author: BROOM, Justice,

text:
    MID-CONTINENT AIRCRAFT CORPORATION and Georgia-Pacific Corporation v. Truman WHITEHEAD.
    No. 50178.
    Supreme Court of Mississippi.
    April 5, 1978.

      Fair & Mayo, James C. Mayo, Louisville, Robert L. Crook, Ruleville, for appellants.
    Hathorn & Hathorn, J. Hoy Hathorn, Louisville, for appellee.
    Before PATTERSON, BROOM, AND BOWLING.
   BROOM, Justice,

for the Court:

Damage to his cotton crop allegedly resulting from nearby timber spraying activities of Mid-Continent Aircraft Corporation (Aircraft herein, one of appellants) and Georgia-Pacific Corporation (Georgia-Pacific herein, the other appellant), was the gist of the suit of the plaintiff, Truman Whitehead (appellee). Trial was in the Circuit Court of Winston County, where the jury returned a verdict of $14,816.10 favorable to the appellee. We reverse.

Appellee charged that his 1974 cotton crop production was diminished because of the negligence of Aircraft in allowing a hormone-type herbicide spray substance to drift onto the lands where appellee’s cotton crop was growing. He alleged that as agent of Georgia-Pacific, Aircraft was spraying Georgia-Pacific’s timber, and that those in charge of the spraying negligently flew the airplanes too close to his (appel-lee’s) cotton fields during heavy fogs and adverse wind conditions, thereby resulting in the chemicals getting upon and damaging the cotton plants. Appellee joined both Aircraft and Georgia-Pacific as defendants, along with two other defendants: Ronald Whitehead and Bob Burks (resident agents and employees of Georgia-Pacific), who allegedly directed the timber spraying activities.

At the conclusion of appellee’s presentation of his case, Whitehead and Burks moved for a directed verdict, which the lower court sustained and from which action appellee cross appeals. Aircraft and Georgia-Pacific appeal directly contending, among other things, that the jury verdict for appellee is against the overwhelming weight of evidence. Other facts and legal propositions will be stated later in this opinion.

WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE? During the trial the appellants moved for a directed verdict; they requested a peremptory instruction when all the evidence had been presented. The evidence shows that the appellants were spraying Georgia-Pacific’s timber in close proximity to appellee’s cotton fields. Called by the appellee as an adverse witness, Jim Hall (Aircraft’s representative) testified that he knew that Georgia-Pacific’s land joined appellee’s land; Hall also knew that growing cotton was susceptible to adverse effects from the herbicide. He instructed his pilots to keep the planes “away from these crops when the wind was in the wrong direction and velocity or when they had fog conditions.” The totality of the testimony of various other witnesses indicated that the herbicides sprayed by Aircraft for Georgia-Pacific did get upon the cotton crop of appellee, and at least caused minimal if not more damage. Though the testimony may not have been as direct as might be desirable, it at least raised an inference which the jury could draw from the testimony, that the appellants did not exercise proper care in their spraying activities and as a result thereof some of the chemical spray got upon the cotton plants.

It is true that some of the expert testimony, including that of Robert McCarty, established (from field inspections) very little damage which would diminish appellee’s cotton yield. Nevertheless, we are of the opinion that there was sufficient evidence to justify the lower court’s denial of appellants’ requested directed verdict and peremptory instruction.

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN OVERRULING THE APPELLANTS’ MOTION FOR A MISTRIAL AFTER A WITNESS FOR AP-PELLEE STATED THAT L. B. DAVIS WAS REPRESENTING THE INSURANCE CARRIER? The episode under discussion occurred during the testimony of appellee’s witness Jessie Crosby. Crosby had testified concerning his activity in meeting with others and checking on herbicide damage to crops in Winston and Choctaw Counties.

Q. Now, you mentioned Mr. L. B. Davis. Who is Mr. L. B. Davis?
A. It was my understanding that Mr. L. B. Davis was representing Mid-Continent and Georgia-Pacific for an insurance company—
Q. No, you can’t mention insurance—

Following the testimony, counsel for appellants moved for a mistrial on account of the reference to an insurance company which counsel stated was prejudicial to the appellants. The court offered to instruct the jury to disregard the testimony concerning the insurance company, but defense counsel declined and pointed out that any comment about the matter would make it more harmful to his clients. Further questioning by plaintiff’s counsel emphasizing L. B. Davis and his testimony, though not mentioning the word insurance again, may very well have accentuated the prejudice to the cause of the appellants. The general rule in this jurisdiction is that no reference should be made to the fact that a defendant is covered by liability insurance. Morris v. Huff, 238 Miss. 111, 117 So.2d 800 (1960). We do not hold that we would reverse this case on this ground standing alone. However, upon the whole record before us, which shows that proof of damages to the cotton crop and diminishment of its yield was vague and weak, fairness demands a new trial.

Other argument of appellants relates to the matter of appellee’s counsel at trial repeatedly asking witnesses about statements made by Davis (during his investigation), who Crosby had identified as being connected with an insurance company. The argument is made that although the circuit judge cautioned appellee’s counsel about long argumentative type questions concerning Davis, counsel continued to propound similar questions to his client’s witnesses. No further discussion in this respect is necessary here because these actions by counsel will not likely occur again at retrial.

DID THE TRIAL COURT ERR IN ADMITTING TESTIMONY AS TO AN ERRONEOUS MEASURE OF DAMAGES? Appellee was permitted to testify, over objection, to the following computation of his 1974 cotton crop loss caused by the herbicide. In explaining his computed loss, he stated the following: (1) His 1974 actual yield “was 604 pounds lint per acre, which was 311 pounds less than the projected yield ” of 915 pounds set for that year; (2) cotton was selling for 50$ per pound, which he multiplied by the 311 figure aforesaid, giving him a computed loss of $155.50 per acre as to lint; (3) concerning seed, he said it came to “$34.35 per acre” according to computation made by the ginner; (4) he added the $34.35 per acre seed loss to the $155.50 lint loss “making a total of $189.95 per acre” loss; and (5) he multiplied $189.95 by 78, the number of acres in cotton production, which made the sum of $14,816.10, the exact amount of the jury verdict.

Appellants cogently argue that using the “projected yield” figure in the computation of his 1974 production loss was unrealistic, requiring reversal. “Projected yield,” according to witness Don Goodwin of the Winston County A.S.C. office, was related to the historical actual yields but was “adjusted for abnormal weather conditions, or any other natural causes that the farmer could not have overcome, or wasn’t his fault that it occurred.” Goodwin further defined the projected yield as that particular farmer’s “potential” or “production capacity” barring some unforeseen difficulty. In arriving at the projected yield for a certain year, the A.S.C. officials would average the last three years actual yield and add to that figure so-called “adjustments” for estimated loss of production attributable to unforeseen difficulties: adverse weather, insect damage, et cetera. The purpose of the projected yield equation was to be the base upon which the Federal Government made “disaster payments” to a farmer whose actual yield was less than its potential because of adverse weather or insect factors. The record shows the following history of appellee’s cotton production for the years 1971 through 1974:

According to Goodwin’s testimony, the average actual production for the three years 1971-1973 was 633 pounds. Appel-lee’s actual average yield per acre in 1974 was 604 pounds. Nevertheless, his computation of his loss for that year was based upon the higher artificial “Projected Yield” figure of 915 pounds, from which he deducted actual production of 604 pounds, showing an alleged 311 pounds per acre loss of production. It is to be noted that the record shows actual production of the following pounds per acre for three prior years: 1968 —1934 pounds; 1969 — 1060 pounds; 1970— 1021 pounds. Thus, for 1968 through 1974, appellee’s actual production per acre was each year decreasing steadily except for 1973 when production increased but was less than in 1971. Comparison of his actual production of 604 pounds in 1974 with the three preceding years shows that 1974 was a better year than 1972, and not a great deal worse than 1971 or 1973. His average actual yield in 1974 was only 29 pounds less than the average of the three preceding years. The figure of 915 pounds which appellee used in computing his 1974 loss was an administrative figure used by the Federal Government to determine benefits to be paid him and cannot be acceptable as a measure of damages.

In ascertaining damage to growing crops, the computation should be based (in the main but not exclusively) upon the difference between the value of the crop immediately before and just after the injury or damage. Such a rule must be given sufficient flexibility to allow consideration of pertinent practical factors dictated by fairness and reason. The cost to realize production: cost of cultivation, harvesting and marketing, are some of the practical factors which may be used to ascertain the value. Stigall v. Sharkey Co., 213 Miss. 798, 57 So.2d 146 (1952), Sugg. of Error Overruled, 213 Miss. 806, 58 So.2d 5 (1952); 25 C.J.S. Damages § 85b (1966); and Aerial Agriculture Services of Montana v. Richard, 264 F.2d 341 (5th Cir. 1959).

In his cross appeal appellee contends that the lower court erred in granting a directed verdict in favor of the resident defendants, Ronald Whitehead and Bob Burks. There is merit to the cross appeal in this respect because the evidence shows from the testimony of Whitehead and Burks that they were in charge of and responsible for the spraying operations. Appellee testified that spraying operations were conducted when the winds were blowing, and early in the morning when it was foggy and damp. When the weather and wind conditions were unfavorable, the jury could reasonably infer that spraying operations should have ceased, and the jury could, upon this record, infer from the testimony that Burks and Whitehead were negligent for failure to halt spraying during unfavorable wind, or weather conditions. There was at least a conflict in this aspect of the case and, as is provided in Mississippi Code Annotated § 11-7-17 (1972), all questions of negligence and contributory negligence are for jury determination. Therefore, that part of the lower court’s judgment granting a directed verdict as to Whitehead and Burks is reversed and at retrial they will still be in the lawsuit.

Appellee argues in his cross appeal that the lower court erred by its failure to submit to the jury the issue of punitive damages. This argument is without merit upon the facts of the case. We point out in conclusion that the proof on the issue of causal connection between the acts complained of and any diminishment of appel-lee’s cotton production for the year in issue is skimpy and barely sufficient. The expert witnesses who testified noticed only minimal damage, if any, to the cotton plants attributable to the herbicide spray. Also, the history of actual production tends to negate substantial damage to the 1974 cotton crop traceable to the herbicide, but we conclude there was a case (though skimpy) sufficient to go to the jury.

REVERSED ON DIRECT AND CROSS APPEALS, AND REMANDED.

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


source: Caselaw Access Project

author: WALKER, Justice,

license: Public Domain

text:
    TOWN AND COUNTRY PLUMBING COMPANY, INC. v. DELTA REAL ESTATE DEVELOPMENT, INC., et al.
    No. 50429.
    Supreme Court of Mississippi.
    April 5, 1978.

      Montgomery & Dulaney, Sim C. Dulaney, Jr., Canton, for appellant.
    Banks, Nichols & Stewart, John A. Nichols, Jackson, for appellee.
    Before PATTERSON, SMITH and WALKER, JJ.
   WALKER, Justice,

for the Court.

Suit was filed by Town and Country Plumbing Company in the Circuit Court of Madison County, Mississippi, seeking to enforce a construction lien which had previously been filed in the office of the chancery clerk of Madison County. Delta Real Estate, defendant, filed a motion to dismiss and to cancel the notice of construction lien, alleging that Town and Country was a foreign corporation which had not qualified to do business in Mississippi and therefore was not entitled to bring suit in state courts pursuant to Mississippi Code Annotated sections 79-3-211 and 79-3-247 (1972). The court granted the motion, dismissing the cause of action and cancelling the notice of construction lien.

The issue presented on appeal is whether Town and Country’s payment of Mississippi Privilege Taxes alone is sufficient to entitle it to sue in state courts.

Town and Country is a plumbing company incorporated in the State of Tennessee. On September 14, 1974, Town and Country entered into a contract with Delta Real Estate and Development, Inc. to construct a plumbing system for a real estate development in Flora, Mississippi, called Pride Gardens. In its bill of complaint, Town and Country alleged the consideration for the contract was $65,000, that it had completed performance but that Delta Real Estate had not paid $21,670 remaining on the contract.

It is undisputed that Town and Country is a foreign corporation and that it was transacting business within the State of Mississippi.

Mississippi Code Annotated section 79-3-211 (1972) provides in pertinent part that: “No foreign business corporation for profit shall have the right to transact business in this state until it shall have procured a certificate of authority so to do from the secretary of state.” Section 79-3-247 provides in pertinent parts:

No foreign corporation transacting business in this state without a certificate of authority shall be permitted to maintain any action suit or proceeding in any court of this state. Nor shall any action suit or proceeding be maintained in any court of this state by any successor or assignee of such corporation on any right claim or demand arising out of the transaction of business by such corporation in this state.
The failure of a foreign corporation to obtain a certificate of authority to transact business in this state shall not impair the validity of any contract or act of such corporation and shall not prevent such corporation from defending any action suit or proceeding in any court of this state.

The major thrust of appellant’s argument is not that these statutes are not applicable to him by their terms, but rather that he is excused from the operation of the statutes by having paid Mississippi privilege taxes. It is undisputed that Town and Country did pay the contractor’s privilege tax required by Mississippi Code Annotated section 27-15-33 (1972). That statute requires all persons who perform contracts in excess of $10,000 within this State to obtain a contractor’s privilege license and specifies the price, $75. That statute contains the following language “ . . . failure to obtain such license prior to submitting bids shall render such proposed contract void; and when a contract is made outside the state for performance within the state, the contract shall be unenforceable under the laws of this state until the contractor shall have obtained this license.” Appellant argues that this language, by implication, grants a right to one who has obtained the license to bring suit in the state courts, notwithstanding the language of Mississippi Code Annotated sections 79-3-211 and 79-3-247 (1972) heretofore quoted which requires a foreign corporation doing business in this state to obtain a certificate of authority from the Secretary of State.

However, the appellant overlooks section 27-15-5 which provides inter alia that:

All privilege taxes levied and imposed by this chapter shall be paid in addition to any and all other taxes, and, . the provisions of this chapter shall not affect the operation of any other sections of the Mississippi Code of 1972 or other laws providing for the imposition, levy and collection of privilege taxes . nor shall the provisions of this chapter in any wise affect any law imposing a tax or fee ... as now provided, or may be hereafter provided, by the laws of Mississippi. (Emphasis added).

The argument of appellant is not persuasive because the statute requiring a certificate of authority and that imposing a privilege tax exist for distinct and different purposes.

The purpose of Mississippi Code Annotated section 79-3-211 (1972) requiring a certificate of authority for foreign corporations to do business in this State is an administrative one for the purpose of public convenience and orderly administration of internal affairs. Union Brokerage Co. v. Jenson, 322 U.S. 202, 211-12, 64 S.Ct. 967, 88 L.Ed. 1227 (1914). The licensing requirements under Mississippi Code Annotated section 27-15-33 (1972) is for the primary purpose of imposing a tax on the privilege of contracting in this State.

We therefore hold that the payment of the Mississippi contractor’s privilege tax by a foreign corporation does not relieve such corporation from the requirement that it obtain a certificate of authority to do business in this State from the Secretary of State as required by section 79-3-211.

Appellant also assigns as error that it falls into an exception from the certificate of authority requirement because it was engaged in interstate commerce. However, this argument fails since the record reflects that the contract was to be performed wholly in the State of Mississippi. See Barbee v. United Dollar Stores, Inc., 337 So.2d 1277 (Miss.1976).

For the above stated reasons, the cause is affirmed.

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

      . Section 27-15-33. This section imposes a privilege tax upon every person who offers or bids within this State to contract whether a corporation or not.


author: SUGG, Justice,

text:
    John W. CAMPBELL v. Paula Dodd CAMPBELL (Stanley).
    No. 49874.
    Supreme Court of Mississippi.
    April 5, 1978.
    Johnston & Adams, Jerry T. Johnston, Brandon, for appellant.
    William R. Barnett, Paul G. Alexander, Jackson, for appellee.
   SUGG, Justice,

for the Court:

This case involves a petition for modification of a divorce decree filed by the appel-lee, Paula Dodd Campbell, against the appellant, John Campbell. The final divorce decree was rendered June 20, 1972 by the Chancery Court of the First Judicial District of Hinds County, and granted appellee a divorce and custody of the children of the parties together with $225 per month as child support. When the original divorce decree was rendered, both parties were domiciled in the State of Mississippi and process was served on appellant personally.

On May 5,1976 appellee filed her petition to modify the 1972 decree, and sought an increase in the amount of the child support payments. In 1976 both parties were nonresidents of Mississippi: the appellee’s domicile was in Louisiana and the appellant’s domicile was in Iowa. Pursuant to Mississippi Code Annotated section 13-3-19 (1972) service of process was by publication. Proof of publication appeared in the record and appellant admitted actual knowledge that the petition was filed.

Appellant chose not to defend the petition because he was not personally served with process in Mississippi. On July 21, 1976 appellant filed a petition to set aside the decree modifying the 1972 decree on the ground, among others, that the court did not obtain jurisdiction to enter an in per-sonam decree against him based on publication of process. Appellant’s petition was dismissed and on appeal assigns one error as follows:

1. The lower court erred in holding that publication of process on a non-resident defendant authorized the court to enter an in personam decree against said non-resident defendant.

It is well settled, and admitted by both parties on this appeal, that process by publication on a defendant in an original divorce action does not authorize rendition of a personal decree against such defendant which requires him to do or perform any act personally. Johnson v. Johnson, 191 So.2d 840 (Miss.1966); Larson v. Larson, 82 Miss. 116, 33 So. 717 (1903); Cudabac v. Strong, 67 Miss. 705, 7 So. 543 (1890).

It is equally well settled that chancery courts may modify final decrees concerning such matters as alimony, custody of children and child support. The authority to modify a decree is authorized by statute and exists independently of statute by virtue of the inherent power of the chancery court. Section 93-5-23 Mississippi Code Annotated (1972); Wansley v. Schmidt, 186 So.2d 462 (Miss.1966).

Cases interpreting séction 93-5-23 hold that chancery courts retain continuous jurisdiction over final decrees providing for alimony, custody of children and child support, and may modify a former decree when the circumstances and conditions have changed after rendition of a former decree. Crum v. Upchurch, 232 Miss. 74, 98 So.2d 117 (1957); Gresham v. Gresham, 198 Miss. 43, 21 So.2d 414 (1945) and Williams v. Williams, 127 Miss. 627, 90 So. 330 (1921).

It was stated in Lee v. Lee, 182 Miss. 684, 181 So. 912 (1938) that, under the statute, no alimony decree is ever a final judgment and is always open to change. Lee was quoted with approval in East v. Collins, 194 Miss. 281, 12 So.2d 133 (1943). However, it should be noted that a change in a decree, which is a modification of, or addition to, such decree, is limited to the subject matter decided by the former decree. Schneider v. Schneider, 155 Miss. 621, 125 So. 91 (1929).

In the case at bar the final decree contains provisions relating to the support of the children; therefore, the court had authority under its “continuing jurisdiction” to change the decree with respect to child support.

The issue thus presented is: Whether a chancery court may, on a petition to modify a decree for child support, increase the amount of the support against a defendant on process by publication, when the defendant was personally served with process in the original proceeding?

We have not addressed this specific issue. In Gordon v. Gordon, 196 Miss. 476, 17 So.2d 191 (1944) this Court stated:

The authorities are in general accord that when in substantial or major aspects a decree of custody is to be made or modified a proper notice and opportunity to be heard must be given to the adverse party. 17 Am.Jur. pp. 519, 520; 27 C.J.S. Divorce § 317, p. 1193, and see the cases annotated in 76 A.L.R. at p. 253, and particularly Gitsch v. Wight, 61 Utah 175, 211 P. 705. We are not here concerned as to how the notice may be served, or whether such a notice or citation or summons may be served on a party in the armed services. It is sufficient here that none whatever was attempted. (196 Miss. at 484, 17 So.2d at 193).

In Logan v. Rankin, 230 Miss. 749, 94 So.2d 330 (1957) we set aside a decree modifying a former decree for want of legal process upon the mother to whom the custody of the children had been awarded and who had moved to Texas after the original decree was entered. In that case we held that a letter delivered to the attorney for the non-resident mother under the provisions of section 11-49-11 Mississippi Code Annotated (1972) did not constitute valid process, and a decree based thereon was void.

Examination of other authorities and decisions from other states reveal that the great weight of authority supports the conclusion that where a proceeding for modification of a personal decree of alimony or child support in a matrimonial action is permissible as a mere continuation of the original proceeding in which the award was rendered, as against a party who has since become a non-resident and over whom the court had personal jurisdiction in the original proceeding, the court’s power to modify the award may be exercised upon reasonable notice, including constructive notice, other than personal service of process within the court’s jurisdiction. According to 24 Am.Jur.2d Divorce and Separation, § 852, pp. 966, 967 (1966):

A proceeding to modify or terminate an order for child support is not an independent proceeding but is supplementary to, or a continuation of, the original divorce action. Thus, an application to increase payments for the support of a child should be made by a motion filed in the original divorce action.
It is not necessary to serve process upon the father within the jurisdiction of the court in order to modify a decree for child support, where the proceeding for modification is a mere continuation of the divorce action; the court may proceed after reasonable notice is given, even though the father is a nonresident. Of course, the father is entitled to notice of an application to increase payments, and the mother, if she has custody of the child, is entitled to notice of an application to reduce or terminate payments. The manner in which a party is to be notified is governed in some jurisdictions by statute; but in the absence of such a statute any reasonable notice is sufficient.

In Rice v. Rice, 222 Ark. 639, 262 S.W.2d 270 (1953) the issue before the Arkansas Supreme Court was whether a New York court had personal jurisdiction to modify a separate maintenance judgment, rendered in New York, upon constructive service. The appellant in that case, Josephine Rice, brought suit in Arkansas where her husband then resided, to enforce a separate maintenance award in New York. The court stated:

Under the Constitution of the United States this judgment is entitled to full faith and credit. The New York court had personal jurisdiction over the appel-lee when the separate maintenance suit was filed, and it lay within New York’s power to retain that jurisdiction throughout the case, even though the defendant became a non-resident. As the court said in the leading case of Michigan Trust Co. v. Ferry, 228 U.S. 346, 33 S.Ct. 550, 552, 57 L.Ed. 867: “Ordinarily jurisdiction over a person is based on the power of the sovereign asserting it to seize that person and imprison him to await the sovereign’s pleasure. But when that power exists and is asserted by service at the beginning of a cause, or if the party submits to the jurisdiction in whatever form may be required, we dispense with the necessity of maintaining the physical power, and attribute the same force to the judgment or decree whether the party remain within the jurisdiction or not. This is one of the decencies of civilization that no one would dispute. It applies to article 4, § 1, of the Constitution, so that if a judicial proceeding is begun with jurisdiction over the person of the party concerned, it is within the power of a state to bind him by every subsequent order in the cause.” To the same effect, upon facts more like those in the case at bar, is Laing v. Rigney, 160 U.S. 531, 16 S.Ct. 366, 40 L.Ed. 525.
Thus it cannot be doubted that New York had under the federal constitution the power to retain its jurisdiction over this appellee even after his removal to Arkansas. By the statutes of New York that jurisdiction was in fact retained. Section 1170 of the Civil Practice Act, Laws of New York, 1948, Ch. 212, § 5, provides that in actions for separate maintenance the court may at any time after final judgment annul, vary, or modify its maintenance order. The effect of this statute is to write a reservation into every judgment for maintenance, Fox v. Fox, 263 N.Y. 68, 188 N.E. 160; Waddey v. Waddey, 290 N.Y. 251, 49 N.E.2d 8; and the continuing power over the defendant may be exercised even though he has left the State and is served by constructive process only. Schneidman v. Sehneidman, 188 Misc. 765, 65 N.Y.S.2d 876. ' This procedure is by no means novel to us, since we too uphold the assertion of such continuing jurisdiction upon constructive notice only. Schley v. Dodge, 206 Ark. 1151, 178 S.W.2d 851; Seaton v. Seaton, Ark., 255 S.W.2d 954. (262 S.W.2d at 271, 272).

We are of the opinion that the Chancery Court of the First Judicial District of Hinds County retained its personal jurisdiction over the appellant, even after his removal to Iowa, and the decree of 1972 could be modified on process by publication. Notice by publication, in lieu of personal service of process, is reasonable, when the requirements of section 13-3-19 Mississippi Code Annotated (1972) are met. See also, 62 A.L.R.2d 544 at 546. Restatement (second) of Conflicts of Laws, § 26, Comment a. Illustration # 1, pp. 114, 115 (1971), Sheffield v. Sheffield, 207 Va. 288, 148 S.E.2d 771 (1966).

AFFIRMED.

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


author: PATTERSON, Chief Justice,

text:
    Clyde A. HURST, Defendant-Appellant, v. Jeffery Byron ENGLISH by and through Jackie English, father and next friend, Plaintiff-Appellee.
    No. 50132.
    Supreme Court of Mississippi.
    April 5, 1978.

      Gibbes, Graves, Mullins, Bullock & Ferris, C. Denton Gibbes, Jr., Laurel, for defendant-appellant.
    William S. Boyd, III, J. Larry Walters, Laurel, for plaintiff-appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

This appeal is from a judgment of the Circuit Court of Jones County, Second District, awarding Jeffery English damages for injuries received when a door spring in the building of Clyde Hurst broke and struck him in the eye.

The facts are largely without dispute. Clyde Hurst, the appellant, and his wife owned a building in the city of Laurel in which Mr. and Mrs. Winston D. Kitchens operated the Mary Carter Paint Store. On April 1, 1964, the Kitchens, lessees, executed an agreement for the premises with Clyde A. Hurst, the lessor, which contained the following clause:

Lessor shall as soon as possible and not later than 45 days from the above date, repair windows, doors, front of building, paint building and keep same in good condition for the life of this agreement.

On November 2, 1974, Jeffery English, then less than two years of age, entered the store with his mother. While she was shopping, he opened the wooden screen door until it was almost against the outside wall of the building. The door spring broke with some noise which was immediately followed by screams of the youngster. Attention was given to the child who was holding his hand to his left eye and it then was observed that the spring was dangling in two pieces from the door.

As a result of the injury the youngster was seriously injured requiring medical treatment and eye surgery. Through his father Jeffery sued the Hursts as well as the Kitchens, doing business as the Mary Carter Paint Store. A voluntary nonsuit dismissed the Kitchens prior to trial and at the conclusion of the plaintiff’s case a motion for a peremptory instruction of no liability as to Flossie Hurst was sustained. A jury verdict of $15,417 was returned against Hurst, the lessor. The court overruled his motion for a judgment notwithstanding the verdict or in the alternative a new trial.'

Mrs. English testified in the trial that the door spring was rusty, stretched and worn in two or three places. Mrs. Kitchens, who was tending the store, testified the spring had been installed a year or two previously under appellant’s directions. She stated the spring was rusty, though not a great deal, and stretched from children playing on the door.

The appellant assigns as error the trial court’s denial of his motion for a peremptory instruction, a judgment notwithstanding the verdict, or alternatively a new trial, and its grant and denial of certain jury instructions. The real issue is whether Hurst, lessor, is liable to a third party invitee for injuries received on premises leased to another wherein he, the lessor, had covenanted to keep the premises in “good condition” for the term of the lease.

Appellant relies on Floyd v. Lusk, 190 So.2d 451 (Miss.1966), in which this Court held a landlord not liable for injuries to a third person from defects in the premises absent evidence that the landlord created a nuisance calculated to cause damage or injury, or was guilty of a willful, wrong, culpable negligence, or concealment or fraud as to some defect on the premises. He contends this principle applies to the present facts. However, this seems to be the rule only where there is no duty upon the landlord to repair imposed by covenant or otherwise.

Where there is a covenant to keep the premises in repair or to make necessary-repairs, the general rule, as stated in 49 Am.Jur.2d., Landlord and Tenant, section 838 (1970), is that unless it appears the landlord has knowledge of the need of repair, notice by the tenant to the landlord of such need is necessary to place the latter in default for not repairing the demised premises. This has been broadened by case law to include that there must also be a reasonable opportunity to repair. Lucas v. Brown, 82 F.2d 361 (8th Cir. 1936); Schenk v. Lamp, 229 Or. 72, 365 P.2d 1068 (1961); Underhill, Law of Landlord and Tenant, § 516, p. 861 (1909).

The logic for this rule of law is perhaps best explained in 3A Corbin, Contracts, section 725, page 391 (1960):

. Suppose that a leak develops in the roof or a drain pipe becomes stopped up. If notice to the landlord is not a condition precedent to his duty, he has committed a breach of his contract just as soon as the defective condition exists, and he would be liable in damages for all the injury that is subsequently caused thereby. On the other hand if notice is required and if no notice has been given until after the defect occurs and serious injury has been done, the landlord has committed no breach of contract and cannot be held liable in damages.
If the part of the premises to be kept in repair is in the legal possession of the landlord or if he has reserved the legal privilege of entry, so that at all reasonable times he may investigate for himself to discover leaks in the roof or stoppages in a pipe, it should usually be held that notice to the landlord by the tenant is not a condition precedent to the landlord’s duty. In such a case the sources of information of the two parties are substantially equivalent. If, on the other hand, the landlord is not in legal possession and has not reserved the privilege of entry for examination, it should usually be held that notice is a condition precedent.

So far as concerns the possession and use of leased premises, the lease operates as a demise or conveyance of the property for a specified period of time. Rich v. Swalm, 161 Miss. 505, 137 So. 325 (1931). No right of possession or use remains in a lessor unless expressly reserved. Collins v. Wheeless, 171 Miss. 263, 157 So. 82 (1934). In the present case, the lease agreement did not expressly reserve unto the lessor any right to enter the premises for general maintenance repair. Therefore, we think that no duty arose in him until he had either received notice of or had knowledge of a state of disrepair.

In the absence of provision otherwise, where a landlord is obligated to make repairs during the term, actual or constructive notice of the need of repair is necessary to place him in default of his duty. Wolff v. Mauceli, 237 Miss. 378, 114 So.2d 845 (1959). We are of the opinion that the record discloses no dispute of fact as regards notice so as to present a jury question. It is uncontradieted that Hurst had no notice of the spring’s condition either of his own knowledge or communicated to him by his lessee, agent or otherwise.

The question of whether Hurst “should have had knowledge” of the spring’s condition is, under the present circumstances, legal rather than factual. Although he testified that he saw the building “almost every day for the last ten years” as his office was in a building approximately twelve or fifteen feet from the paint store, it is undisputed that he was unable to see the spring in passing on his daily route. Further, he was not burdened with the duty to inspect the premises. Although he stated he entered the paint store periodically for supplies, he testified that he had no reason to know that the spring was rusted or stretched. On these facts, we are of the opinion there was no breach of duty and that a peremptory instruction should have been given in favor of the appellant.

We also think that the present facts are distinguishable from Hodges v. Hilton, 173 Miss. 343, 161 So. 686 (1935), in which this Court allowed recovery against a lessor by one in privity with the lessee. However, in that case the lessee notified the landlord of the dangerous and unsafe condition of a porch and its repair became part of the consideration for the rental agreement.

Therefore we are of the opinion that the cause be reversed and judgment rendered in favor of appellant. Having decided this, we need not consider the other assignments of error.

REVERSED AND RENDERED.

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

COFER, J., took no part.


text:
    Adrienne Spratt HOOD v. Edith Tubb SPRATT.
    No. 50176.
    Supreme Court of Mississippi.
    April 5, 1978.

      Burgin, Gholson, Hicks & Nichols, Dewitt T. Hicks, Jr., Columbus, for appellant.
    J. 0. Prude, Amory, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is an appeal from a decree of the Chancery Court of Monroe County. It presents the issue of whether a surviving spouse can have the body of her deceased husband removed from his burial site to another over the objection of blood relatives.

Herschell D. Spratt, Sr. died quite suddenly in 1957 when he was thirty-six years of age. At that time he had been married approximately fourteen years to Edith Tubb Spratt, his first and only wife. He was survived by her and their son Herschell D. Spratt, Jr. The sister of the decedent, Adrienne Hood, owned a burial plot in the Oddfellow Rest Cemetery in Aberdeen, Mississippi, and it was orally agreed between the widow and the sister of the deceased that Herschell D. Spratt, Sr. be interred in Mrs. Hood’s plot.

In 1969 Edith Spratt learned that Mrs. Hood would not allow her or her son to be buried in the plot and arranged for three spaces in another plot in which her son was buried in 1975 when he was about nineteen years of age. Mrs. Spratt, according to her testimony, did not attempt removal of her husband’s remains prior to her son’s death for fear it would upset him as he had been ill for many years. She petitioned the Chancery Court of Monroe County in 1975 for permission to disinter and remove her husband’s remains to one of her burial spaces. She named as defendants her deceased husband’s nearest living relatives who were his sister Adrienne Hood and his brother James E. Spratt, Jr. The petitioner was granted a decree pro confesso against James E. Spratt, Jr. and the cause was heard between the petitioning widow and the deceased’s sister. The chancellor granted petitioner the relief sought and Mrs. Hood appeals and assigns as error the following:

1. Permitting disinterment of the deceased after the widow consented to his burial site nineteen years previously and where the deceased had indicated a preference for a burial site, and
2. Refusing to permit evidence that the deceased child was not the son of Herschell D. Spratt, Sr.

As to the appellant’s first contention, there appears to be a division of authority as to whether the surviving spouse's control over the body of a deceased terminates once consent is given to a burial place. Smith v. Shepherd, 64 N.J.Eq. 401, 54 A. 806 (1903), and Wynkoop v. Wynkoop, 42 Pa. 293, 82 Am.Dec. 506 (1862). However, many jurisdictions follow the more compassionate approach of permitting a surviving spouse to remove the body of a deceased spouse to another burial site for compelling reasons and in the absence of a waiver of such right. We are of the opinion this latter resolution of the problem is the better one and that removal and reinterment of a body is allowable where there are compelling reasons.

Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904), appears to be a leading case following what we believe to be a more acceptable logic. In it the Pennsylvania court gave application to the same principles that apply to initial interment, but observed there was a presumption against removal growing stronger with the passage of time and with the remoteness of the connection with the decedent by the one desiring removal. The first rule was that the surviving spouse had the paramount right to designate the burial site and, if the parties were living in normal marital relations, a very strong case would be required to justify judicial interference with the survivor’s wish. Secondly, in the absence of a surviving spouse, the right of selection of a burial site was in the next of kin in order of their relation to the decedent, and the rights of more distant kin might be modified by circumstances of special intimacy or association with the decedent. Thirdly, to what extent the desires of the decedent as to place of burial should prevail against those of the surviving spouse was left an open question, but as against the remoter connections, such wishes, especially if strongly and recently expressed, would usually prevail.

Factors to which various courts generally have given consideration in permitting disinterment and removal of a body have included public interest, wishes of the decedent, rights and feelings of those entitled to be heard by reason of relationship, rights and principles of religious bodies or other organizations which granted interment in the first burial site, and whether consent was given to interment in the first burial site by the one claiming the right of removal. Theodore v. Theodore, 57 N.M. 434, 259 P.2d 795 (1953).

We are of the opinion all of these factors are to be considered when appropriate to determining such question and its determination is particularly one for a court of equity. There is no rigid rule for either permitting or refusing removal of a body once interred and each case must be determined on its own merits with due regard to public welfare, the wishes of the decedent and the rights and feelings of those entitled to be heard by reason of relationship or association. Moore v. Sheafer, 282 Pa. 360, 127 A. 784 (1925); Lavigne v. Wilkinson, 80 N.H. 221, 116 A. 32 (1921); and Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904).

The present case reveals consent by the widow to bury her husband in her sister-in-law’s plot and a dispute as to any agreement for burial of the widow and her son beside the husband and father. Mrs. Spratt contended there was such an agreement for her son and herself to be buried adjacent to Mr. Spratt. However, this was denied by Mrs. Hood. There is also evidence that at some time prior to his marriage Mr. Spratt had expressed a desire to be buried next to his mother and father who were buried in Mrs. Hood’s plot, but the record is silent at what age this desire was expressed. Furthermore, there was no evidence of any preference expressed by him as to his burial site after he had married. The record does disclose that the petitioner and her husband lived a normal married life but that the relations between Mrs. Spratt and Mrs. Hood had been very strained as they had not spoken for nearly twenty years.

We think that the desire of a surviving spouse to be buried beside her deceased spouse and to have their child beside them both is a normal desire and a compelling reason where there is cause to believe the widow thought this would be possible at the time of the original interment. Persuasive to this view is Previty v. Cappuccio, 107 R.I. 210, 266 A.2d 39 (1970); Rivers v. Greenwood Cemetery, Inc., 194 Ga. 524, 22 S.E.2d 134 (1942); Moore v. Sheafer, 282 Pa. 360, 127 A. 784 (1925); Lavigne v. Wilkinson, 80 N.H. 221, 116 A. 32 (1921); Swits v. Swits, 81 Conn. 598, 71 A. 782 (1909); Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904).

Further, we are of the opinion that a court of equity can best determine the rights of relatives and friends respecting the care and control of the remains of their dead and decide upon each set of circumstances what is the proper course of action. In his decree the chancellor found that the appellee was “. . . motivated by sound reason and laudable purpose, and not by whim or caprice . . . ” and surely we cannot say he was manifestly wrong in his decision to grant the appellee the relief sought.

Appellant also contends that the chancellor erred in refusing proof of paternity of the child. However, the record discloses that Mr. Spratt accepted the child as his son and acted toward the child as any normal parent by enlarging his home, planning for his education, and enjoying his son’s company. Therefore, we think the chancellor did not err in this regard.

Having decided these issues, there is no need to consider the cross appeal. Therefore, after consideration by a conference of the justices en banc, the decree of the chancellor is affirmed.

AFFIRMED.

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

COFER, J., took no part.


author: LEE, J.,

text:
    W. J. LILES v. Clartis D. HOUPT, Adult N.C.M. By and Through His Guardian, Billy G. Houpt.
    No. 49947.
    Supreme Court of Mississippi.
    April 5, 1978.
    Gibson & Newlin, Donald F. Newlin, Bruce, for appellant.
    Robert L. Williams, Water Valley, for appellee.
   LEE, J.,

for the Court.

REVERSED AND REMANDED.

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

COFER, J., took no part.


author: BLOODWORTH, Justice.

text:
    ALABAMA DAIRY COMMISSION v. FOOD GIANT, INC., a corporation, et al.
    SC 2482.
    Supreme Court of Alabama.
    Feb. 10, 1978.

      B. G. Minisman, Jr., Birmingham, for appellant.
    George L. Beck, Deputy Atty. Gen., and Benjamin Cohen, Asst. Atty. Gen., Montgomery, for William J. Baxley, Atty. Gen., and Food Giant, Inc., appellees.
    Norman K. Brown, Bessemer, for Sam Pillitteri, Food Giant, Inc., and William J. Baxley, Atty. Gen., appellees.
    Henry C. Chappell, Jr., Montgomery, on behalf of appellant, for Associated Milk Producers, Inc., amicus curiae.
   BLOODWORTH, Justice.

Appellant Alabama Dairy Commission appeals from a final judgment holding, inter alia, that: (1) appellant, by virtue of its unconstitutional administration and application of Tit. 22, §§ 205-231, Code of Alabama 1940, (Alabama Dairy Commission Act), is permanently enjoined from exercising any powers granted to it in said Act pertaining to price fixing of fluid milk at the producer, wholesale, and retail levels; (2) appellant is permanently enjoined from setting prices of fluid milk at the wholesale and retail levels because the wholesale and retail sale of fluid milk is not a business so affected with the public interest as to warrant price fixing, and such attempt by the legislature violates both the State and Federal Constitutions; (3) appellant’s power to fix prices, contained in Tit. 22, §§ 223-223(1), Code, rests on such vague generalities that it constitutes an unconstitutional delegation of legislative authority in violation of the due process clause of the State Constitution; and (4) enforcement of the Alabama Dairy Commission Act works an unconstitutional burden on interstate commerce because it discriminates against out-of-state producers by relegating them to a secondary milk market and obstructs the free flow of milk across state lines. We reverse and remand.

Appellant instituted this action on December 9, 1976, by filing a complaint, seeking a temporary restraining order and a preliminary and permanent injunction against appellee, Food Giant, Inc., for selling and offering to sell fluid milk in violation of Dairy Commission Regulation 115 — 1. This regulation, which was passed by the Dairy Commission, pursuant to the Act, and went into effect on September 1, 1976, fixed the minimum price for retail out-of-store sales of homogenized milk at $1.74 per gallon.

The Circuit Court, after notice to appel-lee, Food Giant, Inc., entered the temporary restraining order, ex parte, and set a hearing for the application for a preliminary injunction for December 13, 1976. Food Giant then filed a motion to hold the temporary restraining order in abeyance, pending a hearing on its motion, and on appellant’s application for preliminary injunction, which motion was granted, pending the December 13 hearing. On December 10, 1976, appellant filed a first amended complaint, adding a party as a defendant. Subsequently, three more parties were added as defendants.

At the December 13, 1976, hearing, Food Giant filed an answer and counterclaim and a motion for continuance, which motion was granted, and the cause was continued until December 28,1976, in order to allow service of the counterclaim on the Attorney General of Alabama. On December 22, 1976, the court entered an order continuing the case until January 10, 1977.

On January 6, 1977, appellant filed a request for a pretrial conference, interrogatories, a request for the production of documents, a motion to shorten time to answer interrogatories, and a motion for a continuance. These motions were denied. On that same date, the Attorney General intervened on behalf of the appellees and filed his answer and counterclaim.

On January 10, 1977, the trial commenced, ore tenus. Also, on January 10, 1977, appellant rescinded Regulation 115-1, and removed minimum price controls, effective immediately. Appellees, on January 11, 1977, moved to dismiss appellant’s complaint and application for preliminary injunction, due to appellant’s action. The Circuit Court granted appellee’s motion to dismiss appellant’s complaint, and the case proceeded to trial on appellees’ counterclaim.

On March 3, 1977, final judgment was entered containing the findings enumerated above.

Appellant filed a motion for new trial, which was subsequently withdrawn, and notice of appeal. A stay order was entered by the Circuit Court on March 6, 1977, and dissolved on April 7, 1977. A new motion for stay was also denied. Appellant’s motion for stay, filed in this Court, was granted on April 12, 1977.

Appellant makes a number of contentions on appeal, including the contentions (1) that the trial court erred in holding that the legislative grant of authority to regulate prices, contained in the Act, constitutes an unauthorized delegation of legislative power in violation of the due process clause of the State Constitution; (2) that the trial court erred in holding that appellant is permanently enjoined from setting prices at the producer, wholesale and retail levels, due to its unconstitutional administration and application of the Act, and in holding that the legislature’s attempt to set prices at the wholesale and retail levels violates both the State and Federal Constitutions, because the wholesale and retail sale of fluid milk is not a business so affected with the public interest as to warrant price fixing; and (3) that the trial court erred in holding that the Alabama Dairy Commission Act and the regulations promulgated pursuant thereto place an unconstitutional burden on interstate commerce.

We agree with appellant and therefore reverse and remand.

We shall consider these contentions seri-atim.

I. UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER

In Norton v. Lusk, 248 Ala. 110, 26 So.2d 849 (1946), this Court made the following observations, which we think are pertinent here, viz:

“This court in the case of Porter Coal Co. v. Davis, 231 Ala. 359, 362, 165 So. 93, in discussing the proposition, took occasion to notice approval of a statement by the United States Supreme Court, which we reassert as appropriate here: The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside the halls of legislation. United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 484, 55 L.Ed. 563; Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789; Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294.”

At the time the original Alabama Dairy Commission Act was passed, the argument that it constituted an unconstitutional delegation of legislative power in violation of the due process clause of our State Constitution was pressed upon this Court and summarily rejected, viz:

“It is also contended that the act violates section 44 of the Constitution of Alabama, in that it attempts to confer legislative authority upon the milk control board to fix prices, milk sheds, and rules and regulations. This contention is likewise without merit. (Citations omitted.)”

Franklin v. State ex rel. Alabama State Milk Control Board, 232 Ala. 637, 169 So. 295 (1936).

More recently, this holding was cited with approval in Dixie Dairies v. Alabama State Milk Control Board, 286 Ala. 198, 238 So.2d 551 (1970), as well as in Baxley v. Alabama Dairy Commission, 360 F.Supp. 1159 (M.D.Ala.1970), by a three judge federal panel.

Appellees have failed to advance sufficient persuasive argument to convince us that Franklin, Dixie Dairies, and Baxley were decided incorrectly. This is particularly true since this Court presumes that statutes are constitutional, and we will not hold them unconstitutional unless convinced beyond a reasonable doubt of their unconstitutionality. Crabtree v. City of Birmingham, 292 Ala. 684, 299 So.2d 282 (1974); Johnston v. Alabama Public Service Commission, 287 Ala. 417, 252 So.2d 75 (1971).

“This Court has often stated the principles by which it is guided in determining the constitutionality of a legislative act. In Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944), Chief Justice Gardner summarized this State’s law:
‘Uniformly, the courts recognize that this power [to strike down a legislative act as violative of the constitution] is a delicate one, and' to be used with great caution. It should be borne in mind, also, that legislative power is not derived either from the state or federal constitutions. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the legislature has no bounds and is as plenary as that of the British Parliament. It follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law.
‘Another principle which is recognized with practical unanimity, and leading to the same end, is that the courts do not hold statutes invalid because they think there are elements therein which are violative of natural justice or in conflict with the court’s notions of natural, social, or political rights of the citizen, not guaranteed by the constitution itself. Nor even if the courts think the act is harsh or in some degree unfair, and presents chances for abuse, or is of doubtful propriety. All of these questions of propriety, wisdom, necessity, utility, and expediency are held exclusively for the legislative bodies, and are matters with which the courts have no concern. This principle is embraced within the simple statement that the only question for the court to decide is one of power, not of expediency or wisdom.’
“We reaffirm the foregoing statement to be the law of this jurisdiction. In determining the constitutionality of a legislative act, we will not look to its propriety. Rather, we will determine whether it is expressly prohibited by the Constitution itself or is violative of those fundamental rights constitutionally guaranteed (e. g., equal protection and due process).” [Emphasis supplied.]

Crabtree v. City of Birmingham, supra.

II. DUE PROCESS CLAIMS

A. State Constitution

“Under its police power, the State of Alabama is authorized to enact laws designed to protect the health of its citizens and more particularly where milk is concerned because of its nutritional importance to human beings and because of its susceptibility to contamination. Franklin v. State, 232 Ala. 637,169 So. 295; Taylor v. State, 237 Ala. 178, 186 So. 463.”

James v. Todd, 267 Ala. 495, 103 So.2d 19 (1957).

“. . . The validity of a police regulation, therefore, primarily depends on whether, under all the existing circumstances, the regulation is reasonable, and whether it is really designed to accomplish a purpose properly falling within the scope of the police power. Mutual Loan Co. v. Martell, 222 U.S. 225, 32 S.Ct. 74, 56 L.Ed. 175 (1911). A regulation, and the administration thereof, is deemed reasonable where, although perhaps not the wisest and best that might be adopted, it is fit and appropriate to the end of protecting the public, and is manifestly adopted in good faith for that purpose. If a condition should be clearly arbitrary and capricious; if no reason with reference to the end in view could be assigned for it; and, especially, if it appeared that it must have been adopted for some other purpose — such, for instance, as to favor or benefit some person — it certainly would not be reasonable, and would be beyond the power of the legislature to impose. Parkes v. Bartlett, 236 Mich. 460, 210 N.W. 492, 47 A.L.R. 1128 (1926). Otherwise stated, the law would look with disfavor on any supplemental regulatory requirements that had as its effect the cutting of the pattern to fit the cloth. See City of Mobile v. Farrell, supra [229 Ala. 582, 158 So. 539].”

Crabtree v. City of Birmingham, supra.

This court has held on a number of occasions that both the production and distribution of milk is a business which vitally affects the public. State v. Dixie Dairies Corp., 268 Ala. 480, 107 So.2d 896 (1959); Franklin v. State ex rel. Alabama State Milk Control Board, supra.

Moreover, it is certain that included within the state’s police power is the authority to fix prices. See Baxley v. Alabama Dairy Commission, supra; Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934).

B. Federal Constitution

Appellees’ Federal Constitutional attack is apparently aimed at the price fixing provisions of the Act as being violative of the due process clause. This argument was advanced in Baxley and rejected. There, the court noted, quoting Nebbia v. New York, supra, that if the law bears a “reasonable relation to a proper legislative purpose.” and is “neither arbitrary nor discriminatory,” it satisfies due process. Further, it was noted that price fixing, in particular, is unconstitutional “only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the Legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty.”

The appellees argue, however, that although price fixing may have once been necessary, as evidenced by the findings of fact made by the legislature in Tit. 22, § 205, Code, these findings are now irrelevant and antiquated, if not anachronistic.

Tit. 22, § 205, Code, states:

“§ 205. Supervision and regulation of milk supply a proper function of state government. — It is hereby declared that milk is a necessary article of food for human consumption; that the production and maintenance of an adequate supply of healthful milk of proper chemical and physical content, free from contamination, is vital to the public health and welfare, and that the production, transportation, processing, storage, distribution and sale of milk, in the state of Alabama, is an industry affecting the public health and interest; and that unfair, unjust, destructive and demoralizing trade practices have been and are now being carried on in the production, marketing, sale, processing and the distribution of milk, which constitute a constant menace to the health and welfare of the inhabitants of this state and tends to undermine sanitary regulations and standards of content and purity, that health regulations alone are insufficient to safeguard the consuming public from future inadequacy of a supply of this necessary commodity; that it is the policy of this state to promote, foster and encourage the intelligent production and orderly marketing of commodities necessary to its citizens, including milk, and to stabilize marketing of such commodities; that fluid milk is a perishable commodity easily contaminated with harmful bacteria, which cannot be stored for any great length of time, and which must be produced and distributed fresh daily, which supply cannot be regulated from day to day, but, due to natural and seasonal conditions fluctuates from day to day; that this surplus of milk, though necessary and unavoidable, unless regulated tends to undermine and destroy the fluid milk industry; that investigation and experience has shown that, due to the nature of milk and the conditions surrounding its production and marketing, that unless the producers, distributors and others engaged in the marketing of milk are guaranteed and insured a reasonable profit on milk, that both the supply and quality of milk are affected thereby to the detriment of and against the best interest of the citizens of this state whose health and well being are vitally affected thereby; that where no supervision and regulation is provided for the orderly marketing of milk, past experience has shown that in flush seasons of production, when surplus of milk is great and the price which producers and others are able to obtain for milk is below the cost of production, that ofttimes milk strikes invade the market followed by bombings and bloodshed, which ofttimes prevents the consuming public from receiving an adequate supply of pure and wholesome milk necessary for its health and well being; that, due to the nature of milk and the conditions surrounding its production and marketing that the natural law of supply and demand has been found inadequate to protect the industry in this and other states of the United States, and that, in the public interest, it is necessary to provide state supervision and regulations of the fluid milk industry of this state. The foregoing statement of facts, policy and application of this law are hereby declared a matter of legislative determination. (1939, p. 267.)”

While it may be relevant to note that strikes and bloodshed in the milk industry are no longer prevalent, this largely misses the point as the Baxley court explained. In order to prevail on this point, appellees bear the “heavy burden of establishing the complete absence of any state of facts which the legislature might reasonably believe would redound to the public injury unless regulated.” Baxley, supra. Appellees have failed to meet that burden, in our judgment.

III. INTERSTATE COMMERCE

Appellant finally contends that the trial court erred in holding that the Alabama Dairy Commission Act, and the regulations passed pursuant thereto, work an unconstitutional burden on interstate commerce. We agree.

“. . . Every state police statute necessarily will affect interstate commerce in some degree, but such a statute does not run counter to the grant of congressional power merely because it incidentally or indirectly involves or burdens interstate commerce. Milk Control Board of Pennsylvania v. Eisenberg Farm Products, 306 U.S. 346, 59 S.Ct. 528, 83 L.Ed. 752; Mintz v. Baldwin, 289 U.S. 346, 53 S.Ct. 611, 77 L.Ed. 1245; Asbell v. State of Kansas, 209 U.S. 251, 28 S.Ct. 485, 52 L.Ed. 778; Reid v. State of Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108.”

James v. Todd, supra.

Appellees advance two contentions with regard to this issue.

First, they argue that the requirement that Alabama distributors purchase their needs from Alabama sources until such sources are exhausted prior to turning to out-of-state suppliers offends the commerce clause.

Second, they contend that even though retailers may purchase out-of-state milk at its source at a negotiated price, they must transport it back to this State at their own expense, and they argue this places an unconstitutional burden on interstate commerce.

Both these contentions were advanced in Baxley, and both were rejected. With regard to the first contention, the Baxley court noted that this requirement was lifted by Dairy Commission Order 2-72-1, and thus the court refused to pass on it. Dairy Commission Order 3-75-1 continues this policy. It was recently held not to be viola-tive of the Commerce Clause by Judge Varner in Dairymen, Inc. et al. v. Alabama Dairy Commission et al., Civil Action No. 77-445-N (M.D.Ala. December 27, 1977). In that opinion, he made the following comments, which we think are pertinent here:

“Plaintiffs’ brief, at page 6, points out that ‘(T)he licensed Alabama processor is required to purchase all raw milk utilized for fluid milk sales through quota holders at the Class I price as fixed by defendant ADC. In contrast, the licensed out of state processor is free to purchase raw milk from nonquota holders at a negotiated price.’ This effect of the regulation, while perhaps discriminating against instate distributors, is no bar to interstate commerce — in fact, it may be argued to encourage an increase of milk shipments into the State of Alabama.”

With regard to the second contention, the Baxley court stated the following:

“The restrictions complained of, however, are but the converse of those permitted in Eisenberg. In Eisenberg a state was allowed to set the price at which a distributor bought milk from instate producers, even though all the milk was being transported out of state. In the present case, the Attorney General would have this Court strike down, as a burden on interstate commerce, state regulations requiring out-of-state distributors and in-state retailers to sell at prices fixed by the Dairy Commission for all sales within the state. There appears to be no significant difference between the regulation permitted to stand in Eisen-berg and the present regulatory scheme which the Attorney General would have this Court strike down. For that reason, Eisenberg should be deemed to be controlling, and the Attorney General’s contention dismissed as without merit.”

We agree with the Baxley court that Milk Control Board v. Eisenberg Farm Products, 306 U.S. 346, 59 S.Ct. 528, 83 L.Ed. 752 (1939), is controlling, and therefore, these contentions must fail.

For the foregoing reasons, this cause is due to be reversed and remanded. In so holding, however, we think the following comments may be pertinent. First, we have not addressed all of appellant’s contentions, as it was not necessary to do so in order to decide this case. Second, in reversing this cause, we have not re-instituted minimum price controls on the price of fluid milk.

REVERSED AND REMANDED.

All the Justices concur except JONES, J., not sitting.

      . Revised and codified as 2-13-40, et seq., Code of 1975. This revision is not an issue on this appeal, since the cause below was tried under then applicable Tit. 22, § 205-231.

      . In his dissent in Edmonson v. Brewer, 282 Ala. 581, 213 So.2d 578 (1968), Mr. Justice Coleman observed, "It has been said that ‘Judges ought not to be ignorant in court of what everyone else knows and the judges themselves know out of court.’ ” It is therefore that we take note that there is a current movement for a nation-wide farm strike seeking 100 percent parity price supports for farm products.


text:
    OPINION OF THE JUSTICES.
    No. 246.
    Supreme Court of Alabama.
    March 22, 1978.
   To the Honorable Speaker and Members of The House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs and Mesdames:

We acknowledge receipt of H.R. 475, requesting our opinion as to the constitutionality of House Bill No. 645. H.B. 645 proposes to amend section 9901 (the repealer section) of Act No. 607, Regular Session 1977 (the new Alabama Criminal Code), by deleting the repealer of Title 51, section 394 (Act No. 75, Regular Session 1945; as amended), Code of Alabama 1940. To accomplish this objective, section 1 of H.B. 645 contains a restatement of all the provisions in section 9901 except for the reference to Title 51, section 394, which is deleted by striking through the words and numbers. Noting that Act No. 607 has not yet become effective, and that Title 51, section 394 has therefore not yet been repealed, you have asked whether H.B. 645 would violate the last clause of article IV, section 45 of the Constitution of Alabama of 1901:

“[N]o law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length.”

A careful analysis of this problem reveals two possible instances in which the latter clause of section 45 might apply. If H.B. 645 would operate to “revive” Title 51, section 394, then section 45 would require the legislature to re-enact and publish that statute at length. As explained herein, we do not believe that section 394 will be effectively repealed until May, therefore H.B. 645 would not revive this statute and section 45 would not apply. However, section 45 does apply to the amendment of section 9901 of Act No. 607, but we feel that by re-enacting and publishing the amended section 9901 at length, the constitutional requirements are satisfied.

The new Criminal Code (Act No. 607, Regular Session 1977) becomes effective in May 1978. Section 9901 of the new Code, which repeals specific statutes, will likewise become effective on that date. Since H.B. 645 would delete any reference in section 9901 to Title 51, section 394, this bill would repeal one portion of a repealing statute. Accordingly, “where the repealing act is repealed before it takes effect, its repeal does not affect the original act in any way, it never having actually become inoperative.” 73 Am.Jur.2d Statutes § 426 (1974). Thus, under this rule, an act which repeals a portion or all of a repealing act before its effective date would not revive the original act because the original act had never ceased to exist. Clark v. Reynolds, 136 Ga. 817, 72 S.E. 254 (1911); Adam v. Wright, 84 Ga. 720, 11 S.E. 893 (1890). H.B. 645 does not revive Title 51, section 394; it need not republish the provisions of that statute to comply with section 45 of the Alabama Constitution.

However, since H.B. 645 would operate to amend Act No. 607, so much of the Act as would be amended must be re-enacted and published at length to comply with section 45. This constitutional requirement is directed against the practice of amending statutes merely by the insertion or omission of certain words or provisions without specifying how the law will read as amended, since an account of the changes by themselves would usually be unintelligible. Bates v. State, 118 Ala. 102, 24 So. 448 (1898); Ex parte Thomas, 113 Ala. 1, 21 So. 369 (1897); Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9 (1867); Ex parte Pollard, 40 Ala. 77 (1866) (opinion of A. J. Walker, C. J.).

Section 45 does not necessarily require the legislature to re-enact an entire legislative act when only one section thereof is sought to be amended. Prior cases decided in this court have indicated that an amendatory act which publishes at length the section of the original act desired to be amended would satisfy section 45. Bates v. State, 118 Ala. 102, 108, 24 So. 448, 450 (1898); accord, Henry v. State ex rel. Welch, 200 Ala. 475, 76 So. 417 (1917). This rule is in accord with cases decided in other states having constitutional provisions similar to section 45. See In re Miller, 29 Ariz. 582, 244 P. 376 (1926); Edrington v. Payne, 225 Ky. 86, 7 S.W.2d 827 (1928); State v. Thruston, 92 Mo. 325, 4 S.W. 930 (1887).

In Bates v. State, supra, this court stated that an amendatory act should be complete in form to. satisfy section 45; that is, one should not have to refer to the original act to comprehend the meaning of the amendment. Bates v. State, supra; accord, Tyler v. State, 207 Ala. 129, 92 So. 478 (1921); State v. Bennett, 102 Mo. 356, 14 S.W. 865 (1890). H.B. 645, directed only toward amending the repealer to Act No. 607, does not require one to refer to other provisions in Act No. 607 to understand the meaning of the amendment. The section sought to be amended, section 9901, has been reproduced at length as amended, thus satisfying the requirement stated in the last clause of section 45 of the Alabama Constitution.

Respectfully submitted,

C. C. TORBERT, JR., Chief Justice

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES ERIC EMBRY

SAM A. BEATTY

Associate Justices

       Section 394, when codified in the 1940 Code, provided that individual taxpayers must file annual income tax returns. Act No. 75 amended § 394, attaching criminal penalties for the wilful filing of a return which the taxpayer does not believe to be true in every material detail. Apparently the repealer section of the new Criminal Code was intended to abrogate only the criminal penalties added by Act No. 75, but instead the repealer would abrogate all of § 394, including the income tax return filing requirement.


text:
    OPINION OF THE JUSTICES.
    No. 245.
    Supreme Court of Alabama.
    March 28, 1978.
   To the Honorable Speaker and Members of The House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs and Mesdames:

We acknowledge receipt of your request for an advisory opinion upon the constitutionality of House Bill No. 695, which follows:

“SYNOPSIS: This act further amends Section 11-6-2, Code of Alabama 1975, so as to add Choctaw County to the list of counties not required to have a qualified land surveyor as county engineer.
“A BILL TO BE ENTITLED AN ACT
“To further amend Section 11-6-2 of the Code of Alabama 1975 as last amended so as to add Choctaw County to the list of counties exempt from the requirement that the county engineer be a qualified land surveyor.
“BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
“Section 1. Section 11-6-2, Code of Alabama 1975, as last amended, is hereby further amended to read as follows:
“ ‘§ 11-6-2. The person appointed as county engineer, or chief engineer of the division of public roads within the meaning of this article shall be a registered professional engineer and land surveyor in the state of Alabama in good standing and in addition he shall have had not less than three years experience in the maintenance and construction of highways and bridges; except, that in all counties having populations of not less than 300,-000 nor more than 600,000 inhabitants according to the most recent or any subsequent federal decennial census and in Cleburne, Crenshaw, Chilton, Fayette, Winston, Lamar, Cullman, Perry, Bullock, Choctaw, Macon, Montgomery, Clay, Walker and Coffee counties, the county engineer need not be qualified as a land surveyor in order for the state highway department to participate in the payment of a portion of said county engineer’s salary as provided in section 11-6-4; provided, however, that the exemption for Montgomery county shall expire on May 1, 1979.’
“Section 2. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.”

You have certified the following three constitutional questions for our consideration:

1. Should House Bill No. 695 be published as a proposed local law pursuant to Section 106 of the Constitution?

2. Would House Bill No. 695, if enacted, without publication in the affected county, .violate that portion of Section 105 of the Constitution which prohibits the legislature from indirectly enacting any special, private or local law by the partial repeal of a general law?

3. Even if published in the affected county in accordance with Section 106 of the Constitution, would House Bill No. 695, if enacted, still violate Section 105 of the Constitution?

In view of our finding that the Bill offends Section 105 of the Constitution, we pretermit separate consideration of questions No. 1 and No. 2.

The Bill, proposing to add Choctaw County to the list of counties not required to have a qualified land surveyor as county engineer, is a local act within the meaning of that term as defined by Section 110 of our Constitution. Opinion of the Justices, 284 Ala. 626, 227 So.2d 396 (1969). As such, the issue reduces itself to whether the subject is already provided for by a general law and the enactment of the Bill will violate Section 105, which states:

“No special, private, or local law, . shall be enacted in any case which is provided for by a general law, . . .”

As originally enacted, § 11-6-2, Code of Alabama 1975, established the qualifications of County Engineer or Chief Engineer of the Division of Public Roads as follows:

“QUALIFICATIONS. The person appointed as County Engineer, or Chief Engineer of the Division of Public Roads within the meaning of this Act shall be a registered professional engineer and land surveyor in the State of Alabama in good standing and in addition he shall have had not less than three years experience in the maintenance and construction of highways and bridges.” Acts 1971, No. 1945, p. 3143, § 3.

The qualifications apply state-wide in every county and constitute a general law as defined by Section 110 of our Constitution. Notwithstanding subsequent amendments in 1976 and 1977 (Acts 1976, No. 338, p. 368; Acts 1977, No. 403, No. 470, No. 797), and prior to our decision in Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala., 1978), excepting some counties from the original qualifications, the law remains a general law.

Therefore, the Bill, if enacted, would operate on a subject already subsumed by a general law and violate Section 105. Publication in accordance with the provisions of Section 106 of the Constitution cannot save the Bill.

Respectfully submitted,

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY

SAM A. BEATTY

Associate Justices

I respectfully disagree with the advisory opinion issued by this court upon the constitutionality of House Bill 695. This bill proposes to amend section 11-6-2, Code of Alabama 1975 (as amended), by adding one county (Choctaw) to the list of counties specifically excepted from the coverage of that statute. The majority of the justices have found that this bill, if enacted, would violate section 105 of the Alabama Constitution of 1901. However, their finding is sustainable only if section 11-6-2 is determined to be a general act.

As originally passed, and as codified in the Code of Alabama 1975, section 11-6-2 established uniform qualifications for county engineers which applied to each and every county in this state. See Act No. 1945, Regular Session 1971. Subsequently, however, the Legislature felt it necessary to exempt certain enumerated counties and those counties having a population of not less than 300,000 nor more than 600,000 from the requirements of section 11-6-2. See Acts No. 463, 770 and 797, Regular Session 1977; Act No. 338, Regular Session 1976. Thus in effect, the Legislature attempted by these acts to amend a general act by passing a series of four local acts. The validity of these acts under other constitutional provisions, of course, is not before us.

I would limit my opinion to the impact of Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978). In that case this court emphasized that, under section 105 of the Alabama Constitution, local laws may not be passed to fulfill local needs when general legislation has been enacted to respond to those needs. Apparently, therefore, the four local acts which were passed to amend section 11-6-2, originally a general act, would have violated the Peddycoart doctrine. However, the majority in Ped-dycoart stated:

“Henceforth when at its enactment legislation is local in its application it will be a local act and subject to all of the constitutional qualifications applicable to it. With regard to legislation heretofore enacted, the validity of which is challenged, this Court will apply the rules which it has heretofore applied in similar cases.’’

354 So.2d at 814 (emphasis added). In other words, the Peddycoart decision is prospective and therefore not applicable to the four amendatory acts at issue here.

Thus, the question is whether section 11-6-2 as amended is a local or general act. Section 110 of the Alabama Constitution states that “a local law is a law which applies to any political subdivision or subdivisions of the state less than the whole.” Section 11-6-2, as amended, excepts certain enumerated counties from its coverage; it is a local net. House Bill 695 proposes to further except Choctaw County from the coverage of section 11-6 — 2; it also is a local act. Since section 105 of the Constitution does not proscribe the amendment of a local act by the passage of a subsequent local act, I believe that the Legislature is not prohibited from passing House Bill 695 so long as it complies with the publication requirements outlined in the Constitution. See section 106, Constitution of Alabama of 1901, as amended by Amendment No. 341.

C. C. TORBERT, JR.,

Chief Justice


author: WRIGHT, Presiding Judge.

text:
    Elinor W. ROBERTS v. Joe T. ROBERTS.
    Civ. 1213.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1977.
    Rehearing Denied Nov. 30, 1977.

      Tom Radney, Alexander City, for appellant.
    Robert J. Teel, Rockford, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The issues on appeal are directed to the sufficiency of the award of alimony and child support and the equity of the property division.

After nineteen years of marriage and the birth of four children, the husband filed for divorce for incompatibility. The wife coun-tersued for divorce alleging adultery. At the time of trial the children were ages fifteen, fourteen, eleven and eight. The court heard substantial testimony and viewed documentary evidence. Judgment was entered granting a divorce without stating a ground. Custody of the children was given to the wife. Support was ordered in the amount of $250 per child per month. Alimony was given in the amount of $750 per quarter; however, alimony terminated when the youngest child reached majority or when it married. The wife received the home in Alexander City and its furnishings. The home and furnishings were appraised in value at about $110,000. The husband was given all other property, but was required to pay the mortgage payments on the home in the sum of $630 per month and to maintain a life insurance policy in the amount of the mortgage balance of $70,000. The husband was given the right to claim the children as tax deductions.

All of the issues presented by the appeal relate to the insufficiency of the awards to the wife and children, except the charge that there was error in failing to grant the divorce on the ground of adultery. We will address the latter issue first.

This court said in the case of Russell v. Russell, 45 Ala.App. 255, 257, 229 So.2d 30, 32 (1969) and repeated in the case of Lloyd v. Lloyd, 46 Ala.App. 441, 442, 243 So.2d 525, 527 (1970), “[I]f the evidence is legally sufficient to support the decree of the court below as to any ground alleged in the Bill of Complaint, the decree must be affirmed.” We find the evidence and its reasonable inferences sufficient to support a divorce on either the ground of incompatibility or adultery. The failure to state which ground is therefore not reversible error.

We have previously shown the award of alimony and support together with the award of property. In order to determine whether the court abused its discretion, we must view the judgment in light of the evidence.

The husband is a dentist in Goodwater. Last year his solely-owned professional association grossed over $125,000. His salary was $52,000. He also earned over $3,000 from the National Guard. He also paid in some $7,500 to a tax-deferred retirement plan. There were also several thousand dollars undistributed earnings in the professional association together with depreciation credit. His earnings have been fairly constant in the last several years. He paid state and federal income taxes in 1976 of $15,054. ($800 of the income shown on the joint return was from a part-time teaching job of the wife.) Thus net income after taxes in 1976 was $39,856. Though the wife holds a master’s degree in education, she has not taught, except part time in a junior college, in many years. She worked while the husband was in dental school.

The trial court found that the parties jointly owned property of a net value of $188,619.81. The home and its furnishings located in Alexander City were given to the wife, with the observation that it represented more than one-half of the net value of the total.

There was a certificate of deposit from a bank in Mississippi held by the husband in the amount of $7,200. It was purchased with funds from a joint account withdrawn by the husband after the separation. There was also a $5,000 municipal bond. A joint checking account in the sum of $1,919 was divided equally.

The trial court stated in its judgment that in awarding periodic alimony it had considered the award of the home and furnishings to the wife and the good health and education of the wife. It stated that the home and its furnishings represented substantially more than one-half the combined value of all the property. There was no statement indicating consideration of fault in ending the marriage.

It has become axiomatic and repetitious for us to say in divorce cases that we review judgments with a presumption of correctness if the trial court has heard the testimony. Meyers v. Meyers, 55 Ala.App. 697, 318 So.2d 725 (1975). That presumption, coupled with the principle that the awarding of alimony and the division of property in a divorce is a matter for the exercise of judicial discretion by the trial judge, usually prevents the court from finding error on appeal. Novak v. Novak, 339 So.2d 77 (Ala.Civ.App.1976). We recognize that generally the trial court is better positioned to make such decisions than an appellate court. However, there are some cases when the presumption has less weight than others. When the award is clearly based primarily upon consideration of undisputed documentary and oral evidence and the judgment of the court indicates defective reasoning with failure to give weight to material parts of the evidence, the basis for the presumption is absent. Babcock v. Smith, 285 Ala. 557, 234 So.2d 573 (1970). This is such a case.

The award of the home and its furnishings to the wife was considered by the trial court to represent more than half of the value of the joint property. That conclusion may be true if all the property could be placed upon the market. The home is not presently marketable. It is necessary as a home for the children. The wife cannot sell it and use the proceeds from the sale for her own benefit until she has performed her duty and obligation of rearing her children. It cannot be sold and its value received because it is subject to a $70,000 mortgage which the husband is permitted to pay in monthly installments. It produces no income but, rather, will require considerable expense to maintain as a home. The result is that the property given to the wife is, to a large extent, supporting the children. We are unable to determine how having title to the home will lessen the need of the wife for alimony. It rather increases the need. If the home were sold, she could only obtain the equity and the husband would be relieved from making the payments.

On the other hand, the property awarded to the husband is fully marketable, with the exception of his dental office, and at any time could be converted to cash and used for his sole benefit. Most of his property is capable of producing income.

The trial court also indicates that rather than providing the alimony to keep the wife in the manner to which she had become accustomed, she is expected to use her education to work full time and provide her own support. It is not indicated how she will give her four children the attention they have been getting and yet work to support herself.

We find the trial court erred in permitting the award of the home and the award of alimony to become so confused. Whether the divorce was granted upon the ground of adultery or not, the evidence was irrefutable that the husband has openly been involved in adulterous conduct with at least two women. Fault in bringing about the breakdown of the marriage is an element to consider in arriving at an award of alimony. Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71, cert. denied, 290 Ala. 370, 274 So.2d 80 (1973).

We further consider that the court erred in giving the husband all of the funds withdrawn from the joint account and invested in a certificate of deposit in Mississippi. Such action was clearly to prevent the wife from having any part of it. In view of the $5,000 bond given to the husband, and the need for an automobile for the use of the wife and children, it is our opinion that the certificate should be awarded to the wife.

It is the opinion of the court that there should not be a total deduction of the amount given for each child’s support as it becomes of age or marries. The cost of maintaining a home for three children, two or even one, is little less than the cost for four. Providing and maintaining shelter is a substantial cost of rearing children.

We further find that the total elimination of alimony, as little as it is, upon the coming of age or marriage of the youngest child is arbitrary and unfair. Such order smacks of saying that the wife is to be cast aside without aid or assistance as quickly as there is no longer need for her service in rearing the children. This is to be done now without any consideration of her financial status or needs eleven years later. The matter could have at least been left open for modification at that time. The husband is casting her aside now after she helped him attain his professional status and bore him four children. The husband is required to provide token alimony now in return for 19 years of faithful and loving service but after she spends the next eleven years rearing the children, she is to be denied even that token sum. Such action is a clear abuse of discretion.

In summary, the evidence as to all matters material to a property division, award of alimony and support is undisputed, except that the husband denies the act of adultery, though admitting numerous trips, one as far as San Francisco, and nights spent in motel rooms with women other than his wife. Such being the state of the record, we do not consider that the usual presumption of correctness of the findings and conclusions of the trial court after hearing evidence ore tenus applies in this case. After considering the evidence, we conclude that the judgment of the trial court is unjust and is an abuse of discretion in several aspects and is due to be altered as follows: (a) In addition to the home in Alexander City, the husband shall be directed to transfer to the wife the certificate of deposit in the amount of $7,200 or to pay her that amount in cash, (b) The total amount awarded as support for the children shall not be diminished as the two older children reach the age of 19 or marry, but the amount deducted as support shall be added to the alimony of the wife until the third oldest child reaches 19 or marries. Thereafter, the amount of support shall be reduced in the amount of $250 per month until the last child reaches 19 years of age or marries, whichever occurs first. Thereafter, all support for the children shall cease, but the alimony for the wife (if she has not remarried or this decree has not been modified) shall be increased to $1,000 per month to continue until death or remarriage, subject to modification by the court. The present award of alimony shall be changed to the sum of $250 per month rather than payable $750 per quarter.

The judgment of the trial court is hereby affirmed as to all things not herein found to be erroneous. We reverse the judgment as found erroneous and direct the trial court to enter judgment in accord with our findings and direction hereinabove.

In response to appellant’s request for an attorney fee on appeal we hereby order appellee to pay to her for the service of her attorney on appeal the sum of $1,000.

AFFIRMED IN PART, REVERSED IN PART WITH DIRECTION.

REQUEST FOR ATTORNEY FEE GRANTED.

BRADLEY and HOLMES, JJ., concur.


author: BLOODWORTH, Justice. ALMON, Justice

text:
    In re Elinor W. ROBERTS v. Joe T. ROBERTS. Ex parte Joe T. ROBERTS.
    77-204.
    Supreme Court of Alabama.
    April 7, 1978.
    Robert J. Teel, Rockford, for petitioner.
    Tom Radney, Alexander City, for respondent.
   BLOODWORTH, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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

TORBERT, C. J., and ALMON, J., dissent.

ALMON, Justice

(dissenting).

I most respectfully dissent from quashing the writ. I think the Court should address the issue of whether the Court of Civil Appeals has misapplied the long standing ore tenus rule.

TORBERT, C. J., concurs.