author: HOOD, Judge.

text:
    Nolton LeDOUX, Individually and as Administrator of the Estate of his minor child, Frances LeDoux, Plaintiff-Appellee, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al., Defendants-Appellants.
    No. 5808.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 24, 1976.
    Rehearing Denied Dec. 15, 1976.
    Writ Refused Feb. 11, 1977.

      Pucheu & Pucheu by Jacque B. Pucheu, Sr., Eunice, Dubuisson, Brinkhaus & Dauzat by William A. Brinkhaus, Opelousas, McBride & Brewster by Norman P. Foret, Lafayette, for defendants-appellants.
    Guillory, McGee & Mayeux by Robert K. Guillory, Eunice, for plaintiff-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   HOOD, Judge.

Nolton LeDoux, individually and as administrator of the estate of his minor child, Frances LeDoux, instituted this suit for damages for personal injuries sustained by Miss LeDoux as the result of an automobile accident. The defendants are Southern Farm Bureau Casualty Insurance Company, Ronald Dale Thibodeaux and Mrs. Lela Thi-bodeaux Manuel. Miss LeDoux reached the age of majority while the suit was pending and she was substituted as a party plaintiff. Judgment was rendered by the trial court in favor of Frances LeDoux and against the above defendants. Defendants Thibodeaux and Manuel have appealed.

This case was before us on a prior occasion, at which time we remanded it to enable the trial judge to render and sign a proper judgment. See LeDoux v. Southern Farm Bureau Casualty Insurance Company, et al., 337 So.2d 906 (La.App. 3 Cir. 1976).

The issues presented are (1) whether the defendant driver, Thibodeaux, was negligent, (2) whether Miss LeDoux also was negligent, barring her from recovery, (3) whether Mrs. Manuel is liable for a tort committed by her son, Thibodeaux, and (4) whether the amount of the award is excessive.

Frances LeDoux was seriously injured as the result of a one car motor vehicle accident which occurred on Louisiana Highway 3123, in Acadia Parish, shortly before midnight on November 18, 1971. Miss LeDoux was fifteen years of age at that time. She was riding as a guest passenger in an automobile owned by Mrs. Manuel, and being driven by the latter’s 17-year-old son, Ronald Dale Thibodeaux.

At the time of the accident Thibodeaux was driving west on Highway 3123. When the car traveled over a railroad track which crossed the highway, the vibration caused him to drop his lighted cigarette on the floor of the vehicle. He reached down to retrieve the cigarette, and while doing so he failed to negotiate a gradual right turn curve in the highway. His automobile crossed the opposite or eastbound lane of traffic, ran off the south side of the highway, rolled over and came to rest in an overturned position against a fence.

Miss LeDoux sustained serious injuries as a result of that accident, including a tran-section or total severance of the spinal cord, a collapsed lung, and a cerebral concussion. As a residual of those injuries, she is now a “high paraplegic,” being permanently paralyzed from the waist down. She has undergone spinal fusion surgery in order to enable her to sit up in a wheel chair.

Defendant Thibodeaux testified that he reached for the cigarette on the floor of his car with his left hand, but that while doing so he kept his right hand on the steering wheel, and that he continued to maintain his view of the highway ahead, except that he took his eyes off the road “just for a second.” He stated that after he entered and negotiated a part of the curve, Miss LeDoux grabbed his right hand, pulled it to the right and down, and caused him to lose control of his car as he attempted to turn the steering wheel back to the left. His recollection is that his left rear tire skidded to his left across the center line, that the car then skidded for several feet with its rear wheels in the eastbound lane and the front wheels in the westbound lane, and that the car continued to skid until it ran off the left side of the highway.

Miss LeDoux was thrown from the car after it left the highway and she lost consciousness. She does not remember any of the details of the accident, and she thus has no recollection of the car running off the highway, of grabbing Thibodeaux’s hand or of having pulled the steering wheel to the right.

Thibodeaux testified that he was driving 50 or 55 miles per hour at the time he lost control of his car. The posted speed limit at that point was 60 miles per hour. The evidence shows that the car skidded a distance of 198 feet, partly on the highway and partly on the shoulder and in the ditch, before it came to rest upside down against a fence. Two experts in reconstructing accidents differed somewhat in their opinions as to the speed at which the vehicle was traveling at the time of the accident, and their testimony thus is inconclusive as to the speed at which Thibodeaux was driving when he lost control of his car. The trial judge concluded with reference to the speed of the car that “even if it had been in excess of the posted speed, it was not traveling far in excess of the speed limit of 60 miles per hour.” We agree with the trial judge that the automobile was traveling approximately 60 miles per hour at the time the accident occurred.

The highway at that point is a smooth, level, two-lane, black-topped thoroughfare, with wide shoulders. The hard surfaced part of the highway was well marked with two yellow no passing lines in the center, and with white lines marking the outside edges of the highway. The curve was a long, gradual curve to the driver’s right. The weather was clear and visibility was good. There were no other vehicles in that vicinity, and there were no obstructions on the road. The evidence indicates that a reasonably prudent driver could negotiate the gradual curve where this accident occurred at a speed of 60 miles per hour.

Thibodeaux’s mother and his step-father testified that on the night of the accident, or the next day, Thibodeaux told them that Miss LeDoux had grabbed his right hand and caused him to lose control of the car. The evidence shows, however, that Thibo-deaux did not disclose that information to anyone else, either on the night of the accident or at any other time, until after this suit was filed. The trial judge apparently considered that circumstance to be of some significance. We also believe that Thibo-deaux would have mentioned that important fact to the investigating officer shortly after the accident occurred if plaintiff actually had interfered with his operation of the car and thus had caused him to run off the highway.

The evidence, including photographs of the skid marks on the highway taken immediately after the accident occurred, does not show that the car swerved suddenly to the right or to the left before it left the highway. The tire marks indicate, on the contrary, that the car traveled almost in a straight line from Thibodeaux’s proper lane of traffic, across the eastbound lane, a distance of 48 feet to the south shoulder of the road, and that it did not skid sideways at anytime before reaching the shoulder.

Thibodeaux’s testimony was inconsistent or was challenged in some respects as to the manner in which the accident occurred. In a pre-trial deposition, for instance, he stated that Miss LeDoux did not grab his hand and cause the steering wheel to be turned to his right until the car had crossed the center line and was about 15 feet from the point where it ran off the south edge of the road. In another pre-trial deposition taken about two years later, and also at the trial, he stated that she grabbed his hand while the car was still in his right hand lane of traffic, at least 30 to 48 feet before it ran off the road. Thibodeaux testified in a pre-trial deposition that within a few days after the accident occurred Miss LeDoux told him that “she didn’t remember nothing that happened.” That conflicts with Thibo-deaux’s statement at the trial that plaintiff never gave him that information. Miss Le-Doux and Mrs. Susan Hoffman Huval testified that Thibodeaux told them that he didn’t know how the accident happened. That statement is inconsistent with his later testimony that it was caused by the act of plaintiff in grabbing his right hand.

The trial judge concluded that defendants had failed to show “that Frances LeDoux was guilty of contributory negligence proximately causing the accident.” He based that conclusion partly on a finding that “the vehicle continued straight and ran off the road,” and partly on “inconsistency in the testimony of Ronald Thibo-deaux.” We interpret the finding of the trial court to be that Miss LeDoux did not interfere with Thibodeaux’s steering of the automobile, as contended by defendants, and that she thus was not negligent. We agree with that conclusion. The trial judge held that defendant Thibodeaux was negligent in failing to keep a proper lookout and in failing to maintain proper control of his vehicle, and that his negligence in those respects caused the accident. We also agree with that finding.

Our conclusion is that the sole proximate cause of the accident was the negligence of defendant Thibodeaux in failing to keep a proper lookout and in failing to maintain proper control of the car as he began to negotiate a curve in the highway. We also conclude that plaintiff was free from contributory negligence, and that she is entitled to recover from Thibodeaux the damages she sustained as a result of the above accident.

Mrs. Manuel contends that her son, Ronald Dale Thibodeaux, who was a minor when the accident occurred, was not living with her at that time, and that she thus is not liable for the damages which resulted from his negligence.

Defendant Thibodeaux’s father died when he was an infant, and defendant resided with his mother continuously thereafter until shortly before the accident occurred. His mother qualified as his natural tutrix, and she was serving as such at the time of the accident. She re-married on May 28, 1971, and Thibodeaux continued to live with his mother, and with his step-father for at least three or four months after that marriage.

Thibodeaux quit school and began working on an offshore oil rig in September, 1971, about two months before the accident occurred. He lived in Morgan City while on that job, but he returned home when he was off work. Shortly thereafter he apparently quit his offshore job and began working on a farm. He lived on the farm while in that employment. During all of that time, he left at least some of his clothes and belongings in his mother’s home. He occasionally brought clothes home for his mother to launder, he frequently ate meals in his mother’s home when not on the job, and he used his mother’s car to get to and from work. He has always listed his mother’s home as his permanent address, even up to the time of the trial. At the time the accident occurred he was 17 years of age, he was unemancipated and he was not married.

La.C.C. art. 2318 provides:

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemanci-pated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons. The same responsibility attaches to the tutors of minors.”

The trial judge held that Thibo-deaux’s “principal place of abode was the home of his mother and step-father,” and that Mrs. Manuel thus is responsible for the damage occasioned by her son’s negligence. We agree. See Guidry v. State Farm Mutual Automobile Insurance Company, 201 So.2d 534 (La.App. 3 Cir. 1967); Watkins v. Cupit, 130 So.2d 720 (La.App. 3 Cir. 1961). We find no error in that part of the judgment appealed from, therefore, which decrees that Mrs. Manuel is liable in solido with Thibodeaux for the damages sustained by plaintiff. Southern Farm Bureau, as the insurer of Mrs. Manuel, is also solidarily liable with the other defendants up to the limits of its policy.

The trial judge rendered judgment in favor of plaintiff, against Thibodeaux, Mrs. Manuel and Southern Farm Bureau, in soli-do, for $50,000.00. He also rendered judgment in favor of plaintiff, but solely against Thibodeaux and Mrs. Manuel, in solido, for the additional sum of $295,943.26. Southern Farm Bureau has paid the full amount it was condemned to pay. Defendants Thibodeaux and Manuel contend that the award made solely against them should be reduced.

The only argument made by the defendants-appellants relating to quantum is that they are not financially able to pay the amount of the award which was made solely against them, and that they thus are entitled to have the award reduced. We agree with defendants that their ability to pay damages should be considered in determining the amount of the award. See Rollins v. New York Fire and Marine Underwriters, 225 So.2d 663 (La.App. 3 Cir. 1969).

Considering the serious nature of the injuries sustained by Miss LeDoux, her life expectancy, and the fact that she will need constant care and a great deal of medical treatment during the remainder of her life, we conclude that the amount of the award made to her is fair and is within the range of the discretion which is vested in the trial court. The remaining question presented is whether that award should be reduced on the ground that defendants are financially unable to pay it.

The evidence shows that Thibodeaux and his mother own a substantial amount of real property in St. Landry and Acadia Parishes, and they own some oil royalties or mineral rights which provide them with an income of about $200.00 per month. The evidence is indefinite as to the value of the assets owned by the defendants, and we are unable to determine from the evidence whether they are financially able to pay the amount of the judgment which has been rendered against them. We thus will not reduce the amount of the award which was made by the trial court.

For the reasons assigned, the judgment appealed from is affirmed. The costs of the appeal are assessed to defendants-appellants.

AFFIRMED.

WATSON, J., concurs in the result.

      . State Farm Mutual Automobile Insurance Company also was named as a defendant, but the trial judge dismissed the suit as to that defendant and no one contends on this appeal that that part of the trial court judgment should be modified.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Carl W. GUILLORY et al., Defendants-Appellants.
    No. 5671.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 30, 1976.
    Rehearing Denied Dec. 15, 1976.
    Writs Refused Jan. 5, Feb. 11, 1977.

      Gravel, Roy & Burnes, J. Michael Small, Alexandria, for defendants-appellants.
    Edwin 0. Ware, III, Alexandria, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and GUIDRY, JJ.
   HOOD, Judge.

Rapides Parish seeks an injunction and an order of abatement under LSA-R.S. 13:4711, et seq., prohibiting defendants from carrying on and conducting prostitution on certain premises in the parishes of Rapides and Avoyelles. The suit was instituted against Carl W. Guillory, Linda Fuse-lier Guillory and Larry Melton Fuselier. It was dismissed as to Linda Fuselier Guillory and as to Larry Melton Fuselier, leaving Carl W. Guillory as the sole defendant.

Judgment was rendered by the trial judge decreeing that a permanent injunction issue against defendant Guillory, enjoining and prohibiting him from carrying on and conducting prostitution in buildings or structures located on two tracts of land in Rapides Parish and on one tract in Avoy-elles Parish. The judgment also decrees that an order of abatement issue directing the effectual closing of the buildings and structures located on the above tracts of land for a period of one year, unless sooner released by the court,, and ordering the sheriff to padlock those buildings and structures. Defendant Guillory appealed.

Several issues are presented, the principal one being whether LSA-R.S. 13:4711, et seq., is so vague and indefinite that it violates the due process clauses of the Louisiana and United States Constitutions, and thus is unconstitutional, void and unenforceable.

Defendant owns and operates the Trade-winds Motel, in Rapides Parish, and the Watergate Lounge, in Avoyelles Parish. The evidence establishes that he was actively engaged in conducting the business of prostitution at both of those locations at the time this suit was filed.

This suit was instituted on June 15, 1976, under the provisions of LSA-R.S. 13:4711, et seq. Plaintiff seeks a judgment enjoining defendant from carrying on and conducting prostitution on the above premises, and an order of abatement directing the effectual closing of the buildings and structures in which those activities were being conducted.

Defendant Guillory resisted the suit, contending primarily that LSA-R.S. 13:4711, et seq., is void and unconstitutional, in that its provisions are so vague and indefinite that “they do not give adequate notice of what action must be taken in order to avoid the issuance of an injunction or an order of abatement.” He contends that the cited statute violates the due process clauses of the Fourteenth Amendment of the United States Constitution, and Article I, Section 2, of the Louisiana Constitution of 1974.

LSA-R.S. 13:4711 provides, in part, that:

“Maintenance of a nuisance is to carry on, to conduct or to knowingly permit to exist, without instituting and proceeding with the legal action necessary to enjoin, prostitution, assignation or obscenity as now defined, or as hereafter defined, by the criminal laws of this state.”

LSA-R.S. 13:4712 and 4713 give the parish the right to institute suit for the type of relief which is being sought here. LSA-R.S. 13:4715 provides:

“If it is established in an action under the provisions of R.S. 13:4711 through 13:4713 that maintenance of a nuisance exists and that the owner of the building, land, structure or other place knew of its existence but did not institute and proceed with the legal action necessary to enjoin maintenance of the nuisance, an order of abatement may be entered as part of the judgment rendered in the case. The order of abatement shall direct the effectual closing of the building, land, structure or other place for the period of one year, unless sooner released.”

The above sections of the Revised Statutes were amended by Act 277 of 1974, apparently to remove objections which were pointed out in Gulf States Theaters of La., Inc. v. Richardson, 287 So.2d 480 (La.1973).

In Parish of St. Landry ex rel. Goudeau v. Veillon, 308 So.2d 830 (La.App. 3 Cir. 1975), the above sections of the Revised Statutes, as amended were attached on the ground that they violated the due process clauses of the state and federal constitutions, and we held that those sections were valid and constitutional. The arguments presented in the instant suit, however, were not made in Veillon.

In Connick v. Lucky Pierre’s, 331 So.2d 431 (La.1976), the district attorney of Orleans Parish filed a petition for an injunction and an order of abatement, under LSA-R.S. 13:4711, et seq., against the owners, lessees, sub-lessees, a bartender, and the sub-lessee business operator of Lucky Pierre’s Lounge. He alleged that Lucky Pierre’s was “a place in which assignation, prostitutions and solicitation, is practiced, initiated, solicited for and permitted to exist as a practice,” and that the “defendants have maintained this nuisance or knowingly permitted it to exist without instituting legal proceedings to enjoin it.” The action was dismissed against the owner, and that eliminated plaintiff’s demand for an order of abatement. According to our understanding of the action, plaintiff sought only injunctive relief against the remaining defendants. He did not contend that they were conducting prostitution but merely that they were permitting the maintenance of that nuisance to exist. The defendants filed an exception of no cause of action, arguing that LSA-R.S. 13:4711, et seq., is unconstitutionally vague. Our Supreme Court held that the exception had been properly sustained by the trial court, stating:

“. . .we conclude that the phrase “without instituting and proceeding with the legal action necessary to enjoin . ” is so vague and indefinite that it does not give adequate notice of what action must be taken in order to avoid the issuance of an injunction or an order of abatement, or, once issued, of how to avoid being held in contempt for violation of the injunction. For this reason, La. R.S. 13:4711 et seq. violates the due process clauses of the United States and Louisiana Constitutions and is void for vagueness.”

Defendant in the instant suit contends that the Supreme Court in Lucky Pierre’s decreed the cited statute to be unconstitutional for all purposes. Plaintiff contends that the court did not intend to invalidate the entire statute, but that instead it invalidated only those provisions which authorize injunctive or abatement relief against those who are not actively carrying on or conducting prostitution, but who are knowingly permitting prostitution to be conducted on the premises. Plaintiff points out that the action in Lucky Pierre’s was directly solely against defendants who were not conducting prostitution, and that the only ground assigned by the Supreme Court for invalidating the statute was that it did not describe in sufficiently definite terms the type of “legal action” which a person not actively conducting that nuisance must institute in order to escape the injunctive or abatement relief provided in the statute.

We agree with plaintiff that the phrase, “without instituting and proceeding with the legal action necessary to enjoin,” as used in the first paragraph of LSA-R.S. 13:4711, applies only to defendants who are not actively carrying on or conducting prostitution on the described premises. We also believe that the phrase, “but did not institute and proceed with the legal action necessary to enjoin maintenance of the nuisance,” as used in LSA-R.S. 13:4715, applies only to an “owner” who is not actively conducting such a nuisance, but who knows of its existence and permits it to continue to exist.

In our opinion, the Legislature intended by LSA-R.S. 13:4711, et seq., to provide for injunctive and abatement relief against (1) those who are carrying on or conducting the nuisances therein described, and (2) those who are not carrying on or conducting those nuisances but are knowingly permitting the maintenance of such nuisances to exist. We think the phrase, “without instituting and proceeding with the legal action necessary to enjoin,” in LSA-R.S. 13:4711, refers solely to the last named class of persons, that is, those who are not conducting the nuisances described but who are knowingly permitting them to exist.

To construe the statute in any other way would produce some untenable results, or it at least would necessitate an assumption that the Legislature intended to include some absurd provisions in the law. If the statute should be interpreted as argued by defendant, for instance, we would have to hold that the Legislature specifically authorized a person who is actively conducting prostitution to institute a legal action against himself for a judgment enjoining himself from continuing to conduct that nuisance. It also would necessarily require a holding that the Legislature intended to provide that if a person who is actively engaged in conducting prostitution institutes an injunction suit against himself, as ridiculous as such an action may be, then the fact that such an action has been instituted will effectively prevent the district attorney or the parish from enjoining him from continuing to actively conduct that' nuisance. The Legislature clearly did not intend to authorize a person to institute and maintain an injunction suit against himself, or to provide that a person who is conducting prostitution could insulate himself against an injunction or order of abatement, under LSA-R.S. 13:4711, et seq., by simply instituting such a legal action against himself.

When the provisions of a statute are uncertain, courts are required to consider the reason and spirit of it, and the cause which induced the Legislature to enact it. LSA-C.C. art 18. When a phrase in a statute is not clear, its meaning may be sought by examining the context in which it is used, and other words and phrases in the act may be compared in order to ascertain the true meaning of the phrase in question. LSA-C.C. art 16. The courts will not impute to a statute a meaning which would lead to an absurd result or extend to the statute a situation which the Legislature never intended to be covered by it. Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963).

Considering these rules of statutory construction, we have concluded that the Legislature intended that the phrase “without instituting and proceeding with the legal action necessary to enjoin,” contained in LSA-R.S. 13:4711, and a similar phrase contained in LSA-R.S. 13:4915, apply only to persons who are not conducting the nuisances therein described. Those phrases do not apply to persons, such as defendant in the instant suit, who are carrying on or conducting those nuisances. The defendants in Lucky Pierre’s were not conducting prostitution, and we think the Supreme Court intended to hold that the above statute is unconstitutionally vague only as to that class of persons.

Defendant in the instant suit is carrying on or conducting prostitution on the described premises, and the unconstitutionally vague portions of the statute thus do not apply to him. We have concluded that the statute is clear and definite insofar as it applies to a person who is engaged in carrying on or conducting prostitution, and that the Supreme Court did not intend to decree the statute to be unconstitutional insofar as it applies to that class of persons.

Our conclusion, like that of the trial judge, is that LSA-R.S. 13:4711, et seq., is valid and enforceable insofar as it applies to a person who is carrying on or conducting prostitution. We hold that it is constitutional and valid insofar as it applies to defendant in the instant suit, and that the trial court correctly overruled the exception of no cause or action filed in this suit.

Defendant filed an exception alleging that the district court in Rapides Parish is not a court of proper venue to issue an injunction or an order of abatement affecting immovable property in Avoyelles Parish. He relies on Article 80 of the Louisiana Code of Civil Procedure, the pertinent part of which provides:

“Art. 80. The following actions shall be brought in the parish where the immovable property is situated: (1) An action to assert an interest in immovable property, or a right in, to, or against immovable property, except as otherwise provided in Articles 72 and 2633;
$ * ‡ # sfc * '
If the immovable property, consisting of one or more tracts, is situated in more than one parish, the action may be brought in any of these parishes.”

We think comment (a) appearing under that article is applicable here. That comment reads:

“The last paragraph of this article changes the law by broadening the rule of Art. 1291 of the Civil Code, so as to permit one court to adjudicate all issues, even though separate tracts situated in different parishes are involved.”

In the instant suit plaintiff seeks an injunction and an order of abatement affecting premises in the parishes of Rapides and Avoyelles. We think LSA-C.C.P. art. 80 authorizes such a suit to be maintained in Rapides Parish. The trial judge thus correctly overruled defendant’s exception to the venue of the court.

There is no merit to defendant’s exception of vagueness. The petition adequately alleges the material facts, and it enabled-defendant to answer and to properly prepare his defense to the action.

Defendant contends, finally, that LSA-R.S. 13:4711, et seq., is unconstitutionally vague because it does not clearly define the meaning of the word “prostitution.” The statute gives the following definition of that term: “. . .as now defined, or as hereafter defined, by the criminal laws of this state.” LSA-R.S. 14:82, which constitutes part of the criminal laws of this state, provides:

“82. Prostitution is the practice by a female of indiscriminate sexual intercourse with males for compensation.”

In State v. Butler, 331 So.2d 425 (La.1976), our Supreme Court decreed the above statute to be clear and constitutionally valid, although it held that proof of a specific act of intercourse was required to establish prostitution. The definition of the word “prostitution” nevertheless was found to be clear and free from vagueness. In the instant suit actual acts of prostitution, as defined by the above criminal statute and by the Supreme Court, were proved. We thus find no merit to defendant’s argument that the statute fails to clearly define the meaning of the word “prostitution.”

Our ultimate conclusion is that plaintiff is entitled to the relief granted in the judgment rendered by the district court, and that there is no error in that judgment.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


author: LEMMON, Judge.

text:
    Bobbye Kirkland, wife of/and John Howard McCOY, Sr. v. WINN-DIXIE LOUISIANA, INC.
    No. 8179.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1976.
    Writ Granted Jan. 5, 1977.
    Michael W. Fontenot, Jefferson, for relator, Bobbye Kirkland McCoy.
    John T. Holmes, New Orleans, for respondent, Winn-Dixie Louisiana, Inc.
    Before LEMMON, SCHOTT and BEER, JJ.
   LEMMON, Judge.

Relatrix, Mrs. John McCoy, has applied for supervisory writs under C.C.P. art. 2201, complaining of the trial judge’s denial of her “Motion to be Relieved from Posting Jury Bond & to Proceed in Forma Pauper-is”.

Mr. and Mrs. McCoy instituted this tort action to recover separately certain damages sustained when Mrs. McCoy was injured on defendant’s premises. Mrs. McCoy sought to recover general damages, while Mr. McCoy sought to recover the damages owed to the community for his wife’s past and future medical expenses and loss of earnings.

The original petition requested a jury trial, but Mr. McCoy waived the jury trial as to his claim and refused, as head and master of the community, to supply community funds to post the necessary bond for the jury trial of his wife’s claim. Mrs. McCoy then filed the subject motion, alleging that her separate estate had no means to pay the cost of suit and particularly the $1,000.00 jury bond.

In Fields v. Rapides Parish School Bd., 228 La. 148, 81 So.2d 842 (1955), a suit by a married woman, whose husband was a wage earner, for reinstatement in her employment and recovery of her unpaid wages, the Supreme Court reversed the trial court’s denial of the wife’s right to proceed in forma pauperis, stating:

“Since . . . the action is personal to the wife and . . . this condition prevails up until the time the fund is collected, it is, therefore, manifest that having no funds of her own the relatrix is entitled to have this case tried and determined without the prepayment of costs.”

The court in the Fields case followed its earlier decision in Gilmore v. Rachl, 202 La. 652, 12 So.2d 669 (1943), which permitted a married woman in a defamation action to proceed in forma pauperis instead of furnishing a cost bond.

We distinguish the present case from the Fields and Gilmore cases, both of which involved claims by the wife alone on causes of action which accrued to her. We believe that the posture of the present cases raises significant policy questions which justify distinguishing the two cited cases.

Here, both spouses are together attempting to recover all of the damages arising from an injury to one spouse, but are together unwilling to underwrite the risk of an unsuccessful trial by jury. To allow the wife to proceed alone with a jury trial in forma pauperis under these circumstances would make ludicrous the fundamental concept of C.C.P. art. 5181 et seq., which accord a privilege to indigent litigants who would, otherwise be deprived because of their poverty of benefits to which they are entitled.

While theoretically a husband and wife with separate causes of action arising out of the same injury could proceed in separate actions in separate parishes (if there were no venue problems), we believe that to allow them to proceed in the same action, one before the judge upon payment of costs and the other before the jury in forma pauperis, does substantial violence to the purpose of the forma pauperis procedure and sets dangerous precedents. If this motion were granted, virtually every husband-wife cumulated action for damages from injuries sustained by the wife could be separately prosecuted in forma pauperis, without regard to whether the husband-wife partnership is able to afford the cost of prosecuting the claim. Perhaps two unrelated plaintiffs, joined in a cumulated action, would be entitled to the relief sought by this motion. But the relationship between these plaintiffs, acting in concert to recover all damages arising out of an injury to one party-, justifies the trial judge’s denial of the motion.

A trial judge has wide discretion in granting or denying applications to proceed under C.C.P. art. 5181 et seq. While this discretion must be exercised reasonably and is subject to review for abuse, we find no abuse of discretion under the circumstances of this case.

The application is denied.

APPLICATION DENIED.


author: BROOM, Justice, for the Court:

text:
    William Y. BRAME, Jr. and Mrs. Glemar Brame v. Bruce GARWOOD.
    No. 48947.
    Supreme Court of Mississippi.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.
    Snow, Covington, Temple & Watts, E. L. Snow, Meridian, for appellants.
    Singley, Minniece, Hamilton, Neville & Hamill, Lawrence W. Rabb, Paul M. Ne-ville, Meridian, for appellee.
    Before GILLESPIE, SUGG and BROOM, JJ.
   BROOM, Justice, for the Court:

Reduction of a jury to eleven members occurred during trial of this cause in the Circuit Court of Lauderdale County. Gar-wood (appellee, tenant) was asserting his tort action against Mr. and Mrs. Brame (appellants, landlord) for personal injuries Garwood received in a fall on allegedly defective back' steps of the apartment which he rented from the Brames. He received a jury verdict and judgment for $20,-000 which we must reverse.

Details of Garwood’s fall need not be set forth here. The jury found, as it had a right to do, that a part of the agreement whereby he would rent the apartment from the Brames was the condition and understanding between him and them that they would make specific repairs to the defective steps. According to the jury finding, failure of the Brames to make the specific repairs proximately caused Garwood’s injuries.

Facts salient to our resolution of the case are the following. During the fourth day of the trial and after much testimony was presented, one of the regular twelve jurors was excused when she (Mrs. Jordan) disclosed that for personal reasons she could not further serve on the jury. Without any objection, the juror was excused and the thirteenth juror (an alternate) was placed in the jury box, which action is not in issue here. Subsequently, another juror, Mrs. Mayer, discovered that she was closely acquainted with the daughter of the Brames (appellants), and according to the bill of exceptions which is in the record and signed by the circuit judge, “would be embarrassed to render a verdict . . . .” In chambers the judge with counsel discussed the situation, whereupon counsel for Garwood moved that the court “excuse her (Mrs. Mayer) and use an eleven man jury.” Counsel for the Brames objected and the court stated:

Well, counsel not agreeing to it, I will excuse her and let you continue with your case over the objection by counsel for the defendant; however, a nine man jury verdict is necessary. It looks like to me the defendant couldn’t complain but the plaintiff could; but what the Supreme Court of Mississippi may hold, I don’t know. I don’t know of a precedent.

Garwood says that any question related to the eleven member jury was waived and not properly preserved because the Brames (appellants) made only a general objection and did not move for a mistrial when the jury was reduced to eleven members. As to the matter of how to preserve, such a proposition, Garwood cites United States Fidelity & Guaranty Company v. Smith, 249 Miss. 873, 164 So.2d 462 (1964), and Hyde v. O’Neal, 234 Miss. 112, 105 So.2d 553 (1958). Neither of these cases deals with similar facts or a question of constitutional proportions such as is before us here where under our well established case law litigants have a right to trial by a jury composed of twelve members. Also cited is Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). That case alludes to Christ and his twelve apostles and states that the jury at common law was composed of precisely twelve. Williams further states that the twelve member jury concept is a historical accident and without significance “except to mystics.” We are not controlled by Williams here because it rested upon a statute which provided for a six member jury. While the better practice in this case might have led appellants to move for a mistrial, failure to so move did not waive the proposition upon the facts of this case where the objection to continue the trial with an eleven member jury was positively and unequivocally made.

Section 31 of the Mississippi Constitution of 1890 provides that: “The right of trial by jury shall remain inviolate . .” The fact that it further provides that nine or more jurors may render a verdict in civil cases does not mean that a litigant can be required to stand trial by a jury composed of fewer than twelve members. We are bound by our holding in Dement v. Summer, 175 Miss. 290, 165 So. 791 (1936). Speaking through Griffith, J., we said in Dement:

A trial by jury in a court of superior original jurisdiction is universally held to mean a jury of twelve qualified persons who shall decide the facts under the superintendence of a trial judge, who shall have the sole power to declare the law. (175 Miss, at 303-4; 165 So. at 793).

Of course, as stated in 47 Am.Jur.2d Jury § 133 (1969), “the parties can waive, or estop themselves, from asserting, the right to be tried before fully twelve jurors” in civil cases, but no such waiver or estoppel is presented by the peculiar and novel record before us. The action of the trial court in ordering the trial to continue (over the Brames’ objection) with eleven jurors exceeded his constitutional authority even though he may have felt compelled to take such action in order to salvage the trial that had already consumed several days at great expense. The exigencies of the situation, though unusual and weighty, do not constitute grounds sufficient to relieve trial courts of the requirement to accord litigants a full twelve member jury under our present constitution and statutory law. Accordingly, the case must be reversed and a new trial granted.

REVERSED AND REMANDED.

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

      . Miss.Code Ann. § 13-5-93 (1972) requires agreement by at least nine jurors who return a verdict in circuit court, but is silent as to numerical composition of juries in circuit or chan-eery court. Miss.Code Ann. § 9-9-33 (1972) requires that juries in county courts consist of twelve, and § 11-7-129 allows waiver of trial by jury.


text:
    Thomas M. SCHWARZAUER v. STATE of Mississippi.
    No. 49389.
    Supreme Court of Mississippi.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.
    Royals & Taylor, Robert H. Taylor, Jr., Thomas E. Royals, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SUGG and BROOM, JJ.
   BROOM, Justice, for the Court:

Double jeopardy is urged as ground for reversal of defendant’s manslaughter conviction which resulted from his second trial on a murder indictment in the Circuit Court of the First Judicial District of Hinds County. Sentence imposed was fifteen years imprisonment, which we affirm.

Defendant (appellant, Schwarzauer) shot and killed one Rogers near midnight December 15, 1974, at the Out-Of-Bounds Lounge in Jackson. Differences between the two men existed concerning Rogers’ alleged failure to keep up-to-date his support payments for defendant’s step-daughter (Rogers’ daughter). The episode occurred in the parking lot after the parties had differences with each other inside the lounge. Defendant says that Rogers physically assaulted him in the parking lot and in response he (defendant) armed himself with a rifle and approached Rogers, who was inside a truck. According to the defendant, his rifle accidently discharged, resulting in Rogers’ death.

The murder indictment against the defendant was returned in March 1975 and trial began May 21, 1975. Next day, after issue was joined and the state put on some proof, the circuit judge declared a mistrial because of the fact that during the night two jurors became separated from the others and visited in the motel lobby. Previously the judge had sequestered the jurors and expressly instructed them to remain together. Trial was accordingly aborted and delayed until the September Term before another trial judge, who overruled the defendant’s motion to dismiss. It is not absolutely clear as to whether the defendant actually objected to the mistrial when ordered, but the presiding judge (of the first trial) later testified that he didn’t remember any objection. In support of the motion to dismiss, defense counsel testified that at the first trial when advised that a mistrial was under consideration he said to the judge in chambers, “we don’t want a mistrial. We think we’ve got a winner and we’d just as soon go ahead.” At the time the mistrial was ordered, no record was made of any objection or response of the defendant. The motion to dismiss (at the second trial) was based on the defendant’s argument of double jeopardy “in violation of the Fifth Amendment of the United States Constitution, and Article III, section 22, Mississippi Constitution.”

Defendant argues that he was illegally placed in double jeopardy when trial was begun the second time. Before the second trial, he moved to dismiss the indictment on the ground that his first trial had been ended by an improperly declared mistrial. In that posture, double jeopardy is argued and it is urged that the “Fifth Amendment prohibition against placing a person in jeopardy twice for the same offense is applicable to the states through the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.” He says that the trial judge “has the power and duty to order a mistrial in case of legal necessity for so doing.”

Lampley v. State, 291 So.2d 707 (Miss.1974), is cited as authority for the defendant’s double jeopardy argument. There we did not hold that dispersal of trial jurors was proper — we simply held that a brief separation of two jurors from the others “should not vitiate the verdict” of guilty. Lampley did not state that the trial judge in his sound discretion could not have legally ordered a mistrial upon learning that the two jurors had become separated from the others. In Lampley the separation of the two jurors was by inadvertence, and not by their willful violation of instructions given them by the judge as happened in the case at bar. The rule is that such cases must be decided upon the particular facts and circumstances of each case and considerable discretion is vested in trial judges when confronted with technical problems which interrupt a jury trial. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824).

We reject defendant’s argument that in the instant case the trial judge “was so anxious to proceed with contempt charges against the two Jurors that the Appellant was literally thrown out of Court and forgotten.” No testimony in the record substantiates such a conclusion. To the contrary, the record demonstrates that the mistrial was ordered because the judge felt compelled to take such action in order to protect the rights of the defendant and the state to the end that justice would be served.

When to uphold a plea of double jeopardy is not new to this Court. A century ago in Teat v. State, 53 Miss. 439 (1976), the problem (on different facts) was discussed. There the court recognized that “we will let each case stand upon its own facts.” Text writers agree that the trial judge may in his discretion declare a mistrial and hold the defendant for another trial for various reasons including “the improper separation of the jury.” 3 C. Torcia, Wharton’s Criminal Procedure, § 519 (12th ed. 1975). Clearly there was an improper jury separation here even though under Lampley, supra, it may not have vitiated a jury verdict had the case proceeded to conclusion.

The action of the trial judge in granting the mistrial at the first trial cannot be said to be unreasonable, even though another judge similarly situated might have followed a different course. We are unwilling to rule that the double jeopardy provision of the Fifth Amendment to the United States Constitution means that every time a defendant is put to trial he must be set free if the trial aborts and does not conclude with a final judgment. The better rule which we apply here is that trial judges are peculiarly situated so as to decide (better and more logically than anyone else) when a trial should be discontinued. Such action may be taken in proper cases, after which the defendant may be tried by another panel of jurors, when the trial judge reasonably concludes that the ends of justice would thereby be best served, even though the defendant objects. In such situations, and absent any indication of prose-cutorial manipulation as is the case here, we will not reverse a criminal conviction. We recognize that the fair and orderly administration of justice requires that trial judges must have reasonable discretion in dealing with errant jurors who demonstrate their unwillingness to abide by the instructions of the court, or other unanticipated occurrences which transpire during trials. Our holding is in accord with Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), and Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), both of which recognize that there are no rigid rules that can be followed in every case where double jeopardy is argued. Upon this record, our judgment is that the trial judge in ordering the mistrial appropriately acted within his sound judicial discretion in furtherance of the ends of justice. Affirmance here is in accord with Bounds v. State, 271 So.2d 435 (Miss.1973). Bounds rejected a plea of double jeopardy on the ground that the defendant’s first trial did not result in his conviction or acquittal (as is true in instant case) pursuant to Mississippi Constitution of 1890, Article III, § 22.

We have carefully considered and find no merit in the defendant’s argument that the trial court erred in refusing to grant a mistrial because of remarks made by the prosecutor in his final argument. His other assignment of error, that the verdict (guilty of manslaughter) was contrary to the overwhelming weight of the evidence, is without substance. These two propositions upon this record are not of sufficient merit to warrant discussion.

AFFIRMED.

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


author: ROBERTSON, Justice, for the Court:

text:
    N. L. THOMPSON, Jr. v. STATE of Mississippi.
    No. 49285.
    Supreme Court of Mississippi.
    Nov. 23, 1976.
    Jacobs, Griffith & Povall, John Kirkham Povall, Cleveland, for appellant.

      A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   ROBERTSON, Justice, for the Court:

N. L. Thompson, Jr. and James Edward Thompson, his brother, were jointly indicted by the grand jury of the Circuit Court of the Second Judicial District of Bolivar County for the crime of armed robbery. Although jointly tried, the jury was unable to reach a verdict as to James Edward Thompson, but found N. L. Thompson, Jr. guilty as charged. The court sentenced defendant to a term of twenty-five years in the state penitentiary.

About 8:50 P.M. on November 6, 1974, Albert Ferri and his wife, Vera, were preparing to close their country store which was located between Boyle and Skene, Mississippi. Albert was putting cigarettes on the shelf, and Vera was filling the cold drink box when three black men, carrying guns and with faces uncovered, entered the store. Two aimed their weapons at Albert, while the third began choking Vera. Albert tried to go over and help Vera but as he moved in her direction he was shot in the head. After taking about $170 in cash, the robbers fled. Albert Ferri was taken to the hospital and his wound treated. Later Fer-ri identified by their pictures the defendant and his brother, James Edward Thompson, as the robbers who assaulted and shot him.

At the trial, both defendant and his brother asserted alibis as their defense. Defendant said that he was at Darlene Watson’s house the night of November 6, 1974. Darlene Watson testified that the defendant did leave her home in the late afternoon or early night for about an hour and a half, but that when he returned he was at her home all that night.

In his second assignment of error, defendant charged that the trial court erred in overruling his objection to out-of-court statements made by Albert Ferri to Ruby Robinson. Ruby found Albert Ferri on the floor of his store just after he was shot and after the robbers had fled. After they put Ferri in an ambulance, Ruby got in her car and drove directly to the hospital. While Ferri was in the hospital awaiting treatment, Ruby asked him if he knew who did it, and he replied “Yes, I know”. Ruby then asked him “Are you sure?” and he replied “Yes, I know who done it.” Ruby Robinson estimated that this conversation took place at least 30 minutes after she found him on the floor of his store. The court admitted this testimony as being part of the res gestae. This testimony should not have been admitted. It was not part of the res gestae. See Gholar v. State, 203 Miss. 371, 35 So.2d 706 (1948); Haney v. State, 129 Miss. 486, 92 So. 627 (1922).

If this were the only error it would be held to be a harmless error because Ferri named no one in his conversation with Ruby Robinson.

In his fifth assignment of error, appellant argued that “the lower court committed reversible error in overruling appellant’s objection to the introduction in court of statements made by a third party, outside the presence of the appellant, to witness John Albert Washington,” a rebuttal witness for the state. The trial court at first sustained appellant’s objection on the ground of hearsay, but after hearing the matter in chambers the court reversed itself and allowed the evidence to go in.

Washington testified that J. W. Thompson, the younger brother of N. L. Thompson, Jr. and James Edward Thompson, approached him about being a witness for his brothers. Washington’s testimony was vague and general and in no way connected appellant with the actions of J. W. Thompson.

The admission of this hearsay testimony, being a conversation between J. W. Thompson and John Albert Washington out of the presence of the appellant and in no way connected with him, constituted fatal error, and requires the reversal of this case. The rule is clear that testimony of an attempted subornation of perjury, never connected with the defendant himself, is not admissible. McCormick, Evidence, § 273 (2d Ed. 1972); 29 Am.Jur.2d, Evidence, § 293 (1967); Jolly v. State, 269 So.2d 650 (Miss.1972); Dickey v. State, 86 Miss. 525, 38 So. 776 (1905).

Inasmuch as N. L. Thompson, Jr. was found guilty as charged, and was sentenced to a term of twenty-five years in the penitentiary, we must presume that this erroneously admitted testimony did influence the jury against the appellant.

The conviction and sentence are, therefore, reversed, and this cause remanded for a new trial.

REVERSED AND REMANDED.

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


text:
    Brenda M. NELMS et al. v. Mildred Mullikin NEWCOMB.
    No. 48967.
    Supreme Court of Mississippi.
    Nov. 30, 1976.
    Smith, Downs, Coleman & Ross, David L. Coleman, Corinth, for appellants.
    Price & Krohn, James E. Price, Corinth, for appellee.
   Appeal from Chancery Court, Alcorn County; Fred P. Wright, Chancellor.

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

AFFIRMED.


text:
    LOWE’S OF TUPELO, INC. v. Paul DALLAS.
    No. 49016.
    Supreme Court of Mississippi.
    Nov. 30, 1976.
    Mitchell, McNutt, Bush, Lagrone & Sams, William C. Murphree, Tupelo, for appellant.
    Billy W. Shelton, Jimmy D. Shelton, Tu-pelo, for appellee.
   Appeal from Circuit Court, Lee County; Fred Wicker, Judge.

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

REVERSED AND RENDERED.

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


text:
    Frank PRICE, III v. STATE of Mississippi.
    No. 49138.
    Supreme Court of Mississippi.
    Nov. 30, 1976.
    J. W. Kellum, Sumner, for appellant.
    Marshall Lee Graves, Jr., Dist. Atty., Clarksdale, for appellee.
   Appeal from Circuit Court, Coahoma County; J. C. Feduccia, Judge.

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

REVERSED AND REMANDED.

All Justices Concur.


author: LEE, Justice, for the Court:

text:
    Earline H. DOBBS v. James O. BOWLING.
    No. 48988.
    Supreme Court of Mississippi.
    Nov. 30, 1976.
    Donald O. Simmons, Gulfport, for appellant.
    Roberts, Young, Stelly & Rosetti, Herbert J. Stelly, Sr., Gulfport, for appellee.
    Before PATTERSON, P. J., and SMITH and LEE, JJ.
   LEE, Justice, for the Court:

The Chancery Court of Harrison County entered a decree in favor of James O. Bowling against Earline H. Dobbs impressing an equitable lien in the sum of twenty-two thousand one hundred seventy-nine dollars and eighty-two cents ($22,179.82) on property conveyed to Dobbs, and ordered a sale of same to satisfy the lien. Dobbs appeals from that judgment.

The only question here is whether or not the trial court erred in impressing the lien against appellant’s property.

Mrs. Dorothy Lee Hicks held title to a home and lot in Biloxi, which had an appraised value of one hundred twenty-one thousand dollars ($121,000.00). The property was encumbered by a first mortgage in favor of First Guaranty Savings & Loan Association for approximately forty thousand dollars ($40,000.00), and a second mortgage in favor of Robert Mandell for thirteen thousand two hundred dollars ($13,-200.00). The mortgages were in arrears and Mr. Hicks entered into an agreement with Bowling in February, 1974, wherein Bowling would pay the arrearages and bring the mortgages current [See Appendix]. In return, Mrs. Hicks would convey the property to Bowling with her right to repurchase said property within one hundred twenty (120) days for the sum of twenty-three thousand eight hundred seventeen dollars and seventy-two cents ($23,817.72). The matter was discussed with Mrs. Hicks over the telephone, and she orally agreed to the terms. Thereupon, Bowling obtained two checks, one in the sum of fifteen thousand five hundred dollars ($15,500.00) which satisfied and can-celled the Mandell mortgage, and another in the sum of three thousand one hundred dollars ($3,100.00) which was applied to the mortgage held by First Guaranty Savings & Loan, and brought the mortgage up-to-date. In June, that mortgage became delinquent again, and, in order to prevent foreclosure proceedings and in order to protect his interest, Bowling delivered to First Guaranty another cheek in the sum of four thousand dollars ($4,000.00) which made the loan current.

Mrs. Hicks never executed the conveyance of the property to Bowling, and on June 13,1974, she and Mr. Hicks executed a warranty deed conveying it to Mrs. Earline Dobbs, the instrument reciting a consideration of ten dollars ($10.00) and assumption of the outstanding mortgage in the sum of forty thousand four hundred four dollars and thirteen cents ($40,404.13). Bowling had learned about the intended conveyance; he notified Mrs. Dobbs of his claim against the property, instituted suit on June 24, 1974, and a lis pendens notice was filed of record on the same day. The Dobbs deed was filed for record July 18, 1974. Therefore, the rights of Bowling against Hicks were preserved against Dobbs by actual notice and by the ¡is pendens notice.

Did the court err in holding that appellee was entitled to an equitable lien against the property?

The following discussion of an equitable lien is found in 53 C.J.S. Liens § 4, at 845 (1948):

“Payment of another’s debts or liabilities. Where debts or claims against property are paid in good faith by another on the express or implied request of the owner of the property, the one so paying is entitled to an equitable lien on the property for his reimbursement. However, a person is not entitled to such lien if he voluntarily pays the debts of another without such other’s request, unless, under the circumstances, the latter is es-topped to deny the lien; nor is he entitled to a lien if he makes such a payment in order to obtain wrongful possession of the property.”

The Court, in defining an “equitable lien” in Pincus v. Collins, 198 Miss. 283, 22 So.2d 361 (1945), stated as follows:

“Simply defined, an equitable lien, when created by contract, is the right by which a creditor is entitled to obtain satisfaction of his debt by resort to specified property belonging to the debtor, and no particular form of expression is necessary in such a contract so long as it is clear that the debtor intended to create the encumbrance. While the language here used is awkward, it is sufficient to disclose the intention, and the court was correct in giving it enforcement.” 198 Miss, at 287-288, 22 So.2d at 362.

Appellant cites Lewis v. Williams, 186 Miss. 701, 191 So. 479 (1939), and Reid v. Horne, 187 So.2d 316 (Miss.1966). The Lewis case involved a suit on an oral agreement for the conveyance of land and was an attempt to establish a constructive trust which would require the conveyance. The Court held that, if the oral agreement constituted a constructive trust, “then, we shall have practically abolished the statute of frauds, ...” 186 Miss, at 712, 191 So. at 481.

Reid was a suit to compel enforcement of an oral agreement permitting Horne to build and use a road across Reid’s property (an irrevocable license), and the Court held that an irrevocable license was an interest in land, was within the statute of frauds and refused to require enforcement of the oral agreement. These eases are distinguishable from the case at bar.

Hardy v. Candelain, 204 Miss. 328, 37 So.2d 360 (1948), stated the rule allowing recovery of money expended under an unenforceable contract:

“Appellee could not sue for specific performance, since the oral contract was unenforceable under the statute of frauds, but his remedy was recovery of the money he paid on the consideration for the broken contract. Carter v. Witherspoon, 156 Miss. 597, 126 So. 388; Ellis v. Berry et al., 145 Miss. 652, 110 So. 211; Singletary v. Ginn, 153 Miss. 700, 121 So. 820.
This Court has passed specifically upon the point upon which this issue turns, saying: ‘It is a familiar principle of law that, where payments are made by a purchaser under a parol contract for the sale of land, and the vendor refuses to com-píete the transaction by the execution of the necessary deed, the purchaser may recover the amount or amounts paid as for money had and received. * * ” 204 Miss, at 332, 37 So.2d at 361.

In Carter v. Witherspoon, 156 Miss. 597, 126 So. 388 (1930), Witherspoon filed suit to recover for services .rendered Carter upon an oral agreement wherein Carter agreed to bequeath and devise' property to Wither-spoon in consideration of the care and support rendered to Carter during her lifetime. A demurrer to the bill of complaint was overruled and was affirmed by this Court. Appellee also claimed that he had “paid off the purchase-money notes thereon [land].” The Court said:

“It will not be necessary for us to decide the first of these propositions. If the agreement is within the statute of fraud, and, therefore, not binding on the defendant, the complainant nevertheless has the right to recover the value of his services, and the money advanced by him to the defendant under the agreement. Ellis v. Berry, 145 Miss. 652, 110 So. 211; Singletary v. Ginn, 153 Miss. 700, 121 So. 820, 27 C.J. 363.
* * * * * *
The complainant’s claim to the right of subrogation to a lien that formerly existed on a portion of the land in favor of another rests solely on the allegation that he ‘paid off the purchase-money notes thereon.’ This allegation does not disclose, except by implication, that these notes were secured by a lien; and the mere discharge by one of a lien on the property of another does not entitle him to the right of subrogation thereto.
* * * * * *
Except in so far as it invokes the doctrine of subrogation, the complainant’s cause of action is simply one for damages cognizable in an action at law, and he has no right to a lien, therefore, on the defendant’s property.” 156 Miss, at 602, 603, 126 So. at 389.

It was indicated in the Carter, case that had the appellant fully pled the payment of purchase-money notes and the doctrine of subrogation, the theory of subrogation would have prevailed.

Prater v. Prater, 208 Miss. 59, 43 So.2d 582 (1949), involved a conveyance by Mrs. Prater to Mrs. Stribling of certain lands encumbered by a mortgage. Mrs. Prater’s deed included her husband as a joint grantee, but the deed was altered to reflect only Mrs. Prater as grantee. Mrs. Stribling paid and satisfied the mortgage, and, in the suit by Mr. Prater to declare his one-half (V2) interest, the Court held that, while she was vested only with an undivided one-half (Vfc) interest in the property, Mrs. Stribling was entitled to an equitable lien against the one-half (V2) interest of Mr. Prater to secure one-half (V2) the amount she had paid in discharging the lien.

In Fletcher v. Nemitz, 186 So.2d 232 (Miss.1966), Mrs. Nemitz, daughter of Mrs. Fletcher, moved from Ohio to Mississippi upon the oral promise of Mrs. Fletcher that she would convey certain property to Mr. arid Mrs. Nemitz, when they paid off a seven-thousand-dollar ($7,000.00) loan on same. After the loan was paid, Mrs. Fletcher declined to execute the deed. The lower court held that a constructive trust arose in favor of Mrs. Nemitz, and, in reversing the case and holding that the facts did not justify a constructive trust and that the oral promise was unenforceable under the statute of frauds, the Court said:

“Mrs. Fletcher concedes that if there was an oral promise to convey, Mrs. Nem-itz has an equitable lien on the flower shop property to secure the sums paid on the construction loan which the trial court held to be purchase money payments.” 186 So.2d at 237.

It is indicated that, if Mrs. Fletcher had not conceded an equitable lien arose in favor of Mrs. Nemitz, the Court would have impressed the lien.

The Court held in Robert G. Bruce Co. v. Spears, 187 Miss. 405, 187 So. 756 (1939), that where appellant paid Spears for timber on his lands under an oral contract of sale, and the money was used to discharge encumbrances against the property, upon the refusal of Spears to permit the timber to be cut, appellant was entitled to have the deed of trust and tax liens revived and to be subrogated to the rights of the holders whose claims appellant’s money had paid.

And, in Kellner v. Kellner, 241 Miss. 53, 129 So.2d 391 (1961), the Court in quoting from Oxford Production Credit Association v. Bank of Oxford, 196 Miss. 50, 16 So.2d 384 (1944), stated:

“ ‘The right of subrogation is founded, not upon contract, but upon justice and equity, and rests upon the principle that substantial justice should be attained regardless of form. It is a creature of equity, and is the mode which equity adopts to compel the ultimate payment of a debt by one who, in equity and good conscience, ought to pay it.’ Oxford Production Credit Ass’n. v. Bank of Oxford, 196 Miss. 50, 16 So.2d 384, 388.” 241 Miss, at 62, 129 So.2d at 395.

It is undisputed that the sums paid by Bowling were applied in satisfaction of the mortgage to Mandell and were applied to the First Guaranty mortgage to prevent foreclosure. Mrs. Dobbs received property with an appraised value of $121,000.00 for the sum of $40,403.13. It would be inequitable and unconscionable to permit her and the .Hicks to be unjustly enriched and to escape payment of the sums expended by Bowling which inured to their benefit. We, therefore, hold that Bowling was subrogat-ed to the rights of the lienholders in the amounts paid by him and that he was entitled to an equitable lien on the property to secure the payment thereof.

AFFIRMED.

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

APPENDIX

State of Mississippi

County of Harrison

February 20, 1974

AGREEMENT

This memorandum of an agreement made and entered into this date by and between James 0. Bowling and Clyde E. Hicks.

It is hereby understood and agreed by the aforementioned: That, since James O. Bowling has seen fit to prevent the property of Clyde E. and Dorothy Hicks, known as 4805 Washington Avenue, Lot 8, Block 64, Bayou View Subdivision, City of Gulfport, Harrison County, Mississippi, from foreclosure proceedings on February 21,1974.

That Dorothy Hicks will afford James O. Bowling a deed to the property and it shall be considered his, until the agreed amount of money has been recovered by James O. Bowling.

The amount agreed upon for a period not to exceed 120 days is $23,718.72, from the above date.

STATE OF MISSISSIPPI

COUNTY OF HARRISON

Personally came and appeared before me, the undersigned authority, in and for the aforesaid jurisdiction, the within named James 0. Bowling, who acknowledged before me that he executed and delivered the within and foregoing on the day and date herein shown for the purpose and purposes therein intended.

GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 20th day of February, A.D., 1974.

/s/ Oscar B. Ladner_

NOTARY PUBLIC

My Commission Expires July 8,1977.


author: SMITH, Justice, for the Court:

text:
    Karl Anthony WANSLEY v. STATE of Mississippi.
    No. 49118.
    Supreme Court of Mississippi.
    Nov. 30, 1976.
    John R. Poole, Percy Stanfield, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SMITH and BROOM, JJ.
   SMITH, Justice, for the Court:

Karl Anthony Wansley, a sixteen year old minor, was convicted of the capital murder of Emma Seals under the provisions of Mississippi Code Annotated section 97-3-19(2)(e) (Supp.1976) and sentenced to death.:

The validity of the statute under which Wansley was convicted is challenged upon the ground that it unconstitutionally permits the imposition of the death penalty. That contention was rejected by this Court in the case of Jackson v. State, 337 So.2d 1242 (Miss.1976). The views expressed in Jackson, however, require that this case be reversed and remanded for further proceedings consistent with the opinion in Jackson.

Of the other alleged errors assigned on the present appeal it is necessary to notice only the following:

(1) The contention that Mississippi Code Annotated section 43-21-39 (1972) unconstitutionally gave the circuit court “uncontrolled discretion” to “remand” the case to the Youth Court in order that the defendant might be dealt with as a delinquent minor, is without merit. Section 43-21-31 provides for the transfer of felony cases to other courts but concludes: “except that the circuit court shall have exclusive jurisdiction of such child if he be charged with any crime which, upon conviction, is punishable by life imprisonment or death.” Section 97-3-19(2)(e) (Supp.1976), supra, under which appellant was convicted, provides for the imposition of the sentence of death or of life imprisonment. The circuit court is without power to transfer the case of a minor so convicted or charged to the youth court to be dealt with as a case of delinquency.

(2) The evidence reflects that Wans-ley, with several companions, made an unsuccessful attempt to break into Seals Grocery in the early morning hours of the day of the armed robbery and murder of Emma Seals. The evidence of this earlier attempt was properly admitted. The facts in evidence, as shown by the record, were that Emma Seals and her husband lived in the tiny building which housed their small grocery and that the purpose of Wansley and his fellows in their earlier attempt to break into the building was to steal. The armed robbery of Seals Grocery, and the murder of Emma Seals in the course of that robbery, later on in the morning of the same day, reflected that Wansley and his companions had not abandoned their criminal purpose but persisted in their intention to rob the Seals after their earlier attempt had been frustrated.

In Engbrecht v. State, 268 So.2d 507 (Miss.1971), this Court, quoting from Brooks v. State, Miss., 242 So.2d 865, 869 (1971) stated:

The general rule is that in a criminal prosecution evidence which shows or tends to show that accused is guilty of the commission of other offenses at other times is not admissible, unless the other offenses are reasonably connected with that for which he is on trial. There is a substantial number of these exceptions.
Evidence of other crimes is admissible to prove identity of .the defendant, scienter or guilty or criminal knowledge, criminal intent or purpose, motive, a plan or system of criminal action where a continuing offense is charged, or where other crimes form a part of the res gestae. Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962); 29 Am.Jur.2d Evidence §§ 320, 321 (1967). The “acid test is its logical relevancy to the particular excepted purpose or purposes” for which the evidence of prior offenses is sought to be introduced.

(3) The jury instruction requested by the appellant dealing with the weight to be given to Wansley’s confession was properly refused for the reason that it was unsupported by the evidence. The trial court properly admitted Wansley’s confession which was shown to have been made voluntarily after he had been properly advised of his rights.

Other matters assigned as error are without merit or are of such a nature as are not likely to recur upon the retrial of the case.

The evidence was sufficient to show that, in shooting down Emma Seals, an elderly and defenseless woman, Wansley committed a brutal and senseless murder. The case will be reversed and remanded for a new trial and further proceedings consistent with the opinion in Jackson v. State, supra.

REVERSED AND REMANDED.

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


text:
    FUTORIAN MANUFACTURING COMPANY and Employers Mutual Liability Insurance Company of Wisconsin v. Dennis L. KIMBLE.
    No. 49020.
    Supreme Court of Mississippi.
    Dec. 7, 1976.
    Daniel, Coker, Horton, Bell & Dukes, Forrest W. Stringfellow, Jackson, for appellants.
    Carnathan & Davidson, Gary L. Carna-than, Tupelo, for appellee.
   Appeal from Circuit Court, Chickasaw County; W. W. Brown, Judge.

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

AFFIRMED AND REMANDED TO WORKMEN’S COMPENSATION COMMISSION.

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


text:
    FIRST COMMERCE REALTY INVESTORS et al. v. HODGES ENGINEERING CORPORATION and D. L. Weatherly Paint Contractor.
    No. 48999.
    Supreme Court of Mississippi.
    Dec. 7, 1976.
    Wells, Wells, Marble & Hurst, Roland D. Marble, Jackson, for appellants.
    Young, Scanlon & Sessums, E. Stephen Williams, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; Francis S. Bowling, Judge.

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

REVERSED AND REMANDED.

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

GILLESPIE, C. J., did not participate in this decision.


author: JONES, Justice. BLOODWORTH, Justice MADDOX, Justice

text:
    BELOIT CORPORATION, a corporation v. Kenneth G. HARRELL, American Can Co., a Corporation (Intervenor).
    SC 1406.
    Supreme Court of Alabama.
    Oct. 1, 1976.

      Lyons, Pipes & Cook, and Norton Brook-er, Jr., Mobile, Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellant.
    Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, Hardin, Stuart, Moncus & Noojin, Birmingham, for appellee.
   JONES, Justice.

This 312 personal injury action arose when the plaintiff’s (Kenneth Harrell’s) hands were caught by the in-running nips of a papermaking machine which was manufactured by the defendant, Beloit Corporation. Harrell’s employer, American Can Company, paid workmen’s compensation benefits and intervened as a party plaintiff.

THE FACTS

In late 1959, Beloit sold this papermaking machine to Marathon Paper Company who subsequently sold their operation to American Can Company. Shortly after the installation of the machine, an air chute was removed by American Can. The evidence is conflicting as to whether this chute was an automatic feeding device, although there seemed to be a general agreement that this device did not work properly on heavier grades of paper. Employees of American Can testified that the chute was removed because it did not work. American Can also removed certain doctor blades from the machine. While the evidence is conflicting as to the function of these blades, even Beloit’s expert witness admits that they were not safety guards and that various problems occurred with respect to the operation of these blades. American Can employees testified that, just as in the case of the chute, the blades were taken off because they did not function properly.

This machine consists of wet and dry calendar stacks. The paper is threaded through various nip points between each roll in the calendars. The nip is the area between any two in-running rolls facing a workman and is similar to a wringer-type washing machine.

Just prior to the accident a sheet of paper being processed broke and it became necessary to rethread the machine. Harrell went to a catwalk on the back side of the dry calendar with an air hose. The sheet of paper being rethreaded was thrown into the top nip and the paper began to wrap around the top roll instead of threading properly. Harrell was attempting to blow the paper off the roll with an air hose when his right hand became caught in the nip. He immediately attempted to pull out the hose with his left hand and it too was caught.

Harrell’s injuries may be summarized as follows: On the right hand the thumb was denuded; the little finger was split from the tip to the palm; the denuded proximal phalanx was all that remained of the ring finger; the other two fingers were severed; and, during surgery, the metacarpals were shortened because they were no longer functional. On the left hand, the thumb was intact but a completely denuded index finger was the only finger remaining; and the metacarpals were also shortened during surgery. Each upper extremity was 95% permanently disabled which, according to the medical testimony, was translated into 75% permanent partial disability to the body as a whole.

At the close of the trial, and after the jury had been charged, the plaintiff began making his exceptions to the charges. Whereupon, the Court recessed and the Judge did not allow Harrell to complete his objection and exceptions nor was Beloit allowed any opportunity to object or except. The trial Judge granted each attorney an exception to the entire charge that was submitted to the jury. A verdict was returned in favor of Harrell in the amount of $800,000.

' THE ISSUES PRESENTED

Three primary issues are presented:

1)Beloit claims error in the denial of its motion for a directed verdict, asserting two separate contentions:

(a) that the sole proximate cause of Harrell’s injuries consists in the acts of American Can in positioning Harrell on the catwalk and furnishing him with a rubber hose to thread the paper, coupled with the removal of the air chute and doctor blades.
(b) that Beloit owed no duty to protect Harrell because the conditions which caused the injuries were open and obvious and known by Harrell to exist.

The first primary issue (the denial of a directed verdict) in its two aspects, then, may be summarized:

(a) whether, as a matter of law, the modification of the machinery by American Can constituted sufficient intervening cause to absolve Beloit from liability;
(b) whether, as a matter of law, the open and obvious doctrine should have been applied.

2) Beloit urges that reversible error was committed by the trial Judge when Beloit was denied the right to make specific objections to the Court’s charges before the jury retired, even though counsel was allowed to except to all charges given.

The second issue, then, is: whether the denial of the right to make specific objections to the trial Court’s charge before the jury retired was reversible error even though the charges themselves were not erroneous.

3) Beloit urges this Court to find that the amount awarded Harrell as damages was so excessive that it clearly shows, bias, prejudice or mistake and an abuse of discretion by the jury.

THE DECISION

I. The Directed Verdict Issue.

Under established Alabama law, in civil cases, the function of an appellate court in reviewing a motion for a directed verdict is to “[rjeview the tendencies of the evidence most favorable to the [party moved against], regardless of any view we may have as to the weight of the evidence and we must allow such reasonable inferences as the jury were free to draw, not inferences which we may think the more probable.” Alabama Power Company v. Irwin, 260 Ala. 673, 72 So.2d 300 (1954); Briggs v. Birmingham Railway Light & Power Company, 188 Ala. 262, 66 So. 95 (1914).

As more recently stated in Ford Motor Company v. Rodgers, Ala., 337 So.2d 736 [1976]:

“In determining the propriety of granting a motion for a directed verdict the court must indulge every inference in favor of the non-moving parties. ARCP, Rule 50; Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).”

A. Intervening Cause Défense.

We have reviewed the trial Court’s entire instruction to the jury, placing particular emphasis on that portion of the charge dealing with proximate cause and intervening cause. We find that under this instruction, including five charges requested in writing by Beloit concerning proximate cause, this question was properly submitted to the jury; and we further find that there is sufficient evidence to support its finding that Beloit’s negligent design was the proximate cause, or the proximate contributing cause, of the injury.

A basic principle of tort law, so fundamental as to require no citation, is that a tort-feasor whose act or acts contributes in causing an injury may be held liable for the entire resulting loss. Butler v. Olsham, 280 Ala. 181, 191 So.2d 7 (1966); see also Prosser, Law of Torts, 4th Ed., pp. 291-323 (1971).

Indeed, the following two charges given at Beloit’s request recognize this basic tort principle:

“14. The Court charges the jury that the seller of a product such as Beloit Corporation in this matter, is not an insurer against all harm which might be caused by a user of his product. A seller is also not liable in damages where the product sold by it is made unsafe by another person after it leaves the seller’s control. Therefore, if you are reasonably satisfied from the evidence in this case that at the time physical control of the papermaking machine referred to in the Plaintiff’s Complaint was relinquished to Southern Marathon Corporation it was in a reasonably safe condition, and if you are further reasonably satisfied from the evidence in this cause that modifications were made to the machine by persons other than the Defendant, Beloit Corporation, after the machine was turned over to Southern Marathon Corporation or the Plaintiff’s employer, and if, you are further reasonably satisfied from the; evidence, in this cause that the modifications made by persons other than the Defendant, Beloit Corporation, was the sole proximate cause of the Plaintiff’s injuries and damages and that the Defendant, Beloit Corporation, was not guilty of any other negligence, then the Court charges the jury that you cannot return a verdict in favor of the Plaintiff and against the Defendant, Beloit Corporation.
“14a. The Court charges the jury that the seller of a product such as Beloit Corporation in this matter, is not an insurer against all harm which might be caused by a user of his product. A seller is also not liable in damages where the product sold by it is made unsafe by another person after it leaves the seller’s control.”

There is ample evidence that Beloit was aware that the air chute did not work from the outset when the machine was installed and thus Beloit could foresee the probability that this chute would be removed. Beloit’s expert, Mr. Cleiler, testified that the chute as installed would probably not function as an automatic feeder on heavy grades of paper. Secondly, there seems little dispute that these doctor blades were not guards. Mr. Cleiler stated, “I do not consider these doctor blades guards.” This testimony, together with the exhibits admitted into evidence, constitutes sufficient evidence from which the jury could properly infer that the presence of the blades would not have prevented the accident.

Furthermore, Harrell’s expert witness, Professor Landry (a design engineer who was currently serving as the National President of the American Society of Safety Engineering), testified:

“My opinion is that that calendar stack as it was designed and manufactured by Beloit and subsequently shipped to and assembled at the Marathon Paper which was subsequently changed to American Can, does or did, in my opinion, within the known state of the art at that particular time, present a hazardous situation from the viewpoint that the most hazardous part of that machine, the nip point between the in-running rolls, was not protected or guarded in any way to prevent the entry of a man’s hand in between the pinch point or in between any of the sets of in-running rolls. The machine also lacked some other considerations from the point of view of safety but that was the principle one.
“. . . There are instances where automatic feeds break down. They are not always functional. They get out of adjustment. It then becomes necessary to supplement on occasions automatic feed with manual feeding. Sometimes adjustments have to be made on the machine while it is running. Under those circumstances, then you would have the same kind of exposure to the man as if there was no automatic aspect to the machine. So, when that situation prevails, then the prudent and desirable thing and necessary thing from a safety engineering viewpoint is to anticipate those situations and provide the physical barrier guard at, in this instance, the in-running nip point of the rolls. Realizing that the automatic devices may at some time fail or require technical adjustment.
“. . . then again the proper approach is, considering the safety of the man, to provide for the supplemental protection at the nip point by use of fixed barrier guards. .
“I think the most explosive one is this excerpt from the Accident Prevention Manual published by the National Safety Council in 1955 which shows different types of barrier guards from an angle bar to three bars with spacing in between, in a sense, a round pipe guard that would fit up close to the nip point or to a straight barrier guard, all of which, of course, allow room for the stock to come in here, straight across or from the top roller or the under roller. These are basically principles of the types of barrier guards that are employed in a variety of operational circumstances to prevent a man’s hand from getting in the nip point.”

We hold, therefore, that the intervening cause issue was properly submitted to the jury.

B. Open and Obvious Defense.

Beloit argues that there is no duty owed by a remote manufacturer to a workman to guard against known, open and obvious dangers to the workmen. Translated literally, this seems to say that Beloit did not owe Harrell a duty to protect him from known, open and obvious dangers.

The open and obvious doctrine appears to have its genesis in the case of Campo v. Schofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). Stated succinctly, the doctrine is that there is no liability on the part of a manufacturer for injuries resulting from dangers which are patent and obvious. New York, which begat this doctrine in Campo, has since destroyed it in the recent case of Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976). The New York Court of Appeals, in overruling Campo, stated, “Campo suffers from its rigidity in- precluding recovery whenever it is demonstrated that the defect was patent. Its unwavering view produces harsh results in view of the difficulties in our mechanized way of life to fully perceive the scope of danger which may ultimately be found by a court to be apparent in manufactured goods as a matter of law.” 384 N.Y.S.2d at 120, 348 N.E.2d at 577.

Taken to its logical conclusion, the application of the open and obvious doctrine amounts to an assumption of risk as a matter of law. Additionally, its application would relieve the defendant of the burden of proving that the plaintiff subjectively appreciated a known risk. In view of our highly technological environment, an adoption of such a doctrine would be a step backwards in an increasingly mechanized society. In essence, the doctrine permits the manufacturer to ignore a known hazard and escape liability because the workman also recognized the danger.

Ordinarily, the conduct of the plaintiff, in his use of an alleged defective product, is a factual issue for the jury. See the “Allowable Defenses” section of Atkins v. American Motors Corporation, Ala., 335 So.2d 134 (1976). In the context here applicable, we decline to apply the open and obvious defense as a matter of law. Under the evidence in the instant case, we hold that-the^jury was free to find that Beloit had the means and technology to make the product-' safe, while Harrell had but one choice—to work or not. Consequently, we hold that the open and obvious issue was likewise a question of fact for the jury.

II. The Failure to Allow Objections to Court’s Charge Issue.

Beloit argues that the trial Judge committed reversible error in denying counsel the right to make specific objections to the Court’s charges before the jury retired. The trial Judge did, however, allow each attorney “an exception to everything the Court had said or done in the charges.” The Judge elaborated by stating that his purpose was to preserve for all the attorneys any error committed.

Although we do not approve of the Court’s refusal to allow counsel to state their objections before the jury retired for deliberation, we' believe no prejudicial error was committed unless the given instructions were themselves erroneous; and our careful review of all challenged portions of the charge discloses no erroneous jury instruction.

The purpose of allowing counsel the opportunity to state their objections is twofold. First, it preserves, for appellate review, any error committed in the giving of a defective instruction. Secondly, it offers the trial judge an opportunity to correct any error he may have committed. See ARCP, Rule 51, and Comments. Here, there is no question that the trial Judge, by refusing to allow the parties to state specific objections to his charge, denied himself the opportunity to correct any error he might have made; but the crucial question is whether, absent an erroneous charge, this was prejudicial to Beloit. We hold it was not.

III. The Excessive Verdict Issue.

Beloit contends that the jury verdict was so excessive that it showed bias, prejudice and partiality on the part of the jury. It has long been established that compensatory damages for pain and suffering must be left to the sound discretion of the jury subject only to correction for clear abuse or passionate exercise. Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So.2d 830 (1948).

Beloit’s chief contention is founded on the evidence that Harrell returned to work at American Can prior to the trial. This is merely one factor to be considered by the jury in determining if there has been a loss of earning capacity. As stated in Louisville & N. R. Co. v. Steel, 257 Ala. 474, 59 So.2d 664 (1952):

“Furthermore the plaintiff is not precluded from recovery for impairment of his earning power by reason of injuries sustained by him because he returned to work in October 1949 and worked up until the time of the trial in December 1950. It is held that wages actually earned by a person and his earning power are not identical. The fact that the plaintiff worked for appellant for several months prior to the trial of the case was merely evidence to be considered by the jury in determining whether or not his earning power had been impaired by the accident.”

The distinction between loss of actual earnings and loss of earning capacity is well stated in Lawrence v. Norfolk Dredging Company, 319 F.2d 805 (4th Cir. 1963):

“[A] comparison of earnings before and after the injury is not a particularly significant or controlling consideration where there was evidence before the jury to support the conclusion that, under circumstances such as these, the injuries will affect plaintiffs future employment possibilities.”

Mr. Bennett, an employment specialist, gave his expert opinion that Mr. Harrell’s age, educational background, training, work history, coupled with the damage to his hands, and the fact that the plaintiff was “over-employed” in his present job rendered him virtually unemployable for other work. (On the efficacy of non-medical expert testimony on the issue of employability and occupational disability, see Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974)).

Dr. Rutledge, the orthopedist who performed three separate surgical procedures on Mr. Harrell, stated:

“Mr. Harrell is obviously very limited in what he can do with his hands. He can pick up things. He cannot decipher what he is holding [no sense of feel] but he can pick up things and that’s about all. His occupation has to be very sedentary and cannot involve any type of job that involves any manual dexterity at all.”

Unquestionably, if loss of earning capacity, coupled with the other special damages, were the only elements of damages presented for the jury’s consideration, we could not justify an affirmance of the $800,000 verdict. But our cases have consistently held that all injurious residuals proximately resulting from permanent injury negligently inflicted by one party upon another, properly plead and proved, are due to be considered by the jury in arriving at its verdict. Some of these factors were enumerated in Alabama Great Southern R. Co. v. Flinn, 199 Ala. 177, 74 So. 246 (1917):

“Pain and suffering, past and future, impaired health, diminished earning or working capacity, mutilation or disfigurement, and expenses of nursing and care; and there may be incurred many other detrimental effects, and expenses, as the natural and proximate result of the injury .. .
“ ‘It is to be assumed that every physical endowment, function, and capacity is of importance in the life of every man and woman, and that occasion will arise for the exercise of each and all of them. And to the extent to which any function is destroyed, or its discharge rendered painful or perilous by the wrongful infliction of personal injury, is the party complaining entitled to damages. We can, in other words, conceive of no physical injury, wrongfully inflicted, whether entailing pain only, or disfigurement, or incapacity, relative or absolute, to perform any of the functions of life, which may not be made the predicate for compensation in damages.’ ”

This eloquent expression, originally stated in Hill’s Case, 93 Ala. 514, 9 So. 722 (1890), is founded on the premise that man does not live by bread alone. Approximately one-third of man’s waking hours consist of life that is consumed neither by sleep nor work. The very presence of Harrell for the jury’s observation during trial was evidence from which the jury could measure the worth of the pain and suffering and the diminution of those functions so essential to the fullness of life; for all man does is live. Lawrence v. Norfolk Dredging Company, supra.

Our detailed review of the evidence does not convince us that the jury abused its discretion in its award of damages. Both hands were virtually traumatically amputated, leaving only a 5% function of each hand. That a jury would render so large a verdict for such an injury does not of itself indicate bias, prejudice or other improper motive.

Moreover, the denial by the trial Court of this ground for a new trial serves to strengthen the validity of the jury verdict. A good statement of the rule is found in Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963):

“It is almost platitudinous to restate the guiding rules, but here they are: The verdict of a jury should not be interfered with merely because in the opinion of the court the jury gave too little or too much . and the authority vested in the courts to disturb a verdict of the jury on the ground of excessiveness is one which should be exercised with great caution. . Where, as here, there is no set standard for the admeasurement of damages but the damages to be awarded are left to the sound discretion of the jury, a remittitur or a new trial should not be ordered on the ground of excessiveness of the jury’s verdict except in those cases where the court can clearly see that the verdict has been reached on account of bias, passion, prejudice, corruption, or other improper motive or cause . And only where the damages allowed are so excessive as to warrant the belief that the jury must have been misled by some mistaken view of the merits of the case should the court interfere and set the verdict aside . . . also, where the trial court refuses to grant a new trial because he does not believe the verdict is excessive, the favorable presumption attending the jury’s verdict is thereby strengthened.”

We therefore affirm.

AFFIRMED.

FAULKNER, SHORES and EMBRY, JJ., concur.

HEFLIN, C. J., and BLOODWORTH, ALMON and BEATTY, JJ., concur specialty-

MADDOX, J., dissents.

BLOODWORTH, Justice

(concurring specially).

I concur. Although I think that the verdict is “too much,” I am not convinced that the verdict is “excessive” under our case law, so that we would be justified in ordering a remittitur.

“ . . . The verdict of a jury should not be interfered with merely because in the opinion of the court the jury gave too little or too much. ... [A] remitti-tur or a new trial should not be ordered on the ground of excessiveness of the jury’s verdict except in those cases where the court can clearly see that the verdict has been reached on account of bias, passion, prejudice, corruption, or other improper motive or cause. . . . ”

Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963). See also Vest v. Gay, 275 Ala. 286, 154 So.2d 297 (1963).

HEFLIN, C. J., and ALMON and BEAT-TY, JJ., concur.

MADDOX, Justice

(dissenting).

Liability for product-caused harm may not be imposed on a manufacturer in the absence of proof that the product was defective or dangerous at a time when the manufacturer had possession of it or was otherwise responsible for its condition with respect to danger or defect. A manufacturer is not liable for injuries caused by a defective product if the defect was caused by an alteration which amounts to an intervening or superseding cause of the injury.

Here, the evidence is uncontradicted that after the machine left the control of the manufacturer, it was altered by removal of the automatic paper threading device, the removal of the doctor blades and the alteration of the catwalk. If the machine had not been altered, I do not believe, as a matter of law, that the accident could have occurred as it did.

While I recognize that not every modification of a product after it has left the hands of the manufacturer will defeat recovery, but only such modification as might significantly contribute to the accident, I believe that the modification here not only significantly contributed to the accident, but, in fact, caused it.

The plaintiff’s theory, adopted by eight members of this Court, is that Beloit should have foreseen that American Can would modify the machine and make it dangerous, While I recognize that foreseeability is normally a jury issue, I believe that justice requires that, under the facts of this case, this Court should find that Beloit was not under any duty to foresee that these major modifications of its product would be made. In fact, I believe that Beloit has been deprived of due process of law under both State and Federal Constitutions. Consequently, I respectfully dissent.

      . Tit. 26, § 312, Code, provides: “Where the injury . . for which compensation is payable . was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer . . . the employee may bring an action against such other party to recover damages for such injury . .

      . Our setting out of these charges is not to be construed as approving these charges as correct statements of the law; rather, we are pointing out that the trial Judge in his instruction to the jury covered this area of applicable law in the language requested by Beloit.

      . On the “open and obvious” issue in a non-products liability case, see Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 235 So.2d 371 (1970). On the “open and obvious” issue in a products liability case, but arising in a different factual context from the instant case, see Ford Motor Company v. Rodgers, Ala., 337 So.2d 736 [1976],