author: SUGG, Justice,

text:
    Glenn DUKE v. STATE of Mississippi.
    No. 49256.
    Supreme Court of Mississippi.
    Dec. 7, 1976.
    Rehearing Denied Jan. 12, 1977.

      Richard E. Stratton, III, Allen & Allen, Robert 0. Allen, Brookhaven, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and SUGG and BROOM, JJ.
   SUGG, Justice,

for the Court:

Glenn Duke was convicted of attempted murder of B. E. Fisher and sentenced to ten years in the penitentiary by the Circuit Court of the First Judicial District of Hinds County.

Duke and Fisher were the owners of Glenn Duke Mobile Homes, Inc. Fisher furnished the capital and Duke operated the business. Duke hired Robert Samuelson in March, 1974 to manage a mobile home lot owned by the corporation. Samuelson testified that in August, 1974, Duke approached him with the idea of eliminating Fisher. The suggestion was repeated by Duke several times after the original proposal. Samuelson doubted at first that Duke was serious about eliminating his partner, but pretended to go along with the idea provided Duke would arrange a hunting trip so that the killing would appear to be an accident. The trip was set up and Samuelson, in the presence of Duke, pointed his shotgun at Fisher and faked a misfiring. Duke asked him to try again and approached Samuelson about making another effort to kill Fisher, but Samuelson stated he would have to put it off for a while. By this time Samuelson was no longer employed by Duke, having moved to Fort Worth, Texas in January, 1975. About a week after he moved Duke approached him about finding someone in Texas to kill Fisher. During the month of January, Duke talked to Samuelson by telephone several times about the matter and Samuelson, realizing the seriousness of the situation, agreed to put out feelers for a hitman. He told Fisher about the plan and then notified Duke that he had found someone to handle the job for $15,000 but Fisher would have to come to the Fort Worth area. Duke agreed and stated that since Fisher had planned a trip to the Dallas-Fort Worth area to buy a boat, he would be able to have Fisher come to Texas.

During the interim Duke approached the Internal Revenue Service and talked to Bobby Joe Hudson, a special agent in the intelligence division of the Internal Revenue Service in Jackson, and informed Hudson that Fisher was going to leave the country with a large sum of money, approximately $250,000 to $500,000, and that Fisher would probably not return.

Local law enforcement officers and the FBI were notified of Duke’s plan to have Fisher killed. John W. Bonino, an agent of the FBI office in Jackson was selected to pose as a hitman and collect the money for the killing. Bonino posed as a hitman using the name “Mickey” and met Duke to collect the $15,000. Duke wanted assurance that Fisher was dead and Bonino showed Duke a distinctive ring that Fisher wore. After seeing the ring Duke said he was satisfied. Duke expressed concern over the possible discovery of Fisher’s body and explained that he meant, “Not an arm, not a leg” should ever be discovered. Duke told Boni-no that his alibi was based on the premise that Fisher’s body would not be discovered.

Duke told Bonino that Fisher had been having tax problems and that an IRS agent told him he would not be surprised if Fisher left the country. Duke told Bonino that, with Fisher out of the way, he could arrange the company books so that he, Duke, stood to gain $150,000. Duke paid Bonino $11,500 and told him that he assumed that he had taken approximately $1300 off of Fisher’s person and the $11,500 would complete the payment. Bonino made it clear that he expected the additional $1,000. The $2500 difference was to be paid to Samuelson for arranging the killing.

Payment of the money by Duke to Boni-no was observed by several people and Duke admitted paying the agent the money but claimed that he was cooperating with an FBI agent, James W. Ratliff, to aid in an investigation against Fisher. Duke had testified on behalf of the United States in a trial involving one Leo Hall on a charge of counterfeiting. Duke said that he was reluctant to go along with the idea but Ratliff guaranteed immunity. He stated that Ratliff talked with him on Monday before his, Duke’s, arrest and the payoff was not originally a part of the plan but Ratliff came up with the idea of the payoff to the hitman stating that it would make the plot more believable. He admitted meeting with Bonino and paying the $11,500 but was unsure whether Bonino was posing as a hitman or whether he actually was someone from the underworld. He stated that he was concerned and upset but ascertained by skillful questioning that Mickey was a government agent rather than a genuine hitman. He claims he made it clear to Bonino that he knew Bonino was an FBI agent. He said when he was arrested Boni-no was in the car and he felt relieved that Bonino was actually an FBI agent.

An agent from the FBI stated that personnel files of the FBI showed that the FBI had no employee by the name of James W. Ratliff or Radcliff or any variation of the name.

Duke contends that the evidence for the state constituted at most proof of solicitation or preparation and that he only planned a crime. He argues strenuously that the state’s proof did not show that he committed any overt acts toward having Fisher murdered. He therefore concluded that he was entitled to a peremptory instruction, and if not entitled to a peremptory instruction, then the verdict of the jury was against the overwhelming weight of the evidence.

One of the leading cases in the United States on attempt to commit a crime is Stokes v. State, 92 Miss. 415, 46 So. 627, 21 L.R.A., N.S., 898 (1908). In Stokes this Court recognized the difficulty of reconciling authorities on the subject of the acts necessary to constitute an attempt to commit a crime. The Court stated:

It is useless to undertake to reconcile the authorities on the subject of what constitutes an attempt, or what is an overt act, within the meaning of the section in question. It is equally impossible for us to undertake to lay down any rule on this subject which would serve as a guide in all future cases. To a very great extent each and every case must stand on its own facts. The text-books and decisions are noted for their lack of harmony. It is impossible to decide any case on this subject without doing violence to some author or some adjudicated case. Therefore all we can hope to do is to follow the best authorities and to clear up the subject as best we can, so far as the laws of this state are concerned. (92 Miss, at 424, 425, 46 So. at 628).

Before Stokes, this Court recognized the complexity of the legal questions involved in the charge of attempting to commit a crime in Cunningham v. State, 49 Miss. 685 (1874):

This doctrine of attempt to commit a substantive crime is one of the most important, and at the same time most intricate, titles of the criminal law. It is truly remarked by Mr. Bishop, in his valuable work on criminal law, that there is no title, indeed, less understood by the courts, or more obscure in the text books, than that of attempts. There must be an attempt to commit a crime, and an act toward its consummation. So long as an act rests in bare intention, it is not punishable; but, immediately when an act is done, the law judges not only of the act done, but of the intent with which it was done; and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable. (49 Miss, at 701).
In Stokes, we concluded:
When the intent to commit crime exists, or, to put it more accurately, when the only proof is that it is merely the declared intention of a person to commit a crime, with no act done in furtherance of the intent, however clearly may be proved this intention, it does not amount to an attempt, and it cannot be punished as such. But, whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt, and this court will not destroy the practical and commonsense administration of the law with subtleties as to what constitutes preparation and what an act done toward the commission of a crime. Too many subtle distinctions have been drawn along these lines for practical purposes. Too many loopholes have been made whereby parties are enabled to escape punishment for that which is known to be criminal in its worst sense. (92 Miss, at 427, 428, 46 So. at 629).

The proof is overwhelming that Duke intended to kill Fisher and that he performed more than slight acts in furtherance of his design. The jury rejected his defense that all acts committed by him were in cooperation with the FBI. Duke’s acts in this case went far beyond mere preparation or planning because he solicited Samuelson to kill Fisher, arranged a hunting trip for that purpose, and following the failure to kill Fisher during the November hunting trip, he again solicited Samuelson to find a hitman, agreed to pay $15,000 to have Fisher killed, and actually paid $11,500 to a person whom he believed had killed Fisher. This is a strong case and we fail to see where a fair minded jury could have returned any verdict except that of guilty.

In Cunningham the Court defined an overt act as one which manifests the intention to commit the crime. It would be difficult to find a stronger case than one presented against Duke. The evidence shows that Duke did everything he could to carry out his intent to have Fisher killed. He set the plan in motion, he laid an alibi, he believed Fisher had been killed and paid the feigned assassin. Duke urges that these activities were mere solicitation or preparation and further submits that there was no possibility of the crime being committed; thus, he contends as a matter of law, that no crime was committed. Stokes clearly established the proposition that when the impossibility grows out of extraneous facts not within control of the party, impossibility is not a defense.

Duke also argues that proof of the hunting incident and his earlier solicitation of Samuelson to eliminate Fisher should not have been admitted because these facts were evidence of other crimes. Ordinarily in a criminal case the issue is single, but all of the state’s proof in this case established the intent of Duke to kill Fisher and showed overt acts committed by Duke to carry out this intent.

Following the payment of money to Bonino by Duke, Duke was arrested on a federal charge. The complaint charged him with violating U.S.C. Title 18 Section 875(c) and is in the following language:

Glenn Duke did willfully and knowingly transmit in interstate commerce from Jackson, State of Mississippi, to the State of Texas a telephone communication to Robert Samuelson, which telephone communication contained a threat to injure the person of Billy E. Fisher, that is that Duke agreed to pay the sum of $15,000.00 to have Fisher killed.

The complaint further states:

And the complainant states that this complaint is based on personal contact and interstate telephone conversations between Duke and Samuelson occurring in January, 1975, between Jackson, Mississippi and Fort Worth, Texas, during which contacts and telephone conversations Duke offered and agreed to pay $15,000.00 to whomever Samuelson procured to kill Fisher; and payment of $11,-500.00 on February 3, 1975, by Duke to John W. Bonino for purportedly carrying out the threat to kill Fisher.

John McGirl, an FBI special agent, testified that he and other officers arrested Duke on the federal charge, gave the Miranda warning and placed Duke in the custody of the United States Marshal. Shortly after Duke’s arrest McGirl received a call from Special Agent Sammon that Duke had a book that he wanted to give to the FBI. McGirl returned to his office where he found Duke in custody of Deputy U.S. Marshals and Duke requested McGirl to drive him to his home to obtain the book. McGirl again gave Duke Miranda warnings on the trip to Duke’s home and testified as follows:

While we were riding, after Mr. Duke advised me to the fact that he had this book which he desired to give to the F.B.I., he stated he also had information about the crooks in the Jackson, Mississippi, area. He stated that he would like for the F.B.I. to know all about it.
At this point, it was my opinion that he might be furnishing some information that might be incriminating to him in the case that was presently at hand. So, at that time I advised him again of his rights, that he didn’t have to make any statements to me, and that any statements made by him could be used in a court of law.
Mr. Duke stated he knew this. However, he stated, he was guilty of the charges that had been made against him, but that be felt that the information he had concerning—
BY MR. STRATTON:
Your Honor. The only charges that had been leveled against him at this time were the U.S. charges, the federal charge, and in view of this testimony we want to move for a mistrial, because this is damaging, it’s not pertinent to the issue at hand, and it relates to the charges made by the federal authorities.

The book was introduced into evidence as Exhibit 7 and McGirl stated that he felt that it was not useful in the investigation they were presently conducting. Duke told McGirl he kept the book so that if he were ever investigated by the Internal Revenue Service he would have the book to show what monies he had paid out for the Mobile Home business that he was then operating.

Duke renewed his motion for mistrial and the motion was overruled. Following this his attorney made the following motion:

The motion having been overruled, we would like to exclude all of the testimony of this witness, McGirl, except the introduction of State’s Exhibit ‘7’, and that the jury be instructed to disregard any alleged confession as to any court violations, or any other violations, and any other testimony by this witness.
BY THE COURT: (To the jury)
All right. Ladies and gentlemen, you are so instructed to disregard all of the testimony of this witness, with the exception of that relating to this book.
Do you understand?

The jurors nodded their heads in the affirmative to show they understood that they were to disregard all of the testimony of McGirl with the exception of that related to the book. On request of Duke’s counsel, the court polled each juror individually on the question.

The court properly admonished the jury. We have held in many cases that when an objection to testimony is sustained and the jury is admonished to disregard it there is no reversible error. Herron v. State, 287 So.2d 759 (Miss.1974).

In Holifield v. State, 275 So.2d 851 (Miss.1973) we held that when the court sustains an objection to improper testimony or improper remarks of counsel participating in the trial, it is presumed, unless otherwise shown, that the jury followed the directions of the trial judge to disregard such comment or testimony.

We hold that no error was committed by the court in refusing the mistrial because he properly admonished the jury. We also hold that there was no error because the evidence of Duke’s admission of guilt was admissible. Obviously he was referring to the federal charge which was so closely connected to the state charge later filed that it constituted an admission against interest.

Duke also argues that the demurrer to the indictment was erroneously overruled. The claimed error was not preserved for review. If we reached the question of the demurrer to the indictment, we would hold that the indictment is sufficient. Ford v. State, 218 So.2d 731 (Miss.1969).

AFFIRMED.

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

PATTERSON, P. J., took no part.


source: Caselaw Access Project

author: ROBERTSON, Justice, for the Court:

license: Public Domain

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY v. Ata DALATI.
    No. 48989.
    Supreme Court of Mississippi.
    Dec. 7, 1976.
    Rehearing Denied Jan. 12, 1977.
    Daniel, Coker, Horton, Bell & Dukes, Thomas H. Suttle, Jr., Jackson, for appellant.
    James G. McIntyre, R. L. Houston, Jackson, for appellee.
    Before SMITH, ROBERTSON and WALKER, JJ.
   ROBERTSON, Justice, for the Court:

This is a workmen’s compensation case. The Circuit Court of the First Judicial District of Hinds County affirmed the order of the Mississippi Workmen’s Compensation Commission finding that Hartford Accident and Indemnity Company was the insurance carrier of Metal Specialties, employer, in Mississippi, and that Hartford was liable to Ata Dalati, employee, for compensation and medical, surgical and hospital services and supplies under the Mississippi Workmen’s Compensation law. Hartford appeals.

Bobby Garrett, a partner in Metal Specialties and a resident of Monroe, Louisiana, testified that Ata Dalati was employed by Metal Specialties in Jackson, Mississippi, to lay sheet metal decking on a building in Jackson, Mississippi, and that, on August 2, 1973, he was injured on the job when he inadvertently stepped off of the roof of the building and fell 25 feet to a concrete floor.

Garrett further testified that Metal Specialties was required to take out and pay for workmen’s compensation insurance as a condition of employment under a written subcontract agreement dated July 9, 1973, between Metal Specialties and Pearl Steel Erection Company. In complying with that condition, Garrett testified that he contacted his friend of long standing, Murray Martin, who had an insurance agency in Winns-boro, Louisiana. Martin wrote insurance for several companies, including Hartford Accident and Indemnity Company. The testimony was undisputed that Martin told Garrett on July 16, 1973, that Metal Specialties was covered by workmen’s compensation insurance for the job in Jackson, Mississippi.

About five weeks after the accident, on September 9, 1973, Garrett finally received his policy of insurance from Hartford. In the policy, the policy period was stated “From 7/16/73 to 7/16/74”. All the terms of the policy were correct, except this recitation:

“3. Coverage A of this policy applies to the workmen’s compensation law and any occupational disease law of each of the following states: LOUISIANA”

Metal Specialties had no work in Louisiana in 1973, and the workmen’s compensation insurance was taken out specifically for the Mississippi job.

In its motion to dismiss filed with the Mississippi Workmen’s Compensation Commission on February 8, 1974, Hartford asserted that the Mississippi Workmen’s Compensation Commission had no jurisdiction over it because the policy issued effective July 16, 1973, to Metal Specialties, provided coverage for Louisiana only. Hartford further contended that it was not until October 16, 1973, that Mississippi was covered when an all-states endorsement was added to the policy.

On November 13, 1973, Hartford filed with the Mississippi Workmen’s Compensation Commission Form A-24, which recited:

Jerry Lee Tellis was called as a witness by Hartford on its motion to dismiss. He testified that he was Hartford’s casualty underwriting manager in its New Orleans office; that Murray Martin of Winnsboro, Louisiana, was an agent for Hartford; that Martin had authority to bind Hartford verbally and that any contract of insurance that Martin made, even though verbal, would be underwritten by Hartford. Tellis was asked this question:

“Q. All right. So, if he told the insured, Mr. Garrett, that he was bound— that he was covered under workmen’s compensation in the State of Mississippi, then he would be covered, wouldn’t he?”

which he answered in his way:

“A. If he told him that he would be covered, yes, sir.”

The evidence is undisputed that Garrett contacted Martin about the Mississippi job only, and asked him to provide workmen’s compensation insurance for the job in Jackson, Mississippi. The evidence is undisputed that Martin told Garrett on July 16, 1973, that he was covered. The evidence is undisputed that Hartford, through its agent Martin, received payments on the premium and retained them.

When the Mississippi Workmen’s Compensation Commission found that Hartford was the insurance carrier for Metal Specialties for work in Mississippi on July 16,1973, and was, therefore, liable to Ata Dalati under Mississippi Workmen’s Compensation law, it was merely enforcing the terms of a verbal contract entered into by Metal Specialties and Hartford, acting through its agent, Murray Martin. The Commission was not reforming the contract because of mutual mistake, as Hartford contends on this appeal.

The judgment of the circuit court, affirming the order of the Commission, is affirmed by this Court.

AFFIRMED.

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


text:
    Hoyt FORBES et ux. v. COLUMBIA PULP AND PAPER COMPANY, INCORPORATED.
    No. 49006.
    Supreme Court of Mississippi.
    Dec. 14, 1976.

      Singley & Morgan, Emory E. Morgan, Columbia, for appellants.
    Duff, Foxworth & McNeese, Thomas D. McNeese, Columbia, for appellee.
    Before INZER, P. J., ROBERTSON and WALKER, JJ., and LOVE, Commissioner.
   JOHN C. LOVE, Jr., Commissioner for the Court:

This is an appeal by Hoyt Forbes and wife from a decree of the Chancery Court of Marion County, wherein the court held that the timber on a certain tract of land was not covered by a prior decision of this Court.

The same parties were before this Court in Forbes v. Columbia Pulp and Paper Company, Inc., 275 So.2d 92 (Miss.1973). The principal issue now before the Court is whether the opinion and mandate included the right to the timber on the 160 acres of land involved.

The basic facts of this case are that on July 3, 1965, for the consideration of Fourteen Thousand One Hundred Sixty-six and 36/100 ($14,166.36) Dollars, the Forbes conveyed to Columbia Pulp and Paper Company, Inc., (hereinafter referred to as Columbia), a tract of land containing 160 acres. They reserved the right to remove the timber from said property for a period of two years from the date of the deed. On that same date, the parties to the deed entered into a separate contract under the terms of which Columbia, for the same consideration, agreed to convey back the 160 acres to the Forbes if five years from the date of the deed, Columbia had not developed certain industrial facilities or established an industrial park which included the land conveyed. On October 22, 1965, the Forbes conveyed by separate instrument all their rights to the timber on said property to Columbia for Six Thousand Eight Hundred Ten and No/100 ($6,810.00) Dollars. In 1965 and 1966, Columbia cut some of the timber from the property involved, though the evidence is not clear as to whether all of the timber was cut and from what parts of the land.

In 1973, this Court ruled that the conditions, set forth in the contract which entitled the Forbes to a reconveyance of the 160 acres of land, existed and that Columbia should be mandated to reconvey the property to them in accord with the terms of the contract entered into by the parties on July 3, 1965. The opinion stated, “ . [Jjudgment is entered here requiring Columbia to convey to Forbes the property involved in this case within sixty days after the mandate of this Court . . . ”. The mandate stated, “ . . . [A] decree is entered here requiring Columbia Pulp & Paper Company, Inc. to convey to Hoyt Forbes and Mrs. Hilda Nell T. Forbes, his wife, the property involved in this ease within 60 days after the mandate of this Court . . . Following this mandate, Columbia executed a deed to the Forbes conveying the subject property, but in said deed they included a reservation of timber rights for a period of two years, using the same terminology contained in the initial deed executed July 3, 1965 from Forbes to Columbia. The Forbes were willing to pay the sum required of them by the contract and by the order of the Supreme Court in return for a reconveyance of the property to them, but they were unwilling to do so with the timber reservation. Columbia was unwilling to execute the deed under the mandate, without the provision for timber reservation. Columbia then filed a petition to enforce the mandate of the Supreme Court so as to permit them to reserve the timber and Forbes filed a bill of complaint in the Chancery Court of Marion County seeking to force Columbia to execute the deed without any reservation of timber and deliver it upon the payment of the required sum.

The principal issue here is whether the timber on the subject property was covered by the former opinion of this Court. If the timber was covered, then the doctrine of res judicata would apply and it would not be proper to relitigate the rights to the timber.

The appellee contends that the issue of res judicata was not timely raised before the lower court and is not properly before this Court. We must address this issue before determining whether the doctrine should be applied to the case at bar. In their pleadings, the appellants did not allege per se that the matter was res judica-ta, but the appellants did file an action based upon the mandate and opinion of the Supreme Court and attached them to their pleadings in the lower court. The appellee had already tendered a deed with the timber reservation and the purpose of the bill of complaint filed by the appellants was to require the appellee to execute the deed without the timber reservation, and they based their action upon the opinion of this Court which was exhibited with their bill of complaint. In the case of Webb v. Jackson, 174 Miss. 808, 165 So. 809 (1936), this Court quoted the United States Supreme Court in determining whether the res judicata issue was properly before the Court as follows: “If there has been a conclusive adjudication of the subject in some other court, it is the duty of him who relies upon it to plead it or in some manner bring it to the attention of the court in which it is sought to be enforced.” 174 Miss, at 813, 165 So. at 810. It appears clear that the appellants brought the issue of the former opinion to the attention of the trial court by attaching the opinion to their bill of complaint and in seeking enforcement thereof. Therefore, this Court is of the opinion that the issue was timely raised and is properly before this Court.

Res judicata is not only a bar to further litigation concerning the exact issues of the former lawsuit, but goes further as set out by this Court in the case of Pray v. Hewitt, 254 Miss. 20, 179 So.2d 842 (1965), wherein the Court said:

“ . . . [T]he rule is often broadly stated in general terms that a judgment is conclusive not only on the questions actually contested and determined, but on all matters which might have been litigated and decided in that suit.” This rule has been approved and adopted in this State. 254 Miss, at 24, 179 So.2d at 844.

Likewise, the Court stated in the case of Golden v. Golden, 246 Miss. 562, 151 So.2d 598 (1963):

Moreover, a prior suit is conclusive in a subsequent suit not only of matters actually determined, but also matters which could and should have been determined in the prior suit. 246 Miss, at 568,151 So.2d at 600.

In applying this principle in Pray, supra, the Court was dealing with enforcement of a contract as we are in this case, and there the Court said, “The contract was pertinent to the issue involved and was pleaded and tendered as an issue in the former suit. Therefore all rights to enforce the contract were settled by the former decree.” 254 Miss, at 24, 179 So.2d at 844. In dealing with the res judicata issue in Pray, supra, the Court set forth four essentials for ap-. plying the doctrine. Appellee contends that two of these essentials are not met here in that there is no identity of things sued for and no identity of cause of action between this suit and the former suit. We disagree. The first suit was a suit to enforce the reconveyance of property described in the contract of July 3,1965, simply as 160 acres of land. The contract provided for no reservation of timber. The cause of action now before the Court still seeks to enforce the terms of that contract and to require the reconveyance of the property without reservation of the timber.

Based on the above quotations from Pray, supra, it appears clear that the law in this state is that where both matters arise out of the same contract, there is the identity of things sued for and the identity of causes of action as called for in Pray. It is therefore the conclusion of this Court that the doctrine of res judicata does apply, that the former opinion of this Court is controlling, and that the lower court was bound by the provisions thereof.

Let us now consider whether the former opinion of this Court required the conveyance of the timber or whether Columbia had the right to reserve it for a period of two years as in the initial deed from the Forbes. The initial contract between the parties provided for the reconveyance of the “property” and the property referred to was 160 acres of land described in the contract. As above set out, the opinion also provided for the reconveyance of the “property”. Obviously in the use of the term “property” in the opinion, this Court was referring to the 160 acres of land specifically described in the contract. Nowhere in the contract is there found any reservation of timber. In the case of Fox v. Pearl River Lumber Company, 80 Miss. 1, 31 So. 583 (1902), this Court clearly held that the term “land” embraces the timber as well as the land itself. In addition, Section 833, Mississippi Code 1942 Annotated (1956), which is now Section 89-1-5, Mississippi Code 1972 Annotated, provides that every conveyance is deemed to be a fee simple title, unless specified otherwise. In the case of Jones v. Hickson, 204 Miss. 373, 37 So.2d 625 (1948), the Court held that an agreement to sell land would mean an agreement for a fee simple conveyance of the land. The Court also held in the case of Wheat v. J. J. White Lumber Company, 150 Miss. 615, 116 So. 103 (1928), that standing timber goes with the land if not specifically reserved. Therefore, we must conclude that the timber on the land was included in the term “property”, unless there is some basis for excepting it therefrom.

As we view the facts in this case, there was no intention in the contract to except the timber. The contract itself does not provide for the exception. It does refer to the deed also executed on July 3, 1965, and the deed provides for a reservation of the timber. But even considering the deed, if we apply the principle established by this Court in the case of Hunt v. Gardner, 147 Miss. 374, 112 So. 7 (1927), to-wit:

[I]t is the duty of the court, in construing a contract, to place itself in the situation of the parties at the time the contract was made, and to ascertain their intention from the contract in the light of that situation, looking also to the subject matter of the contract . . . 147 Miss, at 382, 112 So. at 8.

We must conclude that it was not the intention of the parties at that time for Columbia to have the right to reserve the timber. As of July 3, 1965, the facts were that the Forbes had conveyed the 160 acres to Columbia for Fourteen Thousand One Hundred Sixty-six and 36/100 ($14,166.36) Dollars. The Forbes had reserved the timber and they had the right to sell the timber to anyone they desired, with the timber reservation being limited to two years. It must be concluded that the parties at that time thought that Forbes himself would either remove the timber or that he would sell it to someone else who would remove it within the two years provided for in the reservation. Under the law in this state, at the end of the reservation period, all timber remaining would revert to Columbia. Wheat, supra. Thus, it must have clearly been the intent of the parties that the timber would be cut before July 3, 1967, and that Columbia, for the Fourteen Thousand One Hundred Sixty-six and 36/100 ($14,-166.36) Dollars, was receiving the 160 acres of land, plus all timber remaining on the land as of July 3, 1967. This being the intention of the parties at that time, it would follow that the intention of the parties must have been that Columbia would convey back to the Forbes in 1970, if certain conditions were not met, the 160 acres of land with whatever timber might be on it at the time.

Appellee contends that the conveyance of the timber to Columbia in October, 1965, was a separate transaction and that Columbia is still entitled to reserve its timber obtained by said transaction. We are of the opinion that the rights under the timber deed expired July 3, 1967, and that after that date, Columbia owned the timber by virtue of the initial deed. By virtue of the initial contract, Columbia was obligated to convey the property with such timber as might have remained at the time the conditions set forth in the contract came about. We are of the further opinion that if Columbia contended that the execution of the timber deed in any way changed the rights of the parties under the contract, that it was bound under the res judicata principles set forth above to raise that issue in the former suit.

Appellee also contends that as a court of equity, the chancery court was obligated to grant Columbia the right to remove the timber which it had purchased. The facts are in conflict as to the amount of timber that was removed in 1965 and 1966, but clearly they removed some of the timber from the land in question. However, their position is no different from anyone else who buys timber with a limited period to remove it and if they fail to remove it during that period, they simply lose all rights thereto, for time is of the essence in such a contract.

For the reasons stated, this cause must be and is reversed and a decree entered here requiring Columbia Pulp & Paper Co., Inc., within sixty days after the judgment of this Court becomes final, to reconvey the land described in the bill of complaint to Hoyt Forbes and wife without any reservation of timber upon the payment of Fourteen Thousand One Hundred Sixty-six and 36/100 ($14,166.36) Dollars by the Forbes to Columbia.

REVERSED AND RENDERED.

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

BROOM, J., took no part.

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


author: BROOM, Justice,

text:
    James Paul JOHNSON v. STATE of Mississippi.
    No. 49462.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Rehearing Denied Jan. 12, 1977.

      Barnett, Montgomery, McClintock & Cunningham, E. H. Cunningham, Jr., Ross R. Barnett, Sr., Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SUGG and BROOM, JJ.
   BROOM, Justice,

for the Court:

Conviction of murder and life sentence resulted from trial of the defendant (appellant, James Paul Johnson) in the Circuit Court of the Second Judicial District of Carroll County. Trial was on November 13, 1975. We affirm.

On February 13, 1975, defendant and Charles Green (whom the defendant killed) had a dispute in a beer tavern and were ordered out. Outside, Green and one Wrenn fought each other with cue sticks. When the defendant appeared at the scene of the fight, he and Green became involved in physical combat with each other. The defendant then went back inside the tavern and said to the manager, a female, “Give me that gun. I’m going to kill that son-of-a-bitch.” After grabbing the pistol, defendant repeated the threat and went outside armed with the weapon. There one Bennett tried to get the pistol and to restrain defendant, but again defendant said, “I’m going to kill him.” In a fight with Green, he (defendant) fired the pistol three times, resulting in Green’s death.

Defendant’s version was as follows. He was attacked by Green outside the tavern where defendant discovered Green administering a severe beating to Wrenn (defendant’s brother-in-law). According to his testimony, the defendant freed himself from Green and went inside the tavern where he obtained the pistol. He returned outside, hoping to scare Green and thereby stop the beating of Wrenn. He says he and Green had another physical encounter (wrestling and rolling on the ground) and that in the affray the pistol discharged three times, killing Green instantly.

The first point argued by defendant is that he was denied a fair and impartial trial by being required to select two jurors from a regular panel after the special venire was exhausted. The two jurors on the preceding day served as jurors during the trial and conviction of defendant’s associate (Wrenn) involving the same difficulty in which defendant shot Green.

Mississippi Code Annotated § 13-5-77 (1972) permits selection of jurors from the regular panel once the special venire is exhausted. Smith v. State, 242 Miss. 728, 137 So.2d 172 (1962). In the instant case there is no record of a voir dire examination of the jurors and the record fails to show how many, if any, peremptory challenges were exercised by the defendant. According to the record, defendant never challenged for cause the two jurors who are now said to be incompetent after serving on the prior jury and hearing the testimony. The point is not properly before us because the record does not show any objection or challenge to the two jurors when they were selected during defendant’s trial. Capler v. City of Greenville, 207 So.2d 339 (Miss.1968). Since the record does not show that the defendant exhausted his peremptory challenges, or that he challenged the two jurors for cause, his argument cannot be regarded as ground for reversal.

Next, the defendant argues that the lower court erred in overruling his motion for a new trial and he asserts that the evidence was insufficient to warrant his conviction of murder. Under our case law, whether a homicide is murder or manslaughter is a jury question. In view of the threats on the part of the defendant and the fact that he fired the pistol three times and wounded the deceased in three vital spots, we find this argument lacking in persuasion. Though the defendant’s version was corroborated by the testimony of his father and his brother-in-law, Wrenn, the conflict in testimony was one for the jury to resolve. The jury finding of malice on the part of defendant was adequately supported by evidence.

Defendant then argues that state’s instruction number 3 constitutes reversible error because of language in it that malice aforethought “may exist at the very instant the fatal shot was fired.” While this instruction is an improper instruction, the record reveals no objection to it at trial and, therefore, under Mississippi Supreme Court Rule 42 we will not reverse on this ground. Patterson v. State, 289 So.2d 685 (Miss.1974); Berry v. State, 288 So.2d 457 (Miss.1974).

Upon the entire record, we cannot say that an unjust result was reached or that another jury of twelve unbiased citizens would likely reach a different result. This case was presented here upon excellent briefs and oral argument by counsel who did not represent the defendant below.

AFFIRMED.

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


author: SMITH, Justice:

text:
    Mrs. Kathryn GARSCEAU v. Leon ROBERTS.
    No. 49048.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Pigford, Hendricks & Fields, Jimmie H. Fields, Meridian, for appellant.

      J. E. Ulmer, Jr., Bay Springs, John M. Sims, Heidelberg, for appellee.
    Before PATTERSON, SMITH and LEE, JJ.
   SMITH, Justice:

Mrs. Kathryn Roberts Garsceau Balliet and Leon Roberts, formerly husband and wife, were divorced in Florida in 1968, the decree having awarded custody of their children to Mrs. Roberts, now Mrs. Balliet, granting rights of visitation to Roberts, and ordered the latter to pay $25 per week for the support of the children. The present litigation was begun by Mrs. Roberts (now Balliet) who brought suit in the Circuit Court of Jasper County, demanding judgment against Roberts for $6,300.00, the aggregate amount she alleged that Roberts was in default in child support payments, from January, 1968, the date of the divorce decree, to the date of the filing of suit.

The case was transferred to the Chancery Court of Jasper County, where a trial took place. At the conclusion of the evidence offered by complainant a motion was made by the defendant “to dismiss the bill” upon the ground that complainant had failed to make out a case. This motion was sustained by the chancellor and the bill was dismissed with prejudice.

The testimony of the parties in the record (the defendant was called as an adverse witness by complainant) makes it obvious that neither party had kept any records over the 8 year period here involved worthy of the name and that recollections on both sides were hazy and unsure in many instances.

Complainant, since her divorce from Roberts in 1968, had been married twice more, and had lived in various states and places and there were other factors relating to the method in which many of the payments had been made that made proof difficult and, on the whole, unsatisfactory. Nevertheless, when defendant’s motion to “dismiss” was interposed at the close of complainant’s case (both parties now agree that the motion, despite its title, operated as a motion to exclude the evidence and to enter a decree for the defendant) it became necessary that the chancellor, in passing upon the motion, accept all that the evidence proved or reasonably tended to prove favorable to complainant, as well as such inferences favorable to her as might reasonably be drawn from it.

In Partee v. Pepple, 197 Miss. 486, 20 So.2d 73 (1944), this Court said:

While the foregoing statute, [Section 1312, Code 1942 (Mississippi Code Annotated section 11-5-71 (1972)] by its very language, only provides the right to the defendant to introduce his evidence when his motion to exclude that offered by the complainant has been overruled, we are of the opinion that it was the intention of the Legislature to make the same rule applicable in chancery as obtains in the circuit court, when a motion is made to exclude the evidence of the plaintiff, and to direct a verdict for the defendant. It is well established that in such case, if the motion is overruled in the circuit court, then the defendant may proceed with the introduction of his evidence. On the other hand, where such a motion in said court is erroneously sustained, and the plaintiff appeals, we would not render final judgment here, on the theory that under the proof made by the plaintiff he was entitled to recover, but would reverse the case for a new trial. Applying this rule in chancery, it follows that the instant case should likewise be reversed and remanded for a new trial.
Since this is now being announced as the applicable rule in chancery, it should be further stated herein that the same considerations should control the action of the chancellor in sustaining such a motion as now pertains to the action of the circuit judge in that regard — that is to say, that all of the facts which the complainant’s evidence fairly tends to establish, together with all the reasonable inferences to be deduced therefrom, should be assumed to be true when the chancellor rules on such a motion.
From the foregoing views based on our understanding of the case made on the merits, and the construction that we have thus given the statute hereinbefore quoted, it follows that the decree of the trial court should be reversed and the cause remanded for a new trial.
197 Miss, at 503, 20 So.2d at 79.

So considered, although the evidence was in considerable disarray to say the least, we are unable to say that it was wholly incapable of supporting any recovery by her whatever. That is not to say, however, that upon completion of the case on retrial, the chancellor may not exercise his prerogative as trier of facts and settle such factual issues as may then exist, and in the course of doing so, pass upon the credibility of the witnesses and the weight of the evidence.

Since the interests of children are directly involved here and such interests are paramount to any “rights” which the adults may be supposed to have in the premises, in the peculiar posture in which the case has come to us, we deem it unavoidable that the decree appealed from be reversed and the case remanded for a new trial.

REVERSED AND REMANDED.

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


author: PER CURIAM. JONES, Justice

text:
    Orzell BILLINGSLEY, Jr. v. Spiver GORDON et al.
    SC 1773.
    Supreme Court of Alabama.
    Oct. 1, 1976.
    Rehearing Denied Jan. 7, 1977.
    Orzell Billingsley, Jr., pro se.
    Jack R. Evans, Tuscaloosa, for appellees.
   PER CURIAM.

Plaintiff Orzell Billingsley, Jr. appeals from the granting of a summary judgment against him. This court reverses.

Plaintiff Orzell Billingsley, Jr., following his dismissal as legal counsel by the Greene County Commission, sued various defendants, including Spiver Gordon, Kenney Johnston, and the Scholarship, Education, and Defense Fund for Racial Equality, Inc. (SEDFRE). As reflected by the pre-trial order, the suit, as last amended, claimed damages against the corporation and Spiver Gordon, as its agent, on the grounds of slander and libel growing out of his employment as legal counsel for the Greene County Commission.

The record in this case reveals the following sequence of events:

(1) On February 27, 1975, the trial judge issued a pretrial order which contained among other things the following:

“The Defendant is hereby allowed to file within ten (10) days from today’s date a request for Admissions or Denial concerning the agency of the defendant, Spiver Gordon. The Plaintiff shall file an answer to said Request for Admissions or Denial within ten (10) days after receipt of said request.”

(2) On March 4, 1975, the defendants filed a Request for Admission, requesting the plaintiff to admit that Spiver Gordon was not an agent of SEDFRE on the date named in the complaint. (One should bear in mind that Billingsley is suing SEDFRE alleging that Spiver Gordon is SEDFRE’s agent and SEDFRE on Request for Admission asked Billingsley to admit that Spiver Gordon was not SEDFRE’s agent.)

(3) On March 20, 1975, the defendants filed a motion to have the trial court order that the Request for Admission be taken as admitted by plaintiff on the grounds that the plaintiff had failed to make any response to the request within the time period provided in the court’s pre-trial order.

(4) On March 21, 1975, the trial court granted the defendant’s March 20th motion and ordered that the facts contained in the Request for Admission were established as true and factual insofar as the pending action was concerned.

(5) On March 27, 1975, the plaintiff filed an answer to the defendant’s Request for Admission in which he denied that Spiver Gordon was not an agent of SEDFRE.

(6) On March 31, 1975, the plaintiff filed an amended complaint and a motion asking the court to rescind its March 21, 1975, order (which established the conclusions of the Request for Admission). This motion was denied the same day and also the trial court refused to allow the plaintiff to amend his complaint.

(7) On the same day (March 31, 1975— the day set for the trial of this case) SEDFRE, in open court, orally moved for summary judgment on the basis of the court’s order of March 21, 1975, which treated as admitted the request that Spiver Gordon was not an agent of SEDFRE. Over the objection of the plaintiff, summary judgment was granted by the trial court.

Rule 56(c) of the Alabama Rules of Civil Procedure calls for notice to be given a party against whom a motion for summary judgment is sought, when it states: “The motion shall be served at least 10 days before the time fixed for the hearing.” The rationale for this requirement is obviously to give the non-moving party sufficient time to prepare a rebuttal to the moving party’s burden of proving that there is no genuine issue as to any material fact. The results to the party against whom a motion for summary judgment is granted are extremely harsh and the rule attempts to ensure that the court rules on a summary judgment motion only after it is fully apprised of all the relevant facts and circumstances of the cause before it. See Wright & Miller, § 2719 (1973).

It does not appear that the plaintiff had any notice of the motion prior to the time SEDFRE “orally” moved for summary judgment at the hearing held on March 31, 1975, which was the day for the trial of the case. A motion for summary judgment should only be granted when substantial justice is served and when it is apparent that there are no genuine issues as to any material fact. The trial court’s granting of the defendant’s motion for summary judgment was not only in derogation of the specific requirements of Rule 56, but also violated the spirit of the Alabama Rules of Civil Procedure.

The trial court also erred in not allowing the plaintiff’s motion to set aside the order of March 21, 1976, and allow his denial as to the Request for Admission to be accepted. There is no question that the trial court was acting in compliance with Rule 36(a) of ARCP when it shortened the period within which the plaintiff was to respond to the request, from 30 days to 10 days. However, when the plaintiff did file his denial to the request on March 27, 1975, it is the feeling of this court that the trial court should have been guided by subsection (b) of Rule 36 in allowing the denial to be filed.

Rule 36(b) of ARCP provides in part: “[T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. * * * ” [Emphasis supplied.]

See Pickens v. Equitable Life Assur. Soc., 413 F.2d 1390 (5th Cir. 1969).

It appears clear that the presentation of the merits of this cause of action was thwarted when the trial court refused to vacate its March 21 order and allow the plaintiff to withdraw the automatic admission which resulted from his failure to respond within 10 days of the defendant’s request.

For the reasons stated, the summary judgment is due to be reversed.

REVERSED AND REMANDED.

HEFLIN, C. J., and FAULKNER, AL-MON, SHORES and BEATTY, JJ., concur.

BLOODWORTH, MADDOX, JONES and EMBRY, JJ., dissent.

JONES, Justice

(dissenting):

I respectfully dissent.

Initially, I deem it appropriate to make clear that my dissent does not address itself to the following two issues:

(1) whether the subject matter of the request for admissions — matters peculiarly within the knowledge of the defendant — was appropriate.
(2) the propriety of the trial Court in dismissing one of the defendants and granting a summary judgment as to the remaining individual defendant.

No ruling of the trial Court was invoked as to the first and no issue is presented for review with respect to the second. The sole issue, then, concerns itself with the granting of the corporate defendant’s motion for summary judgment.

At a pre-trial conference held on the 27th day of February, 1975, the trial Court inter alia held:

“The Defendant is hereby allowed to file within ten (10) days from today’s date a request for Admissions or Denial concerning the agency of the defendant, Spiver Gordon. The Plaintiff shall file an answer to said Request for Admissions or Denial within ten (10) days after receipt of said request.”

On the fourth day of March, 1975, SEDFRE filed and duly served on the plaintiff the following Request for Admissions:

“The Defendants, Spiver Gordon, and Scholarship Education and Defense Fund for Racial Equality, Incorporated, requests the plaintiff to admit the following facts:
“1. That the Defendant, Spiver Gordon was not an agent, servant or employee of the Defendant, SEDFRE, on the date and time named in the complaint, i. e., November 30, 1971.
“2. That the Defendant, Spiver Gordon, at the time he alleged in the complaint to have made certain false statements regarding the plaintiff, was not an agent, servant or employee of the defendant, SEDFRE, while acting within the line and scope of such agency.”

On March 21, the trial Court granted defendant’s March 20th motion to have the Request for Admission taken and admitted due to the plaintiff’s failure to respond within the time specified in the pre-trial order.

At the time the case was called for trial on the 31st day of March, 1975, SEDFRE moved for a summary judgment on the basis of the trial Court’s order of March 21, which treated as admitted the request that Spiver Gordon was not the agent or employee of SEDFRE at the time of the alleged acts made the basis of plaintiff’s claim for damages. After a brief hearing, at which all the parties in interest or their attorneys were present, the trial Court granted SEDFRE’s motion for summary judgment.

The ultimate dispositive question to be answered may be restated: Was the trial Court correct in invoking a sanction which had the effect of dismissing SEDFRE as a party defendant based on the plaintiff’s failure to respond to a request for admissions in compliance with the pre-trial order?

ARCP 36(a) provides that a matter which is the subject of a request for admissions “is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the trial Court may allow, the party to whom the request is directed serves upon the party requesting the admission of a written answer to the matter.”

Authorities interpreting the same statement in FRCP 36 have stated that a party who fails to respond to a request should be held to have admitted it even though the request was objectionable. 8 Wright and Miller, Federal Practice and Procedure: Civil § 2259 (1970). Since Billingsley neither answered nor objected to SEDFRE’s request for admission within the time provided in the pre-trial order, the trial Judge was authorized to deem those questions admitted. These admissions completely exonerated SEDFRE from any responsibility for Spiver Gordon’s actions and supported the summary judgment in favor of SEDFRE.

Admittedly, Rule 36(b) provides in part: “Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the .presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” (Emphasis added.)

In my opinion, the majority, overturning the trial Court’s discretion, is without a showing that such discretion was abused. The Rules of Procedure “shall be construed to secure the just, speedy and inexpensive determination of every action.” The trial Judge, by pre-trial order, and by the entry of summary judgment, attempted to narrow the issues and obviate a trial. I think he should be upheld.

I would affirm the order of the trial Judge granting summary judgment.

BLOODWORTH, MADDOX and EM-BRY, JJ., concur.


author: EMBRY, Justice.

text:
    ABYSSINIA MISSIONARY BAPTIST CHURCH, a corp., et al. v. Reverend F. N. NIXON et al.
    SC 1741.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    Rehearing Denied Jan. 7, 1977.

      Jerry O. Lorant and David E. Oglesby, Birmingham, for appellants.
    John J. Smith and John Joseph Smith, Jr., Birmingham, for appellees.
   EMBRY, Justice.

This case involves a complaint by individuals who claim they were wrongfully expelled from membership in their church, and, church monies were misappropriated by the minister and church secretary. The complaint prays for an order requiring a congregational election to determine whether the minister should resign, and for an accounting of church monies by the secretary. The trial court granted a motion to dismiss.

We reverse.

Appellants, plaintiffs below, filed an action alleging they are members of the Abyssinia Missionary Baptist Church; and that defendants, Reverend Nixon, pastor of the church, and Susie Hollinhead, secretary of the church, refused to hold a meeting of the congregation to discuss the mishandling of church monies. In two amendments, plaintiffs allege they were wrongfully expelled from membership in the church; that defendants misapplied church monies and refused to hold an election, at the request of a majority of members of the church, for the purpose of determining who has the right to control church property. The court was asked to order an election by the congregation to determine whether Reverend Nixon should resign as pastor and to order Susie Hollinhead to account for church monies.

Nixon and Hollinhead filed motions to dismiss, accompanied by affidavits sworn by members in good standing of the church, alleging that plaintiffs were in attendance at a church meeting held sixty days before this action was commenced at which plaintiffs were expelled from membership in the church by a majority vote of the congregation. The decree of the trial court granting the motion to dismiss states, as grounds, that plaintiffs have no standing to bring this action and, even assuming they do, the court has no jurisdiction to decide the matter. It is not clear from the trial court’s order whether the affidavits, matters outside the pleadings, were considered and the motion treated as one for summary judgment. Rule 12(b), ARCP. Plaintiffs appeal from the judgment of dismissal.

As is apparent from the preceding this case involves a dispute within a Baptist Church congregation in Jefferson County.

As is the case with all churches, the courts will not assume jurisdiction, in fact has none, to resolve disputes regarding their spiritual or ecclesiastical affairs. However, there is jurisdiction to resolve questions of civil or property rights. Williams v. Jones, 258 Ala. 59, 61 So.2d 101 (1952).

This court takes cognizance of the well established case law of this State pertaining to the Baptist Church and the limited nature of this State’s courts’ jurisdiction over the business transacted within the Baptist Church.

In a Baptist Church, the congregation rules. The majority of the members of the church control the business of the church, and the minority must submit to the will of the majority. Williams, supra. Defendants contend the law of Alabama is that the business of the courts is not to determine who ought to be members of a church, nor whether dismissal is just or unjust, but to accept expulsion as conclusive proof of nonmembership. Mount Olive Primitive Baptist Church v. Patrick, 252 Ala. 672, 42 So.2d 617 (1949).

A more accurate reflection of present Alabama law on this subject is found in In re Galilee Baptist Church, 279 Ala. 393, 186 So.2d 102 (1966); also involving a dispute between two opposing factions, and the alleged expulsion of the pastor at a congregational meeting. This court demonstrated it is proper for the courts to inquire whether a congregational meeting, at which church business is to be transacted, was preceded by adequate notice to the full membership, and whether, once called, the meeting was conducted in an orderly manner and the expulsion was the act of the authority within the church having the power to order it.

Once the court is presented with sufficient evidence regarding the regularity of the meeting, it will then generally refuse to inquire further as to the fruits of the meeting. As was stated in Galilee:

“ * * * Spiritualities are beyond the reach of temporal courts, and a pastor may be deposed by a majority of the members at a congregational meeting at any time, so far as the civil courts are concerned, subject only to inquiry by the courts as to whether the church, or its appointed tribunal has proceeded according to the law of the church. * * * ”

We recognize here there are civil, as opposed to ecclesiastical, rights which have cognizance in the courts. A determination of whether the fundamentals of due process have been observed can be made in the judicial arena.

The trial court erred when it dismissed this action, on a 12(b) motion, on the grounds that the court lacked jurisdiction and plaintiffs lacked standing. Plaintiffs are entitled to present evidence as to the proper established procedures of the Baptist Church on the issue of the validity of expulsion from membership.

The judgment dismissing the action is set aside and the cause remanded for further proceedings.

REVERSED AND REMANDED.

BLOODWORTH, JONES and ALMON, JJ., and SIMMONS, R. C. J. (Retired Circuit Judge sitting by designation of the Chief Justice), concur.


author: FAULKNER, Justice. FAULKNER, Justice.

text:
    J. M. GUNTER v. UNITED STATES FIDELITY & GUARANTY CO. EMPLOYERS INSURANCE CO. OF ALABAMA v. J. M. GUNTER.
    SC 1708, SC 1708-A.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    Rehearing Denied Jan. 7, 1977.
    Tipler & Fuller, Andalusia, Brantley & Calhoun, Troy, for J. M. Gunter.
    Dunn, Porterfield, Scholl & Clark, Birmingham, for Employers Ins. Co. of Alabama.
    Robert B. Albritton, Andalusia, for U. S. Fid. & Guar. Co.
   FAULKNER, Justice.

This is an appeal from a decree declaring an employer subcontractor and its insurance company liable to the prime contractor and its insurance company. We reverse.

The genesis of this case was June 28, 1954. Then, Royce F. Pierce, an employee of J. M. Gunter, a subcontractor, while on the job, fell from a scaffold erected by Daniel Construction Company, the general contractor. Pierce was seriously injured from the fall, and died several days later. When death came, he was 17 years old.

Young Pierce’s father filed a wrongful death action against Daniel, under the provisions of Title 26, § 312, Code of Alabama, for damages for the death of his son. The jury returned a verdict of $45,000 damages. The action was defended by U. S. Fidelity & Guaranty Company, Daniel’s insurer. The judgment was reduced to $30,000, and USF&G paid it.

Subsequently, USF&G, as subrogee of Daniel, filed suit against Gunter, Pierce’s employer, to recover the amount of the judgment on the basis of the indemnity agreement in the subcontract between Daniel and Gunter. The pertinent portion of that contract follows:

“1. SUBCONTRACTOR’S INSURANCE: The subcontractor will maintain such insurance as will protect him, the contractor and the owner from claims under workmen’s compensation acts and any other claims from property damage and the claims for personal injury, including death, which may arise from operations under this contract, whether such operations be by himself or by any of his subcontractors or anyone directly or indirectly employed by either of them.

“7. INDEMNITY AGREEMENT:

The subcontractor covenants to indemnify and save harmless and exonerate the contractor and the owner of and from all liability, claims, and demands for personal injury and property damage arising out of the work undertaken by the subcontractor, its employees, agents, its subcontractors, and arising out of any operation no matter by whom performed for and on behalf of the subcontractor.”

After the USF&G subrogation sqjt against it, Gunter brought a declaratory judgment action against Employers, alleging that Employers was obligated to defend him and pay any judgment in the subrogation action against him.

USF&G amended its complaint against Gunter to assert damages for breach of contract by not providing public liability insurance covering Daniel for the death of Pierce. And, later, USF&G intervened in Gunter’s declaratory suit against Employers, asserting a claim against it for the amount paid for damages in the wrongful death action.

The threshold question in this case is whether Gunter, the employer, must indemnify Daniel, the general contractor. The answer to this question is “No.”

The wrongful death action against Daniel was based on its active negligence in constructing the scaffold from which young Pierce fell. In this regard, this court said in affirming the trial court:

“There is no dispute that the patent scaffold was actually constructed by the appellant [Daniel]; as was the swinging scaffold. There is evidence, too, from which the jury could find that appellant raised the scaffolds as needed.
“As we see it, we do not have here a case where an employee of an independent subcontractor is injured by an unsafe appliance furnished by such subcontractor. Instead, the general contractor undertook to furnish all of the scaffolding for use by the subcontractor and his employees. And there is evidence from which the jury could find that appellant also undertook the moving and maintaining of the scaffolding where Royce fell.
******
“We think there was evidence sufficient to support a finding of appellant’s negligence in furnishing and maintaining the scaffolding at the place where Royce fell. That is, the evidence presented a question for the jury as to whether appellant failed to use ordinary care to see that the scaffolding was in a reasonably safe condition for the use of decedent, an invitee, in the manner and to the extent he was invited to use it.” Daniel Construction Company v. Pierce, 270 Ala. 522, 120 So.2d 381.

Daniel, charged with active negligence in furnishing and maintaining the scaffold, could not have impleaded Gunter, the employer, in the Pierce wrongful death action. Sherman Concrete Pipe Machinery, Inc. v. Gadsden Concrete & Metal Pipe Co., Inc., Ala., 335 So.2d 125 (1976). It follows that USF&G as Daniel’s subrogee is not permitted to have indemnity from Gunter in a subrogation suit. The employer has immunity under the Workmen’s Compensation Statute, Title 26, § 272, Code of Alabama, from liability for injuries to his employee arising out of the course of employment. While Gunter, the employer, could seek indemnity against Daniel, the reverse is not true. Sherman.

Having answered the threshold question, we pretermit discussion of any other issues raised in argument or briefs.

This case has been in litigation, in one form or another, since 1954. It is now time to give it an honorable burial.

REVERSED AND RENDERED.

MADDOX, SHORES and BEATTY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.

ON REHEARING

FAULKNER, Justice.

On rehearing, SIMMONS, Retired Circuit Judge, recuses himself.

THE APPLICATION FOR REHEARING IS OVERRULED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


author: SHORES, Justice.

text:
    Mrs. Gwendolyn O. FOSTER v. BLOUNT COUNTY BOARD OF EDUCATION and Donald O. Standridge.
    SC 1748.
    Supreme Court of Alabama.
    Dec. 3, 1976.

      William A. Short, Jr., Bessemer, for appellant.
    B. J. McPherson, Oneonta, for appellee.
   SHORES, Justice.

After she had taught in the public schools of Blount County for three school years, the County Board of Education did not renew Mrs. Foster’s contract for a fourth year.

In the Spring of her third year as a teacher in the system, Mrs. Foster became pregnant and filed a request for maternity leave with Standridge, Superintendent of the Blount County Board of Education. The superintendent did not present this request to the Board, but instead recommended to the Board that Mrs. Foster’s contract not be renewed. The Board followed that recommendation and her contract was not renewed for a fourth year.

Thereafter, Mrs. Foster brought this action seeking to require the Board of Education to re-employ her. The trial court denied the relief sought, and she brought this appeal.

The written notice to Mrs. Foster, that her contract would not be renewed for the following year, did not state any reason for the Board’s decision; nor do the minutes of the Board meeting reflect any reason for that decision. In the trial of this case, it was revealed that the reason for the recommendation made by the superintendent to the Board was excessive absences.

The Alabama Legislature, by enacting the Teacher Tenure Law, has created two classes of teachers in the public schools of this state, those which have a continuing service status (tenured teachers) and those which do not have (probationary or nontenured teachers). The employing boards of education may not summarily terminate a tenured teacher, but may summarily terminate a probationary or nontenured teacher. Title 52, § 351, et seq. See also State v. Board of Education of Fairfield, 252 Ala. 254, 40 So.2d 689 (1949).

Mrs. Foster contends that the action of the Board of Education in not re-employing her violates the due process clause of the Fourteenth Amendment to the Constitution of the United States, both substantively and procedurally. She argues that a nontenured public school teacher in Alabama has a liberty interest in her ability to pursue her teaching career, and that she is constitutionally entitled to notice and an opportunity to defend herself before her employment can be terminated, which she says nonrenewal is tantamount to.

Under Alabama law, it is not disputed that a nontenured teacher has no right, statutory or otherwise, to be re-employed. However, the nonrenewal of a teacher’s contract may entitle him to procedural due process if the reasons for the nonrenewal stigmatizes him, or injures his prospects for future employment. It is also conceded that the Alabama statutes do not require the boards of education to state reasons for the nonrenewal of a nontenured teacher’s contract of employment. Of .course, the failure to renew one’s contract cannot be predicated on the exercise by that person of his constitutional rights. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

The Supreme Court of the United States held in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2071, 33 L.Ed.2d 548 (1972), that the Constitution does not require an opportunity for a hearing before the renewal of a nontenured teacher’s contract, unless the teacher can show that the decision not to renew deprived him of an interest in “liberty” or that he had a “property” interest in continued employment.

In the instant case, Mrs. Foster has failed to prove any facts which would bring her within the protective shield of Sindermann or Roth. The record shows only that she requested a maternity leave; that this request was not passed on to the board of education, but that instead the superintendent of education recommended that the employment contract of Mrs. Foster, a nontenured teacher, not be renewed. The Board unanimously agreed that her contract would not be renewed. No reason was assigned, and no reason was stated in the statutory notice which was sent to her, informing her that her contract would not be renewed. The reason given at the trial of this case was excessive absences. Mrs. Foster did not testify and, therefore, did not refute the charge of excessive absences.

In Irby v. McGowan, 380 F.Supp. 1024 (D.C.1974), a nontenured teacher’s contract was not renewed. The minutes of the board meeting stated that she had been dismissed as non-cooperative. The teacher sued the board of education, contending that its actions deprived her of constitutional rights. Judge Pittman said:

“Since the plaintiff was in a nontenured status when her contract was not renewed, she must prove facts bringing her within the scope of Board of Regents v. Roth and Perry v. Sinder-mann ... in order to be entitled to relief. That is, she must prove that she was deprived of either ‘liberty or property’ to be entitled to procedural due process (Roth), or she must prove that her non-renewal was predicated on her exercise of First and Fourteenth Amendment rights (Sindermann).
“The plaintiff was in no way deprived of an interest in ‘liberty’ thereby entitling her to a due process hearing. ‘Dismissed — Non-cooperative’ is not within the purview of Board of Regents v. Roth, supra:
“The State, in declining to rehire the respondent, did not.make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonre-newal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For ‘[wjhere a person’s good name, reputation, honor, or integrity is at'Stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’
Sfi Sfc 5k * *
“Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. .
“Certainly this language indicates that such remarks must be of sufficiently serious import that further employment is seriously jeopardized. In order to recover the plaintiff must show that this entry of ‘Non-cooperative’ damaged her good name, reputation, honor or integrity in such a way that her standing and associations in her community were seriously impaired, or that this charge imposed a ‘stigma’ or other disability on her which foreclosed her freedom to take advantage of other employment opportunities. The entry in the minutes that a person is non-cooperative does not taint her good name, reputation, honor, or integrity. . . .” (380 F.Supp. at 1028, 1029)

In the instant case, no entry was made in the minutes of the board meeting to indicate why the teacher’s contract was not being renewed. She has failed to meet the standard set out in the case quoted above. She, like Irby, may have had a unilateral expectation of re-employment, but she has failed to show that she had a claim or entitlement to it. Therefore, she has failed to prove that any property right has been infringed. The record is likewise devoid of any evidence that her employment was terminated because she was exercising some right guaranteed by the Constitution.

Although the argument is appealing that fairness seems to dictate that a nontenured teacher should be informed of the reason for the nonrenewal of her contract and that she should be given an opportunity to be heard, the statutes in Alabama do not require that a reason be stated and do not require a hearing. A majority of the Supreme Court of the United States has held that the Constitution does not require either unless the terminated teacher can meet the standards set out above. Inasmuch as the teacher in this case has failed to do that, the judgment of the trial court must be affirmed.

AFFIRMED.

MADDOX, FAULKNER and BEATTY, JJ., and CATES, Presiding Judge of the Court of Criminal Appeals, sitting by designation of the Chief Justice, concur.


text:
    HARTFORD FIRE INSURANCE COMPANY, a corporation v. Billy BLAKENEY and Linda W. Combs, as Guardian of Ellis Glenn Combs, a non compos mentis.
    SC 1673.
    Supreme Court of Alabama.
    Dec. 10, 1976.
    Dan M. Gibson of Roberts & Davidson, Tuscaloosa, for appellant.

      H. Vann Waldrop of Hubbard, Waldrop & Jenkins, Tuscaloosa, for appellee Linda W. Combs, guardian.
    E. D. McDuffie of McDuffie & Holcombe, Tuscaloosa, for appellee.
   EMBRY, Justice.

The trial court submitted to the jury the question of whether an injury was accidental and therefore covered by a liability insurance policy, or was the result of an intentional act and within the terms of a specific exclusion in that same policy. We hold that determination was properly left to the jury.

This action arose on account of an injury suffered by Glen Combs at the home of Billy Blakeney. Combs and his wife attended a party at Blakeney’s home one evening. Combs drank to excess, became drunk, disorderly and offensive to other guests; attempted to pick fights with them and acted in a generally offensive and obnoxious manner. Two altercations took place between Blakeney and Combs; the first was occasioned by an obscene remark made by Combs to another guest; Blakeney then poured the contents of a can of beer on Combs’ head; Combs allegedly lunged at Blakeney; Blakeney hit Combs several times in the face with his fists. The blows were hard enough to cause Combs to fall over some furniture. Blakeney was restrained by a guest and he, Blakeney, left the room and stood outside for a few minutes. Still another guest helped Combs to a side door of the house and was attempting to persuade Combs to leave when Blakeney reentered the house, allegedly proceeded toward Combs, reached around or over one Kilgore, and with his hands, pushed Combs out the doorway. Combs fell backwards down several steps and struck the back of his head on a concrete patio. He suffered serious brain damage and today remains a permanent and total invalid.

Hartford Fire Insurance Company affords Blakeney personal liability insurance under a homeowner’s policy. The policy contains language excluding coverage for certain injuries:

“Coverage E — Personal Liability
“This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence.” (emphasis added)
“Additional Definitions
“5. ‘Occurrence’ means an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage.” (emphasis added)
“Exclusions
“1. Under Coverage E — Personal Liability * * *
“f. to bodily injury or property damage which is either expected or intended from the standpoint of the insured.”

Blakeney brought this action for declaratory judgment against Hartford; at the close of the evidence Hartford moved for a directed verdict which was denied, a verdict in favor of Blakeney returned, and judgment entered compelling Hartford to provide coverage, furnish counsel and to pay any judgment or costs rendered against Blakeney in the suit filed in behalf of Combs. Hartford’s motion for new trial, or, in the alternative, fbr judgment n. o. v. was denied. Denial of the motion is urged as reversible error on the basis there was no accidental injury within the terms of the policy. Hartford contends the injury was caused by a voluntary intentional act and coverage is not afforded because of the exclusionary clause of the policy. Hartford also says there was prejudicial error in the court’s oral charge where it was stated:

“ * * * It is an accidental injury where an unexpected result arises from an intended act.”

Is not the above quoted excerpt from the trial court’s oral charge a clear statement of the negative of the exclusion in the policy? It appears to us it is. The words of the exclusion refer to the bodily injury, which is either expected or intended by Blakeney, not whether he intended to push Combs. Certainly it was the province of the jury to determine that Blakeney never expected or intended Combs would suffer serious and extensive brain damage as the end result of being pushed from the doorway.

In the oral charge it was also stated: “ * * * If an insured voluntarily does an act which he knows or expects is likely to, or he intends to, produce injury and the injury proximately results, then it would not be an injury occurring by accidental means, but a voluntary injury is intentionally doing some act which reasonable and ordinary prudence would pronounce dangerous. * * * ”

The principles expressed in the oral charge are in accord with long-standing case law of this State. See United Insurance Company of America v. Ray, 271 Ala. 543, 125 So.2d 704 (1961); Aetna Life Insurance Co. v. Beasley, 272 Ala. 153, 130 So.2d 178 (1961); Emergency Aid Insurance Co. v. Dobbs, 263 Ala. 594, 83 So.2d 335 (1955); Inter-Ocean Casualty Co. v. Foster, 226 Ala. 348, 147 So. 127 (1933), and Equitable Accident Insurance Co. v. Osborn, 90 Ala. 201, 9 So. 869 (1890). We cannot say, as a matter of law, the injury suffered by Combs was not accidental; the result of an accident within the terms of the policy, not expected or intended from the standpoint of the insured, Blakeney. This was a question of fact for the jury about which it was properly instructed by the trial court as to applicable law.

Hartford urges the verdict to be against the great weight of the evidence. Since the jury had before it all the circumstances of the accident giving rise to this action, the applicable provisions of the policy, and was properly instructed about the applicable law, its verdict is presumed correct and will not be set aside since there is nothing to show the verdict to be clearly wrong and unjust. Dixie Electric Co. v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975).

AFFIRMED.

BLOODWORTH, JONES and ALMON, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.


author: EMBRY, Justice. JONES, Justice

text:
    KAYO OIL COMPANY v. STATE of Alabama.
    SC 1733.
    Supreme Court of Alabama.
    Dec. 10, 1976.

      Ronald A. Drummond and Jack Livingston, Scottsboro, for appellant.
    J. Allen Lee, Sp. Asst. Atty. Gen., Scotts-boro, for appellee.
   EMBRY, Justice.

To widen U. S. Highway 72, between Huntsville and Scottsboro, the State of Alabama acquired by eminent domain a portion of the property belonging to appellant, Kayo Oil Company, on which an operating gasoline station was located. In Probate Court damages were assessed at $20,000. Kayo appealed to the Circuit Court of Jackson County where a jury returned a verdict in the amount of $35,000.

On this appeal, Kayo complains of rulings by the trial judge as to the admissibility of certain evidence relating to damages. We reverse.

Kayo is a corporation engaged in the retail distribution of gasoline in Jackson County. The condemned service station was owned by Kayo Oil and fronted on U. S. Highway 72, a well traveled highway, between Scottsboro and Huntsville. The station had been in operation for several years and there was evidence that between 1970 and 1975 the gross sales of the station increased from $321,645 to $435,782. Before the taking, the station contained six gasoline pumps, six 4,000 gallon storage tanks, a service building, lights and various other appurtenances. The date of the taking was May 9, 1975.

Kayo’s first assertion of error is the trial court’s exclusion of testimony regarding the rental value of the gasoline station based on a system of payment of a fixed rate per gallon of gasoline sold and the number of gallons sold per month at the subject station. This is known as the capitalization of gallonage approach to valuation. It purports to be a reasonable basis for determining the fair market value of land containing a service station. The witness from whom appellant sought to elicit this testimony was Bill Williams, an owner-operator of Williams Brothers Oil Company. Williams had been in the wholesale end of the oil business for 21 years, had operated an oil dealership in Jackson County for 10 years and had been in the business of leasing service station dealerships in that country for 10 years. Out of the presence of the jury, Williams testified that he was familiar with the standards and customs of rental of service stations in Jackson County and it was an accepted standard and practice in the gasoline business to rent service stations on a gallonage basis. That is, rent was arrived at by determining the number of gallons pumped each month at the station and applying a fixed rate per gallon. He testified that one cent per gallon was an accepted standard rate. He further stated that a station which pumped 80,000 gallons of gasoline per month would be a very desirable, profitable station — the plain inference being that the station in question had been pumping that amount. On this last point the record is not clear.

The trial court refused to allow this testimony before the jury on the ground it is improper to offer evidence of rental value when the property is not rented, but is owned by the operator, as here. The trial court went on to say that the gallonage rate is an improper determinate of the value of the land on which the business is operated. We disagree.

One whose land has been taken under eminent domain is entitled to receive by way of damages the fair market value of the land as of the time of taking. Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973). It is proper to consider all facts and circumstances that would go toward establishing a reasonable basis for determining the fair market value of the land taken. If the rental value based on gallonage sold, of land on which a service station is located, is a reasonable basis for determining the fair market value of the land, then evidence of that kind of rental value is admissible.

Whether evidence of rental value of property not rented is admissible in a condemnation proceeding has not previously been decided by this court. It is admissible according to the generally accepted view, with which we agree.

In Housing Authority of New Orleans v. Persson, 203 La. 255, 13 So.2d 853 (1943), the admission of evidence of rental value based on capitalization of gallonage sold was upheld; in the face of an objection that such evidence allows the amount of compensation to be based on the value of the business conducted on the property rather than the value of the property itself. In Persson, the land in question contained a service station owned and operated by the landowner. Several experts testified that the customary standard in the oil trade was to fix the rental value of-the station on the basis of one cent per gallon sold; that, given the gallonage pumped per month, an estimate of the rental value could be made and from these figures the income could be capitalized to show a certain rate of return on an investment of so many dollars in the station. The Persson court stated that “ * * * [w]hile the rental value of the property or the income the owner is able to derive from it is not the measure of compensation, it is material, however, in so far as it throws light upon the market value.” 13 So.2d at 854.

In St. Louis Housing Authority v. Bainter, 297 S.W.2d 529 (Mo.1957), the court found that the evidence of rental value based on gallonage sold is properly admitted to show the value of the land on which the service station is located. The Missouri court stated that “ * * * evidence of gallonage of gasoline sold on the premises is properly admitted for consideration by the jury on the issue of rental value and fair market value of the premises condemned where, by accepted standards and criteria in the trade or business, rentals and values of such property are based thereon, (citations omitted)” 297 S.W.2d at 535. The Bainter court rejected arguments that the gallonage formula did not tend to show fair market value, was highly speculative, and an indirect attempt to get into the question of profits.

Where the rental value of property containing a service station is, according to acceptable standards of the trade, a basis for determining fair market value of the land and improvements and that rental value is established by the use of a formula based on gallonage sold per month, and not on the amount of profits the business might produce, then evidence of the rental value so established is admissible.

Appellant next asserts error in the trial court’s exclusion of testimony of the market value of the land, using an income approach to valuation, based on the gross income or gross sales from the business. In this approach, an appraiser takes the gross income a property is producing, deducts expenses, arrives at net income, estimates a “proper capitalization rate” to apply to that income and arrives at a figure which purports to reflect the value of the property. This method attempts to introduce income from business profits into condemnation proceedings and such evidence is clearly inadmissible. State v. Woodham, 288 Ala. 608, 264 So.2d 166 (1972); City of Dothan v. Wilkes, 269 Ala. 444, 114 So.2d 237 (1959). One is not entitled to compensation for loss of business due to the taking of land. Business profits are so remote from the market value of the land on which the business is located, that they are not proper indicia of the value of the land. State v. Woodham, supra.

Finally, appellant contends the trial court erred in refusing to allow cross-examination of the State’s witnesses regarding an appraisal of the subject property allegedly made before the taking, which appellant contends would produce a higher figure than an appraisal made after the taking.

Two witnesses employed by the State to appraise the Kayo Oil property estimated its fair market value at $20,326 and $21,880 respectively. Both witnesses based their estimates on views of the property taken in June, 1975, about one month after the actual taking, and after the buildings and improvements were destroyed. They arrived at these figures by determining the difference between the value of the tract before the taking and its value after the taking. Appellant sought to elicit testimony from these witnesses, on cross-examination, that the State had made appraisals before the date of taking and that these appraisals were higher than those made after the taking. The trial court sustained objections to this testimony. Appellant was able to introduce through his own witness an estimate of fair market value of $48,000. This witness viewed the property at the time of taking, estimating its value then at $50,000. From this figure he subtracted $2,000, his estimate of the remaining property’s value after the taking.

In a condemnation proceeding, a property owner is entitled to the fair market value of his land, calculated as of the time of taking. Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973). Where only a portion of a tract of land is taken, as here, the measure of compensation is the difference in value between the entire tract immediately before the taking and the value of the portion remaining after the taking. Adams v. State, supra.

The State’s witnesses used the correct method in arriving at their estimates. This, and the fact that appellant was able to introduce estimates more favorable to himself, leads us to conclude there was no prejudicial error in the trial court’s refusal to allow cross-examination of the State’s witnesses as to appraisals by the State other than those to which the State testified.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

BLOODWORTH, J., concurs.

HEFLIN, C. J., and JONES and AL-MON, JJ., concur specially.

JONES, Justice

(concurring specially).

I agree with the opinion of the Court on each point discussed except that portion that deals with the property owner’s right to cross examine the State’s witnesses as to other appraisals of value. If I understand the record, the testimony in chief related to a period shortly after the taking. While this did not render their testimony inadmissible, it certainly opened the door for cross examination touching other appraisals made at a time shortly before the taking.

I would reverse and remand on the first point discussed in the opinion — the gallon-age formula — and the third point — the cross examination of the State’s witnesses as to prior appraisals.

HEFLIN, C. J., and ALMON, J., concur.