author: INZER, Presiding Justice,

text:
    CITIZENS NATIONAL BANK v. FIRST NATIONAL BANK.
    No. 49338.
    Supreme Court of Mississippi.
    June 1, 1977.
    Rehearing Denied July 20, 1977.

      Watkins, Pyle, Ludlam, Winter & Stennis, L. Arnold Pyle, David W. Mockbee, Jackson, for appellant.
    Watkins & Eager, Thomas H. Watkins, William F. Goodman, Jr., Jackson, for ap-pellee.
    Before INZER, SUGG and LEE, JJ.
   INZER, Presiding Justice,

for the Court:

This is an appeal by Citizens National Bank from a decree of the Chancery Court of the First Judicial District of Hinds County, Mississippi, sustaining a general demurrer to its bill of complaint exhibited against First National Bank and dismissing the bill of complaint after appellant refused to plead further.

This suit was originally filed in the Circuit Court of Hinds County and was transferred to Chancery Court upon motion of the defendant. After the transfer, the pleadings were reformed and the bill of complaint in this case charged that one Charles Duran was a majority stockholder and controlled seven business corporations and that during February, March and the first part of April, Duran and the Duran companies maintained checking accounts at Citizens National Bank and during March and part of April 1974, Duran and several of the Duran companies maintained checking accounts at First National Bank.

It was then alleged that in February, 1974, Duran and the Duran companies commenced the practice of kiting checks between checking accounts at Citizens National Bank and checking accounts at First National Bank by drawing checks on such accounts in excess of the balances therein due, with such excessive withdrawals being covered by checks drawn on other accounts of Duran or Duran companies in excess of the balances therein. The volume of such kited checks and kited deposits flowing between Citizens National Bank and First National Bank increased dramatically during February and March 1974 to reach a total of approximately $700,000 during the last week of March and the first week of April 1974.

It was charged that sometime during the last week of March or the first week of April 1974, First National Bank discovered the existence of the kiting among Duran and Duran Company accounts in Citizens National Bank and First National Bank; that First National Bank did not immediately notify Citizens National Bank of the existence of the kiting, but instead, First National Bank commenced on about the first of April, 1974, to return unpaid substantially all checks drawn against Duran and the Duran Company accounts at First National Bank, deposited in Duran and Duran Company accounts at Citizens National Bank, and presented for payment by Citizens National Bank to First National Bank through the daily collection process; that payment was refused on these checks whether or not sufficient funds existed in the accounts to pay the items. It was further charged that at the same time, First National Bank continued to accept deposits by Duran and Duran companies to accounts at First National Bank of checks drawn on accounts of Duran and Duran companies at Citizens National Bank which were paid by Citizens National Bank. First National Bank accumulated funds in the accounts of Duran and Duran companies with the intent to apply those collected funds to debts of Duran and companies at First National Bank, notwithstanding the fact that the funds were owned by Citizens National Bank and had wrongfully been obtained from Citizens National Bank by false pretense, conversion, or misappropriation due to the unlawful check kiting.

The bill of complaint further charged that First National Bank commenced to exercise its purported right of setoff to apply to the above described collected balances in the accounts of Duran and Duran companies to a number of debt obligations of Duran and Duran companies which were owing to First National Bank, but were not then due.

It was charged that through this combination of dishonored checks drawn against the collected balance presented for payment by Citizens National Bank and purporting to set off collected balances acquired through false pretenses from Citizens National Bank, wrongfully and unlawfully converted and appropriated monies belonging to Citizens National Bank in the amount of approximately $500,000.

The prayer of the bill of complaint was for a judgment of $500,000 against First National Bank or in the alternative the return of all funds belonging to the complainant unlawfully appropriated by First National Bank and for punitive damages.

First National Bank interposed a general demurrer to the bill of complaint and in sustaining the demurrer the chancellor in a memorandum opinion stated:

Citizens National Bank has filed a bill of complaint against First National Bank of Jackson alleging that FNB discovered a “check kiting” being carried out by Duran and that as a result then stopped honoring checks to CNB and continued to accept payment for checks from CNB and therefore covered its own losses in the “check kiting” scheme, all to the detriment and damage of CNB.
I have carefully examined the bill of complaint, upon the filing of a demurrer by FNB, and I fail to find where CNB charged FNB with doing anything illegal or wrongful and in fact I cannot find where FNB has been charged with doing anything other than acting as a prudent and careful bank should act. It must therefore follow that the demurrer must be sustained. The complainant may have thirty days in which to amend should it so desire.

On appeal Citizens National Bank argues that the chancellor was in error in sustaining the demurrer for several reasons. However, these contentions are based upon the premise that upon discovery of the check kiting on the part of Duran, there was a duty on the part of First National Bank to immediately notify Citizens National Bank and that the funds collected after the discovery by First National Bank on checks drawn on Citizens National Bank still belonged to Citizens National Bank. Consequently, the first question to be determined is whether First National Bank had a legal duty to notify Citizens National Bank that it was convinced that Duran was kiting checks. So far as the allegations in the bill of complaint are concerned, these two banks were competitors in the banking field and ordinarily banks deal with each other at arm’s length. The bill does not allege any circumstances or facts that tend to show that a confidential or fiduciary relationship existed between these two banks, neither does it show that there is any requirement in the banking field that one bank notify another of its discovery of a customer kiting checks. In the absence of a fiduciary or confidential relationship, or some other legal duty, First National Bank had no duty to inform Citizens National Bank that Duran was kiting checks. This being true, we are of the opinion that First National Bank had the legal right to continue to accept for deposit checks drawn by Duran on accounts at Citizens National Bank and present those checks for payment. At the same time, First National Bank had the legal right to refuse to pay checks drawn by Duran on accounts in First National Bank and deposited in Citizens National Bank.

The next question to be determined is whether the funds obtained by First National Bank on checks drawn by Duran on accounts in Citizens National Bank and deposited in accounts of Duran in First National Bank still belong to Citizens National Bank or were funds that Citizens National Bank could require First National Bank to return to it. Under the terms of the Uniform Commercial Code, Citizens National Bank was a payor bank and the provisions of the Code provide that when the checks in question were presented to Citizens National Bank it was required to either pay the checks or return them by the midnight deadline as provided by Mississippi Code Annotated section 75 — 4-104(l)(h) (1972). Citizens National Bank chose to pay the checks by a clearing house settlement. Evidently, at that time Duran either had sufficient funds in the accounts to pay the checks, or Citizens National Bank chose to let him overdraw. While it may be true that the balance in the account may have been increased by giving Duran credit for deposits made by checks drawn on accounts in First National Bank, such credits were only provisional and Citizens National Bank was not obligated to pay the checks until it was satisfied that the other checks were paid. In. other words, Citizens National Bank was the collecting agent of Duran on the checks drawn on First National Bank and as such it could have refused to credit Duran’s account until the cheeks cleared. When checks drawn by Duran were presented by First National Bank, Citizens National Bank could have (1) refused to pay the checks, (2) pay the checks on credit of Duran and look for him to pay the overdraft, should one occur, or (3) Citizens National Bank could have waived the conditions created for its own protection and made the conditional deposit absolute and paid the checks upon the credit of Duran and the checks theretofore deposited but not yet collected. This would have created a new contract between Citizens National Bank and Duran superseding the previous conditional credit contract. Thus when Citizens National Bank paid these checks, either Duran had sufficient funds in the account to cover the checks or Citizens National Bank chose to extend him credit. Under these circumstances Citizens National Bank no longer owned the funds and First National Bank could not be guilty of conversion of funds belonging to Citizens National Bank.

While Citizens National Bank contends that there was a duty on the part of First National Bank to inform Citizens National Bank of its knowledge relative to check kiting by Duran, it does not charge that it did not know of this fact or had it known, it would not have cashed the checks. Neither does it charge that First National Bank in any way conspired with Duran or consented to his check kiting. While Citizens National Bank does not contend that First National Bank did not have the right to refuse to accept and return the checks drawn on it by Duran on accounts in First National Bank and deposited in Citizens National Bank, it does contend that because of First National Bank’s knowledge that Duran was kiting checks, that the funds received by First National Bank and later applied to Duran’s debt were subject to a constructive trust in its favor. This theory, as is the theory of restitution, is based upon the proposition and the assumption that Citizens National Bank was the owner of the check proceeds and First National Bank was under the duty to return the property or compensate the rightful owner.

It is also a well settled rule that unless the payment of a check is induced by fraud or misrepresentation on the part of the holder, such payment closes the transaction insofar as the bank and the holder of the check are concerned and the bank cannot recover back the amount paid. This is true even though the payment creates an overdraft of the account of the maker. There are at least three valid reasons for this rule. First and foremost, to permit a bank to repudiate the payment of a check would destroy the certainty that must pertain to commercial transactions of this nature and would cause uncertainty, delay and annoyance if a bank at some future time could call on the payee for the return of the money paid to him on the check. Secondly, there is no privity between the payee or holder of the check and the drawee bank. Finally, the drawee bank always has the means of knowing the status of the depositor’s account and is not required to pay the check unless it is satisfied the depositor has sufficient funds to cover the check or they are willing to allow him to overdraw his account. 9 C.J.S. Banks and Banking § 354a, p. 722 (1938); First National Bank v. Deposit Guaranty Bank & Trust Co., 247 Miss. 765, 156 So.2d 814 (1963).

It is now, and has been for a long time, the law in this State that the relationship between a bank and its depositors is one of debtor and creditor. Since it is a debtor-creditor relationship, the giving of a check by a depositor does not constitute an assignment of the funds on deposit. The bank may refuse to pay the check, although the depositor has sufficient funds to his credit to cover the check and the holder of the check has no cause of action against the bank. The holder of the check must look to the drawer of the check and only the drawer of the check can complain about the bank not honoring the check. In this case only Duran can complain of First National Bank refusing to pay the checks that he had drawn on accounts in First National Bank and deposited in accounts at Citizens National Bank. Likewise, only Duran could complain relative to First National Bank’s applying the funds on deposit to the payment of his debts. As the holder of the checks presented to Citizens National Bank by First National Bank all that First National Bank warranted was that (1) it had good title to the checks, and (2) that it had no knowledge that the signature of the drawer was unauthorized. Miss.Code Ann. § 75-4-207 (1972). This being true, there was no breach of the warranty in this case.

Citizens National Bank also contends that it is entitled to recover in this case because of fraud practiced upon it by First National Bank. This contention brings into focus the question of whether the bill of complaint charges sufficient facts to charge fraud. While it is true the demurrer admits all facts well pleaded and all reasonable inferences that may be drawn from the facts, it does not admit conclusions not based on facts. It is true that the bill of complaint does make the charge that after First National Bank discovered the check kiting that it failed to notify Citizens National Bank of that fact and from this allegation it might be inferred that there was such a duty, but this inference is only a conclusion on the part of the pleader since no facts are alleged to show from whence this duty comes or arises. Neither is it charged that First National Bank made any representations to Citizens National Bank or in any way wrongfully induced Citizens National Bank to pay the checks drawn by Duran on accounts in Citizens National Bank. After a careful study of the bill of complaint, we are of the opinion that it does not charge sufficient facts to show fraud.

After a review of this case, we find ourselves in agreement with the chancellor that the bill of complaint does not charge First National Bank with doing anything illegal and that First National Bank had a legal right to do the things it did for its own protection. For this reason this case should be and is affirmed.

AFFIRMED.

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

GILLESPIE, C. J., took no part.


source: Caselaw Access Project

license: Public Domain

text:
    Marie L. CADMUS v. Thomas R. MASSEY.
    No. 49486.
    Supreme Court of Mississippi.
    July 6, 1977.
    R. W. Boydstun, Jr., Louisville, for appellant.
    Frank M. Deramus, Deramus & Strickland, Louisville, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ., and KERMIT R. COFER, Commissioner.
   AFFIRMED.


text:
    Edna Earl BABB v. Charlie B. SKELTON.
    No. 49887.
    Supreme Court of Mississippi.
    July 6, 1977.
    Rehearing Denied July 27, 1977.
    Laurel G. Weir, Philadelphia, for appellant.
    Robert N. Brooks, Carthage, for appellee.
    Before GILLESPIE, C. J., and SUGG and BROOM, JJ.
   AFFIRMED.


text:
    Emma Lee SAULSBERRY, Administratrix of the Estate of James Edward Saulsberry, a minor, Deceased v. I. D. BIGGERS.
    No. 49485.
    Supreme Court of Mississippi.
    July 6, 1977.
    Rehearing Denied July 27, 1977.
    Howard Dyer, III, Dyer, Dyer & Dyer, Greenville, for appellant.
    John W. Whitten, Jr., Sumner, for appel-lee.
   Appeal from Circuit Court, Tallahatchie County; Dick R. Thomas, Judge.

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

REVERSED AND REMANDED FOR NEW TRIAL ON ISSUE OF DAMAGES.

GILLESPIE, C. J., PATTERSON, P. J., and ROBERTSON, SUGG, WALKER and LEE, JJ., concurring.


text:
    J. Ed TURNER v. BIG GOLD, INC., et al.
    No. 49276.
    Supreme Court of Mississippi.
    July 6, 1977.
    Wallace R. Gunn, Hattiesburg, for appellant.
    Dudley W. Conner, Samuel E. Farris, Roberts & Easterling, M. M. Roberts, Gray, Montague, Jackson & Pittman, R. A. Gray, III, Ingram & Matthews, Jolly W. Matthews, J. B. Van Slyke, Jr., Hattiesburg, for appellees.
   Appeal from Chancery Court, Forrest County; Howard L. Patterson, Jr., Chancellor.

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

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J. and SMITH, ROBERTSON, WALKER and BROOM, JJ., concurring.


text:
    FIDELITY BANK (formerly Bank of Utica) v. SECURITY INSURANCE COMPANY OF HARTFORD and Frank Lovitt Insurance, Inc.
    No. 49455.
    Supreme Court of Mississippi.
    July 6, 1977.
    Frank T. Moore, Jr., Jackson, for appellant.
    Beach, Beach, Luckett & Hanbury, Stephen L. Beach, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; Francis S. Bowling, Judge.

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

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON, P. J., and ROBERTSON, WALKER and LEE, JJ., concur.

SUGG, J., took no part.


text:
    MISSISSIPPI POWER COMPANY v. Thomas M. SCRUGGS.
    No. 49468.
    Supreme Court of Mississippi.
    July 6, 1977.
    H. Wingfield Glover, Jr., Williams & Glover, Meridian, for appellant.
    Bourdeaux & Jones, Thomas R. Jones, Goldman & Goldman, Thomas L. Goldman, Meridian, for appellee.
   Appeal from Special Court-of Eminent Domain, Lauderdale County; H. C. Mike Watkins, Judge.

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

REVERSED AND REMANDED ON CONDITION OF REMITTITUR.

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


text:
    Joseph Asa GARRIGA v. STATE of Mississippi.
    No. 49791.
    Supreme Court of Mississippi.
    July 6, 1977.
    James Sideris, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; Floyd J. Logan, Judge.

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

REVERSED AND APPELLANT DISCHARGED.

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


text:
    Ben CAMPBELL v. STATE of Mississippi.
    No. 49794.
    Supreme Court of Mississippi.
    July 6, 1977.
    Leon E. Provine, Grenada, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

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

REVERSED AND APPELLANT DISCHARGED.

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


author: LEE, Justice,

text:
    Shirley BARNES, Administratrix of Estate of Dexter Walton, Deceased v. Robert TAYLOR, Administrator of the Estate of Daisy Savage, Deceased, William J. Ellard, and National General Insurance Company.
    No. 49335.
    Supreme Court of Mississippi.
    July 6, 1977.
    Dyer, Dyer & Dyer, Gaines S. Dyer, Greenville, for appellant.
    Campbell & DeLong, Lawrence D. Wade, Robertshaw & Merideth, James Robert-shaw, Greenville, Carter, Mitchell & Robinson, Frank Goodman, Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Shirley Barnes, Administratrix of the Estate of Dexter Walton, Deceased intestate, brought suit in the Circuit Court of Washington County for damages resulting from Walton’s death, the trial court sustained motions for a directed verdict in favor of Robert Taylor, Administrator of the Estate of Daisy Savage, Deceased intestate, and William J. Ellard and National General Insurance Company, his surety, and Barnes appeals here. We affirm.

The only question presented is whether or not the trial court erred in sustaining the motions for a directed verdict.

Appellant’s declaration charged (1) that Daisy Savage was negligent in failing to keep her automobile under reasonably free and easy control failing to maintain a proper lookout for the Steel Bayou bridge, operating her automobile at a dangerous and excessive speed, and failing to decrease speed upon approaching and going around a curve and traveling upon the Steel Bayou Bridge; and (2) that William J. Ellard, Road Commissioner of Washington County, was negligent in failing to maintain the bridge in a safe condition, failing to display signs, lights, or warnings to show the defective and dangerous condition of the bridge, failing to place guardrails on either side of the bridge, failing to display signs, lights, or warnings to indicate a dangerous turn upon approaching the bridge, and in failing to warn plaintiff’s decedent that the creek was at high water.

Daisy Savage had driven to Jackson Lake in Washington County on a fishing trip with friends. She left them at the lake and, accompanied by her eleven-year-old grandson, Dexter Walton, started to Rolling Fork to procure an inspection sticker for her ear. The shortest route from that point to Rolling Fork was by way of the Steel Bayou road and bridge. Mrs. Savage left the lake between 8:30 and 9:30 a. m., May 21, 1973, and she and the child were not seen again until their bodies and the car were found in Steel Bayou on May 25,1973. The Steel Bayou bridge was one hundred eighty (180) feet long and twenty-one (21) feet wide. At the west approach, the road made a sharp turn onto the bridge, and it likewise made a sharp turn on leaving the east end. Wooden guardrails (4" X 8") were built along the sides of the bridge, but farm machinery with discs [standard width twenty-four (24) feet] constantly knocked the guardrails down in passing over the bridge. On May 22, Constable Lott noticed a creosote plank missing from a side of the bridge, it having disappeared since the previous Saturday night. Three days later, Mrs. Savage’s body was seen floating seventy-five (75) feet downstream near the east bank of the bayou, Dexter Walton’s body was found between one-fourth (1/4) to one-half (1/2) mile downstream, and the automobile was found approximately sixty (60) feet downstream. There were no eyewitnesses to explain what occurred.

Appellant contends that the doctrine of res ipsa loquitur applies and that the physical facts as stated, together with reasonable inferences, constitute a question of liability for the jury to determine.

Denman v. Denman, 242 Miss. 59, 134 So.2d 457 (1961), was a suit by the administrator of the estate of a deceased (passenger in an automobile) charging that the defendant was driving at an unlawful rate of speed and contending that the doctrine of res ipsa loquitur applied. The trial court directed a verdict for the defendant and, in affirming the judgment, this Court said:

“In the second count of the declaration, plaintiff attempted to avail herself of the doctrine of res ipsa loquitur. We do not believe such doctrine is applicable to this case. Mrs. Eva B. Denman had no control over the Ross vehicle. The rule seems to be that res ipsa loquitur ‘will not be applied where the evidence discloses that the injury might have occurred by reason of the concurrent negligence of two or more persons or causes, one of which was not under the management and control of the defendant * * * ’ Vol. 9B, Blashfield, Cyclopedia of Automobile Law and Practice, Sec. 6046, p. 454.” 242 Miss. at 69-70, 134 So.2d at 461.

In Larkin v. United States Fidelity & Guaranty Company, 258 So.2d 132 (La.App.1972), the Louisiana Court, in discussing the doctrine of res ipsa loquitur, stated:

“The doctrine is, however, inapplicable where the injury might have been brought about by one, two, or more causes, neither of which is included nor excluded by any affirmative showing. Nor does the doctrine find application where, from the nature of the facts, it is reasonable to assume that the damage may have been caused by the negligence of another or through the instrumentality or the agency of another, or when the accident might have happened as the result of two or more causes with some of which defendant had no causal connection.” 258 So.2d at 135.

The latest Mississippi ease dealing with the doctrine is Johnson v. Foster, 202 So.2d 520 (Miss.1967). In the Johnson case, Mrs. Mitchell had picked up her maid in the family car, and was driving southward on a county road. It was constructed of asphalt pavement, was about thirty (30) feet wide, and was in good condition with four-foot shoulders on each side of the pavement. The weather was clear, and the sun was shining. The vehicle left the right side of the highway, crossed over the left side of -same, went down a steep embankment into a ditch, dragged along the ditch for about ten (10) yards and struck a steel culvert embedded in the roadway, killing Mrs. Mitchell and the maid instantly. A Mrs. Estes was in her yard about three hundred (300) feet from the accident, with a good view for a long distance either way of the scene. When she heard the noise, she looked around and saw the car settling in the ditch. There were no other vehicles or objects involved.

Evidence in the Johnson case negated negligence on the part of any other person, it indicated that the vehicle was in good mechanical condition, that Mrs. Mitchell was in good physical condition, and that there was no causal connection between the accident and any other thing. The Court held that the doctrine of res ipsa loquitur [the thing speaks for itself] applied, and that whether Mrs. Mitchell negligently lost control of the car was a question for the jury-

In the present case, there was no proof of (1) Mrs. Savage’s physical condition, (2) mechanical condition of the Savage vehicle or damage to it after it was drawn from the bayou, (3) the cause of the death either of Mrs. Savage or Dexter Walton (no evidence of an autopsy), (4) whether other people or objects were involved, or (5) who was driving the automobile.

In reviewing the record, there is no evidence to submit to the jury the question of how, when, or where these people lost their lives, and, as staged in the dissenting opinion in Johnson v. Foster, supra, a jury verdict for the plaintiff could only result from surmise, speculation or conjecture. The trial court was correct in sustaining the motion and entering judgment for Robert Taylor, Administrator of the Estate of Daisy Savage, Deceased.

While the evidence showed without dispute that the Steel Bayou bridge was hazardous and dangerous to drive upon, it is difficult to see how the failure to maintain wooden guardrails along the bridge, as charged and proved, would prevent an automobile- from driving off the bridge into the bayou. It is not necessary to discuss negligence, if any, on the part of Ellard for failure to maintain signs, lights and warnings at the approaches to the bridge or to discuss his duties and authority so to do, since the lack of proof as to how, when, and where Savage and Walton died applies to the case against Ellard as well as against Taylor. The trial court was also correct in sustaining the motion for directed verdict by Ellard and his surety, and entering judgment for them.

For the reasons stated, the judgments of the trial court are affirmed.

AFFIRMED.

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


author: LEE, Justice, GILLESPIE, Chief Justice,

text:
    William E. TAPP v. STATE of Mississippi.
    No. 49709.
    Supreme Court of Mississippi.
    July 6, 1977.

      Walker, Franks, Rone, Bridgforth & Woods, Joel P. Walker, Mills E. Barbee, Hernando, for appellant.
    A. F. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court.

William E. Tapp was convicted of manslaughter in the Circuit Court of DeSoto County, sentenced to twenty (20) years, and he appeals here. We reverse.

In view of the conclusion we have reached, we consider only the following assigned errors:

(1) The trial court erred in compelling appellant’s wife to testify over objection of him and his wife, in violation of Mississippi Code Annotated § 13-1-5 (1972).

(2) The trial court erred in permitting Dr. Harry Friedman to testify when he was not listed as a State witness, and his name was not furnished to appellant prior to the trial.

(3) The trial court erred in admitting in evidence pictures of the deceased child.

(4) The trial court erred in refusing appellant’s request for a peremptory instruction of not guilty, and the jury’s verdict is contrary to the overwhelming weight of the evidence.

Appellant is married to nineteen-year-old Mary Jane Tapp. On August 22,1975, John Carlton Looney, her two and one-half (2V2) year old child by a former marriage lived with her and appellant. The evidence indicates that on the evening of August 20, appellant abused the child by striking and kicking him (with cowboy boots), squeezing him around the stomach, and throwing him down. The child became ill, was examined by Dr. Harry Friedman about 10:00 a. m. August 21, 1975, and was admitted to the hospital. The doctor found bruises over numerous parts of Carl’s body, he did not respond to treatment, he was lethargic and delirious for the next twelve (12) hours, when he went into shock. An emergency operation was performed, but the child expired on the operating table at 4:00 a. m. August 22,1975. An autopsy disclosed that the top part of the child’s small intestine (duodenum) had separated from the stomach and fluids had drained into the abdominal cavity causing infection. The injuries were the result of “blunt trauma.” The damage was recent and was consistent with the abuse.

On the day after Carl’s death, Mrs. Tapp made an affidavit against her husband for child abuse, and she was separated from him until approximately thirty (30) days before trial, at the end of which time they were reconciled and started living together again. At the time of the trial, in November, 1975, appellant and Mrs. Tapp were cohabiting as man and wife, she contended that he did not mean to harm the child, and she minimized the abusive acts formerly attributed to appellant. The State issued a subpoena for her at the November, 1975 Term of court, which she evaded. Subsequently, she appeared in court, was placed under bond as a material witness for the State and was compelled by the court to testify on behalf of the State. A hearing was held outside the presence of the jury on appellant’s objection to her testifying and she repeatedly told the court that she did not want to testify, that she did not wish to prefer charges against her husband, she did not believe him guilty, and that she was living with him. She agreed to be available to testify , if the judge would not keep her in jail. The court further declared her to be a hostile witness and permitted the State to call her and examine her as a hostile witness. Much of the examination was cross-examination and introduction of contradictory statements made by her at a preliminary hearing.

I.

Did the court err in compelling appellant’s wife to testify over objection of him and his wife, in violation of Mississippi Code Annotated § 13-1-5 (1972)?

Mississippi Code Annotated § 13-1-5 (1972) reads as follows:

“Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. A criminal prosecution of either husband or wife for contributing to the neglect or delinquency of a child or desertion or nonsupport of children under the age of sixteen (16) years or abandonment of children shall be deemed controversies between husband and wife for the purpose of this section. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.” (Emphasis added).

The latest Mississippi case construing the statute is Merritt v. State, 339 So.2d 1366 (Miss.1976), where the wife testified against her husband for the murder of their child. The Merritt case is distinguishable from the present case. In Merritt, the father’s crime against the child destroyed the harmony of the marriage and the conjugal relationship resulting in the separation of the husband and wife and ultimate divorce. Also, Mrs. Merritt voluntarily (and somewhat eagerly) testified on behalf of the State against her husband. In the case now before the Court, there is no charge against appellant for assaulting his wife (personal violence) as in Turner v. State, 60 Miss. 351 (1882) and for which the statute specifically grants an exception. Appellant’s wife lived with him subsequent to the death of her child, she minimized the abusive conduct of her husband, expressed her belief in his innocence, and stated that she loved him. Further, both she and appellant objected to her being called as a witness and being required to testify against appellant. She was placed under bond as a material witness, she was declared to be a hostile witness, and she was compelled to testify under threat of being jailed. We hold that there was a clear violation of Section 13-1-5 and it constituted reversible error.

II.

Did the trial court err in permitting Dr. Harry Friedman to testify when he was not listed as a State witness, and his name was not furnished to appellant prior to the trial?

At the request of appellant, a list of the witnesses for the State was furnished him. Among the witnesses named was Dr. Jerry Kaplan, who operated on the child. At the trial, Dr. Kaplan was unable to be present, and the State called and introduced Dr. Harry Friedman, who was the admitting doctor and who was present during the surgery. Appellant contends that the court erred in permitting Dr. Friedman to testify when he expected Dr. Kaplan to be introduced. Mississippi has no statute requiring the State to furnish names of its witnesses to a defendant. There is no merit in this contention. Bellew v. State, 238 Miss. 734, 106 So.2d 146 (1958); McDaniel v. State, 191 Miss. 854, 4 So.2d 355 (1941). Further, the court heard the witness testify in chambers and was satisfied that his testimony was substantially the same as that of Dr. Kaplan. No prejudice resulted to the appellant by substituting one physician for another.

III.

Did the trial court err in admitting in evidence pictures of the deceased child?

The court admitted in evidence pictures of the child which reflected bruises and marks on his body. These photographs had some probative value, and the judge did not abuse his discretion in admitting them in evidence. May v. State, 199 So.2d 635 (Miss.1967).

IV.

Did the trial court err in refusing appellant’s request for a peremptory instruction of not guilty and was the jury’s verdict against the overwhelming weight of the evidence?

Without the wife’s testimony, the record on the first trial of this case would not sustain a conviction. However, since that testimony is incompetent, the case will be reversed and remanded for a new trial upon such other evidence as the State may be able to present.

This case was considered by a conference of the justices en banc.

REVERSED AND REMANDED.

PATTERSON and INZER, P. JJ., and SMITH, WALKER and BROOM, JJ., concur.

GILLESPIE, C. J., and ROBERTSON and SUGG, JJ., dissent.

GILLESPIE, Chief Justice,

dissenting:

In my opinion the wife of the defendant in the present case should be allowed to testify under the authority of Merritt v. State, 339 So.2d 1366 (Miss.1976). The difference in the two cases is that in Merritt the wife testified voluntarily, while in the present case, she was not a willing witness. The majority decision is, in my opinion, unsound and out of harmony with Merritt.

In Merritt, the Court followed the modern trend of extending the area in which husband and wife may testify against each other effectively to enforce the criminal laws. It was held that under the 1954 amendment [now a part of Mississippi Code Annotated § 13-1-5 (1972)], the legislature recognized the need to expand the area in which husband and wife can testify against each other. Specifically, Merritt held that a crime of personal violence against a child is a controversy between man and wife within the meaning of the statute. That holding revoked the immunity in child abuse cases including abuses resulting in death. Once the immunity is revoked, vol-untariness or non-voluntariness has no part in applying the Merritt rule.

Child abuse is reaching proportions causing national concern. The courts can ill afford to make the voluntariness of the spouse’s testimony the criteria for admitting such testimony in child abuse cases, particularly in cases where the parent is charged with murder of the child. This will encourage the accused to intimidate the other spouse not to testify voluntarily. I apprehend that application of the rule laid down in the present case will invite intimidation and compound criminal activities in child abuse cases.

ROBERTSON and SUGG, JJ., join in this dissent.


author: GILLESPIE, Chief Justice,

text:
    Ann Arras WILLIAMSON v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION.
    No. 49676.
    Supreme Court of Mississippi.
    July 6, 1977.

      Ann Arras Williamson, Bay St. Louis, for appellant.
    Fred J. Lotterhos, Jackson, for appellee.
    Before GILLESPIE, C. J., PATTERSON, P. J., and SUGG, J.
   GILLESPIE, Chief Justice,

for the Court.

After a hearing before the Chief Appeals Referee of the Mississippi Employment Security Commission, Ann Arras Williamson (claimant) was denied unemployment benefits. Claimant appealed to the Circuit Court of Hinds County where the order denying benefits was affirmed. She then appealed to this Court.

Claimant filed for unemployment benefits under the Emergency Compensation Act of 1974, 26 U.S.C. § 3304 note on May 29, 1975. Her claim was denied by the Mississippi Employment Security Commission on July 2, 1975.

At the time of filing claimant had last been employed as a teacher by the Madison County Schools for the school year 1974-1975, ending on May 28, 1975.

The claimant had previously worked for the same school system in the 1973-1974 school year. Her contract, which provided for nine months employment payable in twelve equal installments, had been formalized both years in July, preceding the fall term of school.

At the close of the 1974-1975 term claimant understood she would return to the same position in the fall. Between the close of the 1974-1975 term and the formalization of the 1975-1976 contract in July, claimant was asked by the school superintendent if she would take a job in another school for the purpose of improving racial balance. She refused; however, there is no evidence that she resigned her position or that she was terminated. In July 1975, a contract was formalized for the 1975-1976 term and she returned in the fall to her regular job.

The Emergency Compensation Act of 1974 as Amended by Public Law 94-32, 89 Stat. 178, 26 U.S.C. § 3304 note, specifies that a teacher in an educational institution does not qualify for compensation under the Act during the recess period between school terms if the individual has worked during the first term or year and “has a contract to perform services in any such capacity . for the latter of such academic years or terms.”

It is this quoted clause that is in issue. Specifically the question is raised whether under the facts of this case there is a “contract” within the meaning and intent of the Emergency Compensation Act of 1974.

The particular provision in issue was first interpreted by the Department of Labor in its role of explaining and implementing the intent of the Congress. While not binding on this Court, the Department of Labor defined the term “contract” in the context of the Act as being, “either a verbal, written, or implied agreement.” It went on to state “[I]f a teacher . . has not resigned, has not retired, or has not been terminated, there may be an implied continuing contractual relationship.” Unemployment Insurance Program Letter No. 29-75 (Associate Manpower Administrator, 1975).

In Anderson v. Employment Division, 25 Or.App. 845, 551 P.2d 482 (Ore.App.1976), the Oregon Court concluded the benefits of the Act were not intended for school employees during the recess between terms; however, it did so on a construction of statutes particular to that state.

Examination reveals that the stated purpose of the Emergency Compensation Act was “to establish a program of special unemployment assistance for workers who are unemployed during a period of aggravated unemployment .” 26 U.S.C. § 3304 note, § 201. It was an emergency act for an aggravated situation intended to reach those individuals actually unemployed and most in need of assistance to sustain their livelihood.

Given the background and stated purpose of the Act, it becomes apparent that the Legislature did not intend the word “contract” in the context of the Act to be given a strictly formal construction.

In light of this, where a teacher in a school system has previously contracted on an annual basis with the option to be paid in either nine or twelve month periods, and, there is a reasonable expectation of employment after the recess, such will be deemed to satisfy the requirements of a “contract” for the purposes of the Emergency Employment Compensation Act.

On the present facts, claimant was and has been employed on an annual basis for nine months employment with her salary paid in twelve equal installments. By customary arrangement, her contract had been formalized each year in July preceding the beginning of the fall term. At the time of her application for benefits she had neither resigned, nor been terminated, nor was there any evidence that she would be terminated. For the purposes of the Emergency Employment Compensation Act of 1974, these facts constitute a continuing employment contract.

AFFIRMED.

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

      . While not relevant based on the date of this case, it should be noted that the need for this construction of the term “contract” with regard to the Emergency Compensation Act was recognized by the Congress in its 1976 Amendment to the Act where “or reasonable assurance that such individual will perform services was inserted after the word “contract.” 26 U.S.C.A. 3304(a)(6)(A).


text:
    HARRISON COUNTY on the relation of Marion B. SHAW, Administratrix, C. T. A., etc. v. Tommy MUNRO et al.
    No. 49481.
    Supreme Court of Mississippi.
    July 13, 1977.
    T. J. Buchanan Heiss, Gulfport, for appellant.
    White & Morse, Stanford, E. Morse, Jr., Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; William G. Hewes, Chancellor.

Before INZER, P. J., and SMITH and BROOM, JJ., and KERMIT R. COFER, Commissioner.

AFFIRMED.

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


text:
    Rey WATSON v. David Lee GARNER.
    No. 49298.
    Supreme Court of Mississippi.
    July 13, 1977.
    Gex, Gex & Phillips, Walter J. Gex, III, Walter J. Phillips, Bay St. Louis, for appellant.
    Nicholas M. Haas, Bay St. Louis, for ap-pellee.
   Appeal from Chancery Court, Hancock County; William G. Hewes, Chancellor.

Before GILLESPIE, C. J., SMITH and ROBERTSON, JJ., and BERT H. JONES, Commissioner.

AFFIRMED as to allowance of attorneys fees, but REVERSED AND RENDERED as to custody.

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


text:
    Larry BATTLE v. STATE of Mississippi.
    No. 49742.
    Supreme Court of Mississippi.
    July 13, 1977.
    Rehearing Denied Aug. 24, 1977.
    Joe C. Webster, Clarksdale, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Panola County; Dick R. Thomas, Judge.

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

AFFIRMED.

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


text:
    James Harley CHATHAM v. BONNIE Lee CHATHAM.
    No. 49499.
    Supreme Court of Mississippi.
    July 13, 1977.
    McClure, McClure & May, James McClure, Jr., Sardis, for appellant.
    Riser & Smith, Robert T. Riser, Bates-ville, for appellee.
   Appeal from Chancery Court, Panola County; Leon E. Hannaford, Sr., Chancellor.

Before PATTERSON, P. J., SUGG and BROOM, JJ., and WILLIAM NEVILLE, Commissioner.

AFFIRMED.


text:
    Sammy FOWLER v. STATE of Mississippi.
    No. 50026.
    Supreme Court of Mississippi.
    July 13, 1977.
    Joe B. Timmons, Tupelo, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lee County; Fred Wicker, Judge.

Before ROBERTSON, WALKER and BROOM, JJ.

AFFIRMED.


text:
    Charlie Lee GAYDEN, Jr. v. STATE of Mississippi.
    No. 50045.
    Supreme Court of Mississippi.
    July 13, 1977.
    Donald W. Bond, Winona, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Carroll County; Clarence E. Morgan, Jr., Judge.

Before SUGG, WALKER and BROOM, JJ.

AFFIRMED.


text:
    Wanda Stanley CHAPMAN et al. v. Kenneth STANLEY.
    No. 49490.
    Supreme Court of Mississippi.
    July 13, 1977.
    Louie M. Bishop, Waynesboro, for appellants.
    W. Vol Jones, Waynesboro, for appellee.
   Appeal from Chancery Court, Wayne County; J. Shannon Clark, Chancellor.

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

AFFIRMED.


author: PER CURIAM. JONES, Justice

text:
    Douglas SPICER v. The BOARD OF TRUSTEES OF the UNIVERSITY OF ALABAMA d/b/a "Medical College of Alabama”, etc.
    SC 2236.
    Supreme Court of Alabama.
    July 8, 1977.
    Edward Still, Birmingham, for appellant.
    Ina B. Leonard, Birmingham, for appel-lee.
   PER CURIAM.

Affirmed on the authority of Massler v. Troy State University, 343 So.2d 1 (Ala.1977); Ellison v. Abbott et al., 337 So.2d 756 (Ala.1976); and Cox v. Board of Trustees of the University of Alabama, 161 Ala. 639, 49 So. 814 (1909).

AFFIRMED.

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

JONES, J., dissents.

JONES, Justice

(dissenting):

For the reasons as stated in my dissent in Ellison v. Abbott et al., supra, I respectfully dissent.


author: MADDOX, Justice. FAULKNER, Justice

text:
    Samuel PETTAGRUE, Jr., et al. v. Richard BLOUNT et al.
    SC 2255.
    Supreme Court of Alabama.
    July 8, 1977.

      Arthur D. Shores, for Shores & Larkin, Birmingham, for appellants.
    Gary P. Smith, Birmingham, for appel-lees.
   MADDOX, Justice.

This suit involves the reformation of a deed executed by defendants-appellants, Samuel Pettagrue and others, in connection with the purchase and sale of certain church property. The dispute centers on whether a church parsonage was intended to be included in the trial court’s decree of January 16, 1976.

Richard Blount, et al. (Old Sardis), filed their complaint against appellants (Sardis), members of the Sardis Baptist Church, to enjoin them from purchasing and moving into another church. The trial court issued a temporary restraining order.

There was a dispute in the church. An election was held under court order, and appellants were successful in the election and moved from an old church building to a new church building. Appellees (Old Sar-dis) who had withdrawn from the Sardis Baptist Church, were allowed to purchase the old church building and the realty located at 1240 Fourth Street, North, in Birmingham. They called themselves Old Sar-dis Baptist Church.

On January 16, 1975, the trial court issued its decree which reads, in pertinent part:

“ONE: The church property including the church building and the realty at 1240 North Fourth Street shall, by consent of the parties, be appraised and its value determined by Euel G. Johnson, AIM and the Plaintiffs [Old Sardis] shall have the right to purchase the said property from Defendants at the appraised valuation assessed by the said Johnson and shall have the right, within a reasonable time, to buy or refuse to buy the said property. The Court determines that 30 days from the time of the submission of the appraised valuation is a reasonable time. Thereafter, if the right to purchase is exercised the Court shall determine a reasonable time within which financial arrangements may be made for the purchase.”

Johnson appraised the property at $100,-000. Appellants refused to sell at that price and filed a motion to modify the appraisal. Later, the trial court ordered the properties reappraised. Two additional appraisers, James O. Prewitt and Gene Dilmore, valued the properties at $200,000 and $150,000, respectively. The trial court modified its decree and placed the purchase price at $125,-000.

Appellees’ attorney prepared a deed for the parties. The deed includes the church parsonage. Appellants filed a motion to reform the deed to include only church property located at 1240 Fourth Street, North, and to exclude the church parsonage. The trial court refused to reform the deed. We affirm.

The petition does not allege, nor did appellants attempt to prove, any fraud on the part of appellees. The petition does not allege, nor does the evidence show, a mutual mistake by the parties. At best, the petition alleges a unilateral mistake on the part of appellants.

Appellees maintain that they clearly intended the purchase price of the church property to include the parsonage since the parsonage was included in the appraisal made by the appraiser appointed by the court and the deed prepared by counsel for the appellees. The petition does not allege that appellees knew or suspected any mistake on the part of the appellants, and the record is devoid of any such proof. Title 9, § 59, Code.

Appellees filed, pursuant to Rule 27, ARAP, a motion to dismiss the appeal. Since we have affirmed the decree on the merits, we need not consider the motion to dismiss the appeal.

AFFIRMED.

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

FAULKNER, JONES and SHORES, JJ., dissent.

FAULKNER, Justice

(dissenting).

The deed sought to be reformed conveys the following real estate:

“Lots 9, 10, 11, 15, and 16, according to the map of Southern Realty Company’s Subdivision, as recorded in Map Book 6, page 22, in the office of the Judge of Probate of Jefferson County, Alabama, of Block 12, and the north half of Block 13, McDaniel’s Addition to Birmingham.”

The parsonage is on Lot 11, and appellants contend that the intention of the parties was not to sell the parsonage. The minutes substantiate this contention. They want to exclude Lot 11 from the deed, and in lieu thereof include Lot 12.

From the record, I agree with appellants that there was a mutual mistake requiring reformation. Justice and fairness, in my opinion, dictate that the deed convey only the property intended to be conveyed.

I would reverse.

JONES and SHORES, JJ., concur.


author: JONES, Justice.

text:
    Manley David PIERSON v. Jessie Wood PIERSON.
    SC 2302.
    Supreme Court of Alabama.
    July 8, 1977.

      Clifford W. Hardy, Jr., Bessemer, for appellant.
    Perry Hubbard, Tuscaloosa, for appellee.
   JONES, Justice.

From a decree of the Circuit Court of Bibb County, Judge Thompson presiding, denying Manley Pierson’s prayer seeking the reconstruction of a deed as a mortgage, and in the alternative, a decree quieting title to certain property in himself, Mr. Pierson takes this appeal. We affirm.

Appellant seeks review as to sufficiency of the evidence to support the trial Court’s judgment in- favor of the appellee, Jessie Wood Pierson. Judgment was entered on August 18, 1976. Manley Pierson filed a timely motion for new trial on August 31, 1976. This motion alleged, as its grounds, that the verdict was contrary to the evidence and that new witnesses had been found, who were previously unascertained. This motion was denied on September 24, 1976. Appellant’s motion for reconsideration of the motion for new trial was filed on October 13, 1976. An amended motion for new trial, accompanied by the affidavit of a proposed new witness, was filed on November 5, 1976. Judge Russell, before whom these motions were argued, denied them both. Appellant’s notice of appeal was filed on November 29, 1976.

As shown below, the record indicates the filing of the notice of appeal was untimely, thereby precluding consideration by this Court of Manley Pierson’s contention that the evidence upon which the trial Court based its judgment was insufficient. The only contention with which this Court may deal is the propriety of the trial Court in denying Manley Pierson’s motion for reconsideration.

Rule 4(a)(1) of the Alabama Rules of Appellate Procedure (the sole jurisdictional requirement of these rules) requires the filing of a notice of appeal within 42 days of the entry of judgment or order from which appeal is taken. Subsection (a)(3) of this rule further provides:

“The filing of a post-trial motion pursuant to Rules 50, 52 and 59 of the Alabama Rules of Civil Procedure (ARCP) shall suspend the running of the time for filing a notice of appeal . . . .”

Thus, Manley Pierson’s motion for new trial (Rule 59), filed August 31, suspended the running of the time for appeal.

Rule 4(a)(3) states further that:

“. . . the full time fixed for filing a notice of appeal shall be computed from the date . . . of an order granting or denying such motion.”

The order denying Pierson’s motion for new trial was entered on September 24, 1976. Thus, unless his motion for reconsideration and amended motion for new trial further suspend the running of the time for appeal (notice of which was filed on November 29), such appeal is untimely (i. e., it was filed more than 42 days from September 24, 1976). Wilger v. Department of Pensions and Securities, 343 So.2d 529, 531 (Ala.Civ.App.1977).

The motion for reconsideration and amended motion for new trial did not toll the running of the time for appeal of the judgment or the adverse ruling on the original motion. “A motion to reconsider an order disposing of a motion of the kind enumerated in Rule 4(a) does not again terminate the running of the time for appeal.” 9 Moore’s Federal Practice, ¶ 204.-12(1), 951.

Furthermore, Pierson’s amended motion for new trial was not, in fact, a motion as captioned. It was, instead, a Rule 60(b) motion for relief from the judgment. It was so treated by the trial Court and a stipulation to this effect was made by mov-ant’s counsel. A Rule 60(b) motion is not one of the enumerated type which will toll the running of the time for filing appeal. Therefore, the appeal taken from the casein-chief was untimely.

This determination brings us to the only viable issue on appeal: the propriety of the trial Court in denying Manley Pierson’s Rule 60(b) motion. “Although a 60(b) motion does not suspend the running of the time for appeal, one may prosecute an appeal solely with respect to the trial court’s ruling on the 60(b) motion.” Wilger, at 532 (citing, 7 Moore’s Federal Practice, ¶ 60.-30[3], 430-31).

The trial Court has wide discretion in its determination of whether to grant relief pursuant to Rule 60(b), and it will not be reversed on appeal absent abuse of this discretion or the violation of some legal right of the movant. Ag Pro, Inc. v. Sakraida, 512 F.2d 141 (5th Cir. 1975); Morris v. Yancey, 272 Ala. 549, 132 So.2d 754 (1961); and 7 Moore’s Federal Practice ¶ 60.19, 228-31. Here, we cannot say the trial Court’s action falls within the category of conduct deemed arbitrary, thereby warranting reversal as an abuse of discretion.

The affidavit attached to Manley Pier-son’s Rule 60(b) motion alleges only that the affiant was in Pierson’s hospital room and saw the appellant’s wife with a piece of paper. At best, this only goes to contradict testimony of Jessie Wood Pierson.

The trial Court ruled that such evidence could have been obtained with due diligence by counsel for Manley Pierson. The Court stated, and we agree, that the date upon the face of the deed and other circumstances of this case should have placed counsel on notice of the importance of the meeting in Manley Pierson’s hospital room. (The deed sought to be voided or reformed was executed by Pierson while he was allegedly legally incapacitated during hospital confinement.)

Moreover, newly acquired evidence is not sufficient to require the granting of a 60(b) motion when it merely goes to contradict or impeach evidence presented at trial. Ag Pro, Inc. v. Sakraida, supra; Curtis Publishing Co. v. Butts, 351 F.2d 702 (5th Cir. 1965). Particularly is this true where, as here, counsel for the movant had, and exercised, full benefit of cross-examination of the party sought to be impeached. Kolstad v. United States, 262 F.2d 839 (9th Cir. 1959).

Perhaps a more difficult question arises where the judge who heard the case is not the same judge who rules upon the 60(b) motion. In such situations, the burden is upon the movant to apprise the Court of the testimony heard at trial and the necessity of the alleged newly acquired evidence. Roberts v. Bellew, 229 Ala. 333, 157 So. 216 (1934). This burden has not been carried in this case.

To deem this circumstance as one which must necessarily require granting of a Rule 60(b) motion would constitute a grave injustice upon the party victorious at the initial trial. Such holding would require countless repetitious trials each time a judge became ill, resigned, or died while in office. Clearly, this is not what the law or the Rules of Civil Procedure contemplate. James A. Head & Company, Inc. v. Rolling, 265 Ala. 328, 90 So.2d 828 (1956); and Roberts, supra.

It follows that the trial Court did not abuse its discretion and the judgment below denying the 60(b) motion is due to be affirmed.-

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    IMPERIAL GROUP, LTD., a corporation v. The LAMAR CORPORATION, a corporation.
    SC 2391.
    Supreme Court of Alabama.
    July 8, 1977.
    I.David Cherniak and Edward B. McDo-nough, Jr., Mobile, for appellant.
    E. Graham Gibbons, Mobile, for appellee.
   BLOODWORTH, Justice.

Defendant, Imperial Group, Ltd., appeals from a summary judgment granted plaintiff, The Lamar Corporation, in an action on a promissory note. We reverse and remand.

Plaintiff filed suit against defendant on June 17, 1976, demanding the balance on a note, interest, and attorneys’ fees. Plaintiff alleged that on December 17, 1975, defendant executed a promissory note which provided it was to be paid in monthly installments on the first day of each month and that if defendant became delinquent for forty-five days, the entire unpaid bal-anee automatically became due and payable.

Defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted. The motion was never acted upon. Defendant then filed an “ANSWER AND COUNTERCLAIM” (with exhibits) wherein defendant alleged the note was executed as an accommodation to its wholly owned subsidiary, Imperial Motels Corporation. Defendant denied that the note was in default. Defendant further alleged that payments on the note were made by the subsidiary on February 4,1976, and on March 19,1976, which were accepted by plaintiff. Defendant also alleged that its subsidiary executed and forwarded to plaintiff a check representing the April payment on June 29, 1976, and a check representing the May, June, and July payments on July 15, 1976. Defendant attached copies of all these checks. Defendant alleged that it did not know if these last two checks had been negotiated by plaintiff when suit was brought. Defendant tendered to the court a cheek for the August payment. Defendant alleged that its failure to make payments in accord with the schedule was occasioned by “excusable neglect.”

Moreover defendant averred that at the time suit was brought, plaintiff had accepted the payments to reinstate the note. Defendant prayed the court to allow it to reinstate the note in good standing, providing all payments are made in accord with the tenor of the note.

Plaintiff failed to reply to the “ANSWER AND COUNTERCLAIM” and moved for summary judgment on October 4, 1976, based upon the pleadings and the note. The motion was argued, and the court entered an order granting plaintiff’s motion for summary judgment in the amount of $10,693.14. Defendant then filed a motion to reconsider, which motion was argued and denied. Hence, this appeal.

A motion for summary judgment may be granted only when there is no genuine issue as to a material fact and the movant is entitled to judgment as a matter of law. Birmingham Television Corporation v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974).

The party moving for summary judgment must clearly show, i. e., has the burden to show that the other party could not recover “under any discernible circumstances.” Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So.2d 818 (1975); see also, Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975).

Here, plaintiff-movant offered no allegations to negative defendant’s averment of “excusable neglect,” which plaintiff treated (and we therefore treat) as “equitable estoppel.”

Plaintiff argues that equitable estoppel is a “preclusion in law and is not an issue for the jury,” and, therefore, summary judgment was proper. We do not agree. See Humphrey v. Boschung, 287 Ala. 600, 253 So.2d 769 (1971). In that case, this Court approved the following quotation from 28 Am.Jur.2d § 149, Estoppel and Waiver, viz:

“Generally speaking, the existence of an estoppel in pais is a mixed question of law and fact. . . Unless only one reasonable inference can be drawn from the evidence, estoppel is a question for the triers of the facts, the jury or the trial court. On the other hand, if the facts are undisputed and only one reasonable inference in such respect can be drawn from the evidence, the question whether an estoppel is established is one of law for the court.”

Because “estoppel” is a mixed question of law and fact, it is plain that material issues of fact remain, and, therefore, summary judgment was premature.

Having so ruled, we should emphasize that a party cannot always rely upon the allegations and denials of his pleadings to establish a genuine issue of fact. When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of the pleadings. In fact, it can be perilous for the opposing party neither to proffer any countering evi-dentiary materials nor to file an affidavit. Ray v. Midfield Park, Inc., supra. For instance, had the movant here presented evidence to negative defendant’s defense of estoppel, defendant could not merely rest on the allegation in its counterclaim that estoppel had occurred.

REVERSED AND REMANDED.

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


author: EMBRY, Justice.

text:
    Pryor DILLARD v. PAN-AMERICAN INVESTMENTS, INC., a corporation, et al.
    SC 1860, SC 1860-X.
    Supreme Court of Alabama.
    July 8, 1977.
    Douglas V. Hale and Lowell H. Becraft, Jr., Huntsville, for appellant.
    L. Tennent Lee, III, Huntsville, for appel-lees.
   EMBRY, Justice.

Pryor Dillard, appellant here, filed suit against Pan-American Investments, Inc., claiming he was entitled to a commission because of the purchase by Pan-American, from others, of ten tracts of land. Pan-American defended on the basis that Dillard was not licensed as a real estate broker as required by Tit. 46, § 311(3), Code of Ala., therefore could not lawfully be paid a commission. A jury found in favor of Dillard and awarded the sum of $24,171.74 as damages. On Pan-American’s motion for judgment notwithstanding the verdict, the trial judge set aside the verdict and found in favor of Pan-American to the effect that Dillard had operated as an unlicensed real estate broker.

The sole question presented by this appeal is whether Dillard was acting as a real estate broker, as defined in Tit. 46, § 311(3) of the Code, when doing what he did for Pan-American. We hold he was, and therefore affirm.

A “real estate broker” is defined in § 311(3) of Tit. 46 as:

Definitions. — (a) * * * any person who, for a fee, commission, or other valuable consideration, or who with the intention or expectation of receiving or collecting a fee, or commission, or other valuable consideration, lists, sells, purchases, exchanges, rents, leases, options, or auctions real estate or the improvements thereon, or negotiates or attempts to negotiate any real estate transaction * * *

Dillard asserts the activities he agreed to conduct for Pan-American were to find suitable lands for purchase, and make introduction of sellers to agents of Pan-American; and that finding and introducing, for a fee, is not prohibited by § 311(3) of Tit. 46.

Dillard relies upon the case of Rattray v. W. P. Brown & Sons Lumber Co., 29 Ala.App. 93, 192 So. 285 (1939), in support of his argument that this case is not controlled by the statute. There the Court of Appeals found that where “the only service to be rendered by the plaintiff was to locate bodies of timber and report the same to the defendant,” it was not conduct of a real estate broker requiring a license under the Code. However, the language of the Rat-tray case supports our holding in this case. Using the definition of a broker given in Webster’s New Standard Dictionary, that court stated that a real estate broker is: “one who, for a commission or fee, brings parties together and assists in negotiating contracts between them.”

Using this definition it becomes necessary to determine whether Dillard negotiated any part of a transaction between Pan-American and a seller. The evidence supports the conclusion that he did.

When asked to state exactly what he did for Pan-American, Dillard testified that:

“A. I located properties that would meet their requirements.
* * * * * *
“A. * * * I located or found out if the properties were for sale and the terms that they were for sale for, or they were willing to sell for, and the price that they were willing to pay, and if it was within the boundaries set out, then I would make an introduction, then I would make an introduction of the buyer to the seller * * * ”

Dillard further stated he knew the requirements of Pan-American: a purchase price of no more than $85 per acre; terms which involved a down payment of only the prepayment of interest; and payment of interest on the contract for five, seven or ten years, with a five year payout. Also, Dillard was instructed by an agent of Pan-American not to bring properties to him which did not meet the initial requirements regarding quality and price. There is no doubt that Dillard’s activities constituted more than merely finding and reporting, as was done in Rattray; he actually “negotiated” the preliminaries between the sellers and Pan-American.

In Handley v. Shaffer, 177 Ala. 636, 59 So. 286 (1912), we said:

“ * * * A real estate broker strictly speaking is but a middleman whose office it is to bring the principals together, with the understanding that they are to negotiate with each other, and trade upon such terms as may be mutually satisfactory. * * * ”

We are satisfied that Dillard’s activities, as a matter of law, were those of a real estate broker, therefore his claims for compensation are void and unenforceable since he was unlicensed. Bickley v. Van Antwerp Realty Corp., 271 Ala. 117, 122 So.2d 275 (1959); Faulkner v. Stapleton Insurance & Realty Corp., 266 Ala. 437, 96 So.2d 761 (1957); Tit. 46, §§ 311(1) et seq., Code.

In light of this opinion and decision, the cross-appeal of Pan-American is moot, as is Dillard’s motion to dismiss it.

The trial court was correct in setting aside the verdict and granting Pan-American’s motion for judgment notwithstanding the verdict.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    FORD MOTOR CREDIT COMPANY, a corp. v. Willie JACKSON.
    Civ. 1098.
    Court of Civil Appeals of Alabama.
    June 8, 1977.
    Rehearing Denied July 6, 1977.

      N. T. Braswell, III, Montgomery, for appellant.
    Timothy B. Loggins, Opp, for appellee.
   HOLMES, Judge.

From a jury verdict awarding Willie Jackson $2,536.06 for the wrongful conversion of his automobile, the Ford Motor Credit Company (Ford), defendant below, prosecutes this appeal.

Ford through able and experienced counsel states the trial court erred in denying both its motion for judgment notwithstanding the verdict for insufficiency of evidence and also its motion for a mistrial based on improper argument of counsel. Ford additionally contends erroneous jury instructions concerning the appropriate measure of damages for conversion requires reversal of the judgment entered below. We disagree with each of these contentions.

The tendencies of the evidence disclose that Willie Jackson, plaintiff below and ap-pellee herein, is an uneducated man of 56 years. He is unable to read and can write only his name. He has been employed as a laborer for a pecan company for approximately 16 years. He also has worked part time as kitchen help at a country club in Andalusia for approximately 26 years.

Sometime in July, 1974, Jackson purchased a 1974 Mercury Marquis automobile from a Pensacola dealership which assigned the purchase agreement to Ford. The new automobile cost approximately $8,500. As a down payment, Jackson paid $300 cash and traded in a 1972 automobile for which he received $1,736 credit He signed an agreement whereby he agreed to pay the balance of the purchase price in 36 monthly installments of $230.75.

On March 11, 1975, Ford sent someone to repossess the automobile from Jackson because he was allegedly delinquent in his payments. The individual who repossessed the car for Ford was wearing a badge and gun.

Thereafter, Ford sold the repossessed automobile to the dealer who had originally sold it to Jackson. Proceeds from the sale were credited to Jackson’s account, leaving a balance of $250 owed to Ford.

In January, 1976, Jackson filed a complaint alleging the wrongful conversion of his automobile by Ford. In April, prior to trial, Jackson was deposed. At that time, he testified that he had made five or six payments on the automobile. He was unable to remember if he had made the first payment in July or August. He stated payments were due on the 15th of the month. He stated he didn’t have any receipts for his payments. He had gotten upset after the car was taken and had thrown everything away.

Trial was had in the Circuit Court of Covington County on November 9, 1976.

Jackson at trial testified that he had made his first payment on July 15. He made his payments by certified check or money order. He had found receipts for three of his payments. Jackson stated that some receipts had been in the car when it was repossessed. He stated that a payment he made in February had been returned to him when Ford repossessed his automobile. Jackson also stated:

“Q. And you made how many payments that you absolutely remember?
“A. I know I sent eight.
“Q. Do you think you might have sent nine?
“A. I may have, probably sent nine, but I know I sent eight.”

On cross-examination, Jackson explained the inconsistencies in his deposition and trial statements regarding the number of payments he had made by stating that he had “got to checking it over” and determined that he made 8 or 9 payments. He also stated that he made his first payment in August.

Jackson admitted having made one late payment in February. It was this payment that Ford refused to accept. The date on the money order which was returned to Jackson was February 25, 1975.

Other pertinent portions of Jackson’s testimony are as follows:

“Q. Did you, after that Deposition, did you figure up and sit down and ' figure out how many payments you ' had made on that car?
“A. Yes.
“Q. All right, how many payments did you make?
“A. I know of . . .1 made eight.
“Q. Were you late?
“A. As far as I know I weren’t late because I had paid it up through there.
“Q. You paid ahead of time?
“A. That’s right.
“Q. When you were paying in February, you were paying ahead of time still?
“A. That’s right.”

Ford’s evidence was directly opposed to Jackson’s. The contract of sale disclosed payments were to have begun August 1, 1974. Additionally, Andrew Warren, Ford’s collection supervisor, testified that Jackson made 5 payments. He stated the money order for the sixth payment was not accepted and was returned to Jackson due to the delinquency of the account. His testimony was based on records maintained by his department.

As previously stated, the jury returned a verdict for Jackson in the amount of $2,536.06. From the trial court’s denial of its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, Ford took this appeal.

I

Ford contends the trial court erred to reversal in denying its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial for insufficiency of evidence.

Alabama law with regard to the granting of a motion for judgment notwithstanding the verdict is clear. The motion should not be granted if there is any conflict in the evidence for the jury to resolve. Moreover, the existence of such evidence is to be determined by the scintilla rule. Wright v. Packer, Civ.No. 1028, Ala.Civ.App. (April 27, 1977); McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (1975).

Ford contends the evidence adduced at trial does not constitute a scintilla of evidence that Jackson was not in arrears. Ford states that where testimony of a witness is incredible, unbelievable, or inherently improbable, it is to be disregarded as without probative value. King v. Brindley, 255 Ala. 425, 51 So.2d 870 (1951); American National Bank & Trust Co. v. Powell, 235 Ala. 236, 178 So. 21 (1938); Peters v. Southern Railway Co., 135 Ala. 533, 33 So. 332 (1902).

Albeit Ford’s statement of the legal principle is valid, the principle has no applicability to this case. We believe the cases upon which Ford has relied are distinguishable from that presently before this court. In King and Peters, supra, the Supreme Court of Alabama refused to hold credible testimony which undisputed objective facts proved invalid.

Thus, the court, after discussing what the evidence disclosed with regard to the condition of two automobiles and their passengers subsequent to a collision between the vehicles, stated that one party’s testimony that one of the vehicles was traveling 70 m. p. h. was unbelievable. Similarly, in Peters, the court failed to attach any weight to the plaintiff’s testimony which sought to place in issue his contributory negligence concerning an injury he sustained when walking across railroad tracks. The plaintiff stated that he had stopped, looked, and listened before crossing the tracks. The court, after a statement of the distances and speeds involved, noted that a simple mathematical calculation revealed that the plaintiff could not have stopped and looked for the train, made any diligent attempt to get off the tracks, and still have remained on them upon the arrival of the train. Hence, his testimony was insufficient to create a material conflict in the evidence.

In this instance, there are no objective facts which conclusively establish the occurrence or nonoccurrence of the events in question. Hence, the holding of King and Peters, supra, are inapposite.

Moreover, we do not equate Jackson’s testimony with that of the defendant in American National Bank & Trust Co., supra. In that case the defendant testified that prior to her seventeenth birthday she had earned $60,000 by selling newspaper clippings in Mobile in the early 1900’s. The Supreme Court of Alabama stated that such testimony was so unrealistic that no credit could be attached to such a statement.

In this case, we have testimony which neither can be disproven through application of objective facts nor which is so inherently improbable or unreasonable as to be without probative value as a matter of law. Jackson merely testified that he had made the automobile payments in question. Although his testimony on direct and cross-examination was contradictory, such contradictions do not in this instance make the testimony unbelievable as a matter of law so as to require reversal by this court. The question of which part of Jackson’s testimony was believable was for the jury. Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824 (1956); see Semmes Nurseries, Inc. v. McVay, 279 Ala. 42, 181 So.2d 331 (1965).

Ford also contends that Jackson failed to establish a prima facie case of conversion. Ford states Jackson admitted that he made a late payment in February and failed to make a payment in March of 1975. Under the security agreement he executed with Ford, such action on his part would constitute default and entitle Ford to possession of the car. Hence, Ford had a superior right to the property. We cannot agree.

Jackson also testified that he made eight payments, the first one having been in July of 1974. Under this view of the evidence, the payment rejected by Ford would have been for March. The payor will not be placed in default by the payee’s rejection of a payment which has been tendered on time. Thus, one reasonable interpretation of the evidence disclosed that Jackson was not in default, had a superior right to possession, and consequently, did establish a prima facie case of conversion. Ford’s contentions with respect to the sufficiency of evidence are therefore without merit.

II

Ford asserts opposing counsel’s improper closing argument requires reversal.

Ford’s argument is directed at the following remarks made by counsel for Jackson:

“All Willie wants is his money back and that is what they [Ford] should give him. I was the one that said they should give him more because they mistreated him and they should not be allowed to mistreat people and they need a lesson to keep them from mistreating people.
“He [Ford’s counsel] said they watch their public relations, they don’t do these things. John Givhan is sitting back there with a case against them Thursday for the same . .

John Givhan is a local attorney.

Ford immediately moved for a mistrial, which motion was denied by the trial court. The court then instructed the jury as follows:

“Members of the Jury, ... I want to tell you at this time that any consideration of any other pending law suit would be highly improper on your part. It is not evidence for you to consider. You would not be properly discharging your duties if you did consider it. And I am instructing you at this time to not allow that consideration to influence your verdict in any manner and I deny the Motion for Mistrial. You may resume your argument.”

In determining whether the argument of counsel is so prejudicial as to justify a new trial, each case must be decided upon its own particular facts. Daniel Construction Company v. Pierce, 270 Ala. 522, 120 So.2d 381 (1960). Instructions by the court telling the jury to disregard the objectionable comments may be sufficient to overcome any prejudice arising from such comments. Magnusson v. Swan, 291 Ala. 151, 279 So.2d 422 (1974); National Sec. Fire & Gas. Co. v. Hodgin, 55 Ala.App. 268, 314 So.2d 871 (1975).

Here, we need not set forth the entire argument of counsel. We have examined the entire record; and giving due regard to the emphatic instructions given the jury to disregard the improper comments, we perceive no ineradicable injury to Ford.

Where the trial court has denied the motion for a mistrial based on improper argument, its determination is presumed correct. National Sec. Fire & Cas. Co. and Daniel, supra. The trial court’s denial of a motion for mistrial premised on improper argument of counsel, where the court has instructed the jury to disregard the argument, has been sustained by the Supreme Court of Alabama in other decisions where the improper comments were more prejudicial than those made by Jackson’s counsel herein, Birmingham Electric Co. v. McQueen, 253 Ala. 395, 401, 44 So.2d 598, 603 (1950), where in a personal injury action, counsel for plaintiff argued:

“ T was surprised when I found out that he wasn’t killed. I will tell you, gentlemen, you go out there and do your duty and render a verdict for the amount which we are asking for in that complaint and you will serve your county here and you will stop the headlines of the papers in Birmingham and other papers of people killed and run over by street cars in Birmingham.’ ”

See also Birmingham Electric Co. v. Wood, 222 Ala. 103, 130 So. 786 (1930), where counsel read facts from a case similar to the ease on trial, the amount of the verdict, and comments of the supreme court concerning the verdict; Tennessee River Nav. Co. v. Walls, 209 Ala. 320, 96 So. 266 (1923), where plaintiff’s attorney expressed the opinion that a verdict should be granted for “plaintiff for a substantial amount, and two previous juries which have tried this case agreed with me.”

Jackson’s counsel’s objectionable comments served no legitimate purpose, and it is regrettable that they were made. However, in this instance, we are unable to say the prejudicial effect of the challenged comments was not eradicated by the prompt and emphatic instructions of the trial court to disregard such argument.

Ill

Ford also contends the trial court erred in its instructions to the jury concerning the measure of damages for the conversion of an automobile. We agree.

The trial court instructed the jury as follows:

“In an action for conversion where the Plaintiff has lost his property wholly by conversion and the value of the property has not fluctuated, the measure of damages is the reasonable, fair, market-value of the property at the time and place of the conversion with interest at the rate of six percent from the time of the conversion to the time of the trial.”

However, the measure of damages for conversion is the difference between the reasonable fair market value of the item converted and the balance due on the mortgage debt at the time of conversion, plus interest from the date of conversion. Parker v. Sutton, 47 Ala.App. 352, 254 So.2d 425, cert. denied, 287 Ala. 738, 254 So.2d 431 (1971). Thus, the trial court’s instructions were erroneous. However, such error does not mandate reversal, for the jury returned a verdict for a lesser amount than would have been sustainable had the appropriate instructions been given.

The sales agreement showed the new automobile’s original selling price to be $8,500. Also, testimony disclosed approximately $200 in repairs were required at the time of repossession. Thus, at the time of conversion, one reasonable view of the evidence would value the automobile at $8,300, less depreciation.

The balance owed on the car after Jackson’s down payment and trade-in was $6,699. Reducing this amount by $1,440, an approximation of the amount the principal was reduced by 8 or 9 payments, leaves a balance of $5,259. Pair market value of the automobile ($8,300) less the amount owing on the debt ($5,259) reveals Jackson’s interest at the time of conversion to have been $3,041, less depreciation. Since the jury’s verdict was for $2,536.06, we perceive no harm accruing to Ford by virtue of the erroneous instruction. The error is therefore harmless and does not constitute grounds for a new trial. Rule 61, ARCP.

AFFIRMED.

BRADLEY, J., and PÁUL, R. C. J., concur.


author: WRIGHT, Presiding Judge.

text:
    John R. CRANTON v. Patricia W. CRANTON.
    Civ. 1039.
    Court of Civil Appeals of Alabama.
    July 6, 1977.

      Patrick M. Sigler, Mobile, for appellant.
    Warren L. Hammond, Jr., Mobile, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from the provisions for alimony, support, attorney fees and division of property in a divorce decree. We affirm.

After seventeen years of a marriage producing five children, the parties were divorced upon the petition of the wife. The wife was awarded title to the home and the furnishings. She was awarded custody of the five children and $2,500 per month as alimony and support. From this award she must provide for housing and support, including private school tuition and the monthly payments of $463 on the mortgage on the home. The husband was awarded title to an apartment building and various personal property including a Mercedes automobile.

The evidence disclosed that the husband is a practicing psychiatrist in Mobile. His practice has grossed from $90,000 to $100,-000 per year for several years. His net income approximates $70,000 per year. Dr. Cranton has not managed his finances very well and is heavily in debt, largely on unsecured notes at several banks.

The home is a spacious five-bedroom house of a market value of $109,000 to $134,000. The mortgage on the home has a balance of over $50,000 due in monthly payments of $463. There is a second mortgage on the home of some $12,000. That mortgage represents the cost of construction of a swimming pool. There is litigation pending regarding alleged faulty construction of the pool. Dr. Cranton was directed by the decree to make the payments on the second mortgage.

Dr. Cranton charges that the trial court abused its discretion in the award of alimony and support, the granting of attorney fees in the amount of $7,500 and in the award to the wife of title to the home.

In examining the award of alimony and support, it clearly appears that there is ample evidence of need and ability to pay to add support to the presumption of correctness with which we are bound to view the judgment of the trial court on appeal. Under such state of the record we are not at liberty to find an abuse of discretion. Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794 (1974); Walker v. Walker, 56 Ala.App. 98, 319 So.2d 718 (1975). We recognize that Dr. Cranton has a substantial indebtedness to liquidate. However, such indebtedness is a secondary consideration when compared to the obligation to support his wife and five children in relation to his income and the manner to which they have become accustomed. Watson v. Watson, 45 Ala.App. 306, 229 So.2d 807 (1969); Ortman v. Ortman, 203 Ala. 167, 82 So. 417 (1919).

The complaint that the court was too generous in its division of the real property is subject to the same rules of review as we have just applied to the award of alimony and support. It is true that the equity in the home constitutes the primary estate of the marriage. However, the home was designed and built by the parents as the place of residence for their children. It is fitted to the needs of the family. It is to be considered that there is placed upon the mother the necessity of using the ordered alimony and support to meet the future monthly mortgage payments so that she and the children may continue to occupy and enjoy the home. The husband is building a retirement estate with contributions of $7,500 per year from his gross income. That fund already amounts to $22,500. The wife will have little opportunity of building a retirement fund or an estate unless it is derived from the present marital estate. A palpable abuse of the discretion of the trial court is not disclosed by the evidence. Con- well v. Conwell, 56 Ala.App. 188, 320 So.2d 694 (1975); Hallman v. Hallman, 51 Ala.App. 460, 286 So.2d 863 (1973).

Though the payment of the adjudged attorney fee may seem high when viewed in light of the present ability of defendant to meet his debts, we are unable to find a clear abuse of discretion. Burgess v. Burgess, 54 Ala.App. 396, 309 So.2d 107, cert. den. 293 Ala. 748, 309 So.2d 111 (1975).

The issue of whether the trial court erred in denying the motion to dismiss the ground of adultery is not well taken. We consider there was sufficient evidence in the record to support a finding of adultery by defendant. However, the court did not grant a divorce on a specific ground. If any statutory ground for divorce was charged in the complaint and supported by legal evidence, it was harmless error to refuse to dismiss a charged ground though not proved, if the divorce was granted without stating the ground. Blackwell v. Blackwell, 340 So.2d 448 (Ala.Civ.App.1976).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Richard Heywood RAMSEY, III v. Betty Norton RAMSEY.
    Civ. 1131.
    Court of Civil Appeals of Alabama.
    July 6, 1977.

      J. Ronald Storey, Dothan, for appellant.
    M. A. Marsal, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This appeal is from the denial of modification of a divorce decree. We affirm.

The parties were divorced by decree of the Mobile County Circuit Court on August 25, 1972. By order of December 28, 1973, the court awarded the family home and custody of the four children to Mrs. Ramsey. Mr. Ramsey was ordered to pay $700 monthly as alimony and child support and $225 for the note on the home “as additional alimony” to terminate upon the death or remarriage of the wife prior to payment in full of the mortgage.

On August 26, 1975, Mr. Ramsey petitioned the court for modification of the decree. He subsequently moved for change of venue to Houston County.

The court denied the motion to transfer. After hearing, it rendered a judgment reducing the alimony and child support to $575 per month because the oldest child had attained majority, but denied modification of the note payment. Mr. Ramsey’s motion for new trial was denied and he appealed.

The evidence revealed the following: The Ramseys had resided in Dothan prior to their divorce. They agreed to file for divorce in Mobile with Mrs. Ramsey as complainant. Following the divorce, Mr. Ramsey had harassed her at home and used abusive language over the telephone. In August of 1975 she resigned her job and moved with the three minor children to Jackson, Mississippi, where most of her relatives resided. She listed the home for rent with a real estate agent. It is valued at $85,000 to $90,000 and has an outstanding mortgage of $25,000. Mrs. Ramsey is now living in a three-bedroom apartment renting for $350 per month and is looking for employment. Mr. Ramsey is a practicing attorney with substantial income and large real estate holdings. In the 1974-75 school year he provided over $3,000 in support for the oldest child, a freshman in college, who became 19 on August 18, 1975.

In reviewing this case we adhere to the presumption of correctness where the testimony was heard ore tenus and may not reverse unless there has been such abuse of discretion as to cause the judgment to be plainly and palpably wrong. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660, cert. denied, 295 Ala. 429, 321 So.2d 664 (1975).

Mr. Ramsey raises two issues for review: (1) error in denying the motion to transfer and (2) abuse of discretion in the failure to reduce the “additional alimony payment” of the house note.

Under Title 34, § 28, Code of Alabama (1940) (Recomp.1958), venue for the divorce would properly have been in Houston County. By failing to seasonably object in that proceeding Mr. Ramsey waived his right to a change of venue. The venue statute is solely for the benefit of the parties and may be waived. Hooks v. Hooks, 251 Ala. 481, 38 So.2d 3 (1948); White v. White, 206 Ala. 231, 89 So. 579 (1921). There is no rule or statutory provision authorizing change of venue solely for convenience. See C. Lyons, Alabama Practice, § 82.3. The matter of granting a change of venue is addressed to the sound discretion of the court. Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696 (1958). We perceive no abuse of discretion here.

The award of the home to Mrs. Ramsey was part of a property settlement. The note payment was a part of the periodic alimony which will terminate at the death or remarriage of Mrs. Ramsey or when the note is paid in full. There is no contention by either party that the award is unmodifiable.

The decree contained no requirement that Mrs. Ramsey continue residing in the home for the note payments to continue. Modification of a prior award of periodic alimony is dependent upon a material change of circumstances. Wells v. Wells, 230 Ala. 430, 161 So. 794 (1935). If there was a reasonable necessity for Mrs. Ramsey to remove herself and her children from her home in Dothan, the trial court was at liberty in the exercise of its discretion, to determine that there was no material change of circumstance requiring discontinuance of the payment on the note. She was merely using rental income from her residence to obtain another. Our review fails to disclose an abuse of discretion.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.