

In Jones v. Richards, 254 Miss. 617, 181 So.2d 923 (1966), this Court said:

“It is clear from the evidence that the collision was caused by the negligence of either one or both of the drivers of the vehicles involved. It was not an unavoidable accident. Appellant was not charged with any negligence, and none is shown by the proof. Under these circumstances, appellant was entitled to a verdict against one or all of the appellees, provided she was injured as a result of this accident. Mitchell-Davis Distrib. Co. v. McDonald, 223 Miss. 573, 78 So.2d 597 (1955).” 254 Miss, at 622, 181 So.2d at 925.

Appellants contend that the jury was entitled to find plaintiff did not sustain any personal injuries, and, therefore, was not entitled to recover. However, it is undisputed that thirty (30) minutes after the collision the child began to have pain, the next morning her mouth was swollen and bruised, and injury to her teeth and gums was corroborated by her dentist. As stated in the Jones case, appellant was entitled to a verdict against one or both of the defendants, and the trial court erred in refusing to sustain the motion for a new trial.

In view of the conclusion reached on this question, it is not necessary to discuss the assigned Error No. 2.

III.

Did the court err in refusing appellant’s requested Instructions Nos. P-8, P-1, P-2, and P-3?

Instructions P-1, P-2 and P-3 were peremptory instructions against both defendants and were properly refused. Appellant requested two instructions on the issue of liability. Instruction No. P-7 submitted the issue of Banes’ negligence to the jury, and Instruction No. P-8 submitted the issue of Thompson’s negligence to the jury. Although instructions were granted to Banes and Thompson covering negligence of the other defendant, appellant was entitled to Instruction P-8 submitting her case to the jury on the issue of Thompson’s negligence. On retrial, such an instruction should be granted.

CROSS-APPEAL

Banes cross-appeals and contends that the court erred in denying his pleas of (1) election of remedies, and (2) judicial estop-pel.

Banes contends that on the first trial appellant claimed she sustained injuries as a result of the negligence of Thompson and that her testimony did not place any negligence upon Banes, her grandfather. When appellant amended her declaration and made Banes a party to the suit, she charged that the negligence of Banes and Thompson concurred to cause the collision. Banes now contends that she first sought her remedy against Thompson and that she now is es-topped from proceeding against Banes.

There is no estoppel by election of remedies unless the remedies asserted are inconsistent. The doctrine applies only where a party elects to pursue one of two inconsistent remedies open for the assertion of a right arising from the same set of facts. He is estopped afterwards from pursuing the other. Lumberton State Bank v. Fortenberry, 222 So.2d 384 (Miss.1969); Rea v. O’Bannon, 171 Miss. 824, 158 So. 916 (1935).

In the present case, there are no inconsistent remedies available to or claimed by appellant for the assertion of her rights. She sought to recover damages for personal injuries based on theories of negligence in both actions, and particularly so after Thompson charged in his first answer that Banes was guilty of negligence which was the sole proximate cause of the collision and testified to facts in support of that charge.

The principle of judicial estoppel prohibits a party in a judicial proceeding from denying or contradicting sworn statements made therein. Ivor B. Clark Co. of Texas, Inc. v. Southern Business and Industrial Development Co., 399 F.Supp. 825 (S.D.Miss.1974). Judicial estoppel normally arises from the taking of a position by a party that is inconsistent with a position previously asserted. Wright v. Jackson Municipal Airport Authority, 300 So.2d 805 (Miss.1974).

Christie Banes testified to the same facts on both trials, and there was no contradiction in her testimony. We are of the opinion that the defenses of election of remedies and judicial estoppel were properly rejected by the trial court and that there is no merit in those contentions.

For the reasons stated, this case is reversed and remanded on direct appeal and affirmed on cross-appeal.

REVERSED AND REMANDED ON DIRECT APPEAL; AFFIRMED ON CROSS-APPEAL.

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


author: SUGG, Justice,

text:
    Billy Joe YOUNG v. STATE of Mississippi.
    No. 50023.
    Supreme Court of Mississippi.
    Nov. 30, 1977.

      Joe B. Timmons, Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.
   SUGG, Justice,

for the Court:

The defendant, Billy Joe Young, was convicted- of armed robbery and sentenced to a term of twenty years imprisonment by the Circuit Court of Lee County. Defendant first contends that the trial judge should have granted his motion for a mistrial. The motion follows:

May it please the Court, at this time the defendant would like to move for a mistrial today for the following reason: That one of. the members of the jury panel has indicated that they are concerned because they have had a former relationship with the defendant or his family. Shows not only concern but seems to be upset concerning this matter.
It is our position that with one of the members of the panel being upset, showing concern, it has to influence the rest of the jury panel. Of course, we cannot know whether they have discussed it or what has been said among them, but they have been together now for a day and a night. They have been together at three meals.
We feel that the jury as it is made up now could not give the defendant a fair trial in that one of the members has shown concern or may have consulted with some of the other members of the jury panel concerning the defendant and concerning her past relationship with the defendant.

The circumstances that led up to this motion are rather unusual. Before the jury was questioned for cause defendant was permitted to sit in the courtroom rather than with his counsel at the counsel table within the bar of the court because the defendant felt that a critical question would be the identification or lack of identification of the defendant by witnesses to be presented by the state. At the beginning of the second day of the trial, the trial judge informed both the state and defense attorneys that he was advised by one of the bailiffs for the jury that a juror stated to the bailiff that she recognized the father of the defendant in the courtroom and she now knew who the defendant was and what family he belonged to. The judge further advised the parties that the juror told the bailiff this fact gave her some concern and the bailiff stated that the juror appeared to be upset. Defendant moved for a mistrial for the reasons stated above and the juror was then examined by the trial judge and the attorneys. The judge satisfied himself that the juror could act fairly and impartially even though she was acquainted with the family of defendant. The state had no objection to excluding the juror and using the alternate juror. However, the defendant did not want to excuse the juror and use the alternate juror, but insisted on his motion for a mistrial.

The juror had not discussed the case with any of the jurors except to tell the juror with whom she shared a room that she knew defendant’s family and, had she been aware of that, she would have preferred not to have been on the jury. Based on the above events the trial judge ruled as follows:

All right. We’ll proceed on that basis.
Incidentally, the reason I overruled the motion for a mistrial is that the Court requested that the jurors not talk about the case even among themselves. The juror states that she has not talked about this case. That the only thing she did was tell the lady that she stayed with last night that she did know the family and had she been aware of this fact, she would preferred not to have been on the jury. The Court would not think that is sufficient to have any effect on another juror one way or the other, nor does it consider that a discussion of the case.
All right. I’m going to let the jury stay constituted as it is.

Defendant argues that the juror’s conversation with another juror, her concern, and her admitted condition of being upset would have the effect of influencing the other jurors on the panel with possible prejudice to the defendant. We have not been able to find any authority on facts identical or similar to those outlined above and none has been cited. The juror’s reluctance to serve as a juror because of her acquaintance with the defendant’s family, coupled with her expressed concern to one juror without indicating how she felt about the defendant or his family, without more, does not convince us that the other members of the panel would be influenced or prejudiced either for or against the defendant. The trial judge was satisfied that the juror would decide the case on the law and evidence and not on the basis of her acquaintance with defendant’s family. We are of the opinion that the judge handled this very delicate situation in the proper manner and did not commit error by overruling the motion for a mistrial.

Defendant also contends that he was denied a public trial contrary to the provisions of Section 26 of the Mississippi Constitution of 1890. After the jury was empanelled the state moved that an individual, who was possibly the brother of defendant and who resembled the defendant, be excluded from the courtroom during the questioning of witnesses for the state who would be called on to make an in-court identification of the defendant. The state’s attorney noted that defendant was sitting in the part of the courtroom reserved for spectators rather than at the table with his counsel, and had no objection to the defendant sitting in the courtroom among the spectators. The state argued that having a person with a marked resemblance to defendant sitting near the defendant among the spectators was for the purpose of confusing any in-court identification of the defendant by the state’s witness. The trial judge sustained the motion, whereupon, defendant moved for a mistrial and, on appeal, argues two propositions: (1) Exclusion of any person from a courtroom denies defendant a public trial and (2) a witness should be so positive in his in-court identification of the accused that the removal of any person from the courtroom was unnecessary.

In our opinion the first argument under this assignment of error is not well taken because exclusion of one person from the courtroom did not deny defendant a public trial. In Norwood v. State, 258 So.2d 756 (Miss.1972) the court conducted a hearing on motions of the defendant to suppress evidence and suppress declaration of the defendant from approximately 4:00 o’clock p. m. until 6:00 o’clock p. m. The hearing was held outside the presence of the jury and during the course of the hearing the courthouse doors were locked at 5:30 p. m. Defendant moved for a mistrial on the grounds that he was denied a public trial. The motion was overruled, and the trial judge commented that he had no knowledge of any door being locked, that many spectators had been in attendance from 8:30 in the morning until after 5:00 p. m., and that spectators were present in the courtroom during the hearing on defendant’s motions. We stated in Norwood:

The term ‘public trial’ contemplated by our Federal and State Constitutions is a trial which is not secret and one that the public is free to attend. To a great extent it is a relative term and its meaning depends largely on the circumstances of each particular case. Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970). (258 So.2d at 763).

We hold that exclusion of one person from the courtroom does not violate the right of the defendant for a public trial as guaranteed by Section 26 of our Constitution and the Sixth Amendment to the United States Constitution.

In support of the second contention under this assignment of error, defendant argues that, if the exclusion of a person who resembled the defendant were allowed, the judge should logically remove any spectator, attorney, bailiff or juror bearing resemblance" to the accused on the basis that his presence might confuse a witness.

This argument presents a novel question which has not been presented to this Court. The state cites the case of State v. Morris, 259 La. 1001, 254 So.2d 444 (1971) in support of the propriety of the action of the trial court in excluding the spectator in question from the courtroom. In Morris, during the trial, counsel for the defense moved that defendant, a Negro, be permitted to sit outside the rail with the spectators in anticipation that a state witness would be called to identify him. The motion was denied and the court affirmed in the following language:

It is possible, under certain circumstances not existing here, that the trial judge might permit the accused, at his own request, to be seated in the spectator section of the courtroom. Cf. State v. Ashworth, 167 La. 1085, 120 So. 865 (1929). However, generally speaking, such a procedure is impermissible for the reason that it may furnish a basis to contend that the accused was not present at all important stages of the trial as Articles 831-836 of the Code of Criminal Procedure require. Such a procedure would also tend to impair the decorum of the trial so essential to an attitude of deliberation, impartiality and fairness. (254 So.2d at 446).

Defendant then moved that several Negroes of the approximate age and configuration of the defendant be seated alongside him to make the identification more realistic. Defendant argued that knowledge of the courtroom procedure was so widespread any witness called to identify defendant would necessarily point to him because he was a Negro seated at defendant’s counsel table alongside his white attorney. The court held that an in-court identification satisfies the requirements of due process if, “[J]udged by the totality of circumstances, the identification procedure is not unnecessarily suggestive and conducive to irreparable mistaken identification — so impermissi-bly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.” (254 So.2d at 447). The court noted that the identification procedure followed was the traditional procedure in use and stated:

Just as the State may not resort to impermissibly suggestive procedures for in-court identification of a defendant during trial, defense counsel may not avail himself of procedures designed to unduly confuse or handicap a State witness called to identify the accused. Thus the court was under no obligation to seat several Negroes of defendant’s approximate age and configuration alongside defendant in anticipation of a state identification witness being called to identify defendant.
The end result of our rulings on this subject is that the trial judge, within statutory guidelines, is to be accorded a wide discretion in the conduct of the trial with due regard to the facts and circumstances of each case. There are times in the trial of cases when the conduct of the accused, counsel and the witnesses must be regulated to preserve and maintain order, often a delicate and demanding undertaking. A trial is no't, and should not be, a display of theatrics or tactics of counsel or the accused. It is, and should be, a decorous, orderly and fair search for truth, to the end that justice is served. The judgment on maintaining these standards is best left, in the first instance, to the trial judge, who is present on the scene and best qualified to observe and understand the complexities of the whole trial. Since we find no abuse of discretion here we shall not set aside the rulings complained of. (254 So.2d at 447).

We find the reasoning of the Louisiana Court persuasive and reject defendant’s contention that he was entitled to have seated near him a person bearing a marked resemblance to him when the state called a witness for the purpose of making an in-court identification. Furthermore, we have held that a defendant may be required to stand up in the presence of the jury and a witness so that the witness may have a clear view of the defendant for purpose of identification. In Thames v. State, 221 Miss. 573, 73 So.2d 134 (1954) this Court stated:

By far the greater number of the cases support the general proposition that upon the trial of a criminal case the defendant may be required to stand up in the presence of the jury and a witness so that the witness may have a clear view of the defendant and identify him as the person about whom witness is testifying, if the witness can do so, and that compelling the defendant so to stand up in court for identification does not violate his constitutional privilege against compulsory self-crimination. Federal Reserve Bank of Atlanta, for use of American Surety Co. of New York v. Atlanta Trust Co., 5 Cir., 91 F.2d 283, 117 A.L.R. 1163. (221 Miss, at 579, 73 So.2d at 137).

We therefore conclude that the court did not err when it excluded the spectator who resembled defendant from the courtroom.

Defendant also assigns as error admission of his confession and contends that it was obtained as a result of a beating administered to him by two officers of the Tupelo police force. We have carefully considered the evidence offered by the state and the defendant on this question and have concluded that the confession was not a result of physical violence and was properly admitted into evidence.

Defendant also contends that the verdict of the jury was against the overwhelming weight of the evidence and argues that none of the employees of the bank actually identified the defendant as being one of the persons who participated in the robbery. The only witness who made any identification of the defendant was Mrs. Mary Irby, the branch manager and teller of the Harrisburg Bank which was robbed. She testified that three boys came into their bank and each wore toboggans and dark shades. The toboggans were pulled down almost to the ears and the dark shades hid the eyes of each robber. The one nearest to the witness wore a floral shirt and she testified that he came through the door directly to her cage with a pistol in his hand.

She was within a foot or so of the robber and said she could probably identify his features but couldn’t be sure because of the disguise. She then pointed to the defendant seated among the spectators and said he had the same features and appeared to be the person who had the pistol in his hand. She also stated that the defendant’s appearance was different from that on the day of the robbery in that his hair was shorter and he did not have a moustache. She was not certain that defendant was the robber nearest hey in the bank, and on cross examination stated that she could not positively identity the defendant as being the person who robbed the bank.

Defendant correctly asserts that Mrs. Irby did not positively identify the defendant and her testimony, standing alone, would not be sufficient to convict; however, her testimony and defendant’s confession is sufficient to support the verdict of the jury.

AFFIRMED.

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


text:
    L. E. GRIFFIN, Sr. v. STATE of Mississippi.
    No. 50010.
    Supreme Court of Mississippi.
    Dec. 7, 1977.
    Alexander & Johnston, W. Brooks Alexander, III, Cleveland, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

Before SMITH, P. J., LEE and BOWLING, JJ., and RUFUS H. BROOME, Commissioner.

AFFIRMED AS TO CONVICTION; and REMANDED FOR CORRECTION OF JUDGMENT.

PATTERSON, C. J., INZER, P. J., ROBERTSON, SUGG, WALKER BROOM, JJ., concur. P P {=» ¡=s O- Cu


text:
    LAMAR T. LOE MOTOR COMPANY, INC. v. Virgil McCarthy.
    No. 49763.
    Supreme Court of Mississippi.
    Dec. 7, 1977.
    Donald K. Marcus, Vicksburg, for appellant.
   Appeal from Circuit Court, Warren County; Ben Guider, Judge.

Bullard, Campbell & Gee, Robert W. Gee, Vicksburg, for appellee.

Before SMITH, P. J., and LEE and BOWLING, JJ.

REVERSED IN PART AND JUDGMENT HERE FOR APPELLEE FOR THE SUM OF $405.08.

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


text:
    Bobby SIMMONS v. BILL’S INSTITUTIONAL COMMISSARY and Liberty Mutual Insurance Company.
    No. 49617.
    Supreme Court of Mississippi.
    Dec. 7, 1977.
    James B. Floyd, III, Tupelo, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Wade H. Lagrone, Tupelo, for appellee.
   Appeal from Circuit Court, Lee County; L. T. Senter, Jr., Judge.

Before INZER, P. J., and ROBERTSON and BOWLING, JJ.

Affirmed.


text:
    S. A. COX v. Pattie O. COX, Executrix of Estate of S. L. Cox.
    No. 49751.
    Supreme Court of Mississippi.
    Dec. 7, 1977.
    Jacobs, Griffith & Povall, Benjamin E. Griffith, Cleveland, for appellant.
    Laurence Y. Mellen, Cleveland, for appel-lee.
   Appeal from Chancery Court, Bolivar County; William H. Bizzell, Chancellor.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    Rosa WALLS v. ESTATE of Pearl GORDON.
    No. 49762.
    Supreme Court of Mississippi.
    Dec. 7, 1977.
    Wells & Blalock, Tim David Blalock, Calvin B. Wells, Natchez, for appellant.
    George F. West, Jr., Forrest A. Johnson, Clyde W. Mullins, Natchez, for appellee.
   Appeal from Chancery Court, Adams County; Fred C. Berger, Chancellor.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    RIPLEY SHOE PRODUCTS and the Home Insurance Company v. Charles Leroy CHILDERS.
    No. 49783.
    Supreme Court of Mississippi.
    Dec. 7, 1977.
    Mitchell, McNutt, Bush, Lagrone & Sams, Wade H. Lagrone, Jack R. Reed, Jr., Tupe-lo, for appellants.
    Farese, Farese & Farese, John Booth Farese, Ashland, for appellee.
   Appeal from Circuit Court, Tippah County; W. W. Brown, Judge.

Before INZER, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Paul J. BLALOCK v. STATE of Mississippi.
    No. 50085.
    Supreme Court of Mississippi.
    Dec. 7, 1977.
    Wells & Blalock, Tim D. Blalock, Natchez, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Amite County; Lenox L. Forman, Judge.

Before INZER, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Joe Neal SMITH v. STATE of Mississippi.
    No. 50057.
    Supreme Court of Mississippi.
    Dec. 7, 1977.
    Johnston, Wright & Steinberger, Fielding L. Wright, Jr., Albert S. Johnston, III, Pas-cagoula, for appellant.
    A. F. Summer, Atty. Gen., by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Harvey Buck, Judge.

Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.

AFFIRMED.


author: BOWLING, Justice,

text:
    Gordy SANDERS v. STATE of Mississippi.
    No. 50000.
    Supreme Court of Mississippi.
    Dec. 7, 1977.

      Crawley & Ford, Michael H. Steele, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant appeals from his conviction in the Circuit Court of Leake County on a charge of armed robbery. We reverse and remand for a new trial.

There are four assignments of error, all of which require a reversal. These errors are emphasized by the fact that appellant was convicted on the testimony of two admitted crooks. Appellant was a 66-year-old black man, having served at one time as deputy sheriff of Attala County. Each of the said two principal witnesses, as herein-before stated, had quite a criminal record in Attala County. The essence of appellant’s defense was that he was “framed” by these witnesses.

During the early evening of March 16, 1976, one Floyd Harris, a 65-year-old black man living in Leake County near the community of Conway, was called to his front door. He was met with a 38-caliber pistol held by one of the witnesses, Marion F. (Jack) Gowan. Appellant was never seen by Harris. Gowan forced Harris to give him money that was hidden in Harris’ home. Gowan was identified by Harris and subsequently arrested. On information supplied by Gowan appellant was arrested several days later.

Gowan’s testimony was that he and appellant went to Harris’ home in appellant’s pickup driven by appellant; that he went into Harris’ home and committed the robbery while appellant waited in the pickup.

On cross-examination attorney for appellant attempted to question Gowan regarding an alleged incident when appellant, while deputy sheriff, attempted to arrest Gowan at a hospital in Kosciusko, at which time marijuana was found in Gowan’s shoe. The lower court sustained the State’s objection to this evidence. Appellant’s attorney argued then, and argues here, that this evidence was material on the question of the alleged motive of Gowan in testifying against appellant. We agree. It is clear that the credibility of a witness may be impeached on cross-examination by showing bias, prejudice, motive or hostility. Tate v. State, 317 So.2d 23 (Miss.1975); Palmer v. Clarksdale Hospital, 213 Miss. 601, 57 So.2d 473 (1952). Wide latitude is to be allowed on cross-examination to show bias or motive for the purpose of affecting credibility. Cody v. State, 167 Miss. 150, 148 So. 627 (1933). Although the extent of this cross-examination lies within the sound discretion of the trial court, its ruling will be reversed when an abuse of that discretion is shown. McElroy, Mississippi Evidence, § 183, pp. 514-515 (1955).

On cross-examination of Gowan, appellant’s attorney attempted to question Gowan on convictions of misdemeanors in addition to his felony convictions. The lower court sustained the district attorney’s objection to misdemeanor convictions. This was error. Mississippi Code Annotated section 13-1-11 (1972) provides as follows:

A conviction of a person for any offense, except perjury or subornation of perjury, shall not disqualify such person as a witness, but such conviction may be given in evidence to impeach his credibility. .

In McElroy, Mississippi Evidence, section 130, pages 404-405 (1955), we find the following:

To impeach the credibility of a witness he may be asked (1) if he has ever been convicted of a crime, and if his answer is in the affirmative, he may be further asked, (2) what was the crime or misdemeanor, but never is he permitted to be asked any other questions about [the details of] the offense, .

In Baker v. State, 307 So.2d 545 (Miss. 1975), this Court stated:

It has long been the law in this state that a witness may be cross-examined touching his conviction of a crime which may extend to misdemeanors as well as infamous crimes.

There is an exception to the above stated principle as set out in Mississippi Code Annotated section 63-9-15 (1972) regarding traffic violations.

On direct examination by the district attorney of witness Stanley Howell, it was brought out that he had served several terms in the Mississippi State Penitentiary and had several felony convictions. On cross-examination attorney for appellant attempted to elicit from Howell the felonies of which he had been convicted. The lower court sustained the State’s objection to this attempt and ruled that he could only be required to state how many times he had been convicted. This was error under the authorities cited in discussing the previous assignment.

Defendant presented testimony from witness Claude Guess, who was a Kosciusko city policeman for twenty-five years and also served as sheriff of Attala County for four years, from 1972 through 1975. The lower court, on examination by appellant’s attorney, refused to permit Mr. Guess to testify as to the reputation of the witness Howell for truth and veracity. The objection to this testimony was based on the fact that Guess had not actually been in contact with Howell for approximately eleven months, and that his knowledge of Howell’s truth was “too remote.” Mr. Guess testified he had known Howell during “the 50’s, and the 60’s, and through 1975.” The trial was held on November 11-12, 1976. During the time Howell lived in Attala County Mr. Guess had considerable experience with Howell, both in his position as policeman and as sheriff. We realize that the lower court has a certain amount of discretion in questions such as this. We find, however, that this discretion was abused in the present case, particularly because of the situation regarding the two principal witnesses as hereinbefore discussed. See Miss. Power & Light Co. v. Tripp, 183 Miss. 225, 183 So. 514 (1938); French v. Sale, 63 Miss. 386 (1885).

In the Mississippi Power & Light Co. v. Tripp case, the Court permitted similar testimony as that attempted to be elicited here when the witness had not lived in the community for three years. In Norwood & Butterfield Co. v. Andrews, 71 Miss. 641, 16 So. 262 (1893), there was a period of two years when the witness did not have contact with the person about whose reputation he was interrogated. We hold that it was error for the lower court to sustain the State’s objection to this testimony of the witness Guess.

During the trial of the case the State was permitted to inject into the testimony before the jury an implication that appellant had sold whiskey in the past. On a retrial of the case this should not be permitted.

Due to the foregoing errors the case is reversed and remanded.

REVERSED AND REMANDED.

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


author: PATTERSON, Chief Justice, LEE, Justice,

text:
    Harvey D. HAMILTON and M. L. Farris v. Donald R. McGILL.
    No. 49510.
    Supreme Court of Mississippi.
    Dec. 7, 1977.

      Troutt & Moore, Nat G. Troutt, Senato-bia, Billy J. Gilmore, Lexington, for appellants.
    Barrett, Barrett & Barrett, Pat M. Barrett, Jr., Lexington, for appellee.
    Before PATTERSON, SMITH and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is an appeal from the Chancery Court of Holmes County. There the vendee was denied a rescission of a land and timber contract but was granted an abatement in the purchase price with interest. The vendors appeal from the abatement in price and the vendee cross-appeals from the denial of the rescission.

On September 27,1974, Donald R. McGill, hereinafter McGill, a resident of Texas, purchased 982.74 acres of land in Holmes County for $296,100 from Harvey D. Hamilton and M. L. Farris. This acreage was known as the Sontheimer Place and consisted of approximately 267 acres of open bottom-land, 43 acres of open hill land, and 672 acres of timbered land. A payment of $59,-000 was made at the time of purchase and a note and deed of trust were executed by McGill for the remainder. By separate instrument, though part of the transaction, McGill executed a timber deed to Hamilton and Farris in consideration of their transferring certain farm equipment and cattle to him.

Thereafter, McGill operated the Son-theimer Place as a cattle farm and improved it by remodeling the residence thereon as well as hiring a manager for its operation and improvement. Following heavy rains on March 12, 1975, Harland’s Creek, which traverses the tract, overflowed, covering the bottomland from hill to hill to a depth of five feet in places. By the next day the flood receded and in its wake left three drowned calves, fence damage and deposits of silt and other debris over the bottomland, causing the grass to be temporarily unfit for cattle consumption.

In his suit for rescission filed a few days later, McGill alleged that Hamilton had represented that the Sontheimer Place did not flood and was not subject to flooding, thereby defrauding him, and that Farris, who was present, remained silent and therefore became equally guilty. He prayed for a rescission of the deed, a refund of the down payment, a refund of the monies expended for improvements, a lien on the land, sale of the land for the satisfaction of any decree for damages, and general relief. The complainant, in his pleadings, offered the return of cattle and equipment but did not offer to return the land or its possession. Hamilton and Farris denied these allegations, demurred and filed a cross bill seeking damages for interference with the sale of timber. McGill denied the allegations of the cross bill and after several amendments the cause came on for trial.

The demurrer was overruled and the cause was heard on the rescission issue. There was a conflict in the testimony concerning the representations of Hamilton to McGill about flooding of the lowlands prior to the sale, all of which occurred in the presence of witnesses. McGill testified that Hamilton, when asked, assured him the property did not flood, overflow, or have any flooding problems. According to McGill, Hamilton stated that he had been raised on the place and knew the bottom never overflowed. There was testimony that Farris was present when the alleged misrepresentations were made, but remained silent. McGill testified he would not have purchased the Sontheimer Place for cattle farming had he known it was subject to overflow and that Hamilton never represented to him that it flooded or “flashflooded.” The appellants established on cross-examination, however, that McGill purchased the Johnson Place, also traversed by Harland’s Creek, which lay immediately north of the Sontheimer land five days after the flood. This purchase was explained by McGill as the consummation of an agreement made prior to the flood.

In presenting their version of the events preceding the purchase, Hamilton testified that he advised McGill the Sontheimer Place was subject to flash flood and both he and Farris testified that on Tuesday, September 24, 1975, a few days prior to the purchase, while they were present on the land proposed to be purchased, that Hamilton advised McGill the creek did get out on the bottomland, and that he, the witness, would not have the place if it did not overflow. Both vendors admitted they knew the bottomlands of the Sontheimer Place had flooded in February or March 1973 while they owned it and Hamilton further admitted that he knew the creek overflowed when he purchased it. There was testimony that the Johnson Place, purchased after the flood, was also subject to overflow from the creek.

In rebuttal, McGill presented evidence, corroborated by telephone bills, etc., that he was in Houston, Texas, on Tuesday, September 24, 1975, and was not present in Holmes County, Mississippi, on that date. Faced with this evidence the defendants moved for a recess to secure witnesses on this new issue. The motion was overruled, however, and the case was taken under advisement upon adjournment of the court.

Later, the appellants moved to reopen the case so that testimony might be presented on the issue brought out on rebuttal. This motion was sustained and in addition, the court advised the litigants that testimony relating to an abatement of purchase price in the event the court denied rescission would be heard. When the hearing concluded, the case was again taken under advisement and thereafter, a decree was entered denying rescission but awarding an abatement of $53,400 on the purchase price, plus interest of $4,395.48. The court was of the opinion from the evidence that $53,400 was the difference in the value of the Son-theimer Place as represented to McGill at the time of purchase, September 27, 1974, and its actual value at that time. The court permitted this sum to be offset against McGill’s note to Hamilton and Farris, and finally, the cross bill of the appellants was dismissed.

The trial court found that Hamilton and Farris had deceived McGill by their misrepresentations and silence that the bottom-lands of the Sontheimer Place did not flood. It, however, denied rescission on several grounds, one being that the Sontheimer Place was suitable for cattle operations despite periodic flooding. It found that McGill had not offered to restore possession of the land nor to account for profits or pay fair rental for its use and had failed to plead or prove the present owner of the promissory note and deed of trust, and, more importantly, that McGill’s actions subsequent to the flooding so complicated the task of adjusting equities as to make rescission impractical.

The last premise was based upon the finding that McGill had continued to make capital improvements, plant crops, fertilize, and use farm equipment and sell cattle, originally purchased from the defendants, without tender to the defendants or maintenance of proper records. Thus, the court concluded that he was not in position to restore the defendants to status quo, or an approximation thereof, for rescission and that an abatement of the purchase price would be more equitable under the circumstances.

Although there are numerous assignments of error, the appellants argue only three. They are:

1. The court should have sustained the general demurrer and the motion to exclude appellee’s evidence.

2. The court erred in permitting the ap-pellee on reopening the case to introduce evidence on the issue of abating the purchase price.

3. The court was manifestly wrong in finding that appellants committed fraud and in entering a money decree.

McGill’s assignment of error on cross-appeal is that the court erred in denying rescission.

The appellants first argue the opinion of the trial court implicitly acknowledges the general demurrer should have been sustained because the court found that McGill could not restore the defendants to status quo due to his activities on the Sontheimer Place after its purchase nor in his pleadings did he offer to restore the land to the defendants. From this it is urged that essentials to rescission, restoration or offer thereof, are lacking and it necessarily follows that McGill did not state a cause of action.

This contention is a projection of Griffith, Mississippi Chancery Practice, section 208, footnote 62a (2d Ed. 1950), which states in part:

. Before a party may rescind a contract of mutual and dependent covenants he must do or offer to do all required of him by it, and so show by his bill and proof. .

The argument requires a review of the cases supporting the statement. Hines v. Baine, S. & M. Ch. 530 (Miss.1842), was a suit for specific performance of a contract to purchase “lots” in the city of Grenada. Its basis was “mutual and dependent covenants” where neither party had performed the requisite obligations of the agreement. The Court held there was nothing to indicate either an offer to convey title or a demand for payment or any notice of the intention of the vendor to abandon or rescind the contract, stating:

Although a contract may be rescinded by one party by acts in pais, yet, where such is his intention, he must give notice of it, and must put the other party in default by offering to comply fully with his part of the contract. . and before Bryant could absolve himself from the contract, he was bound to have tendered a deed, or at least offered to convey upon the purchase-money being paid. . . . (S. & M. at 537)

The present case is distinguishable in that it does not involve “mutual and dependent covenants” to be performed, but rather is a consummated transaction where McGill had paid $59,000 for the land, had executed a note and deed of trust for the balance of the purchase price, had executed a timber deed and had paid approximately $15,000 to retire a note of the appellants as part of the consideration for the personalty bought from the appellants. Moreover, McGill’s notice of rescission was evidenced by filing this suit within thirteen days after the flood. Hines, supra, though supporting the statement from Griffith, is distinguished, both by its facts and its pronouncements, from the present difficulty and is not controlling.

An examination of Hope v. Evans, S. & M. Ch. 195 (Miss.1843), reveals it to be a suit for rescission based upon an illegal contract upon which the complainant had made large and voluntary payments. The Court there held that the complainant was a particeps criminis and that:

. [I]t is a well settled principle, that a court of equity will never decree a partial rescission of a contract; and especially where, as in this case, the complainant insists that the contract is entire, and incapable of apportionment, and that the illegality, upon which the rescission is asked, goes to the whole consideration of the contract. (S. & M. Ch. at 205)

Again, we conclude the case probably buttresses the statement from Griffith, but it is nevertheless different in fact and in the law it pronounces from the present controversy and has no value as precedent to the issue before us.

In McGill’s bill for rescission he did not in exact and precise terms tender a return of the lands. He nevertheless, after his allegation of facts, charged fraud and prayed for cancellation of the entire transaction including nullification of all instruments forming a part of it, and for a refund of the purchase and improvement monies expended by him. In our opinion this was a sufficient tender to meet the status quo requirements even though it was not expressed in apt terms, for surely it could not be contended that McGill, while requesting a cancellation of the very instruments vesting title in him and a lien upon the land to protect his interest in the event of sale, intended to retain title and possession. We conclude the complainant’s suit should not be forfeited because a tender of status quo was not phrased in exact language when its meaning otherwise appears clear. The bill charged fraud and prayed for a rescission of a business transaction of some magnitude, carrying with it the distinct probability, in equity, of the complainant being entitled to some relief even if rescission were denied.

In Brown v. Norman, 65 Miss. 369, 4 So. 293 (1888), a rescission suit, this Court noted there are exceptions to the status quo requirements. The Court observed that oftentimes exact restoration could not be accomplished because the property was of less value or was more valuable due to improvements so that a literal status quo could not be met at time of suit, and since this was so, equity would not require a vain thing to be alleged when on final hearing the complainant could be required to do equity. It held that when parties to a suit cannot be restored to status quo, they are not precluded from relief against fraud, but the court may proceed to restore them to status quo as nearly as possible and make compensation for the difference. The Court ultimately held it was immaterial that status quo could not be literally restored.

Moreover, in McMahon v. McMahon, 243 Miss. 89, 137 So.2d 520 (1962), this Court gave application to that which is stated in Griffith, Mississippi Chancery Practice, as follows:

. . “In accordance with the trend of modern judicial opinion it has been definitely established as a rule by our latest cases" that attempt should not be made to settle close and difficult questions of law and right on a demurrer. If the demurrer raise merely a doubtful question or if the case be such that the cause of justice will probably be promoted by a determination of the ultimate right only on answer and proof, the court ought to exercise a fair judicial discretion to that end, although it may be that in technical point the grounds of the demurrer are sustainable in strict law.” .

(243 Miss, at 97-98,137 So.2d at 523-524) And further:

The rule is that if there be sufficient equity on the face of the bill to require an investigation of the facts, in other words if the bill has some merit, and considered as a whole it shows a good cause of action, it will stand as against a general demurrer. .

(243 Miss, at 99, 137 So.2d at 524)

We conclude from these authorities the appellants’ first assignment of error is without merit.

Appellants next contend the lower court should not have reopened the case for evidence on the issue of damages. They urge the appellee selected his theory for suit, rescission, and could not later proceed on a different theory such as abatement of purchase price.

We note, however, the appellants were the parties who moved the court to reopen so that additional testimony concerning the meeting of Tuesday, September 24, could be offered to clarify the rebuttal testimony of the complainant. It was at this time that the court on its own motion directed that evidence on damages would be heard. The court stated:

Lastly, the court desires to take advantage in this opinion of raising an additional point. With most of the testimony now being in it appears that the could (sic) could conceivably find that the defendants procured the sale in question through fraud or misrepresentation but that the court should deny rescission. In such event, the court under the complainant’s prayer for general relief could again conceivably find that the complainant is entitled to some compensation or an abatement of the purchase price. .
At the present time there is no testimony in this regard before the court upon which a decision could be reached. If the trial is to be concluded at the next term, and it should be, both sides should be prepared to present such additional proof as may be necessary for the court to fairly resolve the matter of damages or compensation should the court ultimately find the complainant entitled to the same.

Abatement of purchase price, at times, is considered an appropriate remedy where rescission is denied, and this form of damages has rested upon the prayer for general relief. This Court addressed the office of a prayer for general relief in Milam v. Paxton, 160 Miss. 562, 134 So. 171 (1931), stating that it is to enable the court to grant relief that is warranted if the complainant has mistaken his special relief or to grant appropriate relief if the specific relief cannot be had. There the vendee brought a suit for specific performance of an oral contract for the sale of land. This relief was denied and, although the bill did not specifically pray for return of the purchase money, it did contain a prayer for general relief and the court ordered a return of the purchase money. It stated:

. [U]nder the general prayer any relief will be granted which the established main facts of the bill justify, provided that the relief so granted be such, fairly considered, as will not operate to the surprise or prejudice of the defendant, reasonable alertness having been exercised on his part. .

(160 Miss, at 570, 134 So. at 173)

We are of the opinion that rescission was not equitable under the present facts and that abatement in the purchase price was appropriate under the general prayer of the bill. We think abatement did not prejudice the parties since the trial court put all on notice of its intention to reopen for proof of damages on August 7, 1975, almost six weeks before the hearing was conducted.

Having decided the form of relief was appropriate, we next consider whether the chancery court had the power to reopen the case. It is well established that a chancery court has the authority to reopen a case for additional proof. In President of the Planters’ Bank of the State of Mississippi v. Courtney, S. & M. Ch. 40 (Miss.1843), the case was remanded to the docket for further proof and it was declared that a similar discretion had been exercised by the English Chancellors where some point in the case was left unproved or not sufficiently explained.

In Griffith, Mississippi Chancery Practice, section 595, pages 631-632 (2d Ed. 1950), it is said:

. [I]t has long been the settled rule in our courts of equity that where on a final hearing or even after submission it is clearly perceived that some material point is either left unproved or the explanation of it is insufficient the chancellor has a discretion in the interest of justice and merits to remand it to the docket for further proof. .

See Cotten v. Cotten, 203 Miss. 316, 35 So.2d 61 (1948). We recognize that a remand for evidence on the primary theory of a suit differs from a remand for evidence on a different theory from that expressed in the bill of complaint. However, we are of the opinion where the parties were apprised of the theory, as here, in ample time to meet the issue, they cannot complain of any prejudice therefrom. We, therefore, are of the opinion that the appellants’ second assignment of error is without merit.

Appellants’ final argument is that the trial court was manifestly wrong in finding that fraud was committed and in entering a money decree. It is, of course, our rule that fraud is never presumed and must be proved with clear and convincing evidence. In McMahon v: McMahon, 247 Miss. 822, 157 So.2d 494 (1963), this Court stated that to establish fraud, one must show (1) the falsity of the representation, (2) the materiality of the false representation, (3) the speaker’s intent that it be acted upon by others in the anticipated manner, (4) the hearer’s ignorance of its falsity and reliance on its truth, (5) the hearer’s right to rely thereon, and (6) the hearer’s consequent and proximate injury. The record discloses ample evidence to establish that the statements of Hamilton were false and material to the transaction and influenced McGill in his purchase. Hamilton’s statements were in positive terms as from his own knowledge.

On McGill’s visits to the Sontheimer Place prior to purchase there was testimony from him, as well as others, that there was no evidence of previous flooding, such as debris, water marks or sand deposits to convey knowledge to him that it was subject to overflow. Moreover, his repeated questions concerning flooding problems is indicative of his reliance on Hamilton’s statements in making the purchase. Lastly, he did suffer pecuniary injury as the direct result of flooding on March 12,1975. From this record we are of the opinion the chancellor correctly resolved the evidence and certainly we cannot say that he was manifestly wrong in his finding of fraud and the injury and damages resulting therefrom. McNair v. Capital Electric Power Ass’n., 324 So.2d 234 (Miss.1975).

We are not persuaded by cross-appellant’s contention that rescission of the contract whether complete or partial, was wrongfully denied. As we have mentioned, the transaction was an entirety although it was composed of more than one document. In Mariana v. Hennington, 229 Miss. 212, 90 So.2d 356 (1956), we held that a contract may in its nature and in its terms be sever-able and yet be considered an entirety by the intention of the parties. Presently, we cannot say this transaction by its facts or the intention of the parties was to be considered other than an entirety. From this we are of the opinion the trial court correctly upheld the established principle that a court of equity will not decree partial rescission where the contract is entire and incapable of equitable apportionment. Hope v. Evans, supra. Moreover, there was no effective means to rescind the transaction between the parties upon a fair basis. Proper records on the personalty sold or retained had not been maintained and numerous improvements on the land, including renovation of the residence, had been made so that a return to status quo would likely result in inequity rather than fairness between the parties. Thus, we are of the opinion that denial of the rescission by the trial court, either in whole or in part,'was proper. We therefore affirm the decree in its abatement of the purchase price.

The case was considered by all of the justices en banc. „

AFFIRMED ON DIRECT AND CROSS-APPEALS.

INZER, P. J., and ROBERTSON, SUGG, BROOM and BOWLING, JJ., concur.

LEE, J., SMITH, P. J., and WALKER, J., dissent.

LEE, Justice,

dissenting:

I respectfully dissent from that part of the majority opinion which affirms the chancellor’s finding that fraud was committed by appellants in the sale of the land and which affirms a money decree in appellee’s favor. The alleged fraud is contained in testimony of appellee to the following effect: “Hamilton said it did not flood or overflow . . . Hamilton said it did not flood and the creek would take care of any water.”

T. E. Powell, a witness for appellee, farmed the Sontheimer Place at intervals since 1954 and has a farm adjoining same. He testified that the place was all right for a cattle operation, that there were flash floods, which might happen twice this year and skip four or five years, but, on an average, they occur every two or three years.

Innes Burkes has a farm adjoining the Sontheimer Place on the south side where he has lived since 1962, and he has worked the Sontheimer Place. He testified that after a hard flash rain, a big rain, Harland Creek will overflow some but the water does not stay long. He has seen water over the Sontheimer bottom twice since he has lived next to that place, and the overflow, which also affected his property, did not damage either properties. He stated that the place was all right for a cattle operation.

Herbert Downer was familiar with the Sontheimer Place, and he lived on a farm near it. He said that, after a big rain, the water would get out on the land some and go right back in the banks of the creek and that no damage resulted to the land.

Ralph Heck worked the Sontheimer Place in the years 1972, 1973 and 1974, and the place did not overflow during those years. He stated that it was as good as any average cattle farm and that he had never seen the pastures damaged by water.

Henry Brock farms over a thousand acres of land in Holmes County. He is familiar with the Sontheimer Place and rented it for three years. He is Chairman of the County ASC Committee and Commissioner of the Holmes County Soil and Water Conservation District. When the creek flashfloods, after a short while, the water is back within the banks of the creek. He said that the water did not damage the pasture land, and that the Sontheimer Place is suitable for a successful cattle operation.

Appellee discovered the Sontheimer Place was for sale after reading an advertisement in a Jackson newspaper. He contacted the realtor in charge of the sale, and then went to Holmes County, talked with him and appellants, and was taken over the property by appellant Hamilton. Appellee was accompanied by a friend (Charles Pigg) who was familiar with cattle farming and who advised him that it was a beautiful place for a cattle ranch. Appellee went over the entire property, including all the bottoms, he thoroughly inspected the creek and the lay of the land. He made no inquiry from adjoining landowners, from the ASC office, or any other source whether the place was satisfactory for a cattle operation, or about the water condition after rains. Appellee owned a cattle farm in Claiborne County, Mississippi, and he had five years’ experience on cattle farms elsewhere.

The fraud question here actually goes to value of the land purchased, as indicated by abatement of the purchase price. In Deshatreaux v. Batson, 159 Miss. 236, 131 So. 346 (1930), which involved the sale of a store building and lot, stock of merchandise and personal property, and where some property values were represented by the seller to be worth much more than actual values, the Court said:

“The general rule is that a person has no right to rely on representations as to value; he is required to exercise his own judgment as to value. It is an act of folly on his part to accept the other person’s statement in that respect. Such statements are usually mere expressions of opinion, or judgment, which will not excuse the other party’s failure to make an examination for himself for the purpose of ascertaining the real facts. This is especially true where the relation of the parties are naturally antagonistic, such as buyer and seller. Where the means of information are equally accessible to both parties, expressions of opinion, however positive, by one of the parties, cannot be considered as a fraud upon the rights of the other.” 159 Miss, at 243-244, 131 So. at 348.

See also Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426 (1943).

Accepting the findings of the chancellor that appellant Hamilton stated the Son-theimer Place did not flood or overflow and that the creek could take care of the water, I do not think that such a statement is clear and convincing proof of fraud on the part of Hamilton. The evidence does not indicate what the parties meant by “flood or overflow.” A flood or overflow in the Mississippi Delta and along tributaries of the Mississippi River certainly have different meanings than a flash flood or overflow along Harland Creek in Holmes County. It is common knowledge that practically all branches and creeks in the hill country of Mississippi will flow out of their banks after a rain of heavy proportions and extended duration, but when the rain stops and a short while elapses, the water will recede into the banks of the streams. Such flash floods are vastly different from overflows and floods that remain outside the banks of a river for days and weeks. I have no quarrel with the principle stated in McMahon v. McMahon, 247 Miss. 822, 157 So.2d 494 (1963), cited in the majority opinion, but I believe that the chancellor was manifestly wrong in holding that the principle applies to the facts in this case.

I do not think that appellee should be permitted to avoid his solemn written obligations by claiming fraud, particularly where he is an intelligent, experienced businessman and cattleman, he viewed every part and parcel of the property before he bought it, and he had every opportunity to make an independent investigation of any question he may have had concerning same. Likewise, I think he had a responsibility and duty in the matter. Therefore, I must dissent from the majority opinion.

SMITH, P. J., and WALKER, J., join in this dissent.


author: FAULKNER, Justice. MADDOX, Justice FAULKNER, Justice.

text:
    John P. KOHN, Jr. v. BIRMINGHAM REALTY CO., a Corp., et al.
    SC 2256.
    Supreme Court of Alabama.
    Sept. 23, 1977.
    As Corrected On Denial of Rehearing Dec. 16, 1977.
    James L. Shores, Jr., Birmingham, Truman Hobbs, Montgomery, for appellant.
    William Bew White, Jr., Hobart A. McWhorter, Jr., Carolyn Burgess Feathe-ringill, Birmingham, for appellees.
   FAULKNER, Justice.

This is an appeal from a final decree declaring that defendants had not breached any fiduciary duty or violated any corporate laws in redeeming corporate stock. We affirm.

On August 27, 1976, John P. Kohn, Jr., a minority shareholder in the Birmingham Realty Co., filed suit in the Circuit Court of Jefferson County against the Company and the members of its Board of Directors, seeking the following: (1) to compel the Company to declare and pay a dividend; (2) to enjoin the Company from holding a special meeting of the Company’s shareholders on September 16 to authorize the Company to redeem 4,000 shares of common stock at $2,400 a share, or to enjoin the Company from including the shares owned by the directors as being voted in favor of mortgaging real property valued at $11,700,000 to secure the payment of a $7,800,000 loan to be used to purchase the shares; and (3) to enjoin the directors from voting their shares at the special meeting.

On September 13, the trial court dismissed the action with prejudice on a finding that the shareholder failed to state a claim upon which relief could be granted.

On September 16, the special meeting was held as scheduled and the Company, by an 87% vote, was authorized to, and did, buy 4,000 shares at $2,400 a share.

On October 12, the shareholder filed a motion to amend and supplement the findings of fact and conclusions of law of the court pursuant to Rule 52(b) of the Alabama Rules of Civil Procedure and a motion for new trial under Rule 59 of the Alabama Rules of Civil Procedure. The new trial motion was denied, and on November 9, an amended decree was issued. In this decree, the court set out at length its findings of fact and conclusions of law, including findings that the defendants had not breached a fiduciary duty, that they had not violated any corporate laws, and that the proposal was for a legitimate purpose. As in the original judgment, the court dismissed the shareholder’s complaint with prejudice and taxed the costs of the action to the shareholder.

The shareholder gave notice of appeal on December 13. In response, the Company and its directors filed a motion to dismiss the appeal as moot and as not being taken from a final judgment. By order of this court, the motion to dismiss was submitted at the time of the submission on the merits.

The appellant-shareholder contends that the amended judgment is a declaratory judgment pursuant to the defendants’ requested relief, and that it is this final judgment, i.e., the declaratory judgment, from which he appeals rather than the dismissal of his complaint.

We affirm the judgment of the trial court on the merits, and therefore, preter-mit any discussion of the dismissal of the appeal.

I.

Tit. 10, § 21(57) Code of Alabama provides:

“A corporation shall have the right to purchase, take, receive or otherwise acquire, hold, own, pledge, transfer or otherwise dispose of its own shares, but purchases of its own shares, whether direct or indirect, shall be made only to the extent of earned surplus available therefor, and if the certificate of incorporation so permits or with the affirmative vote of the holders of at least two-thirds of all shares entitled to vote thereon, to the extent of capital surplus available therefor, and subject to the following additional limitations:
“(a) No purchase of its own shares shall be made at a time when the corporation is insolvent or when such purchase would render the corporation insolvent.
“(b) To the extent that earned surplus or capital surplus is used as the measure of the corporation’s right to purchase its own shares, such surplus shall be restricted so long as such shares are held as treasury shares, and upon the disposition or cancellation of any such shares the restriction shall be removed pro tanto.”

Thus, it can be seen that an Alabama Corporation can purchase its own shares conditioned only on whether the purchase is made out of earned surplus, and whether the purchase renders the corporation insolvent. Neither of those conditions was violated in this case, as the Company’s balance sheet plainly reveals. This statute does not require a business purpose.

II.

The facts of this case are in dispute, and therefore, the ore tenus rule applies. The trial court found “no evidence to support the claim of breach of fiduciary duty” on the part of the directors or majority stockholders. Capital stock is personal property, and the majority stockholders (as well as the minority) could vote their shares in this case in any manner that they desired.

Here, the incorporation certificate requires a two-thirds majority to vote the stock redemption. These stockholders did not own sufficient stock to redeem the stock. Therefore, they did not owe any fiduciary relationship to the minority stockholders. Counting the directors’ stock, the tender offer still passed by more than the required two-thirds majority.

The directors and a majority of stockholders have acted in good faith; they have not concocted some evil scheme to defraud the minority stockholders, and they have been open and aboveboard in redeeming the stock. The minority stockholders had the right to participate in the redemption; they had notice; they knew the terms; they could vote their shares. And, they knew nothing was illegal about the loan for the redemption. The loan of $7.8 million (secured by corporate assets) to be paid to stockholders surrendering their shares was in compliance with § 21(61), Tit. 10, Code of Alabama.

III.

Directors of a corporation have authority to declare a dividend out of the corporate earnings. The courts will not interfere with this management function unless there has been fraud, abuse of discretion, or misappropriation of corporation funds. See Wolfe v. Underwood, 96 Ala. 329, 11 So. 344 (1891). In the instant case, most of the earned income from which a dividend could have been paid was spent in redeeming the stock. And, we have already said that there was no fraud or illegalities connected with the redemption.

AFFIRMED.

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

MADDOX and BEATTY, JJ., concur specially.

JONES, J., dissents.

SHORES, J., recuses herself.

MADDOX, Justice

(concurring specially).

I concur in the result only. This was a declaratory judgment action and I do not necessarily believe that the judgment entered by the trial court is dispositive of all the possible triable issues which could, or may later, be raised between these parties.

BEATTY, J., concurs.

On Rehearing.

FAULKNER, Justice.

Opinion corrected. Application for rehearing overruled.

TORBERT, C. J., and BLOODWORTH, MADDOX, ALMON, EMBRY and BEAT-TY, JJ., concur.


author: HARRIS, Judge.

text:
    Billy Ray CLIFT v. STATE.
    8 Div. 720.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1976.
    Rehearing Denied Dec. 7, 1976.

      Johnston & Johnston and J. Allen Brinkley, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and sentenced to ten years in the penitentiary.

Appellant moved the trial court to enter an order that the ten year sentence for robbery be made concurrent with a twenty-five year sentence for murder in the second degree which arose out of the same transaction and occurrence for which he was subsequently convicted of robbery.

The trial court made the following order:

“IN CIRCUIT COURT FOR MADISON COUNTY, ALABAMA
STATE OF ALABAMA,
PLAINTIFF
VERSUS CASE NO. 74-718F
BILLY RAY CLIFT,
DEFENDANT
“The defendant has moved that the Court order that the sentence of ten (10) years imprisonment imposed upon the defendant on June 17, 1975, following his conviction of robbery, be served concurrent with the sentence of twenty-five (25) years imprisonment imposed upon him on April 7, 1975, following his conviction of murder in the second degree in case number 74-720F. Upon consideration of the motion the Court is of the opinion that the motion is due to be, and the same is hereby, denied. Jones v. State, 316 So.2d 713 (1975).
“This 15th day of April. 1976.
fsig-nedl Wm. D. Pap-e_
CIRCUIT JUDGE”

The sole and only issue presented on this appeal is whether the ten year sentence for robbery should be concurrent with the prior sentence of twenty-five years for murder in the second degree. We hold that appellant is entitled to the relief sought. Burress v. State, 56 Ala.App. 414, 321 So.2d 752.

It is, therefore, the order and judgment of this Court that the sentence of ten years imposed upon appellant following his conviction of robbery on June 17, 1975. (Circuit Court Case No. 74-718F), is to run concurrently with the first ten years of the twenty-five year sentence imposed upon appellant following his conviction for murder in the second degree on April 7,1975. (Circuit Court Case No. 74-720F). The murder conviction was not appealed.

Robbery conviction is affirmed but cause remanded for concurrent sentence.

All the Judges concur, except CATES, P. J., not sitting.