text:
    Sue DENTON v. STATE of Mississippi.
    No. 49811.
    Supreme Court of Mississippi.
    Aug. 10, 1977.

      Johnston, Wright & Steinberger, Fielding L. Wright, Jr., Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SMITH and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

Sue Denton has appealed from her conviction of aggravated assault in the Circuit Court of Jackson County. For that offense she was sentenced to serve 18 years imprisonment.

The evidence was ample to sustain the conviction. The jury was justified in finding that she had shot and seriously wounded one Doug Lee without any lawful excuse or justification. The circumstances of the shooting, as disclosed by evidence apparently accepted by the jury, were substantially as follows: On an occasion preceding the shooting, Sue Denton’s son had been “whipped” at pistol point in an encounter with “two blonde headed boys.” He had vowed revenge and that he would “get even” if he saw them again. He inquired of Doug Lee, proprietor of a saloon or bar known as Mount Charlie’s whether anyone answering the description of his assailants frequented his bar. Lee told him he knew of no such persons and warned him not to “bring trouble to Mount Charlie’s”. Sue Denton armed herself with a pistol and with young Denton and her husband went to Mount Charlie’s on the following evening. A fight erupted between appellant’s son and one Vaughn, and Lee, a large man, undertook to put the belligerents outside. In the process, the Denton boy hit Vaughn in the back of the head and, in the shoving that followed, Vaughn fell and Denton fell over him. Lee attempted to pick Denton up and at this point Sue Denton shot Lee. The bullet penetrated Lee’s left arm, went through his left side, punctured the heart sac, ricocheted off a rib, pierced his liver and lodged in his pelvis. Miraculously he survived.

Sue Denton’s defense was self-defense, her testimony having been to the effect that she had shot Lee as he swung at her with a “slap jack.” This assertion is flatly contradicted by Lee and other witnesses. This was, of course, a factual issue for the jury.

There was ample evidence to justify a finding that, at the time Lee was shot by Sue Denton, he was neither attacking nor attempting to attack her, her son or anyone else. Moreover, it is apparent that appellant had armed herself, and with her son and husband, had gone to Mount Charlie’s prepared for trouble.

Several alleged errors are assigned for reversal.

The first of these, that a term of court at which no grand jury was drawn had intervened between the impaneling of the existing grand jury and the return of the indictment against Sue Denton and therefore the indictment was void, is without merit and requires no further discussion. Ingram v. State, 330 So.2d 602 (Miss.1976).

The second assignment is based upon the fact that the mother and sister of appellant victim, Doug Lee, had been drawn as members of the panel of prospective jurors. This was discovered and they were excused immediately by the trial judge. It does not appear that there was any communication between these two persons and other members of the panel and there is no showing or allegation of fraud. It is contended that the action of the trial court in denying appellant’s motion for a continuance on account of this situation was error. This was a matter within the trial judge’s discretion and it does not appear that he abused his discretion in refusing to grant a continuance under the circumstances.

Finally, there was no showing or offer to show on appellant’s motion for a new trial that any prejudice to appellant resulted and, as a matter of fact, the question was not raised at all in the motion. Such a showing was necessary in order to preserve the question on appeal. Colson v. Sims, 220 So.2d 345 (Miss.1969); Cherry v. Hawkins, 243 Miss. 392, 137 So.2d 815 (1962).

It is next argued that appellant was wrongfully denied the right to cross-examine as “hostile” a witness summoned both by the State and the defense.

Although there was a great deal of argument back and forth, it is abundantly clear that the total showing of the alleged “hostility" of the witness may be gathered from the following brief excerpt from the record:

BY THE COURT: Go ahead and lay your predicate.
BY MR. WRIGHT: That’s what I’m trying to do, Judge.
Q. Now, prior to this hearing, were you called by the State of Mississippi to testify at the preliminary hearing against this lady over in City Court?
A. Yes, sir.
Q. Okay, so such testimony as you had would not be in the best interests of this lady. That’s correct isn’t it?
A. I don’t understand what you mean.
Q. Well, you are not testifying for her, are you?
A. Not at all.
Q. Okay.

This does not meet the requirements laid down in Hooks v. State, 197 So.2d 238 (1967).

In the case of Hall v. State, 250 Miss. 253, 264, 165 So.2d 345, 350 (1964), we pointed out that “Witnesses may be cross-examined or impeached by the party calling them when they prove to be hostile. (Citing cases.) . . . But” we said, “a proper foundation must be laid in order ' to impeach a witness. The party must first show that the evidence as given, has taken him by surprise and that the witness is hostile. The witness may then be asked if he has made contradictory statements out of court, the times, places and circumstances of the statements being described to him in detail. Underhill’s Criminal Evidence, Vol. 1, Fifth Edition, p. 547.” (197 So.2d at 239-240).

Despite defense counsel’s contentions and the court’s refusal to declare the witness a “hostile witness” (surprise was not claimed or shown) nevertheless defense counsel actually was permitted, as a matter of fact, to cross-examine the witness (for the better part of twenty pages in the record.) It is also clear that the contention on the part of appellant that this case in some manner involves the so-called “voucher rule” as condemned in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) is not well taken.

The general rule, applied in this case with great liberality toward the defense by the trial judge, is stated in 81 Am.Jur.2d section 624 (1976):

Although there is some difference of opinion with regard to an adverse party called as a witness, a generally recognized exception to the rule that a witness may not be impeached by the party at whose instance he testifies exists in the case of a witness who is hostile or unwilling, or who by his testimony surprises the party calling him, provided the surprise is genuine and substantial. Where the party is thus surprised, he may, at least in the discretion of the trial court, show that the witness has made prior statements inconsistent with his testimony at the trial. However, one can impeach his own witness only when such witness proves to be a “hostile” witness, and a witness becomes “hostile” when he is called with the expectation that he will give testimony favorable to the calling party, but who thereafter proves to be unwilling or adverse, to the complete surprise of the calling party. Lapse of memory alone is not sufficient to justify cross-examination of one’s own witness because it does not aid the opposing party.
A party should not be allowed to call an adverse witness for the sole purpose of impeaching him. Nor should a party be permitted to put a witness on the stand, knowing that his testimony will be adverse, and then claim surprise in order to impeach the witness. And if the “surprise” is not as to the facts elicited but rather that the court permitted the witness to testify on cross-examination as to a certain matter, such as allegedly known statements of a person since deceased, there is no abuse of discretion in refusing the party calling him permission to impeach the witness.

There appears to have been no reluctance on the part of the witness to answer questions addressed to him. If some of his testimony failed to support the defendant’s claim of self-defense, and, in that sense, could be considered as “unfavorable,” this alone did not make the witness a “hostile witness” within the rule.

It was not shown, nor was it offered to be shown on appellant’s motion for a new trial, that there was any material fact which the defendant expected to show or believed that the witness knew or would testify to, that he was not asked about and about which he did not actually testify.

In order to preserve the question now attempted to be raised for consideration on appeal it was necessary to show that appellant was prejudiced. There was no effort to do so either in the course of the trial or on motion for a new trial. There is nothing in the record to indicate that, in the final analysis defense counsel was denied the right to question the witness as to any specific material matter and the record is silent as to what material fact the defense expected to prove by the witness that it was denied the right to prove. Moreover, a reading of the testimony given by the witness under examination, which in fact amounted to cross-examination, by defense counsel discloses that defense counsel was allowed to ask every question conceivable and that the witness was permitted to give in evidence his answers thereto. No attempt was made in the course of the trial or upon motion for a new trial to preserve the question, now sought to be raised, for consideration on appeal by showing that the defense was denied the right to question the witness on a material matter within the knowledge of the witness or to show what the witness’s testimony would have been if interrogation had been allowed. The circumstances are entirely different and bear no resemblance to those condemned in Chambers and no prejudicial error was committed by the trial judge in this case.

AFFIRMED.

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


source: Caselaw Access Project

author: INZER, Presiding Justice,

license: Public Domain

text:
    Paula Lynn FOLEY v. STATE of Mississippi.
    No. 49827.
    Supreme Court of Mississippi.
    Aug. 10, 1977.
    Rehearing Denied Aug. 31, 1977.

      Roy Pitts, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, ROBERTSON and WALKER, JJ.
   INZER, Presiding Justice,

for the Court:

Appellant Paula Lynn Foley and James Douglas Melvin were indicted in the Circuit Court of Lauderdale County for the crime of burglary and larceny. Appellant was tried separately and was convicted. She was sentenced to serve five years in the State Penitentiary with two years suspended. From this conviction and sentence she appeals.

The facts in this case reveal that about 4 a. m. on April 16, 1976, Robert Jones was awakened by the sound of breaking glass: Thinking someone was breaking into his car, he rushed to his apartment window, located catty-cornered and about fifty yards from Howard’s Medi-Save Pharmacy in Meridian. Looking out of the window, he saw two persons running out of the broken front window of the pharmacy. Each person was carrying a small bag. Jones watched as the two persons ran to an apartment building directly behind the pharmacy. While he could not actually see the persons as they entered the front door of the apartment building, he did hear the door slam. Leaving his observation post only to reach the telephone, he called the police. After calling, Jones then watched the building until the police arrived, and he saw no one enter or leave the building. The time lapse between the glass breaking and the arrival of the police was less than ten minutes — probably six or seven.

Mr. Jones described the two persons to the police and the description of one of the persons was similar in size, hair length, and hair color to the appellant. He said one of the persons had a high pitched voice and sounded female, but he could not identify appellant as one of the two persons because he had not seen their faces.

Officer Jim Eubanks, one of the officers who arrived at the scene, talked with Jones. When the other officers arrived, they surrounded the apartment building. After talking with Jones about five minutes and determining that a burglary had been committed, Eubanks went into the apartment building. While looking in the hallways and porches outside of the apartment, he discovered a plank extending from the top porch to the pharmacy. Eubanks walked the plank to the top of the pharmacy building and discovered that a hole had been knocked in the roof of the pharmacy.

The officers searched two of the four apartments with the consent of the occupants. It was ascertained that no one was in the third apartment. After knocking on the door of the fourth apartment and receiving no answer, Eubanks went to the side of the apartment and through the window saw two people in bed. He knocked on the window and called out appellant’s name. Appellant came to the door and Eubanks informed her of the burglary and asked permission to search the apartment. Appellant informed Eubanks he would have to have a search warrant. While at the door, Eubanks saw a plank similar to the one that extended from the apartment building to the pharmacy. He then made an affidavit and secured a search warrant. After serving the search warrant, Eubanks and the other officers proceeded to search the apartment. During the course of the search, the officers found a bag containing a large quantity of drugs. Appellant and her companion were then arrested. The officers continued to search and found a money bag containing about $148 concealed in a speaker cabinet belonging to the appellant. The money bag and drugs were identified as belonging to the pharmacy.

Prior to trial appellant filed a motion to suppress the evidence found as a result of the search. The motion was overruled.

On appeal appellant urges that the trial court was in error in refusing to suppress as evidence the fruits of the search.

Appellant bases this assignment on two propositions. It is first contended that the affidavit in support of the probable cause is not sufficient to justify the issuance of a search warrant. The affidavit contained the following underlying facts and circumstances:

At approximately 4:00 a. m. 4-16-76 dispatcher S. Thomas received phone call from Robert Jones w/m 22 apartment # 3 1401 23rd Avenue, who had witnessed 2 subjects leaving Howard Brothers Medi-Save Pharmacy # 2 2225 14th St., Meridian, Ms., through a broken window on north side of building. Both subjects carried sacks or bags in their hands, they ran south to apartment house (1312 23rd Ave.) directly behind pharmacy. Subjects described as # 1 medium build, blondish hair, jeans and waist length type coat, # 2 medium build darker blonde hair than # 1. Witness stated one voice sounded female. A piece of lumber approximately 1" thick 12" wide and 11 feet long was found extending from top of pharmacy to upstairs porch of 1312 23rd Avenue. Entry to pharmacy was gained from the roof of pharmacy. Occupant of apartment D 1312 23rd Avenue allowed officers to search his apartment (Larry Lauterbach). Occupant of apartment B (Al Yochim) allowed officers to search apartment. Occupant of apartment C was not at home. Occupants of apartment A Pee Wee Melvin and Paula Foley refused to let officers enter without search warrant. They both fit above descriptions and acted very nervous. Apartment house was surrounded approximately 2-3 minutes after incident was reported.

We are of the opinion that the affidavit contains sufficient underlying facts and circumstances from which a detached and independent magistrate could find probable cause. Since the information was furnished by an eyewitness rather than information from an informer, there was no need to show that the party supplying the information was a credible person. Wolf v. State, 281 So.2d 445 (Miss.1973).

Under Proposition II appellant contends that by looking through the bedroom window of her apartment, the police conducted an illegal search which eventually led to the issuance of the search warrant and the gathering of incriminating evidence. Appellant urges that an illegal search once begun never ceases and all incriminating evidence secured thereby was tainted with illegality. The state in answer to this contention contends that the officer was in hot pursuit of fleeing felons, and in searching for the felons, he had a right to be outside the window of the apartment and to look into the apartment. We are of the opinion that Officer Eubanks had a right, while in hot pursuit of suspected fleeing felons, to knock on the door of the apartment and make inquiry relative to the occupants as to whether the occupants had seen the felons or could give any information leading to their whereabouts. When Eubanks knocked on the door and no one answered, he then went outside and looked in the window to see if anyone was in the apartment. Under these circumstances this was neither a trespass nor such an invasion of privacy as to invalidate the search made after procuring a valid search warrant. Ferguson v. State, 323 So.2d 745 (Miss.1975).

The only other error assigned is in regard to an instruction granted at the request of the state to the effect that appellant could be found guilty as an accomplice. We are of the opinion that the facts and circumstances of this case justified the granting of this instruction and it is supported by the evidence.

We find that this was a well-tried case and that counsel for appellant was diligent in seeing that her Constitutional rights were protected at every stage of the proceeding. Appellant received a fair trial and the jury was justified in finding her guilty as charged. There being no reversible error, this case must be and is affirmed.

AFFIRMED.

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


author: SIMMONS, Retired Circuit Judge.

text:
    Donald Baron PATE v. PERRY’S PRIDE, INC., et al.
    SC 1942.
    Supreme Court of Alabama.
    May 6, 1977.
    Rehearing Denied Aug. 26, 1977.
    Jack R. Evans, Tuscaloosa, for appellant.
    Jones, McEachin, Ormond & Fulton, Tuscaloosa, for appellees.
   SIMMONS, Retired Circuit Judge.

The appellant, Donald Pate brought suit against Perry’s Pride, Inc., Perry Creamery Co., Inc., Rubin Ellis Walker, Liberty Mutual Insurance Co., C. B. Marshall, and his father, William M. Pate. The suit alleged that these parties participated in the fraudulent settlement of a pro ami law suit filed on Donald Pate’s behalf in 1953 when Donald Pate was two years of age. The pro ami suit was brought by Donald Pate’s father, William M. Pate, as next friend, after Donald Pate sustained injury as a result of being struck by a truck owned by Perry Creamery Co., Inc. The truck was driven by Rubin Ellis Walker, an employee of Perry Creamery Co., Inc. Perry Creamery Co., Inc. changed its name to Perry’s Pride, Inc., in 1964. Liberty Mutual Insurance Co. and its agent C. B. Marshall were joined as defendants by Donald Pate in this action as a result of their alleged involvement in the settlement of the pro ami suit. At the time of the incident in 1953 Liberty Mutual Insurance was the liability insurance carrier for Perry Creamery Co., Inc., and Rubin Walker.

Defendants Perry Creamery Co., Perry’s Pride, Inc., Rubin Ellis Walker, Liberty Mutual Insurance Co., and C. B. Marshall filed a motion for Summary Judgment which was granted. Donald Pate then filed a motion for a new trial which was denied on April 9, 1976. On May 20, 1976 the trial court set aside the April 9th order and entered a new order which overruled Donald Pate’s motion for a new trial and granted the defendants’ motion to dismiss. Paragraph 2 of the court’s order which concerns the defendants’ motion to dismiss reads as follows:

“IT IS FURTHER ORDERED, based on the mutual consent of the parties that the court’s prior order overruling the Defendants’ Motion to Dismiss is hereby withdrawn and the Defendants hereby refile their Motion to Dismiss to the Complaint, as amended,and IT IS HEREBY ORDERED that the Defendants’ Motion to Dismiss is due to be and the same hereby is granted on the grounds that the Complaint, as amended, fails to state a cause of action upon which relief can be granted, due to the fact that there is a failure to adequately allege the quo modo of the alleged fraud and the Plaintiff’s action is hereby dismissed for the reasons stated;”

In the next paragraph the trial court ordered that the summary judgment previously entered would continue in full force and effect.

Donald Pate brings his appeal to this court alleging error in the trial court’s granting of summary judgment, the denial of his motion for new trial, and in the order granting the defendants’ motion to dismiss.

The appellees have filed a motion to dismiss this appeal on the grounds that the summary judgment appealed from was filed on behalf of and granted only as to five of the six defendants below. Those five defendants being Perry Creamery Co., Perry’s Pride, Inc., Rubin Ellis Walker, Liberty Mutual Insurance Co., and C. B. Marshall. Defendant William M. Pate was not named in either the motion for summary judgment or in the trial court’s subsequent order granting summary judgment. Appel-lees refer this court to Rule 54(b) ARCP for their argument that the appeal should be dismissed because there is no final judgment to support the appeal. If the sole basis for the appellant’s cause before this court were the summary judgment order and the later denial of his motion for new trial, then there would indeed be grounds for dismissal of this appeal. See Tit. 7, § 754 Ala.Code 1940 (Recomp.1958); Rule 54(b), Ala.Rules Civil Procedure; Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). However, this court interprets paragraph 2 of the trial court’s order of May 20, 1976, quoted above, to be a final judgment as to all of the parties from which an appeal to this court may properly be taken. Accordingly the appellees’ motion to dismiss this appeal is denied.

As stated previously, the appellant based his suit on fraud allegedly committed by the defendants in 1953 when a pro ami lawsuit brought in his behalf was settled. The record in this case contains the judgment entry of the pro ami suit, which reads as follows:

Donald B. Pate, a Minor who sues by his next friend and Father, William McKinley Pate,
Plaintiff
vs.
Perry Creamery Company, Inc., A Corporation, and Rubin E. Walker,
Defendant September 19, 1953
“This being the day set for the trial of this cause come the parties in person and by their attorneys in open court. The defendants file Pleas of General Issue in short by consent with leave to give in evidence any matter which would be admissible if well pleaded with like leave to Plaintiff to reply thereto. Issue being joined, the court proceeds to hear the evidence in this cause without a jury, and after hearing the same, it is, therefore, considered by the court and it is the order and judgment of the court that the Plaintiff have and recover of the Defendant the sum of $400.00 together with the cost in this case for which let execution issue.”

The crux of appellant’s allegation of fraud is that the $400.00 settlement was grossly inadequate and under the circumstances which existed at the time of the settlement it can be shown that this agreement defrauded appellant of the right to a “meaningful day in court.”

The granting of summary judgment is governed by Rule 56, ARCP, which states that a motion for summary judgment may properly be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In the case sub judice the trial court properly granted defendants Perry’s Pride, Inc., Perry Creamery Co., Inc., Rubin Ellis Walker, Liberty Mutual Insurance Co., and C. B. Marshall’s motion for summary judgment. In the pro ami suit, all of these parties were aligned either directly or indirectly as defendants. In the suit from which this appeal comes, Donald Pate alleges that these parties committed a fraudulent act by collaborating with his next friend to process a grossly inadequate settlement. Fraud under Alabama Jurisprudence is embodied in Sections 108-110 of Title 7, Alabama Code of 1940 (Recompiled 1958). Under the facts presented to the trial court and under the facts before this court it is clear that these parties were entitled to summary judgment because under our statutory guidelines fraud had been neither properly alleged nor were there any controverted facts from which fraud could arise as to these parties. The interests of these parties in the pro ami suit were adverse to those of Donald Pate and under our adversary system of justice, they were under no legal duty to see that the settlement received by Donald Pate through his next friend was any higher than it was. It is the function of the trial court in pro ami suits to see that the injured infant receives a fair hearing and that the next friend or guardian ad litem is present and acting in the infant’s behalf. Citizens Walgreen Drug Agency, Inc. v. Gulf Insurance Co., 282 Ala. 648, 213 So.2d 814 (1968).

A minor’s next friend or guardian ad litem who brings an action in the minor’s behalf is charged with the duties of a fiduciary and must pursue those duties with diligence, good faith and utmost care. See Irwin v. Alabama Fuel & Iron Co., 215 Ala. 328, 110 So. 566 (1925); Rule 17, Ala. Rules Civil Procedure. Donald Pate’s action against William M. Pate and the other defendants was dismissed below on the grounds that the complaint failed to state a cause of action upon which relief could be granted in that the complaint failed to adequately allege the quo modo of the alleged fraud. It is unclear to this court why the trial judge found it necessary to include all the defendants below in his order to dismiss while in the same order he stated that the summary judgment previously granted as to five of the six defendants was still in full force and effect. As a result however, the practical effect of the overlapping orders is that defendant, William M. Pate was the only defendant affected by the granting of the motion to dismiss.

In the appellant’s complaint as amended, it is alleged that William M. Pate, in his capacity as next friend, failed to represent the best interests of appellant by collaborating with the other named defendants and placing his interests above those of the appellant. It was alleged that William M. Pate allowed the offer of the other named defendants of paying the medical bills which resulted from appellant’s injuries to induce him into accepting an inadequate settlement. The medical bills of course were the debt of the father.

Title 7, § 109, Alabama Code of 1940 (Recomp.1958) provides that the suppression of a material fact by a party under an obligation to disclose such fact to one who is in a confidential relationship with such party is fraud. This court finds that the facts as set out in the complaint concerning the alleged fraud of William M. Pate were sufficient to state a cause of action under this statutory definition of fraud and we find the complaint also met the requirements of Rule 9(b), ARCP. It was therefore reversible error for the trial court to dismiss this action as against William M. Pate.

Affirmed as to defendants Perry’s Pride, Inc., Perry Creamery Co., Inc., Rubin Ellis Walker, Liberty Mutual Insurance Co., and C. B. Marshall.

Reversed as to defendant William M. Pate.

Affirmed in part, Reversed in part and Remanded.

SIMMONS, Retired Circuit Judge, sitting by order of the Chief Justice, and MADDOX, FAULKNER, SHORES and BEAT-TY, JJ., concur.


author: ALMON, Justice. ALMON, Justice.

text:
    FIRST NATIONAL BANK OF ARIZONA, as Trustee under the last Will of Pierson R. Sanson and Marijean Sanson v. The FIRST NATIONAL BANK OF BIRMINGHAM, as Trustee under the Will of Harold Sanson, et al.
    SC 1726.
    Supreme Court of Alabama.
    June 10, 1977.
    Rehearing Denied July 22, 1977.

      Charles Cleveland and Douglas P. Corret-ti, Birmingham, for appellants.
    Irvine C. Porter, Birmingham, as Guardian Ad Litem for Mary C. Cabaniss, William J. Cabaniss, III, Prances C. Cabaniss, Joseph H. Scales, Jr., William E. Harrison, Joan S. Harrison, Catherine P. Harrison, Florence S. Etheridge, David M. Etheridge, IV, William C. Etheridge, and as Trustee Ad Litem for the Trust Estate of Florence S. Cabaniss, created under the will of Harold R. Sanson, Deceased.
    Allen D. Rushton, Birmingham, Guardian Ad Litem, for appellees, Claire Donald Hill, Edward P. Hill, Jr., Robert Sanson Hill, and Jeanne S. Hill.
    E. T. Brown, Jr., Birmingham, for neutral appellees, the First National Bank of Birmingham and Lucien D. Gardner, Jr., as Trustees.
   ALMON, Justice.

The First National Bank of Birmingham and Lucian D. Gardner, as trustees under the will of Harold Sanson, filed suit against the First National Bank of Arizona seeking instructions from the trial court as to the disposition of the assets of the trust. Harold Sanson died in Birmingham, Alabama, in 1933. His will, after leaving a life estate in trust for his wife, established trusts for the benefit of his two children — Florence Sanson Cabaniss and Pierson R. Sanson. Both children were given a general power of appointment by will of the assets in their respective trusts. Pierson R. Sanson died in Arizona in 1975 leaving a will in which he appointed the assets in his trust to the First National Bank of Arizona, as trustee, for the benefit of his widow, Marijean Sanson, and his children of the marriage with her.

The pertinent provision of Harold San-son’s will is paragraph “THIRD (h):”

“Upon the death of either child of me entitled to share in said trust estate under the provisions and subsections (f) and (g) hereof the Trustees shall transfer and pay over the share of said trust estate at the time held in trust for such child, to such person or persons, in such manner and in such proportions as such child may by his or her last will and testament appoint and direct, provided, however, that any provision in the will of such child in order to be of any force and effect as an exercise of the power herein given to him or her shall specifically state therein that it is made for the purpose of exercising the power conferred upon him or her by this will.”

If Pierson Sanson failed to exercise his power of appointment by his will, Harold Sanson’s will provided further that the trust estate held for his benefit was to be distributed as follows: one-half to Pierson’s sister, Florence Sanson Cabaniss, or her descendants in equal shares per stirpes and the other one-half to Pierson Sanson’s descendants in equal shares per stirpes.

In 1943 Pierson executed a partial release of his power of appointment “. . . except only in favor of the wife of the undersigned, the lineal descendants of the undersigned and the lineal descendants other than the undersigned of the said Harold R. Sanson . . .” The release was executed by Pierson while he was living in California.

Pierson disposed (or attempted to dispose) by will dated June 24, 1960, of all property to which he had a power of appointment:

“THIRD: It is my intention hereby to dispose of all real and personal property which I have the' right to dispose of by Will, including any and all property as to which I may have a Power of Appointment.”

Pierson’s will went on to provide a life estate in trust for his wife, Marijean San-son, with the First National Bank of Arizona, Phoenix, as trustee.

“4. Upon the decease of my wife, the Trustee shall divide the remaining trust estate into equal shares as follows:
“One share for each child of mine of my marriage to Marijean Sanson. In the event any of my said children predecease me or my wife, then their share shall be set aside for the issue of said deceased child upon the principal of representation.”

One-half (V2) of the fund is to be distributed to each child when he or she becomes 21 and the remainder when he or she becomes 25. Between ages 21 and 25, each child shall have the power to appoint outright or in trust to Pierson’s descendants, other than the donee, to the donee’s spouse, or to the descendants of the donee. Prior to distribution but after the death of Marijean, the income of the trust shall go to the children of their marriage in equal shares.

On August 23,1962, Pierson undertook to remedy a possible defect in the will by executing a first codicil containing a specific reference to the power of appointment contained in his father’s will. Thereafter, on January 24, 1967, Pierson executed a second codicil, which substituted a $5,000.00 bequest to Jeanne S. Hill, Pierson’s daughter by his first wife, for a $1,000.00 bequest contained in the original will. The two codicils, in full, are as follows:

“I, PIERSON R. SANSON, do hereby make, publish and declare this my First Codicil to my Last Will and Testament, which Last Will bears the date of June 24, 1960.
“FIRST: I hereby revoke Paragraph THIRD of my Last Will and Testament.
“SECOND: I hereby amend my said Last Will and Testament by adding the following Paragraph THIRD:
“THIRD: It is my intention hereby and herewith in this my Last Will and Testament to dispose of all property which I have the right to dispose of by will, including any and all property as to which I may have a power of appointment, including büt by this reference not limited thereto:
“(a) The power of appointment given me pursuant to the Last Will and Testa-merit of my father, HAROLD R. SAN-SON, dated October 24, 1933, and by the execution of this instrument I hereby exercise the power conferred upon me by my father’s said Last Will and Testament; and
“(b) The power of appointment given me pursuant to that certain Trust Agreement dated April 16, 1932, between HAROLD R. SANSON as Donor and THE FIRST NATIONAL BANK OF BIRMINGHAM, ALABAMA, as Trustee, and by execution of this instrument I hereby exercise the power conferred upon me by said Trust Agreement.
“I hereby give, devise and bequeath all of said property subject to said powers of appointment, to FIRST NATIONAL BANK OF ARIZONA, PHOENIX, a national banking association, IN TRUST, HOWEVER, to be held, managed and distributed in the same manner, at the same time and to the same persons provided in Paragraph FIFTH and SIXTH of my Last Will and Testament.
“THIRD: As above revoked, amended and added to by this my First Codicil to my Last Will and Testament, I hereby ratify, confirm and re-publish my Last Will and Testament dated June 24,1960.”
“I, PIERSON R. SANSON, do hereby make, publish and declare this my Second Codicil to my Last Will and Testament, which Last Will bears the date of June 24, 1960.
“FIRST: I hereby revoke that portion of Paragraph FOURTH of my Last Will and Testament reading as follows:
“ ‘To my duaghter, JEANNE S. HILL, of Birmingham, Alabama, the sum of One Thousand Dollars ($1,000);’
“Second: I hereby substitute for said revoked portion of Paragraph FOURTH of my Last Will and Testament, the following bequest:
“To my daughter, JEANNE S. HILL, of Birmingham, Alabama, the sum of Five Thousand Dollars ($5,000);
“Third: As hereby revoked, amended and added to by this my Second Codicil to my Last Will and Testament, I hereby ratify, confirm and republish my Last Will and Testament dated June 24,1960.”

The will and two codicils were executed in Arizona, the domicile of Pierson Sanson at the time of his death.

The trial court held that while the first codicil did properly execute the power of appointment granted Pierson by his father’s will, the second codicil did not sufficiently nor adequately refer to the first codicil to cause it to be a part of the last will and testament, as ratified, confirmed, and republished by the second codicil. From this the court concluded that Pierson did not exercise the power of appointment created by his father’s will. The court further found that Pierson’s father’s will did not give Pierson the power to appoint or direct any part of the trust to any banking institution, or corporation, in trust or otherwise, including the appellant First National Bank of Arizona. As to the 1943 release, the court also concluded that, while the release was valid, Pierson was not empowered to circumscribe, enlarge, qualify, alter or amend, in any manner, the power of appointment, and that Pierson did not properly exercise the power of appointment as provided by the terms of the release. We reverse.

I. Conflict of Laws

The trial judge apparently applied Alabama law, though he did not state so specifically, in interpreting Pierson Sanson’s will. The appellants contend that Arizona law should have been applied; at trial they presented the testimony of an Arizona attorney who stated that in Arizona the first codicil would not have been revoked by failure to mention it specifically in the second codicil.

The specific issue with regard to Pierson’s will is whether he validly exercised the power of appointment given him in Harold Sanson’s will. Harold’s will is, without question, controlled by Alabama law, and the trust he established has its situs in Alabama. While we have not found an Alabama case specifically addressing this question, encyclopedae on the subject indicate that Alabama law applies.

“Although there is some authority holding that the execution of a power is governed by the law of the domicile of the donee of the power, it is generally held that an instrument executing a power is governed by the law of the jurisdiction which controls the effect of the instrument creating the power, and that questions as to the validity, sufficiency, construction, and operation of the execution of a power are to be determined by the law of the domicile of the donor of the power, unless the power was created in contemplation of the law of some other jurisdiction applying to its exercise.” 72 Corpus Juris Secundum, Powers, § 44.

See also 62 Am.Jur.2d, Powers, §§ 29 & 30; 95 C.J.S. Wills § 587e.

Harold’s will did not contemplate the law of another jurisdiction to be applied in determining whether the power of appointment was properly exercised. Therefore, Alabama law shall be applied to the question.

No issue was made at trial of what law should be applied to Pierson’s 1943 release. The release, like the exercise of the power of appointment, relates directly to the power given in Harold’s will. We, therefore, believe Alabama law should also be applied to the validity of and compliance with the release.

II. Power Granted in Harold’s Will

Harold’s will provided Pierson with the power to appoint “. . .to such person or persons in such manner and in such proportions as such child may by his . . last will and testament appoint and direct. . ” The trial court held Harold’s will did not give Pierson the power to appoint in trust with a corporation as trustee.

The rule offered in Corpus Juris Secun-dum is contra:

“As a general rule, the donee of a power of appointment can appoint such an estate or interest only as is authorized by the instrument creating the power, and not a greater or lesser one. If, however, there is no restriction as to the estate or interest to be raised by the execution of the power, or if the matter is expressly left to the discretion of the donee, he may appoint any estate or interest which the donor of the power could have created or transferred.
“Appointments in trust. Under a power of appointment, either general or special, containing no restriction as to the nature of the estate to be raised, the donee is not limited to an appointment of the legal estate, but may execute the power by an appointment in trust for the objects of the power, except where it appears, either expressly or impliedly, from the instrument creating the power that the donor intended the appointees to take, not in trust, but absolutely. . . ”

72 C.J.S. Powers § 24d (1951).

See also 62 Am.Jur.2d, Powers, §§ 70 & 71. Moreover, there is authority saying that the power to appoint to any “person” includes the authority to appoint to a corporation. 72 C.J.S. Powers § 24b. However, whether Pierson could appoint to a corporation is not at issue. The First National Bank of Arizona is merely the trustee, not the beneficiary.

The case of In re Hart’s Will, 262 App.Div. 190, 28 N.Y.S.2d 781 (1941), specifically addressed interpretation of the following clause:

“. . . from and immediately after the death of my said nephew, then to grant, convey, assign and pay over the corpus or principal of the trust estate from which my said nephew was in his lifetime entitled to receive the income to such person or persons and in such manner and in such shares as he shall by his Last Will and Testament in writing appoint in fee simple absolutely.” (Emphasis added.) 28 N.Y.S.2d at 783.

The court held that this clause allowed creation of a trust. “The phrase, ‘in such manner,’ has been held to refer to the character of the estate which the donee may appoint, and connotes positive permission to the donee to create trusts.” 28 N.Y.S.2d at 783. See also Slayton v. Fitch Home, 293 Mass. 574, 200 N.E. 357 (1936).

We believe that Harold’s will gave Pierson the power to appoint in fee, and that such a power necessarily includes the power to appoint a lesser estate, including the formation of a trust.

III. Codicils

Harold’s will required Pierson to specifically state in his will that he is exercising the power of appointment conferred upon him. Pierson failed to do so specifically, but corrected the defect in his First Codicil. Later, in his Second Codicil he ratified, confirmed and republished his Last Will and Testament dated June 24, 1960, but did not mention his First Codicil. The trial court held that by not making reference to his First Codicil, he effectively revoked it.

In Alabama we have the rule based on statute that the writing of a second will revokes the first will, unless the former is referred to and preserved by the subsequent, or unless it is clear that the second will was intended as a codicil to be read together with the will. Bruce v. Sierra, 175 Ala. 517, 57 So. 709 (1912); Kohlenberg v. Shaw, 198 Ala. 571, 73 So. 932 (1917); Wheat v. Wheat, 236 Ala. 52, 181 So. 243 (1938); McKissack v. Ashurst, 220 Ala. 576, 126 So. 636 (1930). Bruce v. Sierra, supra, based this rule on § 6174 of the Code of 1907, now Tit. 61, § 26, Code of Alabama 1940, Recompiled 1958, which states that a will can be revoked “. by some other will in writing . . . No similar statute exists with regard to codicils, and we know of no Alabama case extending the rule to codicils. The purpose of a codicil is to explain, add to, or subtract from the provisions of the will. Hitchcock’s Heirs v. U. S. Bank of Penn., 7 Ala. 386 (1845).

“It is annexed to the will, and in law the will and codicils — if there be more than one — constitute but one instrument.” Id. at 437.

In Pierson’s will he attempted to exercise his power of appointment. Realizing he had not done so properly, he executed his First Codicil to correct the error. His Second Codicil changed the bequest to his daughter by prior marriage, whose grandmother- — Pierson’s mother — had left a $400,000 trust fund to her benefit, from $1,000 to $5,000, without making any reference to his power of appointment. We do not believe his failure to make reference to his First Codicil evidenced his intent to revoke his executed power of appointment, something he had previously attempted to do by will, but rather, when he republished his will in his Second Codicil, he intended to republish his First Codicil as a part of that will.

“. . . There is a distinction between an intermediate will and an intermediate codicil in this respect, and where the testator by a codicil confirms his will, the will, together with all codicils, is ordinarily taken to have been confirmed, although specific mention of intervening codicils is not made. However, the question of whether intermediate codicils are revived or revoked is, in the last analysis, a matter of the testator’s intention as deduced from all the surrounding circumstances, and the courts will give effect to the testator’s intention expressed by apt words to revoke any codicil already made, and to set up the original will unaffected by any codicil. A mere reference to the date of the original will is no indication of the intention to deprive all instruments other than the original will itself of any force; in'fact such a reference to a will does not effect a revocation of the antecedent codicils, but is a ratification of the will as modified by the codicils.” 95 C.J.S. Wills § 303d(2) (1957).

IV. Release

In 1943 Pierson Sanson released his power of appointment . . except only in favor of the wife of the undersigned, the lineal descendants of the undersigned and the lineal descendants other than the undersigned of the said Harold R. Sanson . . .” (Emphasis added.) Ap-pellees argue that the release created a nonexclusive special power of appointment — meaning that Pierson could not exclude any of the class that he created, nor include persons outside that class — and that his appointment is void for not being in compliance with his release; e. g., Pierson’s daughter by his first wife is not included. Appellants, on the other hand, contend that the release is irrelevant because the proper execution of the power depends only on Harold’s will, or in the alternative, that the release created an exclusive special power of appointment, which was properly exercised. We believe the release is valid and must be considered, but that it created an exclusive power, rather than a nonexclusive power.

Tit. 47, § 89(1), Code of Alabama 1940, Recompiled 1958, provides as follows:

“89(1). Release of powers. — Any power which is exercisable by deed, by will, by deed or will, or otherwise, whether general or special, other than a power in trust which is imperative, is releasable, either with or without consideration, by written instrument signed by the grantee and delivered as hereinafter provided.
“A power which is releasable may be released with respect to the whole or any part of the property subject to such power and may also be released in such manner as to reduce or limit the persons or objects, or classes of persons or objects, in whose favor such power would otherwise be exercisable. No release of a power shall be deemed to make imperative a power which was not imperative prior to such release, unless the instrument of release expressly so provides.
“Such release may be delivered to any of the following: . . .(b) Any trustee of the property to which the power relates. .
“This section shall apply to releases hereafter delivered, and also to releases delivered heretofore but on or after July first, nineteen hundred forty-two. (1945, p. 64, appvd. June 9, 1945.)”

While we find no case interpreting Tit. 47, § 89(1), the statute makes the release, without question, valid.

The argument that the release created a nonexclusive special power of appointment, rather than an exclusive power, turns on the word “and” in the above quoted clause of the release. However, the fact that “and” was used rather than “or” is not dispositive.

“There is no word in the English language more difficult to define, or ‘of more equivocal import; than the’ monosyllable or. — Burrell’s Law Dictionary, ‘Or.’ Jarman, in his work on Wills, in reference to the meaning of this word, says: ‘But by far the most numerous class of cases, exhibiting the change of a testator’s words, are those in which the disjunctive or has been changed into the copulative and, and vice versa. It is obvious that these words are often used, orally, without a due regard to their respective import; and it would not be difficult to adduce instances of the inaccuracy, even in written compositions of some note. It is not surprising, therefore, that this inaccuracy should have found its way into wills.’ — 1 Jarman on Wills, 420, m. p. 443. It has often been held, both in reference to deeds and wills, for the purpose of effectuating the intention, that ‘or’ meant ‘and,’ and the instrument was read as if it contained ‘and’ instead of ‘or’. [Citations omitted.] We make so extended a citation of authorities upon this subject, because they prove and exemplify the looseness and confusion which prevail in the use of the conjunctions ‘or’ and ‘and,’ and the freedom with which the courts adopt the meaning consistent with reason and intention.” Harris v. Parker, 41 Ala. 604, 615-616 (1868).

Rutland v. Emanuel, 202 Ala. 269, 272, 80 So. 107, 110 (1918) adds the following:

“. . . The appropriate exercise of this power presupposed the proper recognition of the established rules: (a) That the authority to so change such words is not an arbitrary power; and (b) that resort cannot be had to speculation, conjecture, or surmise, however rational a particular theory may seem to be. [Citations omitted.] In construing a will, in ascertaining the intention of the testator, the court should put itself, as near as may be done in the light of the record, in the circumstances of the testator [Citation omitted.], and, from a position so advantaged, read and expound the instrument.”

Correspondence between Pierson Sanson and the officers and trustees of The First National Bank of Birmingham prior to the release indicate that the purpose of the release was to avoid the consequences of § 811(f) of the 1939 Internal Revenue Code, as amended by the 1942 Revenue Act, now part of 26 U.S.C., § 2041. The pertinent part of 26 U.S.C., § 2041, reads:

“. . . If a general power of appointment created on or before October 21, 1942, has been partially released so that it is no longer a general power of appointment, the exercise of such power shall not be deemed to be the exercise of a general power of appointment if—
“(i) such partial release occurred before November 1, 1951, or . . ..”

The exercise of a general power of appointment, after the 1942 Revenue Act, would cause the property under the power to be included in the donee-decedent’s gross estate, whereas the exercise of a special power of appointment would not. For a case applying this statute, see Ellis v. U. S., 280 F.Supp. 786 (1968).

The statute (26 U.S.C., § 2041(b)) defines a general power of appointment ás a power which is exercisable in favor of the decedent, his estate, his creditors, or the creditors of his estate, with certain exceptions not here relevant. The avoidance of the tax consequence of 26 U.S.C., § 2041, does not depend on whether the special power created by partial release of the general power is exclusive or nonexclusive. From a donee’s standpoint, the usual desire would be to place the least restriction on his power of appointment necessary to do the job, i. e., the creation of an exclusive power rather than a nonexclusive power.

The manner in which Pierson exercised his power of appointment supports the application of this proposition. Pierson executed the release, not Harold. Credence should be given to the way he interpreted his own document.

Based on the limited purpose of the release and the fact Pierson is both executor of the release and the party affected by the release, we believe his intent was to create an exclusive special power. Consequently, “and” should be read as “or.”

We, therefore, hold that the decision of the trial court is in error and it is hereby reversed and remanded for appropriate transfer of the trust in accordance with this decision.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER and EM-BRY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the C. J., concur.

ON REHEARING

ALMON, Justice.

The guardian ad litem for Mary C. Cabaniss et al. who is also trustee ad litem for the trust estate of Florence S. Cabaniss, created under the will of Harold R. Sanson, deceased, contends on application for rehearing that the court failed to address the issue raised by the rule against perpetu-ities. He is correct. That issue was not addressed by the trial court. The court will not decide issues for the first time on appeal. This application is overruled.

The guardian ad litem for Claire Donald Hill et al. notes correctly that we did not address whether Pierson failed to comply with his power of appointment, as limited by his 1943 release, by appointing to persons outside the named class. E. g., when Pierson’s children of his marriage to Marije-an are between ages 21 and 25 (assuming the life estate given to Marijean has terminated), the children are given the power to appoint to their wives who are not within the class specified in Pierson’s release.

Assuming, without deciding, that the powers given the children are not meaningless, we believe the possibility that one outside the class designated in Pierson’s release may receive part of the property does not make Pierson’s execution of his testamentary power void. Under these facts, Pierson’s execution is merely void as to those outside the designated class.

“The question whether, notwithstanding the invalidity of some provision or provisions in attempted exercise of a power of appointment, other provisions may take effect wholly or in part, is a question which, the decisions agree, ordinarily depends for its answer upon whether the valid provisions are severa-ble from the invalid ones. Accordingly, where a person purporting to execute a power has done something which is within the power and something outside the power, then, if the things are distinguishable, the execution within the power is good and the excess void; but if the boundaries between the excess and execution are not distinguishable, the execution will be void in toto.” 62 Am.Jur.2d, Powers, § 86.

See also Id., § 87; 72 C.J.S. Powers §§ 46 & 47; Old Colony Trust Co. v. Richardson, 297 Mass. 147, 7 N.E.2d 432 (1937); 121 A.L.R. 1226, 1231; Re Estate of Spencer, 232 N.W.2d 491 (Iowa, 1975).

OPINION .EXTENDED; APPLICATION OVERRULED.

BLOODWORTH, FAULKNER and EM-BRY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the C. J., concur.


author: ALMON, Justice. JONES, Justice

text:
    Emmett WALKER, Jr., father of Theresa Thomas Walker, a minor, Deceased v. Clarence CARDWELL, Administrator of the Estate of Donald Frank Cardwell, Deceased.
    SC 1946.
    Supreme Court of Alabama.
    Aug. 12, 1977.

      Marlin M. Mooneyham, Montgomery, for appellant.
    Harry Cole and Thomas C. Sullivan for Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   ALMON, Justice.

This is an appeal by the plaintiff in a wrongful death action. Theresa Thomas Walker, age one, was killed in an automobile accident. Frank Cardwell, age twenty-eight, presumably was killed in the same accident. Emmett Walker, Jr., father of Theresa, brought suit for wrongful death against the estate of Donald Frank Card-well (Clarence Cardwell, administrator) alleging negligence and wanton misconduct. The jury verdict and judgment were for the defendant. The appellant, Emmett Walker, Jr., moved for a new trial contending primarily that the jury verdict was contrary to the evidence. The appellant contends the court erred in not granting a new trial, that closing argument of appellee’s counsel was improper, and that a jury charge was incorrect. We affirm.

The accident occurred on the Mobile, Highway in Montgomery, Alabama. At this point the four laned highway runs in a north-south direction and has a raised median. The highway is straight and the surface was dry on the day of the accident.

One of the witnesses to the accident observed Donald Cardwell (deceased) proceeding south on the inside northbound lane. He observed the car for about one-half mile drift from one side of the northbound lane to the other. The car almost hit the automobile of an elderly couple. Thereafter, it sideswiped a Price Donut Company truck, and struck the car driven by Jerry Walker in which Theresa (deceased) and Emmett Walker were passengers. Three other witnesses testified similarly. According to a police officer, no alcohol was found in Donald Cardwell’s blood.

The appellee’s only defense witness was the father of Donald Cardwell, Clarence Cardwell. Clarence testified that 3 to 5 years previously Donald began having fainting spells. His first was while fueling a plane at Dannelly Field in Montgomery. When Donald would black out, he would become unconscious as if he were sleeping. Donald received medical examinations at Jackson Hospital in Montgomery, the University of New Orleans, the University of Jackson in Mississippi, and later visited Os-chner’s Clinic in New Orleans three or four times. After the rests his job was changed to ticket agent.

Donald had a prior accident, but his father was not sure it was related to the fainting spells. On at least one occasion, though, he had turned his driver’s license in to the State for a year or longer. Donald also had a pilot’s license, but no longer flew.

His last fainting spell, to the best of his father’s knowledge, was approximately 2 years ago. In July, 1974, a few months before the accident, Donald and his father took a vacation through North Carolina, Tennessee and Georgia, on which Donald drove about three-fourths of the way.

The scope of review regarding the granting of a new trial for insufficient evidence is well stated in Hodges & Company v. Albrecht, 288 Ala. 281, 285-286, 259 So.2d 829, 832 (1972):

. . We acknowledge that,
“ ‘* * * It is the rule that where the verdict is contrary to the great preponderance of the evidence, defendant, on due motion, is entitled to a new trial, though the court was not in error in declining the affirmative charge. The scintilla of evidence rule does not apply as to the ruling on the motion. [Citations omitted.]’
“However, we also point out that,
“ * * This court has held many times that verdicts are presumed to be correct and no ground of a motion for a new trial is more carefully scrutinized than that the verdict is against the weight of the evidence. [Citation omitted.] Furthermore, verdicts are presumed correct and the presumption in favor of the correctness of the verdict is strengthened when a new trial is denied by the court. [Citation omitted.] Furthermore, on appeal from a judgment for the plaintiff this court must review the tendencies of the evidence most favorable to the plaintiff allowing such inferences as the jury was free to draw. [Citations omitted.]’
“See, 15A Ala.Dig., New Trial, &wkey;72.
“Moreover, this court has held that, •“* * * “the decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.”— [Citations omitted.]’
“See 2A Ala.Dig., Appeal and Error, &wkey;1003.”
Part of the jury charge read as follows:
“The Court charges the jury that if you are reasonably satisfied that Donald Frank Cardwell had lapsed into unconsciousness prior to the accident without any warning symptoms, or knowledge that such a condition would occur, then he could not be considered guilty of negligence or wantonness for anything which would have occurred after he lost consciousness.”

The question of whether Donald Cardwell lapsed into unconsciousness without prior knowledge was a jury question. We hold that sufficient evidence existed to support the jury’s conclusion: no alcohol was found in Donald’s blood; he had a history of fainting spells but his last one occurred at least 2 years before the accident; he had driven % of a vacation visiting three states a few months prior to the accident; and his car was seen drifting back and forth down the wrong side of the highway for V2 mile preceding the accident.

During appellee’s closing argument, the following transpired:

“MR. COLE: I think your common sense will tell you that this boy either had a heart attack or was dead when this car crossed that centerline out there that day or_
“MR. MARLIN MOONEYHAM: Judge, I am going to object to him having a heart attack. I don’t think there’s any evidence whatsoever that he had a heart attack, and not any inference. I think it’s improper for him to argue to the Jury that he had a heart attack.
“THE COURT: I overrule your objection based upon, you know, that it’s argument to the Jury and it’s the way that Counsel sees it but what Counsel has to say is not evidence. The only evidence that you receive here is the evidence that you receive from the witness stand. What Counsel says is mere argument to you, so I overrule your objections, but I want to instruct you that the only evidence you are to consider is that which you heard here. All right. Go ahead.”

Appellant contends that the reference to a heart attack was prejudicial.

In argument to the jury, counsel may not argue as a fact that which is not in evidence, but he may state or comment on all proper inferences from the evidence and may draw conclusions from the evidence based on his own reasoning. Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973). Much must be left to the judgment of the trial court, with presumptions in its favor. To justify reversal, substantial prejudice must have resulted. Id. McLaney v. Turner, 267 Ala. 588, 104 So.2d 315 (1958).

The exact cause of Donald Card-well’s death was not brought out in the testimony. The reference to the heart attack could have meant to infer to the jury that his acts were beyond his control. While the evidence does not directly support the theory of a heart attack, the testimony regarding fainting spells supports the theory that Donald’s acts were beyond his control.

In view of the court’s instruction, we do not believe the argument was prejudicial under these facts. Rule 45, Alabama Rules of Appellate Procedure.

The jury instructions the appellants contend are in error are as follows:

“The Court charges the Jury that the only damages which can be awarded in this case are punitive damages for the purpose of punishing the deceased, Donald Frank Cardwell, or deterring others similarly situated, unless you are reasonably satisfied from the evidence that the said, Donald Frank Cardwell, should be punished or should be a deterrent for future prevention, then you should not award the plaintiff any damages.
“The Court charges the Jury that the damages to be awarded in this case, if any, are in the nature of a civil fine to be imposed upon Frank Cardwell or his estate. If, after considering all the evidence, any member of the Jury is not reasonably satisfied that such a fine should be imposed, then you should not return a verdict for the plaintiff.
“And, I must also charge you as an add-on to these, it would be for the purpose of punishment in the light of the deterrent in the future.”

The first two paragraphs of the part quoted are based on defendant’s requested charges numbers 1 and 2. During proceedings in the judge’s chambers, appellant’s counsel objected to both charges. He wanted the charges to explain that damages are for a punishment and to deter others. Because of the objection, the court agreed to add to the first paragraph, “as a deterrent to others,” and to the first sentence of the second paragraph, “as punishment or deterrent.” This satisfied the appellant.

The above quoted charges are as the court reporter took them down. In comparing the charges to what was agreed upon, we note that the first addition was properly included. The phrase, “or should be a deterrent for future prevention,” was not part of the original written charges. But the second addition was apparently overlooked by the judge as he read the charges. However, after the giving of the oral charge, which included the charges in question quoted above, appellant specifically stated he did not have any exceptions.

As we view the record, appellant’s objections were met; there is nothing for us to review. Griffin v. Respress, 281 Ala. 168, 200 So.2d 469 (1967).

In any case, we believe no prejudice resulted in view of the court’s entire charge. Rule 51, Alabama Rules of Civil Procedure; National Distillers and Chemical Corp. v. American Laubscher Corp., 338 So.2d 1269 (Ala., 1976); Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975).

The judgment of the trial court is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, EMBRY and BEATTY, JJ., concur.

JONES, J., dissents.

SHORES, J., not sitting.

JONES, Justice

(dissenting):

I respectfully dissent.

This Court is committed, and rightly so, to a rather liberal policy in setting the outer limits for permissible jury argument. The art of advocacy is very much alive in our jurisdiction, and this is to be encouraged rather than curbed. While counsel’s right, in the practice of the art of jury persuasion, to draw upon the literary classics and the folklore of our culture may have become less stylish as a practical matter, the exercise of this right is just as legally permissible today as ever in our history. Indeed, counsel has the right to argue the foolish, even the ridiculous, for, surely, the wisdom of the argument constitutes no element in the test of its legal propriety. See, for example, R. C. Bottling Company v. Sorrells, 290 Ala. 187, 275 So.2d 131 (1973).

But all of this assumes, where there is an objection and where substantial prejudice would otherwise result, that there is some evidentiary basis for the argued inferences and conclusions. In the instant case, the possibility that something could have happened beyond the defendant’s control is no evidentiary basis for the argument “that this boy either had a heart attack or was dead when this car crossed that center line . . . .” This argument supplied facts and, in my opinion,' was not an argument of an inference based on facts in evidence. Clearly, it seems to me, if the jury based its verdict on the fact that the defendant had a heart attack, its verdict is unsupported by the evidence.

The majority opinion concludes its rationale:

“In view of the court’s instruction, we do not believe the argument was prejudicial under these facts.”

This, in my opinion, is a misapplication of the “eradicability of error” Rule. I have found no cases where this Rule was applied in the context of a ruling adverse to the objecting party. In other words, the application of this Rule assumes prejudicial error, and it is only by. sustaining the objection, followed by appropriate instructions, that the error is eradicated. Here, the Court overruled the objection. In this context I do not understand how the Court’s instruction, which followed his ruling, could have corrected any assumed error. Indeed, the trial Judge cannot cure that which he has assumed was .not error in the first instance. It is my opinion that there is no field of operation for the “eradicability of error” Rule in the instant case.


author: PER CURIAM. MADDOX, Justice BEATTY, J.,

text:
    David Glen HERSTON v. Calvin M. WHITESELL, Thomas T. Gallion, III, and Cary Dozier.
    SC 1982.
    Supreme Court of Alabama.
    Aug. 12, 1977.

      Ralph H. Ford, of Ford, Caldwell, Ford & Payne, Huntsville, John B. Crawley and Robert H. Ford, Troy, for appellant.
    William B. Moore, Jr., Montgomery, for appellees Whitesell and Gallion.
    Joseph C. Espy, III, of Melton & Espy, Montgomery, for appellee Cary Dozier.
   PER CURIAM.

Appellant Herston brought suit against Attorneys Whitesell, Gallion and Dozier, ap-pellees, alleging that they negligently and with conscious indifference gave Herston “unskillful” advice, negligently gave improper notice of Herston’s claim to the City of Troy, and negligently failed to file Her-ston’s claim for damages within the one year period of time allowed by law.

The case is before us on summary judgment granted in favor of appellees. The issue is whether a material question of fact exists, in which case the judgment should be reversed, or whether the judgment should be affirmed as a matter of law. Rule 56, Alabama Rules of Civil Procedure. We believe material questions of fact do exist and reverse.

On April 2, 1974, appellant Herston fell while painting the interior of the City of Troy’s water tower. The appellant or his firm, Horizon Paint Contractors, had contracted with the City of Troy for the performance of the work. Inside the water tank, according to the appellant’s complaint, there are about 30 metal rods which radiate from the center of the water tower to the walls of the water tower. The rods are held together in the center by a “pie plate” or “disc.” Nuts, screwed onto the ends of the rods, attach the rods to the pie plate. Any given rod would rest on the pie plate in its hole without being secured by a nut, but if adequate weight were placed on a rod it would pull loose from the pie plate. Several of the employees of Horizon Paint noticed that some of the nuts were missing. The day after work began, notice of the missing nuts was given to the employees or agents of the City of Troy. Melvin McLen-don, Supervisor for the Water Department of the City of Troy, indicated that the rods would be fixed immediately. An employee of the City brought some nuts out to the site but made no effort to put the nuts on the rods, so Horizon Paint employees put on the nuts that were made available at that time. Over the next six weeks employees of Horizon Paint continued to ask Melvin McLendon as well as James Ray, Mayor of the City, and other City employees for nuts to attach to the remaining rods. Upon each request the City assured them that it would immediately provide the nuts and fix the rods.

Upon completion of painting the outside and the inside of the tower, with the exception of the “crown” of the tower, appellant Herston entered the tank to complete the job. He placed a 20 foot long board on several rods. He was midway on the board when the rods pulled out and appellant fell about 35 feet to the bottom of the tank.

Summary judgment was rendered on the pleadings and affidavits of the parties. The trial court reached its decision before allowing depositions.

Appellant’s affidavit contains, inter alia, the following:

“. . . Mr. Gallion asked us then if we had decided whether or not to sue for damages resulting from my accident. After some discussion, we agreed that suit should be filed, and the employment was made then, on a one-third contingent fee basis, which Mr. Gallion said was the usual charge in plaintiffs’ cases. .
“. . . Tommy [Gallion] said, ‘You’ve got a hell of a case.’ Gallion said in effect that he was going to get Cary Dozier to help in handling the case, because Cary was from Troy and Cary’s father had been a State senator from Pike County. Tommy Gallion, my wife, and I then stepped into Cary Dozier’s office and discussed the case with him for an hour or so. . . . He [Dozier] sent me a copy of the claim he filed against the City of Troy on June 28,1974. [Dozier signed Herston’s name to the claim as his attorney. The $100,000.00 claim was not sworn to.]
“One day, which I believe was on a Friday, July, 1974, my wife and I went to the office of Cary Dozier at Cary Dozier’s request. I believe it was Cary Dozier’s last day in the office before taking a job with the District Attorney. He told us he was taking a job with the District Attorney and that he was turning the case over to Whitesell. Dozier mentioned that, we should keep after Gallion and White-sell and not let them forget our case. Dozier then escorted us across the hall to Whitesell’s office.
“Whitesell recommended to me that I go see a Dr. Barnes, orthopedic surgeon, because he thought my Troy doctor, Dr. Adendorff, might let his testimony be tainted because the City of Troy had offered to pay his bill. .
“At some time in the fall of 1974, I went to Tommy Gallion and asked him to settle the case because we needed the money so badly. Mr. Gallion advised that I not do so because I had too good a case.
“The named defendants never advised me that I had no claim against the City of Troy. The defendants never advised me or invited me to seek the opinion of other counsel with regard to my accident. . [A]bout September 8, 1975, I was advised by Mr. Ford [attorney to whom Gallion allegedly sent Herston in August, 1975] that the statute of limitations had expired on my claim against the City of Troy.”

Appellee Gallion’s view of this situation, as indicated by his affidavit, is as follows:

“When Mr. Herston came by my office I was engaged in conversation with a client, Mr. James C. Sheppard, Jr. Mr. Herston casually stood at my door when I asked him what had happened (his arm was in a sling), he said that he had had a fall in Troy, Alabama while a contractor on a paint job on the water tower of the City of Troy. While Mr. Sheppard was in my office, I casually replied back to Mr. Herston that I did not think you could sue the City. However, he may be able to recover expenses by having Cary Dozier of our firm go to Troy and talk with the people down there and see if they were willing to pay any of his hospitalization. At what particular time I got out of my chair, went to the next office, introduced Mr. Dozier and Mr. Herston to one another and told Cary Dozier if he would, to look into the matter and see what he could do to help Herston. That was the last time I ever heard anything from Mr. Herston, Mrs. Herston or any of the Herstons, or the City of Troy or anybody else concerning this matter.”

Appellee Whitesell states the following in his affidavit:

“I did interview the plaintiff who was introduced to me by Cary Dozier who was an associate in our law firm, and Cary was leaving to join the District Attorney’s Office. At the time he introduced me he showed me preliminary work that he had done investigating the fall that the plaintiff had had in the water tower in Troy, Alabama. Prior to that time, Cary had mentioned to me that he was investigating a suit in Troy that might lie against the City of Troy, and I had advised him to be sure and file a claim before six months ran as most cities and towns have a six months statute in which you must file notice of a claim. I was of the opinion then, and am of the opinion now, that Mr. Herston had no claim against the City of Troy for his injuries. I so advised him and invited him to seek the opinion of other counsel. I invited him to take whatever file we had on the matter and I believe he did do so. I gave this opinion to Mr. Herston at least six months before the statute of limitations would have run if there had been a cause of action which had a statute of limitations.
■ “Mr. Herston never mentioned this claim to me again or contacted me in any other fashion regarding same. . . . ”

Appellee Dozier’s affidavit does not vary significantly from the appellant’s with regard to Dozier’s activity.

The elements of an action against an attorney in his professional capacity for negligence are essentially no different from those of any other negligence suit. To recover, the appellant must prove a duty, a breach of the duty, that the breach was the proximate cause of the injury, and damages. Alabama Digest, Negligence, Key 1; Wade, The Attorney’s Liability for Negligence, 12 Vand. Law Rev. 755 (1959); Bar-clift and Newman, The Attorney’s Liability for Negligence: an Alabama Perspective, 7 Cumberland Law Rev. 69 (1976).

As to duty, the appellant contends that an attorney-client relationship existed between him and the appellees. Gallion and Whitesell deny the existence of such a relationship. In this instance, whether an attorney-client relationship existed is a question of fact for the jury. Walker v. Goodman, 21 Ala. 647 (1852). Pinkston v. Arrington & Graham, 98 Ala. 489, 13 So.2d 561 (1892).

The duty an attorney owes his client is to use “reasonable care and skill” in managing the business of his client. Goodman v. Walker, 30 Ala. 482, 496 (1857); Evans v. Watrous, 2 Port. 205 (1835). If an attorney had a duty to use more than reasonable care and skill, no one would venture to act in such a capacity. Goodman, supra; Evans, supra. The duty of using reasonable care and skill applies to the manner in which the attorney pursues the case and the law which he applies to the case. As Dean Wade states in his Vanderbilt Law Review article, supra, “It [standard of care] is composed of at least two elements . The first has to do with care and diligence which he must exercise. The second is concerned with the minimum degree of skill and knowledge which he must display.” Id. at 762.

. The undertaking of a suit, implies a faithful and diligent prosecution of it; and where it appears by the declaration, that there was a good cause of action, the attorney is bound to show some reasonable excuse for not conducting it to a successful termination. . . ”
Evans, supra, at 211.
“. . . If the law governing the bringing of this suit was well and clearly defined, both in the text-books, and in our own decisions; and if the rule had existed, and been published, long enough to justify the belief that it was known to the profession, then a disregard of such rule by an attorney-at-law renders him accountable for the losses caused by such negligence or want of skill; negligence, if knowing the rule, he disregarded it; want of skill, if he was ignorant of the rule.” Goodman, supra, at 496.

The appellant’s contention is that the appellees either negligently failed to pursue the case and/or negligently gave bad advice. Whitesell says he told the appellant that he did not have a valid claim at least 6 months before the statute of limitations ran and invited him to take his file. Appellant contends he was never told he did not have a valid claim or that he should seek the opinion of other counsel.

Whether the appellees breached their duty to use reasonable care and skill under the alleged facts of this case is for the jury to decide. We note, though, that while one’s advice may be wrong (assuming arguendo), it may nevertheless be reasonable. An attorney “is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction.” Goodman, supra, at 496.

As to proximate cause, the appellant contends that as a result of the appellees’ negligence he lost a valid claim against the City of Troy. Two legal questions arise at this point: (1) Could the appellant have stated a cause of action against the City? If he could not have, then any negligence of the appellees could not have proximately caused the loss of appellant’s claim (and for that matter, the advice that he had no claim, assuming it was given, would have been correct). (2) Was the notice of the claim to the City legally sufficient? If it were, appellee Dozier could not have been negligent, as he left the firm shortly thereafter and gave notice to the appellant that he could no longer handle the case.

As to the first question, we hold only that the appellant’s claim against the City of Troy would not have been barred by the doctrine of sovereign immunity as the operation of a water tower is a proprietary function, not a governmental one. City of Birmingham v. Lake, 243 Ala. 367, 10 So.2d 24 (1942); Montgomery v. City of Athens, 229 Ala. 149, 155 So. 551 (1934); Town of Athens v. Miller, 190 Ala. 82, 66 So. 702 (1914). We, of course, did not consider whether an attorney could reasonably have concluded that action against the City of Troy would have been barred by the doctrine of sovereign immunity. We also did not consider whether the City of Troy had defenses which would have precluded the appellant’s claim, whether an attorney could reasonably believe that the City had defense that would have precluded the appellant’s claim, or whether the appellees’ negligence, if they were negligent, is the proximate cause of the injury.

As to the second question, the notice to the City was legally insufficient. Tit. 37, § 504, Code of Alabama 1940, Recompiled 1958, reads as follows:

“§ 504. Statements, claims, or demands for injury filed.—No recovery shall be had against any city or town, on a claim for personal injury received, unless a sworn statement be filed with the clerk, by the party injured, or his personal representative, in case of his death, stating substantially the manner in which the injury was received, and the day and time, and the place where the accident occurred, and the damages claimed.”

Appellee Dozier signed the appellant's name to the notice as his attorney and failed to make the claim a sworn statement. The statute states that the claim has to be a sworn statement made by the injured party. City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967); City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963).

While the notice to the City of Troy was not in compliance with the statute, we again leave to the jury the decision of whether Dozier's action was one of reasonable care and skill, and whether that negligence, assuming arguendo there was negligence, was the proximate cause of the injury-

We also did not decide whether the appellant would have had a defense with regard to the notice of his claim against the City of Troy for not filing an adequate notice. City of Montgomery v. Weldon, supra.

We do not consider what we have said to foreclose issues below as they are approached on remand. We have merely addressed the questions presented to the extent necessary to show that material questions of fact exist.

The judgment in this cause is reversed and the cause is remanded.

REVERSED AND REMANDED.

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

MADDOX and BEATTY, JJ., concur specially.

EMBRY, J., recuses self.

SHORES, J., not sitting.

MADDOX, Justice

(concurring specially):

I concur that summary judgment was inappropriate; however, I do not desire to be understood as agreeing that the notice of claim filed with the City of Troy failed to substantially comply with the requirements of law. See City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963).

BEATTY, J.,

concurs.

      . The case of Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), which ruled that the legislature abolished the doctrine of sovereign immunity as to municipalities, does not apply to this case, as it was not decided until July 10, 1975.


author: WRIGHT, Presiding Judge.

text:
    Joseph E. BROUGHTON v ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD et al.
    Civ. 1092.
    Court of Civil Appeals of Alabama.
    March 30, 1977.
    Rehearing Denied May 4, 1977.
    James R. Owen of Owen, Ball & Wills, Bay Minette, for appellant. o
    Henry B. Steagall, III of Steagall & Adams, Ozark, for appellees.
   WRIGHT, Presiding Judge.

This appeal is from the refusal of mandamus.

On November 24,1975, Joseph E. Brough-ton applied to the Alabama Alcoholic Beverage Control Board (hereinafter referred to as the ABC Board) for a retail license to sell beer for consumption off the premises of his establishment. After a hearing on March 17, 1976, at which Broughton and his attorney were present and had an opportunity to call witnesses in their favor and to cross-examine adverse witnesses, the ABC Board denied a license. On March 31 Broughton petitioned the circuit court of Baldwin County for writ of mandamus to compel issuance of the license. The Board moved for change of venue to Montgomery County, the official residence of the ABC Board and its constituent members. Transfer to Montgomery County Circuit Court was effected. After briefs were submitted by counsel, on August 3 the court found the ABC Board had acted properly and within the scope of its authority, that its decision demonstrated no bad faith, and that there was sufficient testimony to refuse issuance; therefore it denied relief to Broughton.

Material evidence presented to the Board was as follows: Broughton operates a self-service gasoline station at the intersection of Highways 225 and 138 in Baldwin County. This enterprise is not located in the corporate limits of any municipality. In a portion of the station Broughton operates a convenience store. All the evidence before the ABC Board indicated Broughton was a reputable member of the community, was over 21 years of age and had never been convicted of a felony or misdemeanor. A grammar school is situated directly across the street 150 to 171 feet north of the station; a grocery store which does not sell beer is to the east; Broughton’s residence is to the west; and the church of which Broughton is a member is 500 feet away disagonally across the intersection. The ABC Board had denied Broughton a license once before. Noting specifically the close proximity of the elementary school to the station, the ABC Board based its decision on

“grounds of public policy and general police powers in that the granting of a license at this location would not be in the best interest of the community, based on complaints of citizens in the immediate proximity of the applicant’s place of business.”

The issue raised by Broughton on appeal is whether the trial court erred in refusing mandamus. He contends he fully complied with all statutory requirements for issuance of a beer license in that he is a reputable individual and thus was entitled to the license as a matter of right. He further contends the ABC Board abused its discretion in failing to issue the license.

The ABC Board is empowered to issue beer licenses by Tit. 29, § 5, Code of Alabama (1940) (Recomp.1958) (Supp.1973). Tit. 29, § 28, as relevant, states: “Licenses shall be granted by the board only to reputable individuals . . . Broughton contends since all the testimony was that he was a reputable individual, he has met all the requirements of § 28 and is entitled to a license as a matter of right.

Tit. 29, § 2(a) states:

“This chapter shall be deemed an exercise of the police power of the state of Alabama for the protection of the public welfare, health, peace and morals of the people of the state, and to prohibit forever the open saloon; and all of the provisions of this chapter shall be liberally construed for the accomplishment of this purpose.”

Notwithstanding the absence of restrictions in a statute or ordinance, licensing authorities have as a general rule been permitted to deny licenses where the proposed location is improper by reason of the location and its surroundings. 48 C.J.S. Intoxicating Liquors § 136; 45 Am.Jur.2d Intoxicating Liquors, § 138. Alabama prohibits a state liquor store from locating within one mile of an eleemosynary institution unless it is within 400 feet of the courthouse. Tit. 29, § 73.

The ABC Board has a wide discretion in granting or refusing an original license but this discretion is not unbridled, and the board must assign a reason for its action. State ex rel. Krasner v. Alabama Alcoholic Beverage Control Board, 246 Ala. 198, 19 So.2d 841 (1944); Reams v. State ex rel. Clokey, 45 Ala.App. 614, 234 So.2d 893 (1970).

We find no cases strictly on point, but we believe those cases upholding the municipal ordinances or statutes indicate a similar restriction by the ABC Board in an area outside a municipality would be reasonable under the circumstances of each case. See, e. g., USA Oil Corp. v. City of Lipscomb, 293 Ala. 103, 300 So.2d 362 (1974) (within three city blocks of church and school); Capps v. Bozeman, 272 Ala. 249, 130 So.2d 376 (1961) (within 1000 feet of church); State ex rel. Cummings v. Stiles, 121 Ala. 363, 25 So. 1015 (1899) (within 3 miles of school); Love v. Porter, 93 Ala. 384, 9 So. 585 (1891) (within 3 miles of school); Carlisle v. State, 91 Ala. 1, 8 So. 386 (1890) (within 3 miles of Methodist and Baptist churches); Dorman v. State, 34 Ala. 216 (1859) (within 5 miles of university); An-not., 49 A.L.R.2d 1103 (schools); Annot., 59 A.L.R.2d 1439 (churches). In State ex rel. Woodruff v. Centanne, 265 Ala. 35, 89 So.2d 570 (1956), a license was held to have been improperly denied since the location was over 580 feet from the school building and the ordinance barred establishments only within 500 feet.

We do not find any abuse of discretion by the ABC Board in denying this license because of the proximity of the school and church.

A license to engage in the sale of intoxicants is merely a privilege with no element of property right or vested interest of any kind. Ott v. Moody, 283 Ala. 288, 216 So.2d 177 (1968); Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963); Paulson’s Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 139 So.2d 330 (1962). Selection of the beneficiaries of a mere privilege may be committed to the discretion of the body created for that purpose. State ex rel. Crumpton v. Montgomery, 177 Ala. 212, 59 So. 294 (1912).

We find no abuse of discretion in the denial of license to Broughton.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Joseph E. BROUGHTON.
    SC 2575.
    Supreme Court of Alabama.
    Aug. 26, 1977.
   TORBERT, Chief Justice.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    Samuel Lee PACE v. John Arthur JORDAN.
    Civ. 1159.
    Court of Civil Appeals of Alabama.
    June 8, 1977.
    Rehearing Denied July 6, 1977.

      W. Brent Dodd, Dodd & Dodd, Walter Cornelius, Birmingham, for appellant.
    John W. Clark, Dunn, Porterfield, Scholl & Clark, Birmingham, for appellee.
   HOLMES, Judge.

This is an appeal by Samuel Lee Pace, the plaintiff below, from the Circuit Court of Jefferson County’s denial of his Rule 60(b), ARCP, motion. The sole issue on appeal is the propriety of the trial court’s ruling with regard to the motion. We affirm.

In January of 1975, Pace filed suit against the defendant below, John Arthur Jordan, for injuries incurred as a result of an automobile accident with Jordan. A trial was had in mid April of 1976 and a jury returned a verdict for Pace and assessed his damages at $2,500.

At the trial, the deposition of Dr. Keith H. Langford was read into evidence. Dr. Langford treated Pace from the time of the automobile accident in November of 1974 through July, 1976.

Dr. Langford stated that he had seen and treated Pace on numerous occasions subsequent to the automobile accident. At the initial time of the accident in November of 1974, x-rays had been made of Pace’s neck and spine. These x-rays indicated no visible signs of injury to Pace’s body. Pace, however, complained of neck pains and he was placed in traction for three days before being discharged from the hospital.

Pace returned to see Langford, or other physicians in Langford’s absence, on approximately 14 different occasions during the 17 months following the automobile accident. On these visits, Pace complained of stiffness in his back and pains in his back, neck, and extremities. Pace would appear to progress for some time and then the pains would reoccur.

The most recent dates Pace was seen by a physician prior to trial were February 19, 1976, and March 30, 1976. On these visits, he complained of pain in his neck and right leg, numbness in the tips of his fingers and hands, and weakness in his hands. These pains are common for someone who has had a severe spinal injury. There is no suggestion that Pace feigned the extent of his injuries. Throughout these visits, Dr. Langford prescribed pain killing pills and physical therapy.

Dr. Langford also made the following comments:

“Q Do you have any type of prognosis for him [Pace]?
“A The prognosis, I believe, is that he will intermittently have pain in the neck and in the lower part of the back, but, that he will probably not get any worse than he is now.
“Q Would this pain be incapacitating at all?
“A At times, I expect it will incapacitate him for a few weeks at a time.
“Q Is there a possibility that he may have some permanent damage?
“A Yes, there is a possibility.
“Q You mentioned that he may be incapacitated in the future?
“A Yes.
“Q Is there a possibility that his condition could worsen so that he couldn’t continue working?
“A Yes, there is.”

Pace’s motion for a new trial on the grounds of inadequacy of damages was denied. He took no appeal from the order denying his motion.

On August 12, 1976, Pace filed a 60(b) motion seeking to have the jury’s verdict set aside. His motion alleged that subsequent to the jury verdict in April of 1976, he had undergone a serious operation which was required to be performed as a result of the injuries he incurred in the November, 1974, automobile accident. He stated that neither he nor his attorney knew, nor could they have ascertained through the exercise of due diligence, that the operation would be required. He alleged the increased medical expenses and loss of earnings associated with the operation constituted newly discovered evidence which warranted setting aside the judgment.

From the denial of his 60(b) motion, Pace filed this appeal.

At the outset, we point out that the granting or denial of a motion to set aside a judgment on the basis of newly discovered evidence is a matter largely within the discretion of the trial court. The trial court’s decision will not be reversed unless it is plainly shown to have abused its discretion. Morris v. Yancey, 272 Ala. 549, 132 So.2d 754 (1961); Blevins v. Pruitt, 56 Ala.App. 76, 319 So.2d 275 (1975). Kodekey Electronics, Inc. v. Mechanex Corp., 486 F.2d 449 (10th Cir. 1973); 1Giordano v. McCartney, 385 F.2d 154 (3rd Cir. 1967).

Motions to set aside judgments on the basis of newly discovered evidence are not favored. Mittlieder v. Chicago & Northwestern Railway Co., 441 F.2d 52 (8th Cir. 1971). The rationale underlying the stringent granting of relief pursuant to Rule 60(b) is clear — eventually there must be an end to litigation. 7 Moore’s Federal Practice, ¶60.27[2], p. 355 (1975); C. Wright, Law of Federal Courts, 440 (1970); Wright and Miller, Federal Practice and Procedure: Civil § 2857, p. 159 (1973). In accordance with this philosophy of enhancing the sanctity of final judgments, it has repeatedly been held that Rule 60(b) relief is available to the complaining party only under the most extraordinary and compelling circumstances. Stradley v. Cortez, 518 F.2d 488 (3rd Cir. 1975); Horace v. St. Louis Southwestern Railroad Company, 489 F.2d 632 (8th Cir. 1974); Plisco v. Union Railroad Company, 379 F.2d 15 (3rd Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 590, 19 L.Ed.2d 660 (1967). We do not deem the circumstances of this case to be so extraordinary as to enable this court to unequivocally state that the trial court abused its discretion in denying Pace’s 60(b) motion.

Free, calculated, deliberate choices do not entitle one to 60(b) relief. Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950); Lubben v. Selective Service System Local Board No. 21, 453 F.2d 645 (1st Cir. 1972). Here, Pace had repeatedly seen physicians. The trial court could have concluded that Pace was or should have been aware that he might require further medical treatments and be unable to work for extended periods of time. However, he chose to proceed at the time and in the manner previously indicated.

We are not to be understood as being critical of any actions taken by Pace or his attorneys regarding the above. Such matters arise frequently during the course of a lawsuit and require decisions which involve application of various factors, both objective and subjective. That such decisions, when viewed in retrospect, might be different do not warrant 60(b) relief.

Under circumstances similar to those contained herein, the trial court’s denial of a 60(b)(2) motion has been sustained. In Still v. Townsend, 311 F.2d 23 (6th Cir. 1962), the plaintiff was awarded damages of $1,375 for injuries sustained in an automobile accident. Her newly discovered evidence consisted of the diagnosis of a qualified neurological surgeon, who saw her for the first time after trial, that her injury was “most serious and productive of permanent disability.” This opinion differed from that expressed by her physicians at trial. The 6th Circuit Court of Appeals affirmed the trial court’s denial of her motion for a new trial based on newly discovered evidence.

Here, the trial court determined that Pace was not entitled to 60(b) relief. While we cannot state that the ruling of the trial court was the only available alternative, we are certain that such ruling does not constitute the clear abuse of discretion which mandates reversal by this court.

Pace, through able counsel on appeal, also contends the trial court erred in not setting aside the judgment because of the inadequacy of damages. As previously stated, he had asserted inadequacy of damages as a ground for a new trial in his Rule 59 motion, the denial of which he failed to appeal. Now, however, he seeks to have this court review the propriety of the jury’s award of damages pursuant to his Rule 60(b) motion.

It is clear that this court could not review the trial court’s ruling with respect to Pace’s motion for a new trial on the inadequacy of damages, since Pace failed to appeal within the prescribed time. Rule 4(a), ARAP. Having failed to obtain review by appeal, he may not now obtain review pursuant to Rule 60(b), since the rule is not a substitute for appeal. Burnside v. Eastern Airlines, Inc., 519 F.2d 1127 (5th Cir. 1975); 7 Moore’s Federal Practice, ¶ 60.27[2], p. 352 (1975). See also Wilger v. Department of Pensions & Security, Ala.Civ.App., 343 So.2d 529 (1977).

The ruling of the trial court is to be affirmed.

AFFIRMED.

BRADLEY, J., and PAUL, Retired C. J., concur.


author: SHORES, Justice.

text:
    Ex parte Samuel Lee PACE.
    SC 2721.
    Supreme Court of Alabama.
    Aug. 26, 1977.
   SHORES, Justice.

WRIT DENIED.

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