author: PATTERSON, Presiding Justice,

text:
    SOUTHEASTERN FIDELITY INSURANCE COMPANY et al., Defendants-Appellants, v. Melvin GANN, Plaintiff-Appellee.
    No. 48870.
    Supreme Court of Mississippi.
    Nov. 30, 1976.
    Rehearing Denied Dec. 14, 1976.

      Aultman, Pope, Aultman, Van Slyke & Tyner, Thomas W. Tyner, Hattiesburg, for defendants-appellants.
    Armis E. Hawkins, Houston, Darden & Sumners, Lester F. Sumners, New Albany, for plaintiff-appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   PATTERSON, Presiding Justice,

for the Court:

Melvin Gann brought suits in the Circuit Court of Chickasaw County to obtain the proceeds of certain insurance policies issued by Southeastern Fidelity Insurance Company, Industrial Fire & Casualty Company and Balboa Insurance Company, totaling $20,000. The suits were consolidated and tried to the court without a jury. The court found for the plaintiff in the sum of the policies and the defendants, aggrieved, present this joint appeal.

Gann owned and lived upon a farm near Houston, Mississippi. Influenced by the organizational structure of the Houston Country Club, a nonprofit corporation, he determined to create a working-man’s counterpart. His efforts resulted in the creation of the Ponderosa Country Club, Inc., the building being constructed on land adjacent to Gann’s residence. The building was financed through funds borrowed by Gann, James Kyle and Shorty Black. It was a single story structure, 30 x 120 feet, with concrete block walls and a shingle roof.

The club was used for informal parties in which dancing was one of the entertainments. In 1972 the sheriff objected to dancing at the club resulting in sharp curtailment of this activity. Because dancing was no longer permitted, the club directors voted to partition 30 x 90 feet of the building into three rental apartments to defray club expenses. The front 30 x 30 feet was maintained as a club for the use of its members.

Gann, president of the Ponderosa Country Club, procured the insurance on the club building. It was obtained through Robert Scott, an employee of the Tabb Insurance Agency of Houston, Mississippi. Gann contacted Scott to secure insurance upon his home, his airplane and the club building as he thought it convenient to have his insurance with one agency. Gann informed Scott that fire and hazard insurance were desired on “the 3-family dwelling in the back part of the club . . . the ninety

feet.” Scott was notified of the intention to retain the remaining space in the front of the building as a club.

Scott agreed to obtain insurance upon the building consistent with these uses, but was unable to do so from companies licensed by the state. He thereupon obtained coverage from the appellants, all nonadmitted insurers within the state, effective May 6, 1972.

The affidavit of Scott, the agent, certified to be correct by Gann, the insured, “setting forth facts in complete detail,” required by Mississippi Code Annotated section 83-21-23 (1972) related to purchasing insurance from a nonadmitted company, was not executed until November 9, 1972. Although the policies were issued to Melvin Gann individually, he denied this was his request, testifying that he asked Scott to insure the Ponderosa Country Club. However, he did not deny his signature upon the affidavit indicating he owned the “3-Family Tenant Dwelling.”

Gann dealt only with Scott in obtaining the insurance. He did not sign an application for coverage nor was he requested to do so. It was stipulated that the representations concerning insurance on the club building were those of Gann. However, he had no knowledge of how the insurance was obtained, stating,“I just left it up to him.” The three policies were mailed to Gann who never read them. Several weeks thereafter Scott and an unidentified individual came to Gann’s property, inspected his home and had the opportunity to observe the club building although neither asked to examine it. Gann was billed by Scott and paid the premiums on the insurance to him.

On December 9, 1972, the club building was destroyed by fire and Gann was thereafter interrogated under oath in accord with the policies’ provisions. He answered all questions except those concerning title to the club property and in this refusal referred the insurers to the county land records for the status of title.

Although Scott was subpoenaed by the plaintiff, he was not called to testify by either party. The only witness was Gann and his testimony is undisputed. It establishes that the club was his brainchild and was constructed with funds borrowed by Gann, James Kyle and Shorty Black on lands conveyed to the club by Gann or through his efforts. The grantors were Mrs. Louise Gann Posey, Mrs. Bobby Gann Hurt and Mrs. Bonnie Gann Wilkes. Gann was asked, “So you had deeded the land to Ponderosa Country Club, Inc. Is that right?” He responded, “Yes, sir.”

Additionally, Gann was the club’s president from its beginning until he purchased, after the fire, all outstanding stock, thereby becoming, according to his reasoning, the sole owner of the corporation and as such conveyed, or attempted to convey, the corporate property to himself. The previous insurance on the building was in the corporate name.

These suits were brought in Gann’s name although the Ponderosa Country Club, Inc. was the record owner. In this circumstance Gann asserts that it is immaterial whether the proceeds are paid to the Ponderosa Country Club, Inc. or to the Ponderosa Country Club, Inc. and himself.

The trial judge found that Scott was the agent of the insurers and that Gann was the owner of the corporation with an insurable interest in the property. Therefore a judgment for $20,000, the sum of the policies, was awarded the plaintiff.

The appellants urge for reversal that the trial court erred (1) in not finding for the appellants because the appellee failed to answer questions in an examination under oath material to the risk, (2) in finding Robert Scott to be the agent of the appellants, (3) in failing to find for the appellants on the issue of misrepresentation of the insured property, and (4) in failing to find the plaintiff had no insurable interest in the insured property.

We are of the opinion the first assignment is without merit. It is beyond argument that an insurer has a right to interrogate the insured upon questions material to the contract when such provision is parcel of the policy. This generalization, however, does not mean that each uncertain answer, or that referring the insurer to a source of information would cancel the policy. In Taylor v. Fireman’s Fund Insurance Co., 306 So.2d 638 (Miss.1974), we cited with approval from Claflin v. Commonwealth Insurance Co., 110 U.S. 81, 3 S.Ct. 507, 28 L.Ed. 76 (1883), the following:

The object of the provisions in the policies of insurance, requiring the assured to submit himself to an examination under oath, to be reduced to writing, was to enable the Company to possess itself of all knowledge, and all information as to other sources and means of knowledge, in regard to the facts, material to its rights, to enable it to decide upon its obligations, and to protect it against false claims. And every interrogatory that was relevant and pertinent in such an examination was material, in the sense that a true answer to it was of the substance of the obligation of the assured. . . . (306 So.2d at 645)

See also Standard Ins. Co. v. Anderson, 227 Miss. 397, 86 So.2d 298 (1956). The response to the questions of appellants’ counsel, contended to forfeit the policies, was not a refusal to answer, but was a reference to information which would have revealed the status of title. The questions to Gann and his answers were:

Q. Who owned the land on which this building was located?

A. The Club.

Q. The Ponderosa Club, Inc.?

A. Yes, sir.

Q. So you had deeded the land to Ponderosa Country Club, Inc. Is that right?

A. Yes, sir.

Q. Ponderosa Country Club, Inc. actually owned the building and the land on which it was situated?

MR. HAWKINS: [Gann’s counsel]

The records over here would speak for themselves. I don’t know, myself. You would have to check the records. I would not want to answer something without checking the records, themselves.

MR. AULTMAN:

Do you object to him answering?

MR. HAWKINS:

Yes, sir, without checking the records.

MR. AULTMAN:

Q. On advice of counsel do you refuse to answer?

MR. HAWKINS:

I am telling him that the records, themselves, Mr. Aultman, will speak for themselves. You can check the records.

MR. AULTMAN:

If he knows who owns it, I would like for him to tell me.

MR. HAWKINS:

I don’t know if he knows who owns it or not. He would have to see the deed records. It is a title question; it is a legal question in my opinion.

MR. AULTMAN:

Q. Do you refuse to answer that, Mr. Gann?

A. Yes, sir.

All questions of which Gann had knowledge were answered and his refusal, if it be such, to respond to queries concerning title does not, in our opinion, appear to be an attempt to willfully conceal information material to the risk or to otherwise deceive the insurer. In Taylor, supra, relied upon by the appellants, the claimant swore he was the sole owner of a house that burned. The records revealed he owned at best a one-half interest against which there was an indebtedness for the purchase price secured only by Taylor’s check drawn upon an insolvent account. By contrast Gann acknowledged the Ponderosa Country Club owned the property, but when prompted by counsel, concluded the records would best reflect the title. His reference seems to be nothing more than a recognition that records are more accurate than memory. The numerous refusals and evasive answers in Taylor, supra, present a far different factual situation from the present, thereby distinguishing it. We conclude that Taylor, supra, does not require a forfeiture of the present policies.

As noted, Gann dealt only with Scott in purchasing the insurance and left all details to him. Scott’s endeavors led to the policies being issued by the nonadmitted companies. He billed Gann for the premiums and they were paid by Gann. From these facts the trial judge found that Scott was the agent of the appellants. We agree. Mississippi Code Annotated section 83-17-1 (1972) provides in part:

Every person . . . who takes or transmits, ... an application for insurance or a policy of insurance, or who shall receive or deliver a policy of insurance of any such company, or who shall examine or inspect any risk, or receive, collect, or transmit any premium of insurance . . or do or perform any other act or thing in the making or consummation of any contract of insurance for or with any such insurance company, ... or who shall . aid in adjusting any loss for or on behalf of any such insurance company . shall be held to be the agent of the company for which the act is done or the risk is taken as to all the duties and liabilities imposed by law, whatever conditions or stipulations may be contained in the policy or contract.

The appellants argue, however, that this section has no application to nonadmitted insurance companies because Mississippi Code Annotated section 83-21-31 (1972) has specific application to an unauthorized insurer, thereby eliminating consideration of Section 83-17-1, a general section. Section 83-21-31 provides:

As to any policy or contract issued pursuant to sections 83-21-17 to 83-21-31, and as to any claim for loss or damage arising under any such policy or contract, the cited sections shall apply. As to any such policy or contract issued by an unauthorized insurer in a manner not provided in said preceding sections, sections 83-21-31 to 83-21-51 shall apply.

We think this contention has no merit. The sections preceding Section 83-21-31 relate to the procedural necessities for obtaining insurance, the licensing of agents for nonadmitted companies, their bond and the agent’s report. The succeeding sections relate to service of process, acts constituting the insurance commissioner as an agent and related matters. None refer to acts sufficient to constitute an agent. Since this is so, we are of the opinion that Section 83-17-1 does apply. Moreover, Scott became the agent of the appellants under the general law of agency by the present facts. He acted in their behalf in placing the insurance and they accepted his services by issuing the coverage. Both were to profit from the transaction. The trier of facts did not err in this regard. Turner v. Williams, 257 So.2d 525 (Miss.1972); Engle Acoustic & Tile, Inc. v. Grenfell, 223 So.2d 613 (Miss.1969); and Overing v. Skrmetta, 218 Miss. 648, 67 So.2d 606 (1953).

It is contended the policies should be cancelled because of material misrepresentations of the insured. In considering this issue we observe that Gann’s only communication with the appellants was through his affidavit certifying the correctness of Scott’s affidavit of November 9, 1972, for procurement of insurance from a nonadmit-ted company. It names Melvin Gann as the person for whom insurance was sought and describes the property as a “3-Family Tenant Dwelling.”

The policies were effective May 6, 1972, several months prior to the affidavit. Therefore, the representation did not induce the appellants to issue the policies. Moreover, the recitations in the affidavit and certificate were facts known by Scott with nothing to indicate that Gann initiated the affidavit. Scott was aware that a portion of the building was to be continued as a club and, indeed, he had knowledge that it had been previously so used since he set up the bookkeeping for the enterprise. We conclude the contended misrepresentations did not have a material effect upon the issuance of the policies.

Finally, it is urged the policies are unenforceable because Gann had no insurable interest in the Ponderosa County Club. We are cognizant of the general rule that an insurable interest in property must exist in an insured when the contract is entered for it to be effective. The present question is whether Gann had an economic interest in the property although the naked title was in the Ponderosa Country Club, Inc. when the policies were issued.

The property was conveyed to the Ponde-rosa Country Club by the efforts of Gann. His interest in the club was sufficient for him to borrow, with others, $12,000 toward the construction of the building. He was the president and, as best we can determine from the record, the manager of the enterprise. His actions subsequent to the fire were consistent with his interest preceding it. He paid $8000 to retire an indebtedness against the building and redeemed all outstanding shares of stock. He testified, “I took the full loss.” Moreover, the building had an undisputed worth of $40,000 and was insured for one-half of that amount. Additionally, there is no evidence of any interest in the property or the proceeds of the insurance other than that of the appel-lee.

From these circumstances we are of the opinion the trial court correctly found Gann had an insurable interest in the property even though the legal title was elsewhere. He was subject to economic loss at the time the policies were issued if the building were destroyed. Liverpool & London & Globe Ins. Co. v. Delaney, 190 Miss. 404, 200 So. 440 (1941). And see Aetna Ins. Co. v. King, 265 So.2d 716 (Fla.App.1972); Skaff v. United States Fidelity & Guaranty Co., 215 So.2d 35 (Fla.App.1968); and Smith v. Eagle Star Ins. Co., 370 S.W.2d 448 (Tex.1963), wherein that Court quoted with approval 29 Am.Jur. 781, Insurance, section 438, as follows: “The principle may be stated generally that anyone has an insurable interest in property who derives a benefit from its existence or would suffer loss from its destruction. . . . ” (370 S.W.2d at page 450) The reason for the rule requiring an interest in property upon which insurance is sought is to prevent the coverage from becoming a wagering contract contrary to public policy. 4 Appleman, Insurance Law and Practice, § 2121 (1969). There is no evidence before us indicating these policies were obtained contrary to public policy because of the lack of an insurable interest. We therefore conclude the trial court’s finding was correct and surely we cannot state it was manifestly contrary to the evidence. McDaniel Bros. Constr. Co. v. Jordy, 195 So.2d 922 (Miss.1967).

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Peyton ALEXANDER v. KIMBROUGH INVESTMENT COMPANY and Richard Kimbrough.
    No. 48869.
    Supreme Court of Mississippi.
    Dec. 7, 1976.
    Chill, Chill & Dove, Bernard W. N. Chill, Marlane E. Chill, Jackson, for appellant.
    Cox & Dunn, William H. Cox, Jr., Jackson, for appellees.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

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

AFFIRMED.

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


author: WALKER, Justice,

text:
    Jessie Lee PARKER v. J. H. HOWARTH, D/B/A Circle H. Farms.
    No. 48937.
    Supreme Court of Mississippi.
    Dec. 7, 1976.

      Jacobs, Griffith & McIntosh, Charles C. Jacobs, Jr., Cleveland, for appellant.
    Campbell & DeLong, Roy D. Campbell, Jr., Greenville, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

Jessie Lee Parker filed this action in the Circuit Court for the Second Judicial District of Bolivar County, Mississippi, to recover damages resulting from having been run over by a tractor during the course of his employment with J. H. Howarth, the defendant. Howarth pleaded in bar of the action a release signed by Parker and his wife and moved the court to dismiss the suit. The parties agreed to submit the question of the validity of the release to the judge sitting without a jury. After an evidentiary hearing, the judge granted Ho-warth’s motion to dismiss.

Parker argues in effect that the trial court erred in granting Howarth’s motion to dismiss since the evidence is clear and convincing that Parker was overreached, deceived and fraudulently induced into signing the release.

The evidence reveals that on April 1, 1972, while working on Howarth’s farm, Jessie Parker was run over by the rear wheel of a heavy 4020 diesel tractor, the wheel being approximately five to six feet in diameter. He was treated at the Green-ville Hospital by Dr. Lloyd A. Merbitz, who testified by deposition that Parker had suffered severe fractures of the pelvis, had hemorrhaged internally until he was in a state of shock and came near to death, and his blood showed evidence of fat emboli, probably as a result of the fracture. The doctor explained that emboli can lead to unconsciousness or death, and in Parker’s case, “It led to considerable confusion [of the mind].” Parker was resuscitated, given blood and medication for pain, and it was necessary to insert a catheter into his bladder. The fractured pelvis was treated by placing Parker in a sling-type affair which consisted of a strap around the pelvis to which was attached five-pound weights which held him in a fixed position for about two weeks for healing purposes. After twenty-nine days of hospitalization, during which time, according to the doctor’s testimony, Parker was in pain and received medication for pain, he was released from the hospital on crutches on April 29, 1972, to go home to recuperate. X rays and a subsequent examination by Dr. Merbitz on June 9, 1972, revealed considerable new bone formation around the sacroiliac joint, which was explained as the joint between the pelvis and the spine itself, as well as new bone formation in the general area of the fractures. The doctor also found numbness in Parker’s right leg and some elevation of the pelvis on the right side of approximately one-half to three quarters of an inch. He also had some sciatica which is pain involving the sciatic nerve; was experiencing some neurological deficit with dullness to pinprick in the S-l and S-2 root areas, and in the L-4 root. He also had some dullness to the right side of his penis; had weakness of the dorsiflexors of the big toe, i. e., the muscles which pull the big toe up. The doctor was of the opinion that complaints of pain were justified in Parker’s condition and that Parker’s pain could be caused by the new bone formation in the area of the nerve roots and that Parker may have some pain for his condition the rest of his life. When the doctor was asked whether Parker had any permanent disability, he said, “I would rate him at 25% permanent impairment of physical function of the body as a whole.”

At the time of the accident, Howarth had in force a Farmer’s Comprehensive Personal Liability Insurance Policy with United States Fidelity and Guaranty Company which provided, among other things, that the Company was obligated to pay “all reasonable medical expenses incurred within one year from the date of the accident” when an injury to a farm employee arose “out of and in the course of his employment.” The parties stipulated that this policy covered such accidents regardless of whether Howarth could be held legally liable.

The alleged release was obtained by Boyd Williams, an adjuster for United States Fidelity & Guaranty Company. Williams is a college graduate and has served in the United States Army. He admittedly was an inexperienced claims adjuster, had received little or no training to be an adjuster, and testified that this was the first or one of the first cases that he handled.

Parker was forty years of age, unable to read or write, except to sign his name, and had a third grade education.

The record shows that Williams visited Parker on several occasions. While Parker was in the hospital, Williams obtained his signature on a medical authorization, allowing him access to medical records and doctor’s reports. Moreover, Williams admitted that he knew that Parker had received serious injuries. Williams later visited Parker at home, about a week before obtaining the release, and asked him if he needed any money. Parker told Williams that he did not, although he had borrowed $75.00 from the defendant, Howarth, and his wife’s son was “hoping him pay the bills.” Williams saw Parker for the last time on May 10, 1972, when he obtained the release* in question. His account of that visit was that he knew that Parker was in pain and that he assumed that Parker took drugs for the pain; that Parker was lying in bed during the interview although he seemed talkative and alert. In explaining the purpose of his visit on that day to Parker, Williams testified, “We assumed that this was a case of liability, and in doing so, it was my case and I had to explain to him what he was entitle to.” Williams said that he explained to Parker, “I told Jessie that I would give him $800.00, not including his medicals; this $800.00 was for pain and suffering and loss of wages.” Williams testified that he explained to Parker that all his medical bills would be taken care of whether he signed the release or not. This was denied by Parker and his wife. It is pertinent to note that none of the medical bills were paid by the insurance company prior to obtaining the release from Parker, although the policy provided that medical expenses resulting from accidents to Howarth’s employees would be covered for a period of one year, regardless of legal liability. Williams further testified, “I took out a release and I read the release and I could tell that Jessie could not or did not understand the language, so I broke it down in language that he could understand and I told him exactly what a release meant.” (Williams did not testify as to what he told Parker that a release meant.) Parker thereupon signed the release, and at Williams’ request Parker’s wife also signed the release. Williams testified that he knew that it was not necessary for Parker’s wife to sign the release and that she received no consideration for signing it and that he did not explain to her that she was releasing any rights that she might have to damages for loss of consortium. He testified that he simply requested her to sign the release, and she willingly complied without any questions. He testified that Parker seemed “delighted” with the settlement.

Parker testified that when Williams came to his house on the day the release was signed he had been asleep; that his wife woke him up; that he had been taking pills for pain; that he was in pain and that he was “druggy”; that he did not know that his medical bills would be taken care of whether Mr. Howarth was negligent or not; and, that he thought that this was a part payment and that he would get more out of it. He testified that, at the time he signed the release, he needed money “pretty bad” because his utility bills had gone up; his house rent, light bills, water bills, and hospital bills were not paid.

The question presented is whether appellant Parker was overreached or deceived and thereby fraudulently induced to sign the alleged waiver.

It is an elemental principle of law that fraud must be shown by clear and convincing evidence. See, e. g., Aponaug Mfg. Co. v. Collins, 207 Miss. 460, 472-73, 42 So.2d 431, 436 (1949); Alabama & V. R. Co. v. Kropp, 129 Miss. 616, 633, 92 So. 691, 693 (1922).

However, this Court has been liberal in reviewing transactions, where one party might have the advantage over another in experience, knowledge, and wisdom, to determine whether an overreaching, deceit or fraud has been practiced on the disadvantaged person. In the case of Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 178 So. 914 (1938), this Court said:

In the light of the fact that people are not prudent, and may at times be unjustifiably imposed upon, this court has been liberal in reviewing transactions where one party might have the advantage over another party in experience, knowledge, and wisdom; but in the absence of fraud, deceit, or fiduciary relations of some kind, the court cannot relieve a person from the consequences of his acts merely because he has not acted prudently or diligently about his contracts or other matters. (181 Miss, at 65-66, 178 So. at 918). (Emphasis added).

We also recognize that although inadequacy of consideration for a release does not per se constitute fraud, it is a factor to be considered in determining whether or not the appellee was deceived or whether the appellee was satisfied in receiving only the amount paid in full and complete settlement of all of his injuries, disability, pain and suffering. Alexander v. Myers, 219 So.2d 160 (Miss.1969).

Here, it is readily apparent from the evidence that the appellant suffered painful, disabling and permanent injuries and if there was liability, as assumed by adjuster Williams, the sum of $800.00 was grossly and shockingly inadequate.

It is also true that this Court looks with favor on compromise and settlement of doubtful claims and that, “They are encouraged because they promote peace, and when there is no fraud, and the parties meet on equal terms and adjust their differences, the court will not overlook the compromise, but will hold the parties concluded by the settlement.” McCorkle v. Hughes, 244 So.2d 386, 388 (Miss.1971); Kohler v. Oliver, 114 Miss. 46, 49, 74 So. 777 (1917).

However, in the case sub judice, according to the adjuster, Williams, the rights of the parties were not doubtful — he testified that he was assuming that this was a case of liability. Liability might very well prove to be doubtful upon trial on the merits of the case, but that was not the position taken by Williams, who was the agent of Howarth at the time he obtained the release. This admission by Williams distinguishes this case from such cases as Pearson v. Weaver, 252 Miss. 724, 173 So.2d 666 (1965), in which the adjuster told the claimant that he felt there was no liability but offered a nominal sum simply “to buy peace for his company.” Id. at 731, 173 So.2d at 669.

Moreover, it could hardly be argued seriously that these parties met on equal terms to adjust their differences.

We have carefully reviewed this record and are of the opinion that under the circumstances presented — where the injured party was paid a grossly inadequate consideration, was unable to read or write, had serious, painful, disabling permanent injuries, had not been released by his doctor and did not know the extent of his injuries, was forced to borrow money from the defendant to pay his living expenses, was in pain when the alleged release was signed, was taking “pain pills,” and was so uneducated that he admittedly could not understand the terms of the release when it was read to him; and, where the release was obtained by a college educated claims adjuster (of little experience) who had access to the hospital and medical records of the appellant, and whose employer, United States Fidelity & Guaranty Company, was obligated to pay the hospital and medical expenses incurred by appellant for one year regardless of Howarth’s liability but had failed to pay or make any effort to pay these bills prior to obtaining the alleged release, and who admittedly had appellant’s wife [who is not a party to the suit] to sign the release without any consideration to her whatsoever or explanation that she was signing her rights away — these circumstances evince such an overreaching of appellant as to amount to constructive fraud which vitiates the alleged release.

We are of the opinion that the lower court erroneously sustained the appellee’s motion to dismiss the cause and that same should have been heard on its merits.

We have carefully considered appellee’s arguments for upholding the release and find them to be without merit. The judgment of the lower court is reversed and this cause is remanded for a trial on the merits.

REVERSED AND REMANDED.

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


author: INZER, Presiding Justice:

text:
    Abraham HOLLINS v. STATE of Mississippi.
    No. 49393.
    Supreme Court of Mississippi.
    Dec. 14, 1976.

      Wilkins, Ellington, Latham & James, Samuel H. Wilkins, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, ROBERTSON and WALKER, JJ.
   INZER, Presiding Justice:

Abraham Hollins was indicted, tried and convicted in the Circuit Court of Holmes County, Mississippi, for the murder of Mary Alice Cosby, his girlfriend’s mother. He was sentenced to serve a life term in the Mississippi State Penitentiary from which he appeals. We affirm.

The principal facts reflected by the record are that on April 9, 1975, after a heated argument over the telephone with Mary Alice Cosby, appellant drove to her home where he shot and killed Mrs. Cosby with a shotgun. Shortly after the shooting incident, Hollins was apprehended by Yazoo and Holmes County officers. After he was transported to the Holmes County Courthouse, appellant gave a statement to the sheriff confessing to the murder of the deceased.

Several questions are raised on this appeal. Appellant assigns as error the failure of the trial court to direct a verdict for him or to grant a new trial on the ground that the state failed to prove appellant’s sanity beyond a reasonable doubt and failed to rebut appellant’s proof that he was temporarily insane at the time of the incident. We find this assignment to be without merit.

The record in this case reveals that prior to trial on the merits, the court sustained a motion made by appellant’s counsel that appellant be sent to the Mississippi State Hospital at Whitfield for a mental examination. However, before being sent to Whitfield, appellant filed a motion asking that the order be set aside and that the court direct appellant to be examined by Dr. David E. Cox, a psychologist. This motion was sustained and the sheriff was directed to transport appellant to Jackson to the office of Dr. Cox for examination. This was done. Dr. Cox gave appellant certain tests and reached the conclusion from his examination that appellant was temporarily insane at the time he shot Mrs. Cosby. Dr. Cox testified that in his opinion appellant was suffering from “dissociative personality disturbance, a dissociative reaction which is a form of conversion hysteria . in other words, he is not competent sometimes to manage his own behavior.” It was his opinion based on the facts in evidence and his examination that at the time of the incident the defendant was in a state of “fugue”, which is like sleepwalking, and he did not have conscious control of his actions. He said he did not think the defendant knew the nature and quality of his act and could not distinguish right from wrong when he shot Mrs. Cosby.

The court, over the objection of the defendant, allowed Dr. Charlton S. Stanley, a staff psychologist at Mississippi State Hospital, to remain in the courtroom during the trial and hear the witnesses testify and observe the defendant during the course of the trial. Dr. Stanley testified that dissociative reaction described by Dr. Cox is a neurosis rather than a psychosis. Dr. Stanley also said that in his opinion a person suffering from the two diagnoses rendered by Dr. Cox would know the difference between right and wrong. On cross examination Dr. Stanley admitted that Dr. Cox would be in a better position to give an opinion than he would because he had never examined the defendant.

There was other conflicting evidence relative to the actions and appearance of appellant on the day in question. Appellant did not testify in his own behalf.

The general rule as stated in Smith v. State, 245 So.2d 583 (Miss.1971), is that a jury may disregard the conclusion of the defendant’s expert witness and accept the testimony of the state’s witnesses, both lay and expert, that a defendant is sane. The record clearly reveals that there was sufficient evidence under the given facts to submit the issue of appellant’s sanity to the jury and the verdict of the jury is not against the overwhelming weight of the evidence.

Blackwell v. State, 257 So.2d 855 (Miss.1972), Section 99-13-7, Mississippi Code 1972 Annotated.

Appellant urges that the trial court should have excluded the statement given by him for the reason that he was still temporarily insane at the time he made the statement and as a result he could not voluntarily, knowingly and intelligently waive his rights as required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Cited in support of this contention is Harvey v. State, 207 So.2d 108 (Miss.1968), in which we stated the general rule that the confession of an insane person cannot be admitted in evidence because he cannot waive his constitutional rights against self incrimination. However, in Harvey we further stated:

However, it has been pointed out by the various courts that manifestly the will of a person who is of weak intellect or mentally deficient may be more easily overcome than that of one who is more intelligent; still, until it is shown that a weakminded person has been overreached to the end that he has divulged that which he would not have divulged had he not been overreached, his voluntary confession is admissible. 20 Am.Jur. Evidence § 522 (1939). (Emphasis added). (207 So.2d at 116).

Additionally, an evidentiary hearing on the motion to suppress was had prior to trial on the merits at which time appellant offered no testimony in support of this motion. The lower court correctly ruled that the confession obtained and the statement made was knowingly and willingly given, that the defendant was fully apprised of his rights, that he understood these rights, and that he appeared and acted in a normal manner.

It is also contended that appellant was highly prejudiced by the conduct of the prosecutor during cross examination of the defense expert. However, after a review of the record, we find no merit in this assignment and adhere to the rule that counsel should enjoy considerable latitude during cross examination. Boyce v. State, 231 Miss. 847, 97 So.2d 222 (Miss.1957).

Appellant urges that the trial court erred in allowing witnesses to testify in rebuttal in violation of the exclusion of witnesses rule. We have repeatedly held that allowing witnesses to remain in the courtroom during the trial after the rule has been invoked is a procedural matter, the enforcement of which is within the sound discretion of the trial judge. Butler v. State, 320 So.2d 786 (Miss.1975).

Next, appellant submits that testimony elicited from two rebuttal witnesses was an attempt to impeach the defense expert witness on collateral matters. The length of time required for psychological testing of the appellant by Dr. Cox was material and went to the weight of his testimony. Clearly, the state would have been entitled to introduce this evidence as part of its case in chief, therefore, it was proper. Williams v. State, 73 Miss. 820, 19 So. 826 (Miss.1896).

It is argued that the trial court erred in allowing Dr. Stanley to testify as to his opinion of the finding of appellant’s expert witness. We hold that these opinions were based upon his expert, independent knowledge of psychology and were used as a substitute for a hypothetical question. Having two different and opposing opinions offered by two experts, it was the duty of the jury as the fact-finding body to give such weight as it saw fit to their opinions.

Lastly, appellant argues that the lower court erred in failing to grant a mistrial based on the amount of time used by the prosecutor during closing arguments. It appears that no time limit was fixed by the court for argument and although the state used more time in its closing argument than appellant used in his argument, we cannot say appellant was prejudiced thereby. Time limitation for argument rests within the discretion of the trial judge. Lee v. State, 51 Miss. 566 (1875). Since there does not seem to be an abuse of this discretion, this assignment, also, is without merit.

For the reasons stated, this case must be and is hereby affirmed.

AFFIRMED.

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


author: GILLESPIE, Chief Justice,

text:
    The ST. PAUL INSURANCE COMPANIES v. Wheeler GENTRY.
    No. 49024.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Aultman, Pope, Aultman, Van Slyke & Tyner, Thomas W. Tyner, Hattiesburg, for appellant.
    Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellee.
    Before GILLESPIE, C. J., and SUGG and BROOM, JJ.
   GILLESPIE, Chief Justice,

for the Court:

The Circuit Court of Smith County rendered judgment against St. Paul Insurance Companies (St. Paul) in favor of Wheeler Gentry. St. Paul appealed.

St. Paul sued Gentry as assignee of David W. Mangum and Alsia J. Wagner, Jr. The vehicle of Wagner, operated by Mangum, had a collision with a vehicle owned and operated by Gentry. Mangum and Wagner sustained personal injuries in the collision and Wagner’s vehicle was damaged. The claims of Mangum and Wagner were assigned to St. Paul. Apparently St. Paul was the insurer of the Wagner vehicle, but the terms of the policy are not in the record. St. Paul settled with Mangum and Wagner and took assignments from them. Then St. Paul sued Gentry, who filed a counterclaim against St. Paul for $100,000, alleging that Mangum, while driving Wagner’s vehicle under Wagner’s direction, negligently ran into and damaged Gentry’s vehicle and injured Gentry. St. Paul’s demurrer to the counterclaim and motion to dismiss the counterclaim were overruled. Trial was held, and the jury returned a verdict on the counterclaim for $40,000.

Did the court err in rendering judgment on the counterclaim against St. Paul?

As argued by Gentry, the general rule is that the assignee of a non-negotiable chose in action acquires no greater right than was possessed by his assignor, and simply stands in the shoes of the latter. And, in 6 Am. Jur.2d, Assignments, section 102 at 283 (1963), it is stated:

In an action on the claim assigned, the assignee is ordinarily subject to any set off or counterclaim available to the obli-gor against the assignor and to all other defenses and equities which could have been asserted against the chose in the hands of the assignor at the time of the assignment.

However, judgment on a counterclaim or set-off against an assignee, where based on a demand against the assignor, cannot be affirmative; it can be defensive only. In 20 Am.Jur.2d, Counterclaim, Re- coupment and Set-off, section 157 at 364 (1965), it is stated: “Thus, in an action by an assignee, the defendant cannot recover a money judgment on a set-off existing against the assignor.”

In Graham v. Stewart, 152 Miss. 307, 120 So. 171 (1928), the Court considered whether a counterclaimant could use a counterclaim offensively against an assignee, and said:

[Ajppellant acquired the account by assignment from the Wilder Motor Sales Company subject to whatever set-off or other defense that existed between the original parties. But did it follow as a result thereof that appellee was entitled to recover over against appellant on his counterclaim? We think not. As against appellant, appellee was only entitled to use his offset defensively, and not offensively; he was not entitled to recover over against appellant, for appellant was not indebted to appellee in any sum whatever. 152 Miss, at 311, 120 So. at 172-173.

When the foregoing authorities are applied to the present case, it follows that the court erred in rendering judgment against St. Paul. Gentry could only use the counterclaim defensively.

REVERSED AND RENDERED.

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


text:
    Roy WRENN v. STATE of Mississippi.
    No. 49464.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Rehearing Denied Jan. 12, 1977.
    Barnett, Montgomery, McClintock & Cunningham, E. H. Cunningham, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Carroll County; Clarence E. Morgan, Jr., Judge.

Before GILLESPIE, C. J„ SUGG and BROOM, JJ., and RUFUS H. BROOME, Commissioner.

AFFIRMED.


text:
    Ray Clarke JOHNSON v. STATE of Mississippi.
    No. 49466.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    W. H. Johnson, Jr., Decatur, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Newton County; Roy Noble Lee, Judge.

Before INZER, P. J„ ROBERTSON and WALKER, JJ., and DARWIN MAPLES, Commissioner.

AFFIRMED.


text:
    Sylvester CAIN v. STATE of Mississippi.
    No. 49463.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Hugh L. Bailey, Winona, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Carroll County; Clarence E. Morgan, Jr., Judge.

Before GILLESPIE, C. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Joe S. MASSEY v. CITIZENS FIRST NATIONAL BANK.
    No. 49087.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Jackson M. Brown, Starkville, for appellant.
    Threadgill & Smith, David L. Sanders, Columbus, for appellee.
   Appeal from Circuit Court, Oktibbeha County; Joe 0. Sams, Sr., Judge.

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

AFFIRMED.


text:
    G. E. JONES v. Calvin C. POWELL et al.
    No. 49095.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    P. Zeb Jones, Jackson, for appellant.
    Joe G. Moss, Raymond, for appellees.
   Appeal from Circuit Court, Hinds County; Leon F. Hendrick, Judge.

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

AFFIRMED.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Leonard RICKER et al.
    No. 49044.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Palmer & Pike, William J. Palmer, Pasca-goula, for appellant.
    Robert H. Oswald, Pascagoula, for appel-lee.
   Appeal from County Court, Jackson County; O. L. McLeod, Judge.

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

AFFIRMED.


text:
    Catherine PATTERSON v. Isaac PATTERSON.
    No. 49057.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Mcllwain & Mcllwain, Willard L. Mcll-wain, Jr., Greenville, for appellant.
    Dyer, Dyer & Dyer, Howard Dyer, III, Greenville, for appellee.
   Appeal from Chancery Court, Washington County; Ernest Kellner, Chancellor.

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

AFFIRMED.


text:
    James THOMPSON v. Willie WACTOR, d/b/a Wactor Well Servicing, et al.
    No. 49046.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Zuccaro, Riley, Pintard & Brown, J. Walter Brown, Jr., Natchez, for appellant.
    Brandon, Handy & O’Beirne, G. Stuart Handy, Natchez, for appellees.
   Appeal from Circuit Court, Adams County; Lenox L. Forman, Judge.

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

AFFIRMED.


text:
    Roosevelt DIXON v. HARRISON COUNTY SCHOOL BOARD.
    No. 48938.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Theodore J. Lawyer, Joseph P. Hudson, Gulfport, for appellant.
    Gaston H. Hewes, Jr., Boyce Holleman, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before PATTERSON, P. J., SUGG and WALKER, JJ., and ERNEST KELLNER, Commissioner.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.


text:
    Dolly L. CARVER v. Sylvian Samuel CARVER.
    No. 49026.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Sekul, Hornsby & Wallace, John M. Se-kul, Biloxi, for appellant.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

Gaston H. Hewes, Jr., Boyce Holleman, Gulfport, for appellee.

Before GILLESPIE, C. J., and SUGG and BROOM, JJ.

AFFIRMED.

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


text:
    Clyde L. McNEELY, Jr. v. STATE of Mississippi.
    No. 49362.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Cornelius J. Lander, Bay St. Louis, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.'
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before GILLESPIE, C. J., and SUGG and BROOM, JJ.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama v. Mary Joe KILBORN.
    Civ. 849.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1976.
    Rehearing Denied Sept. 22, 1976.
    William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept, of Revenue, and Asst. Atty. Gen., Philip C. Davis, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for the State.
    Kilborn & Gibney, Mobile, for appellee.
   WRIGHT, Presiding Judge.

The State of Alabama filed assessment of income tax against Kilborn. Kilborn appealed the assessment to circuit court. The State moved for summary judgment. Upon hearing, the court denied judgment to the State but entered judgment for the non-moving party. The State appeals. We reverse and render summary judgment for the State.

This matter arose out of the personal income tax return of Mary Joe Kilborn for the year 1972. The record indicates that Mrs. Kilborn filed her State income tax return for 1972, electing to take the standard deduction authorized by Title 51, Sec. 385(4), Code of Alabama (1940) in lieu of itemizing deductions under Sec. 385. After taking the standard deduction, Mrs. Kilborn also deducted $6,045.70 paid by her as federal inheritance tax upon the estate of her deceased husband. The State disallowed the deduction of the inheritance tax and made a delinquency assessment against Mrs. Kilborn for $337.95. Mrs. Kilborn appealed to circuit court claiming in her appeal that the tax deducted was her liability as the sole beneficiary of her deceased husband. She further alleged she was entitled to deduct such tax under Title 51, Sec. 385(c) of the Code.

The State in moving for summary judgment contended that Mrs. Kilborn had claimed the standard deduction under Sec. 385(4) and could claim no deduction under Sec. 385(c). Upon hearing and argument, the trial court determined there was no material issue of fact and that judgment should be granted, not to the State but to the non-moving party, Mrs. Kilborn.

We find the trial court erred as a matter of law.

The issue presented is whether a taxpayer, having elected to use the standard deduction of Sec. 385(4) may also take deductions under Sec. 385(c).

A negative answer is dictated by the following provisions of Sec. 385(4)2:

“Provided that the exercise of the election to take the deduction provided for herein is irrevocable for the taxable year for which made and cannot be changed after the time prescribed by law for filing the income tax return; . . . .”

There can be no question in view of the statute but that an election is required of the taxpayer between itemizing or taking the standard deduction. A combination of the two is not possible. Neither may a change be made from one to the other after time for filing a return has expired. Certainly a change cannot be made to combat or avoid an assessment. The taxpayer here made an election which resulted in a deficiency assessment. Whether such deficiency could have been avoided by a different election is not material. However, we believe that the inheritance tax imposed upon the estate of Mrs. Kilborn’s husband would not be an allowable deduction on her personal income tax return. It was not a federal tax imposed upon her. Federal estate taxes are the burden of the estate and not the beneficiaries. Cox v. United States, 421 F.2d 576. Sloss v. State, 264 Ala. 680, 89 So.2d 174.

We determine the state to be entitled to judgment as a matter of law. The judgment of the trial court is reversed and judgment rendered in favor of the State.'

REVERSED AND RENDERED.

BRADLEY and HOLMES, JJ., concur.


text:
    Evelyn Sue BLACKWELL v. George T. BLACKWELL, Jr.
    Civ. 788, 788X.
    Court of Civil Appeals of Alabama.
    Sept. 1, 1976.
    Rehearing Denied Sept. 22, 1976.

      Jack Martin Bains, Oneonta, for appellant and cross-appellee.
    B. J. McPherson, Oneonta, Hanes & Hanes, Birmingham, for appellee and cross-appellant.
   WRIGHT, Presiding Judge.

Plaintiff appeals and defendant cross-appeals from a decree of divorce. We affirm the judgment of the trial court.

The parties were married for 29 years. The union produced three children who have grown to adulthood. The marriage has been stormy for a number of years. There has been one previous divorce with reconciliation. There have been several separations with uncompleted actions for divorce.

The parties have come from original meager means to a position of relatively high income and prosperity. For three years prior to the termination of marital relations, the annual income of the husband has averaged nearly $100,000. As is so often the case, the new lifestyle produced by wealth proved divisive to the marital relationship.

Plaintiff wife brought the initial action for divorce alleging the grounds of adultery and incompatibility. The defendant husband filed cross-suit alleging incompatibility. Extensive testimony was taken ore ten-us before the able trial judge. The personal actions of the parties for the last years were thoroughly laid open. The financial status and condition of the parties were closely examined. Each party declared the marriage to be irretrievable. Though this cotirt has carefully read the transcript of the evidence, we find no need to expose in this opinion that portion relating to the personal actions of the parties which precipitated the end of the marriage. We will briefly discuss the matters related to the financial status.

The attention of plaintiff is called to the failure to properly follow the new appellate rules of procedure. Defendant has referred to such failure in brief. Plaintiff is directed to study Rule 28(a)(3), ARAP. Her brief fails to conform to this provision. However, neither does the brief of cross-appellant comply with Rule 28(a)(3). In this instance the court, in the interest of expediting a decision and because we are able to determine the issues from the argument, suspends Rule 28(a)(3) under authority of Rule 2 and proceeds to a decision.

Plaintiff contends error because the court granted a divorce on the ground of incompatibility rather than upon the grouna of adultery. Such was not error. We have previously held that the trial court is not bound to grant a divorce upon a particular ground when another is charged in the complaint, if the evidence supports the ground upon which the divorce is granted. Russell v. Russell, 45 Ala.App. 255, 229 So.2d 30. In such case it is immaterial that the evidence might equally have supported the ground of adultery. We do not determine in this case whether the evidence would or would not have supported a finding of adultery by defendant.

The other issue involved is presented by both appeal and cross-appeal. That is, the award of property, alimony and attorney fees is not supported by the evidence.

In light of that issue we briefly paraphrase the pertinent portions of the decree. Plaintiff was granted the home and environs with furnishings. She was given a 1970 Buick automobile, a 14 H.P. lawn tractor, $5,000 in cash and $1,200 per month in periodic alimony until remarriage, and $5,000 in attorney fees. Defendant was required to keep in force a policy of life insurance upon his life for $30,000 with plaintiff as beneficiary until she remarried. Other minor matters in the decree are not of essence to our review.

The evidence disclosed that the net worth of defendant fell within a range of $250,000 to $750,000. He was the sole owner of a machine shop business operating for some 16 years as Allgood Manufacturing Company. He was sole stockholder of Alasco Corporation, a real estate holding and leasing company. The corporation held title to real estate purchased by defendant. Allgood leased from Alasco. Alasco owned other business and residential property totaling some 27 acres in or near Oneonta, Alabama. The home was located on a 7 to 10 acre tract adjoining the shop of Allgood Manufacturing. It was valued from $90,000 to $140,000. It was an eight room house with swimming pool and four-car garage. It was very nicely furnished and equipped. Defendant owned 50% of the stock in a recently formed service corporation called Municipal Services Corporation. Plaintiff owned nothing in her own name, neither real nor personal property except for jewelry and wearing apparel. The taxable income of defendant for 1974 was $92,759. He had personal indebtedness on notes of some $30,000. None of the real estate or the home was indebted. Defendant owned a large boat, a 1975 Mark IV automobile and the trucks, machinery and equipment of his business. His income for 1975 was predicted to substantially decrease due to economic conditions. Cash on hand was nominal.

Plaintiff estimated she required $2,000 in alimony to maintain her home and to live as she had become accustomed. She is in good health but had never worked outside the home during her marriage.

In reviewing the record, this court was impressed with the fairness, diligence and patience exhibited by the trial judge during the proceedings below. He emphasized in the record the difficulty in weighing the variations of the evidence and arriving at a reasonably just and equitable judgment. We consider that his decision satisfied the requirements of the law in such cases. Such judgment is for the reasonable exercise of the trial court’s discretion. City of Mobile v. Wooley, 278 Ala. 652, 180 So.2d 251. Unless clearly unjust in light of the evidence, such discretion may not be revised upon appeal. Colquett v. Williams, 264 Ala. 214, 86 So.2d 381. This court finds that the trial court did not improperly use its discretion in any areas complained of by plaintiff-appellant or defendant’s cross-appeal. The judgment is in all respects affirmed. Plaintiff is denied attorney fees on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Donald R. LYONS v. Gwendolyn R. LYONS.
    Civ. 814.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1976.

      McDermott & Deas, Mobile, for appellant.
    Robert C. Wilson, Mobile, for appellee.
   WRIGHT, Presiding Judge.

Donald R. Lyons, defendant in an action for divorce brought by Gwendolyn R. Lyons, appeals from that portion of the final decree effecting a property division between the parties. The issues presented are: (1) May real property to which legal title is held by a closed corporation, be ordered conveyed by the corporation to the wife as part of a property settlement? and (2) Did the trial court abuse its discretion in the division of property? We affirm the decree of the trial court.

The evidence tended to show that plaintiff and defendant had been married some 13 years when the marriage became irreconcilably incompatible. They had jointly participated in several business enterprises during the marriage. They had owned coin-operated laundries, bought and sold real estate and had formed a closed corporation through which the defendant carried on a home improvement business. The corporation held title to real and personal property. Plaintiff owned one share of stock and the defendant owned the remainder. Defendant operated the corporation as his alter ego, intermingling the corporate funds with those of his own. There were no corporate meetings, minutes or records regularly kept except a bank account. Defendant was not paid a salary by the corporation but used funds in the corporate account as if they were his own. He failed to deposit thousands of dollars in corporate cash receipts and used such cash as his personal funds. There is no evidence that the corporation had ever filed a corporate tax return. The income tax returns of the parties did not show any income from the corporation nor any mention thereof, except for the year 1973 when an unexplained corporate loss was shown on the personal return of the defendant and taken as a deduction from his individual income.

The testimony, unsupported by documentary record, was that the corporation, Allied Home Improvements, Inc., held legal title to two parcels of real estate. The court in its decree directed the parties, as the sole stockholders and officers of the corporation to perform the necessary acts to, convey title to one of the parcels, a vacant lot, to plaintiff. After such conveyance was completed, the plaintiff was directed to convey her stock in the corporation to defendant.

Defendant argues that the court was without authority to direct conveyance of corporate property in a proceeding to which the corporation was not a party. Defendant submits no authority in support of his argument. As a basic rule of corporate entity, defendant correctly states the law. Loper v. Gill, 282 Ala. 614, 213 So.2d 674. The distinction here is that the acts of defendant have created an exception to the rule. In order for a corporation to be accorded treatment as a separate legal entity, it must exist and function as such and not merely as the alter ego of a person owning and controlling it. A court of equity looks through form to substance and has often disregarded the corporate form when it,was fiction in fact and deed and was merely serving the personal use and convenience of the owner. Cohen v. Williams, 294 Ala. 417, 318 So.2d 279.

The evidence in this case indicates that the Allied Home Improvement Co., Inc. merely existed as an instrument of form to serve the convenience of defendant. He used it or ignored it as he chose. If a corporation is to be considered as a legal entity by the court, it must have existed and functioned as such an entity. Not so here.

The trial court had before it the master of the corporation. There was little, if any, evidence that the property to which the corporation held title had been obtained through funds or activities of the corporation. The evidence was that the corporation had been manipulated in whatever manner desired by defendant without recognizable separate identity. Under such conditions the court of equity did not commit error in ignoring the fictional corporate shield behind which defendant attempted to hide marital property.

The other issue presented, that of abuse of discretion in the division of the marital property, will not stand before the test of presumptive correctness. The trial court heard the testimony and observed the witnesses as they testified. The judgment entered thereon is sufficiently supported by the evidence so that this court cannot find it wrong or unjust. Hendrix v. Hendrix, 56 Ala.App. 178, 320 So.2d 684, cert. denied 294 Ala. 758, 320 So.2d 687.

We see no reason to set out here an appraisal of the share given to each party by the trial court. The value of each piece of real property differed in the evidence offered by each party. The defendant’s argument of unfairness of the division is based upon his own valuation, and ignores some 15 to 18 thousand dollars in cash on hand at the time of separation but afterward spent by defendant. If the testimony of value by the plaintiff and her witness were used, the force of defendant’s argument would be greatly lessened. This court must consider that the trial court sat as a jury and was free to give greater weight to the testimony of one witness than to that of another.

This court finds no abuse of discretion. We affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    ALLEN TRUCKING COMPANY, INC. v. The BLAKELY PEANUT CO., a Foreign Corp.
    Civ. 911.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1976.

      Hill, Hill, Carter, Franco, Cole & Black and Thomas C. Sullivan, Montgomery, for appellant.
    S. C. Culpepper and Charles S. Coody, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff, Blakely Peanut Company, recovered judgment against defendant, Allen Trucking Company, in a tort action for destruction of its scales. Allen appeals. We reverse.

The only issue is whether the court erred in giving the jury the following charge requested by plaintiff:

“I charge you members of the Jury that Section 95A-959 of the Georgia Laws, 1973 Session as amended, provide that no vehicle shall be operated on the highways of the State of Georgia without a permit, whose gross weight exceeds 73,280 pounds. Section 95A-961 provides that for good cause shown, an applicant may receive a permit to operate a motor vehicle for a period of one year whose gross weight does not exceed 100,000 pounds. In this case, if you find that one of the Defendant’s trucks exceeded 75,000 pounds gross weight without a permit, and that said excess weight was the proximate cause of the damage to the Plaintiff’s property, then the Defendant is guilty of negligence as a matter of law. In that event, the Plaintiff would be entitled to recover from the Defendant unless you find that the Plaintiff was also guilty of negligence in a greater degree than that of the Defendant.”

Such charge is known as a charge of negligence per se. The doctrine of negligence per se or negligence as a matter of law is based upon the principle that when an act is forbidden, or required, by an express provision of law, the legislature has adopted an absolute required standard of care which replaces the common-law standard of the reasonably prudent man. Anyone who violates that law, with resultant injury to one of those the law was intended to protect, is liable regardless of the circumstances. Proof of violation is proof of negligence. 57 Am.Jur.2d, Negligence, Sections 247-260 (1971); Restatement, Second, Torts, Sections 286-288B (1965).

The evidence is undisputed that plaintiff’s scales located at its place of business in Blakely, Georgia, were broken by a truck of greater weight than their capacity being driven over or upon them. It is further without dispute that during the night on which the scales were broken, defendant had three trucks heavily loaded with lime scheduled to deliver their loads at the premises of plaintiff. Two of such trucks did unload at plaintiff’s premises. The third, and most heavily loaded, was stated by its driver not to have delivered its load to plaintiff’s premises as scheduled, but, by mistake, delivered to another, adjoining premises.

Plaintiff proved that each of the three trucks was loaded far in excess of the gross weight permitted by Georgia statute to be operated over its public roads. Ga.Code Annot., Title 95A, Section 959. (It was agreed that the case was due to be tried under Georgia law.)

Defendant submits that the charge of negligence per se was improper because the statute setting weight limits of trucks on the public roads of Georgia was not intended to protect plaintiff from injury by overweight trucks driven upon its private place of business.

It is the law that the violation of a statute is negligence per se only as to those for whose benefit or protection it was enacted. Louisville & N. R. R. v. Holland, 164 Ala. 73, 51 So. 365 (1909). Waits v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471 (1912). The question of whether a party is entitled to claim a breach of duty and right of action because of violation of a statute, can only be answered with a court construction of the purpose and intent of the statute. Underwood v. Atlanta & W. P. R. R., 105 Ga.App. 340, 124 S.E.2d 758, rev’d 218 Ga. 193, 126 S.E.2d 785 (1962).

Title 95A, Section 959 prohibits trucks being operated upon the public roads from carrying more than designated maximum loads. Section 960 provides that a violation of Section 959 shall be conclusively presumed to have damaged the public roads and the person operating the excessively loaded truck shall recompense the state for such damage according to a set amount per 1,000 pounds of excess. Section 1101 provides that a violation of Section 959 shall not be considered a crime.

There can be no argument but that the purpose of the statute (Section 959) was to set a maximum weight for trucks traveling the public roads of Georgia and to compensate the state for damage (presumed by law) when such weight was exceeded. The statute was designed to prevent damage to public roads not to protect plaintiff or any other individual from private damage. The statute established no duty to plaintiff but only to the state. If the statute created no duty to plaintiff, a violation thereof could not be negligence per se. Underwood v. Atlanta & W. P. R. R., supra. It is not often that we are cited to a decision in a case which meets the classification of being on “all fours” with the case to be decided. There is such a case in this instance, that of Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N.J. 382, 189 A.2d 7 (1963). That decision expresses the law as we have heretofore found it to be in Georgia. (In Alabama as well.) We find it to be conclusive of the issue before us in this case. We hold that the trial court erred in giving Plaintiff’s Requested Charge 1 to the jury. For such error the verdict of the jury and the judgment of the court must be reversed and the case remanded for a new trial.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Samuel NERO, Sr. v. MATERIAL SALES CO., INC.
    Civ. 940.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1976.

      Crawford, Blacksher, Figures & Brown, Mobile, for appellant.
    Shores & McKerrall, Foley, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from denial of a Rule 60(b) motion. We affirm.

The pleading, without legend but which the trial court considered as a Rule 60(b) motion, alleged that a judgment entered against defendant upon agreement and consent of his retained counsel was without the knowledge, consent and authority of defendant. It further alleged that defendant had a meritorious defense to the suit. The defendant and original plaintiff denied the allegations. Evidence was heard by the court and the court refused to set aside the judgment.

The clerk’s record discloses the following: Sam Nero was sued by Material Sales Co. upon an open account. Nero retained the services of attorney Taylor to represent him. Various pleadings were filed in the suit over a period of several months. Included among the pleadings was a request by Taylor for a bill of particulars. Material Sales filed an itemized account. They then filed request for admissions. No admissions were filed by Nero. Several months later an instrument consenting to judgment in the amount of $8,003.38 was signed by counsel on behalf of the parties, and judgment was entered in accord by the court on September 12, 1975. The petition considered below as a 60(b) motion was filed as a separate action in February, 1976.

The testimony of Nero heard by the trial court in support of his motion was, in essence, that when he was sued by Material Sales Co., he retained attorney Taylor with a $100 fee to write Material Sales and inform them that he would catch up on the bill as soon as he could get employment; that he thereafter discussed the account with a representative of Material Sales and denied receiving some of the merchandise charged to him; he did not further discuss the case with attorney Taylor after December 3, 1974; he did not authorize Taylor to consent to judgment nor did he know of entry of judgment until December of 1975, when he was informed by levy of the Sheriff.

The testimony opposing the motion was taken from attorney Taylor. He stated that he represented Nero and submitted to him the itemized statement of particulars which he received from Material Sales. He filed the various pleadings and delayed trial for several months. Nero never informed him of any discrepancies in the account or that the account was not owed. Discussion of settlement was had with counsel for Material Sales. A proposed agreement that judgment be entered with execution withheld so long as payments of $100 per month were made, was submitted to Nero. He accepted the agreement and Taylor consented that judgment be entered.

Having heard the conflicting evidence, the court denied the motion to set aside the judgment.

An attorney has authority to bind his client in an action by an agreement made in writing or by entry made on the minutes of the court. Title 46, Section 46, Code of Alabama (1940). Such agreement may be set aside upon any ground that would warrant rescission of a contract— such as fraud or collusion. Ex parte Hayes, 92 Ala. 120, 9 So. 156 (1890). Wadsworth v. First National Bank of Montgomery, 124 Ala. 440, 27 So. 460 (1899). It has been held that an attorney may not settle or compromise a claim without the authority of his client. Senn v. Joseph, 106 Ala. 454, 17 So. 543 (1894). We consider it equally necessary that authority be granted for consent by attorney to entry of judgment against his client.

However, on motion to set aside a judgment entered by agreement of counsel on the ground of want of authority, the issue is one of fact. The evidence in this case was in conflict and was resolved by the court after oral hearing. In such a case, the judgment of the court is presumed correct and will not be set aside upon appeal unless so contrary to the great weight of the evidence as to be palpably wrong and unjust. Martin v. Howard, 293 Ala. 36, 299 So.2d 727 (1974). Our review does not convince us that the judgment below is wrong. We therefore affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Charles E. JAY v. SEARS, ROEBUCK & COMPANY.
    Civ. 928.
    Court of Civil Appeals of Alabama.
    Dec. 15, 1976.

      W. W. Dinning of Lloyd, Dinning & Boggs, Demopolis, for appellant.
    Richard S. Manley, Demopolis, for appel-lee.
   WRIGHT, Presiding Judge.

Defendant appeals from judgment denying his counterclaim and from denial of motion for new trial thereon. We affirm.

Plaintiff Sears brought suit upon stated account against defendant. Defendant filed counterclaim against plaintiff and a third party, Hooks. Default was taken against Hooks and judgment entered thereon in favor of defendant. Claim and counterclaim between plaintiff and defendant was tried by the judge without a jury. Judgment was rendered in favor of plaintiff for its account. Judgment was denied defendant on his counterclaim.

The matter of judgment on plaintiff’s claim is not presented by the appeal. The evidence relative to the counterclaim tends to show the following: Defendant, a realtor and builder of homes in Demopolis, Alabama, contacted the contract sales manager at plaintiff’s store in Selma to discuss purchase of a heating and air conditioning unit for a home defendant was building. Plaintiff’s contract sales manager, Kirk, told defendant that he could sell the unit, but did not install. However, he recommended one Hooks to do the installing. Hooks was contacted by defendant or his wife and an agreement was reached between them as to the price for installation. Hooks picked up the components of the unit from Sears with his truck and partially installed the unit in defendant’s house. He collected part of his price and never returned.

Counsel for defendant stated that during discussions of the case before pleading, plaintiff’s attorney had told him that Kirk had stated Jay had never paid for the unit. Counsel therefore wished to have Kirk testify as to what he communicated to plaintiff’s attorney, Manley, concerning payment by Jay. Presuming denial by Kirk that he had told Manley that Jay had not paid for the unit, counsel had filed a written motion to require Manley to be an impeaching witness against his client’s employee, Kirk.

The trial court denied defendant the right to question Kirk as to what he had told Manley. It also refused to require Manley to testify. The actions of the court in sustaining the objection to the above question asked of Kirk was stated to be upon the ground of privileged communication.

We find the action of the court to be correct on the ground of privilege as well as the further ground of attempt to impeach a witness upon an immaterial issue.

The ruling of the court upon the ground of privileged communication between attorney and client is supported by the cases of Birmingham Railway & Electric Co. v. Wildman, 119 Ala. 547, 24 So. 548 (1898), Cooper v. Mann, 273 Ala. 620, 143 So.2d 637 (1962) and United States v. Woodall, 438 F.2d 1317 (5th Cir. 1970), cert. denied 403 U.S. 933, 91 S.Ct. 2262, 29 L.Ed.2d 712 (1971). To require Manley to testify of disclosures to him by Kirk, an employee of his corporate client, would be contrary to the provisions of Title 7, Section 438, Code of Alabama (1940). If the position of defendant were to prevail, counsel would never discuss between themselves, before trial, the statements of their clients. To do so would make them available as witnesses to impeach their own clients. Section 438, Code, protects an attorney from being placed in such position.

The cases of Vacalis v. State, 204 Ala. 345, 86 So. 92 (1920), and Stanley v. Sawyer, 237 Ala. 515, 187 So. 425 (1939) cited by the defendant are distinguishable upon the facts. Vacalis v. State, supra, did not involve communications between attorney and client but an agreement between attorney and a solicitor. Stanley v. Sawyer, supra, dealt with fraudulent acts of the client which removed all privilege. We further do not consider our decision here to be opposed to that of Ex parte Griffith, 278 Ala. 344, 178 So.2d 169 (1965), cert. denied 382 U.S. 988, 86 S.Ct. 548, 15 L.Ed.2d 475 (1966). The issue in that case was whether the attorney could determine for himself that his testimony would violate the privilege. The court though stating some principles of privilege, held that whether a communication is privileged is a question of fact for the court and that the refusal of Griffith to take the stand and testify was premature.

We further find that the ruling of the court was correct because the attempt at impeachment was upon an immaterial issue. Morris v. Kaiser, 292 Ala. 650, 299 So.2d 252 (1974). There was no conflict during the trial that Jay had paid for. the heating and cooling unit. All witnesses, whether for plaintiff or defendant, stated payment was made. The counterclaim of defendant was for return of payment because of non-delivery of part of the merchandise. Kirk admitted receiving payment in full from defendant. Whether he had stated otherwise before trial was totally immaterial to the issue at trial—that of delivery.

The defendant contends error in the court permitting witness Hooks to relate a telephone conversation held with Kirk. The conversation corroborated previous testimony of Kirk as to authorization by defendant to deliver the unit to Hooks for transportation to the job. Whether defendant directed plaintiff to deliver the unit to Hooks as his agent was a basic issue in the case. The testimony of Hooks relating the telephone conversation was as follows:

“A Mr. Kirk told me that Mrs. Jay had called him and asked him would he send the equipment by me to Demopolis, and he tQld me that he had' agreed to do that if it was all right with me; and since she wanted the job done in a hurry, I agreed to bring it on my truck free of charge to her job site in Demopolis, which I done.” The objection of defendant was made to

the question precipitating the above response. It was a general objection without stating grounds as required by Rule 46, ARCP. However, if the ground is so manifest that the court and counsel cannot fail to understand it, specificity is not required. Travis v. Hubbard, 267 Ala. 670, 104 So.2d 712 (1958). A telephone .conversation in which Kirk tells Hooks of statements made by defendant’s wife is clearly hearsay and inadmissible.

The trial court committed error in allowing the statement of the' conversation. However, we find it to be error without injury to defendant under Rule 45, ARAP. The statement by Hooks was merely cumulative and corroborative of the testimony of Kirk. Kirk had testified as to the statements made to him by defendant’s wife. Hooks also had previously stated, without objection, that defendant’s wife had called him and requested that he get the unit from plaintiff and bring it to defendant’s house. Refusal to reverse for the erroneous ruling of the trial court is not inconsistent with substantial justice. Schneider v. Mobile County, 284 Ala. 304, 224 So.2d 657 (1969).

The remaining issue is whether the judgment is against the preponderance of the evidence.

The trial court heard the testimony, anif its judgment entered thereafter is presumed correct. Jones v. Ball, 294 Ala. 654, 320 So.2d 665 (1975). That presumption is strengthened after denial of a motion for new trial. Parker v. McGaha, 291 Ala. 339, 280 So.2d 769 (1973). The primary issue presented by,,the pleadings and evidences was whether or not there was a delivery of the merchandise to defendant through an authorized agent. It was undisputed that Hooks picked up the unit purchased by defendant from plaintiff. If it was the intention of the parties that Hooks was the agent of defendant for delivery, the contract was completed by delivery with title and risk of loss passing to defendant. Alabama Great Southern R.R. v. Clark, 136 Ala. 450, 34 So. 917 (1902). If Hooks failed to complete delivery to defendant, plaintiff was not liable for the loss. State v. Pan-Am Southern Corp., 265 Ala. 51, 89 So.2d 747 (1956).

We find the evidence as to the relationship of Hooks to the parties to be in conflict. The question of the intention of the parties is one of fact for the court to determine from the evidence. We find the judgment of the court sufficiently supported by the evidence and its reasonable inferences so as not to be clearly wrong and unjust.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BOOKOUT, Judge. CATES, Presiding Judge DeCARLO, Judge

text:
    Michael Allen ROBERSON v. STATE.
    8 Div. 722.
    Court of Criminal Appeals of Alabama.
    Nov. 16, 1976.
    Rehearing Denied Dec. 7, 1976.
    Holt, McKenzie & Holt, Florence, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Transporting liquors or beverages in quantities of five gallons or more; sentence: two years imprisonment.

Trial was held ore terms before the trial judge without a jury. The only issue before us is whether the arresting officer had probable cause to conduct a warrantless search of the appellant’s automobile.

On July 4, 1974, the appellant’s automobile was stopped by Alabama State Trooper B. A. Richardson. The appellant’s person was searched in order to obtain the key to the trunk of the car. Officer Richardson, without the appellant’s consent, then searched the trunk and found a quantity of beer and whiskey.

Richardson testified that he found, “6 pints of whiskey and 1 Fifth of Scotch.” Although he mentions beer in his testimony, he never states the quantity he found. Richardson turned appellant’s automobile over to A.B.C. Agent D. 0. Dodd at the county jail. Dodd said, “. . .1 obtained four (4) cases of beer and 1 pint of untaxed liquor.”

We observed that nowhere in the record does a witness testify as to the exact number of gallons of beer or liquor being transported. The number of cases of beer does not clearly establish the quantity in terms of gallons. The record does not state the number of cans per case, or whether the cases contained cans of seven, ten, twelve or sixteen ounces. However, since the beer was placed in evidence, the trial judge could personally observe the quantity, and since no objection was made that the quantity was less than five gallons, we pretermit further discussion on this point.

THE SEARCH

Appellant contends that Officer Richardson did not have probable cause to conduct a search pursuant to the exigent circumstances exception to the warrant requirement of the Fourth Amendment. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). We agree. The search occurred in Lauderdale County about one mile from the Tennessee line. Lauderdale is a dry county. Officer Richardson was checking drivers’ licenses on the day in question. He testified that he stopped an unidentified individual who said, “. Michael [appellant] was coming down the road with some beer in his car, a load of beer in his car,” and that, “he is right behind me.”

The above quotes represent the extent of the conversation between Richardson and the unidentified informant. In addition, Richardson testified that the appellant had a reputation for dealing in illegal liquor or beer. Appellant was stopped after presumably leaving a “wet” county in Tennessee and entering a “dry” county in Alabama. All the beer in appellant’s car bore Alabama tax stamps, but the whiskey did not.

Officer Richardson testified that appellant never consented to the search; that appellant did not commit any violation of the rules of the road in Richardson’s presence; that appellant was not drinking; and that no containers of alcohol were visible until the trunk was opened.

Two tests must be passed before information from an unidentified informant will support probable cause. The “basis” test and the “veracity” test are as follows:

(a) Did the informant give Richardson some of the underlying circumstances from which the informant concluded the appellant was transporting liquor?

(b) Did Richardson know of some underlying circumstances from which he could conclude that the informant was credible or that his information was reliable?

See: State v. Lee (Fla.App.1975) 313 So.2d 441; Rodriguez v. State, (Fla.1974) 297 So.2d 15; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). For probable cause to conduct a warrantless Carroll search to be present, both of the above questions must be answered in the affirmative. Aguilar, supra.

A

The mere conclusion of an informant is not sufficient to establish probable cause. The informant must have some basis for the conclusion, and he must relate that basis to the law enforcement officer. Richardson did not inquire as to how the informant gained knowledge that the appellant was coming down the road with a load of beer. The informant did not volunteer the basis of his conclusion, and the record is completely silent as to such basis.

When the trial judge asked Richardson if the informant had seen the beer, Richardson answered, “No, he didn’t say that. I didn’t ask him that.” Thus, the record discloses no basis to support the conclusion of the informant.

The State contends that the fact that the appellant was a reputed bootlegger and that he was arrested upon entering a dry county from a wet county supplies the requisite basis. We do not believe that contention is supported in case law. Appellant’s reputation and where he was driving are relevant factors which may be considered, but standing alone, they do not supply a sufficient basis for probable cause. From all that appears in the record, the informant concluded that the appellant was transporting liquor based solely on the appellant’s reputation and the fact that he was driving from a wet county into a dry county. A conclusion based solely on those factors does not constitute probable cause. The search was made without probable cause, and the trial court erred in denying the appellant’s motion to suppress the evidence. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

B

As to the second test, a sufficient basis for the informant’s reliability was not presented. Richardson testified that he knew the informant when he saw him; that he had known the informant for seven or eight years; that the informant had never previously supplied him with information; that he considered the informant to be reputable and reliable; and that he did not know if the alleged informant had ever been convicted of a crime involving moral turpitude.

The Supreme Court of Alabama has held that the following was sufficient to support the veracity prong of the probable cause test relating to informants:

“. . . [The informant has a] record of reliability for correctness which has been good.” (Emphasis supplied.)

See: State ex rel. Attorney General (In re: Horace E. Davis, alias v. State), 286 Ala. 117, 237 So.2d 640 (1970); State ex rel. Attorney General (In re: Louis E. Neugent, alias v. State) (1976), Ala., 340 So.2d 52.

Here there were no underlying circumstances given by Richardson to support the informant’s reliability or credibility. A mere conclusion on the part of an officer that an informant is “truthful” or “reliable” has been held to be insufficient. Haynes v. State, 50 Ala.App. 96, 277 So.2d 372 (1973).

Appellant contends, for the first time on appeal, that Act No. 1265, Acts of Alabama 1971, modified Title 29, § 187, Code of Alabama 1940, by lowering the offense of “transporting” from a felony to a misdemeanor. The result we reach in this opinion makes it unnecessary for us to pass on that issue.

REVERSED AND REMANDED.

CATES, P. J., concurs with opinion.

TYSON and HARRIS, JJ., concur.

DeCARLO, J., dissents with opinion.

CATES, Presiding Judge

(concurring).

I consider also that the State did not prove five gallons was being transported. Further I would deduct the exempt liquors under Act 1265, supra.

DeCARLO, Judge

(dissenting).

Basically, the standard of reasonableness for a warrantless search of a vehicle is one of “. . . probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction . . Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

• There is a difference between the proof sufficient to establish guilt and that proof necessary to substantiate the existence of probable cause. The Supreme Court has said: “There is a large difference between the two things to be proved, as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.” Brinegar v. U. S., 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.

The searching officers may have five factors for consideration in establishing probable cause for a warrantless search:

“. . (1) the reputation of, or informant’s reports concerning, the occupants, (2) a like reputation of the vehicle or owners, (3) the condition of the vehicle (e. g., heavily loaded), (4) information from reputable informers as to the existence and illegal purpose of the trip, and (5) the reputation of the location in which they are found. Brinegar v. United States, supra, 338 U.S. at page 166, 69 S.Ct. at page 1306; Carroll v. United States, supra, 367 U.S. at page 160, 45 S.Ct. at page 287; The Apollon, 1824, 9 Wheat. 362, 374, 22 U.S. 362, 374, 6 L.Ed. Ill; Cervantes v. United States, 9 Cir., 1959, 263 F.2d 800, 804; Turner v. Camp, 5 Cir., 1941, 123 F.2d 840, 842.” Patenotte v. United States, 266 F.2d 647 (5th Cir. 1959).

In the landmark case of Carroll, supra, an automobile search was upheld even though the seizing officers had no direct evidence that the car contained illegal liquor. Additionally, the car did not appear heavily loaded and was not being driven in an unusual manner. However, it was going from Detroit to Grand Rapids, Michigan, and at that time, Detroit was known to be a source of illegal liquor. The occupants of the car were recognized by the officers as the same people who had offered to obtain whiskey for the officers in Grand Rapids a few months earlier. The car driven on that occasion was the same one the men were using at the time of the search. The Supreme Court held that these facts’ were sufficient to constitute probable cause.

The facts in this case show the officer knew the reputation of the informant. During the trial he testified that he had known the informant for seven or eight years, and that he was a “reputable,” “truthful and reliable person.” Further, the officer stated that he did not know of any felony convictions involving moral turpitude or “violations” by the informer.

Regarding the defendant’s reputation, the officer testified that he had a “reputation of dealing in illegal liquor and beer.”

Concerning the location where the vehicle was stopped and searched, the officer’s testimony revealed that it was six miles north of Florence in the dry county of Lauderdale and it was approximately one mile from the Tennessee line where a number of “package stores” were located in Wayne, a wet county in Tennessee.

As to the information communicated, the officer responded:

“This fellow [the informer] said that Michael was coming down the road with some beer in his car, a load of beer in his car. ... ‘he is right behind me’ [q.nd] ... he [had] just seen him.” [Bracketed material added.]

Further, the record indicated this information was related to the officer just before he stopped the defendant.

In my judgment, the facts in this case are just as strong as those presented in Carroll, supra. All of these circumstances add up to one of reasonableness and are sufficient to substantiate the existence of probable cause to stop and search.

      . It appears that five pints of whiskey and one fifth of scotch became unaccounted for between the two inventories.