text:
    STEVENSON-WHISENHUNT CORPORATION v. Ray HOLEMAN and Staple Cotton Cooperative Association.
    No. 49088.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    Brewer, Deaton & Evans, Norman C. Brewer, Jr., Greenwood, for appellant.
    Fraiser & Burgoon, John J. Fraiser, Jr., Greenwood, for appellees.
    Before INZER, ROBERTSON and WALKER, JJ.
   INZER, Presiding Justice,

for the Court:

Stevenson-Whisenhunt Corporation appeals from a decree of the Chancery Court of Leflore County dismissing its bill of complaint seeking an accounting from Ray Holeman and Staple Cotton Cooperative Association for cotton grown on land owned by appellant and leased to Holeman for the crop year 1973. We affirm.

From 1969 through 1973, Ray Holeman leased from Stevenson-Whisenhunt Corporation a portion of certain farm lands known as Cypress Lake Plantation on which cotton and other products were produced. A written contract was executed each year which contained almost identical provisions, including the following: “As a rental therefor second party agrees to pay the first party one-fourth (Vi) of cotton.”

In each of the years 1969 through 1973, Holeman as lessee of appellant’s land executed a marketing agreement with Staple Cotton Cooperative Association whereby he agreed to market all cotton produced by him on appellant’s land through Staple. In each contract for the years 1971, 1972 and 1973, Staple was specifically instructed to remit the proceeds as follows: “Twenty-five percent (25%) proceeds to Stevenson-Whisenhunt Corporation pay direct for credit account and FNB Blytheville, Arkansas.” The remaining 75 percent of the proceeds were paid to producer Holeman.

In 1971, 1972 and 1973 Holeman forward contracted the cotton produced by him on appellant’s land. (A forward contract is a contract usually executed six to eight months prior to harvest by which a cooperative member sells cotton to be produced by him during the ensuing growing season at a set price agreed on at the time of the contract.) Prior to forward contracting in 1971, Holeman conversed with the president of appellant corporation, Mr. J. E. Stevenson, and obtained approval to go ahead and forward contract the crop. Mr. Stevenson’s testimony confirmed the fact that he was aware of the forward contract for the 1971 and 1972 growing season. Staple had bifurcated the checks and sent them to appellant who subsequently negotiated them.

On January 3,1973, Holeman talked with Whisenhunt and asked him about forward contracting the 1973 cotton crop and Whi-senhunt told him to do so, as he had been doing. On March 12, 1973, Holeman executed to Staple a sale and purchase agreement for the sale of cotton for that year, which provided for the payment of 32 cents per pound for all cotton raised by Holeman during the crop year 1973. In the interim between the execution of the forward contract in March 1973 and the fall of 1973 the price of cotton on the open market rose dramatically to approximately 80 cents per pound.

In July or August 1973 Holeman had a conversation with Stevenson and advised him at that time that he had contracted the cotton and Mr. Stevenson made no protest. In November 1973 approximately eight months after Holeman had sold the 1973 cotton crop by forward contract, and after the occurrence of the price escalation, appellant for the first time advised Staple and Holeman that it objected to the manner in which the cotton produced on its land had been sold and the marketing procedure whereby twenty-five percent of the sale proceeds were remitted to it and its assign-ee. Appellant urged Staple to hold one-fourth of the cotton in kind as its payment so that appellant could then sell the same on the open market.

By letter dated November 9, 1973, Hole-man was notified by Staple of appellant’s demand concerning the 1973 cotton production. The letter stated in part: .

In view of Mr. Stevenson’s letter and present position concerning the rental, we feel that all parties should understand that we feel your contract, marketing agreement and the prior course of dealings which had been accepted and acquiesced in by Stevenson-Whisenhunt Corporation is sufficient to support our position that all cotton produced on the property is covered by your sales and purchase contract.

Holeman delivered all the cotton to Staple as required by the forward contract and appellee Staple tendered Stevenson-Whi-senhunt the sale proceeds for the cotton in accordance with the authority and instructions contained in its marketing arrangement with Holeman for the year 1973 and previous years. However, Stevenson-Whi-senhunt did not negotiate the check as it had done in the previous years, but filed this action in the Chancery Court of Leflore County claiming a landlord’s lien on all the cotton grown and produced by Holeman on its land for the year 1973, requesting the court to render a decree for all of appellant’s interest in and to all cotton grown by Holeman upon appellant’s land for the year 1973, and requesting an accounting and judgment against Holeman and Staple for any sum found to be due appellant from them.

After hearing all testimony and reviewing the documentary evidence, appellant’s bill was dismissed with prejudice. The Chancellor stated in his opinion, among other things, the following:

I will make this much statement about the facts in this case: First, we must keep separate the two sets of questions. One is as to the marketing agreement and the other is as to the forward contracting. The Marketing Agreement itself by which Staple Cotton Cooperative Association was authorized to sell the cotton and to remit the proceeds, with 25 percent going to the landlord and its as-signee bank, is unquestioned in this case. Everyone admits that it was agreed to and was effective. Presumably the landlord would have had the right to cancel it at any time and any cotton not sold at that time would have been available to him in kind. That question is not before us. To this extent, that is that the landlord agreed that the cotton be sold and 25 percent of the proceeds remitted by Staple Cotton Cooperative Association, the rent contracts for each year were clearly supplemented or amended by the parties.
A completely separate question is the problem of the forward contracting, which is not contemplated or authorized by the Marketing Agreement. The first forward contract was on the 1971 crop. If there had not been a specific understanding between the landlord on one part and the tenant or Staple Cotton on the other, then I do not believe that the first forward contract would have been effective as to the landlord’s share. In other words I do not think that the tenant had the right to forward contract the landlord’s share of the crop, in the absence of some agreement or understanding, expressed or implied, or some acquiescence or course of dealing that would justify us in assuming this authority as a part of the contract or in working an estoppel against the landlord. As to this question it is my opinion that there has been such a course of dealing as to estop the complainant landlord from objecting to the forward contract. The course of dealing was such as to supplement the rental contract and authorize the execution of the forward contract by the tenant. The evidence is clear that the landlord was aware of the tenant’s forward contracting in 1971 and in 1972, and that the landlord did not make any protest or give any word of warning to either the tenant or to Staple Cotton with reference to those two years. There is in fact positive evidence that the landlord was advised in advance of the first contracting and agreed to it, and I believe that evidence is uncontradicted. The landlord accepted the advantages of the 1971 and 1972 forward contracts without any protest and without any questioning of the authority of the tenant or of Staple Cotton to effect those contracts. When the new rental contract for 1973 was executed the landlord was aware that the tenant might well follow his last two years practice and forward contract the crop. Nevertheless the landlord, preparing its own rent contract, failed to make any provision therein for or against forward contracting and failed to advise either the tenant or Staple Cotton that it did not wish the crop forward contracted. I consider that the landlord is estopped to complain of that which it knew would probably occur, whether or not the conversations of December 29,1972, and January 3, 1973, contained any specific reference to forward contracting.

The only error assigned and argued by appellant is that the lower court erred in overruling its motion to strike the affirmative defense, thereby allowing parol evidence of custom and usage to vary the terms of the written contract. Stevenson-Whisenhunt relies on Bank of Forest v. Capital National Bank, 173 Miss. 99, 160 So. 578 (1935), in which this Court stated that usage and custom cannot be proved for the purpose of contradicting the express terms of a contract free from ambiguity or to make the legal rights of the parties to a contract other than expressed by its terms. See also Postal Telegraph Co. v. Willis, 93 Miss. 540, 47 So. 380 (1908).

In distinguishing the above cases with the present appeal, appellees point out that in the Bank of Forest case there was no express authorization, whereas in the case at bar, Stevenson-Whisenhunt expressly authorized Holeman to market and forward contract the cotton. Moreover, appellant corporation approved this procedure by acquiescence in negotiating the proceeds check for a two-year period prior to 1973 on almost identical contracts. The record clearly shows an acceptable prior course of dealing between the parties. The testimony of J. E. Stevenson is replete with admissions that he had knowledge of and acquiesced in Holeman’s business dealing with Staple. Mr. Stevenson admitted that Mr. Whisenhunt, secretary of the corporation, had full authority to act for and on behalf of the corporation and that he had authority to authorize the forward contracting of the cotton.

A parol agreement to waive or annul a particular stipulation in a written contract which has been mutually assented to and fully performed may be offered in evidence in defense of an action for a suit on the original written contract. Baylot v. Habeeb, 245 Miss. 439, 147 So.2d 490 (1962); Lee v. Hawks, 68 Miss. 669, 9 So. 828 (1891).

In Federal Land Bank of New Orleans v. Southern Credit Corporation, 188 Miss. 192, 192 So. 827 (1940), we held that a landlord’s lien on agricultural products may be waived by a course of dealings between a landlord and tenant, if it shows consent by the landlord to the disposition and sale of the crop. See also, Martin v. Leflore Bank & Trust Co., 220 Miss. 106, 70 So.2d 66 (1954).

In Judd v. Delta Grocery & Cotton Co., 133 Miss. 866, 98 So. 243 (1923), we held that where the testimony established that the landlord allowed his tenant to sell the cotton for several years and remit the rent established a course of dealing which constituted the tenant as his agent to dispose of the cotton.

In the case before us we not only have a course of dealing relative to the forward contracting of the cotton, but we also have the authorization by Whisenhunt for Holeman to go ahead and do as he had been doing for the past two years. Appellant made Holeman its agent for the purpose of entering into the forward contract for the sale of the cotton.

For the reasons stated we are of the opinion that this case should be and is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: PATTERSON, Presiding Justice:

license: Public Domain

text:
    Everette JOHNSON v. STATE of Mississippi.
    No. 49432.
    Supreme Court of Mississippi.
    Jan. 26, 1977.

      Hermel Johnson, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and SMITH and LEE, JJ.
   PATTERSON, Presiding Justice:

Everette Johnson was convicted of murder by the Circuit Court of the First Judicial District of Hinds County and sentenced to life imprisonment. He appeals and assigns as error improper reference by the state to other crimes, erroneous instructions, improper closing argument by the district attorney and the verdict is against the overwhelming weight of the evidence.

On the night of December 2, 1978, at approximately 11:10 officers of the Jackson Police Department responded to a call from the Plaza Motel in the city. Upon arriving they found the body of Sylvester Denham in the office of the motel. Their investigation revealed that he had been shot and killed.

The state’s evidence reveals that a motel maid observed an unknown man go into the motel office, later heard a shot and saw a man leave the office with a gun in his hand, enter an automobile and depart. She described the person she had observed as a black man, wearing dark clothes with an “Afro” hair style.

The bullet removed from the victim’s body was examined and found to be a .38 caliber special.

James Ratcliff testified for the state. He acknowledged that he was an inmate of the city jail and that he had also been indicted for killing Sylvester Denham, the owner of the Plaza Motel. A resume of his testimony taken from the abstract of the record follows.

I have not been offered any promises or offered leniency to testify. I know Everette Johnson and have known him for about three years. He is in the courtroom today and I saw him on December 2, 1973, at about 7:00 p.m. at my girl friend’s house. We were there with Louise Walker, Flora Walker and another guy when Everette came in. We talked and drank and left in Johnson’s car and went to the Plaza Motel. Johnson told me he was fixing to go rob the place. I was in the car with Everette and a guy named Goldmouth. He drove to the motel and parked and Johnson got out and I got under the wheel of the car. Gold-mouth got out and stayed on the outside of the motel. Johnson went inside of the office and I heard a shot. He came back out and got in the car and I pulled off. He said “I’ve got me another one.” We left the motel and went to his house and split the money up. I think it was about $200 and something. Everette Johnson had a thirty-eight pistol with him when he got out of the car and went into the motel. He had the pistol when he came back to the car. I did not see anyone else go in or out of the motel office after Johnson went into the office.

The witness acknowledged that he had been convicted of previous crimes.

The appellant first contends that the jury was prejudicially influenced by the examination of state’s witness Ben Knight by the district attorney when the following transpired:

Q. Do you know why he (Johnson) was arrested, Officer Knight?
A. Yes, sir, he was arrested .
BY MR. JOHNSON:
I object to any testimony, your honor, about .
BY THE COURT:
(Interposing) Well, if he knows himself why he was arrested, I think that’s all right. I’ll let him tell that. Go ahead.
A. He was arrested for a crime committed in Hattiesburg.
BY MR. JOHNSON:
Objection, your honor.
BY THE COURT:
I sustain the objection.
BY MR. JOHNSON:
And move for a mistrial.
BY THE COURT:
No, the jury will not pay any attention to his answer.

We find no merit in this contention because the trial judge admonished the jury to pay no attention to the officer’s answer. In Myrick v. State, 290 So.2d 259 (Miss.1974), we held that when an objection to a question is sustained and the jury is admonished to disregard the question, there is no reversible error. See also Herron v. State, 287 So.2d 759 (Miss.1974).

It is also argued that an improper remark was made by the district attorney in his closing argument which referred to other crimes to the appellant’s prejudice. The district attorney’s comment was: “You know why they just happened to pick him up now because of an informer just like Ben Knight told you—they got evidence—.” An objection was interposed, sustained and the defendant moved for a mistrial. The court overruled the motion for a new trial stating: “Just stick to the record, Mr. Peters.” We think this was a sufficient admonishment for the jury to disregard the remark. In Holifield v. State, 275 So.2d 851 (Miss.1973), it was held that when the court sustains objections to improper testimony or improper remarks of counsel, that it is presumed that the jury followed the directions of the trial judge to disregard such testimony or comment. And see Thomas v. State, 285 So.2d 148 (Miss.1973).

It is next contended that the court erred in refusing appellant the following instruction:

The Court instructs the Jury for Everett Johnson that you are reminded that before you were accepted and sworn to act as jurors, you were asked questions regarding your fairness and your freedom from prejudice or bias of any sort. You were accepted as jurors on the faith of those answers. The law now requires you to keep the faith and to lay aside all bias or prejudice.

The supporting argument is that the defendant is entitled to a fair trial under the United States and Mississippi Constitutions and since it was apparent throughout the trial that the appellant is a member of the black race and the decedent was a member of the Caucasian race, the instruction should have been granted. No authorities are cited in support of the premise of racial bias and the record is devoid of any evidence regarding bias or prejudice. Under this circumstance we are of the opinion this assignment of error is without merit.

It is next urged that the refusal of an instruction concerning the resolution of questions of reasonable doubt in favor of the appellant by the jury should have been granted. We think not. There are several other instructions directed to the same point of law amply advising the jury on the precise point. The jury was adequately instructed in considering the totality of the instructions both by the state and the defendant and because this is so, we think this instruction was properly refused. Fields v. State, 293 So.2d 430 (Miss.1974).

It is argued that the evidence was insufficient to support the jury’s verdict. A detailed review of the appellant’s abstract of the record as well as the record itself discloses ample evidence to support the appellant’s conviction of a malicious killing in the course of a robbery. The evidence leaves no room for a different verdict.

AFFIRMED.

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


author: PATTERSON, Presiding Justice,

text:
    Clarence WASHINGTON v. STATE of Mississippi.
    No. 49433.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    Hermel Johnson, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and SMITH and LEE, JJ.
   PATTERSON, Presiding Justice,

for the Court.

Clarence Washington was convicted in the Circuit Court of the First Judicial District of Hinds County for the sale of heroin, a controlled substance. He was sentenced to fifteen years in the state penitentiary and fined $1000.

In April 1975, two agents of the Mississippi Bureau of Narcotics were assigned to the Presidential Hills area of the city of Jackson. Working incognito they sought out illicit drug dealers.

On April 10, 1975, the agents were invited to Clarence Washington’s home where he told them of a “friend” from whom heroin could be purchased. Washington further informed the agents that he would introduce the “friend” to them. Accordingly, Washington took them to an adjoining house and introduced them to the friend, a black male who was known as Wade. Wade agreed to supply heroin at a cost of $350 a “dipper.” Washington was present when the offer of sale was advanced by Wade. As to future transactions, Wade insisted that they be initiated through Washington who would be the “go-between.”

Washington arranged the resulting “buy” on April 11, having handled all subsequent communications with the agents. The purchase of the heroin from Wade was made in the appellant’s home when the agents exchanged $225 in state funds for approximately two grams of heroin.

Washington, wishing to share in the profits he assumed one of the agents would make when he resold the heroin, requested compensation for his services in arranging the “buy.” On April 13, 1975, one of the agents handed the appellant $50 in state funds in compliance with the request.

Appellant argues the trial court erred in overruling his motion for a directed verdict and in refusing a peremptory instruction. Washington’s theory is predicated upon an alleged failure by the state to prove either that he possessed heroin on April 11, 1975, or that he received remuneration for the sale.

Though Washington did not personally transfer the heroin or actually receive the payment therefor, the evidence is conclusive that his efforts made the sale possible. They in fact led to the “buy” of the heroin in his home. We are of the opinion the appellant was properly indicted and convicted as a principal because he was personally present, aiding and abetting the purchase. White v. State, 330 So.2d 877 (Miss.1976), and McCoy v. State, 91 Miss. 257, 44 So. 814 (1907).

Appellant next contends there was error in refusing the following instruction:

You are instructed that the testimony of a law enforcement officer carries no greater weight in law than the testimony of any other witness.

Mississippi Code Annotated section 99-17-35 (1972), entitled “Instructions” as relevant reads:

The judge in any criminal cause, shall not . . . charge the jury as to the weight of evidence .

Falling within the statute, the requested instruction, in our opinion, was properly refused.

Washington contends the trial court erred in granting the state instructions which delineated the law concerning his presence at the time of the sale and which explain that if he consented thereto, or encouraged it, or was immediately connected with it, he was a principal to the crime. The argument is made there was no evidence to support the instruction because the appellant’s only participation in the sale was the introduction of the agents to Wade. This issue is resolved, we think, by the statements above concerning the appellant’s activities in furthering, aiding and abetting the sale. Further discussion would be repetitious.

Finally, Washington complains that the court erred in granting an instruction for the state setting forth the essential ingredients of the crime of a sale of a controlled substance. His argument on this point is that an instruction on the actual sale of heroin conflicts with the instruction obtained by the state concerning mere physical presence of an individual when the sale is made, thereby confusing the jury. We are of the opinion the state’s instruction complained of was correct as given, but even if it be somewhat inconsistent with the other instructions, we cannot state that it constitutes error because the instructions are to be considered as a whole and we do not think that it can be seriously asserted that injustice resulted from this instruction. In Harris v. State, 244 Miss. 552, 144 So.2d 790 (1962), we stated:

[Tjhis Court has repeatedly held that it will not reverse a case because of irregularity of any one particular instruction, unless it affirmatively appears from the record as a whole that the judgment resulted in a miscarriage of justice. (244 Miss, at 557, 144 So.2d at 792)

The record reflects no reversible error and portrays ample evidence to support the verdict that the appellant was physically present at the time of the sale of the heroin, and that his activities brought the sale about.

AFFIRMED.

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


author: GILLESPIE, Chief Justice,

text:
    HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY and W. C. Mason v. Vernon Lewis COOPER.
    No. 48996.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    Shell, Buford, Bufkin, Callicutt & Perry, Cary E. Bufkin, Henley, Lotterhos & Bennett, Charles B. Henley, Jackson, for appellant.
    Ross & Ross, Fred A. Ross, Jr., Wise Carter Child Steen & Caraway, Natie P. Caraway, Jackson, for appellee.
    Before GILLESPIE, C. J., and SUGG and BROOM, JJ.
   GILLESPIE, Chief Justice,

for the Court.

In a personal injury suit tried in the Circuit Court of Copiah County, judgment for $250,000 was awarded to Vernon Lewis Cooper (plaintiff) against Hartford Steam Boiler Inspection & Insurance Company (Hartford) and Hartford’s employee, W. C. Mason.

Sanderson Farms, Inc., (Sanderson) operates a chicken processing plant at Hazle-hurst, using a considerable amount of equipment, including machinery for making ice. Hartford insured Sanderson against costs of repairs of equipment and shutdown losses from breakdowns of machinery, subject to a $1,000 deductible for each loss. The policy provided that Hartford had the right (but was not required) to make inspections of the insured equipment and could under certain circumstances suspend insurance coverage.

On October 27, 1972, the manifold on a Frick 9X9 compressor ruptured, releasing a large amount of ammonia at a time when plaintiff was near the machine. Plaintiff sustained grave injuries. He received workmen’s compensation benefits from his employer’s workmen’s compensation carrier and then filed this third party action.

Cooper’s suit against Hartford and Mason is grounded on the theory that Hartford, through Mason, exercised its right of inspection of Sanderson’s equipment to such an extent that Mason directed, controlled, and supervised the maintenance of Sander-son’s equipment, and from 1970 through 1972, inspections by Mason were of such extent and frequency that Sanderson and its employees relied on the inspections made by Mason. Plaintiff further contends that Mason negligently failed to inspect the compressor which ruptured and injured plaintiff.

Inspections were usually made by Mason of the internal parts of machinery only when a machine was torn down for repairs. Mason lived in Jackson and Sanderson contacted him each time a machine needed repair and usually the machine would be dismantled when Mason arrived to make his inspection. Mason examined the worn and broken parts and made specific recommendations as to replacements of broken parts or worn parts. Mason made no repairs but reported his inspections to Hartford with a statement of the condition of the machinery, his recommendations, and whatever the circumstances required. Sanderson employed a maintenance superintendent and six mechanics to maintain its equipment. These mechanics operated under Freddie Stegall, the superintendent, and the other mechanics, including plaintiff, worked in three shifts on a twenty-four-hour schedule in the maintenance of Sanderson’s equipment. Stegall kept a file on each machine with a record of all work performed.

The recommendations Mason made following inspection of a machine would be followed by Sanderson’s maintenance employees. As occasion required and from time to time, Sanderson would have work done on the machinery by Munford Engineering Company, Inc. When Munford Engineering Company would work on the machines, Sanderson’s employees usually called Mason to inspect the work. Munford Engineering Company, Inc., is a commercial refrigeration engineering firm located in Jackson.

The policy did not require of Hartford any duty to make safety inspections, although Mason on one or more occasions called to the attention of Sanderson’s employees conditions which he deemed to be unsafe.

In June, 1972, the Frick 9X9 compressor in question was completely overhauled, and during the overhauling of this machine, Mason was present at the plant on four occasions, at which time he inspected the machine and made his recommendations. After completion of the overhauling, the compressor worked satisfactorily until the ice making system, of which the compressor was a part, began encountering difficulties in late September, 1972. Sanderson’s maintenance supervisor decided that the valves of the Frick 9X9 compressor should be checked. This involved removing the head of the compressor. Stegall directed Sander-son’s maintenance employees to go into the machine, but Mason was out of town and could not be reached. On September 28, Don Higdon, a skilled maintenance employee, and another of Sanderson’s maintenance employees dismantled the machine and checked the valves but found no malfunction. The compressor was put back together and it worked satisfactorily until October 27, when it ruptured and injured plaintiff.

On October 19, 1972, Mason was at Sand-erson’s plant for the purpose of making an inspection of a boiler and while in the engine room where the Frick 9X9 compressor was located, Mason was informed by Ste-gall of the fact that approximately three weeks earlier, the Frick 9X9 compressor had been dismantled and Mason had been called but could not be reached. Stegall then told Mason what had been done to the compressor and Mason replied that they had correctly handled the matter. It is plaintiff’s contention that it was Mason’s duty on October 19, 1972, to dismantle the compressor and inspect it, although he had been told what had been done to the machine and the machine was performing satisfactorily.

The evidence of appellee’s expert witness and the other proof was sufficient to justify finding that the set screws were not locked properly when Sanderson’s employees went into the machine on September 28, and that this precipitated the accident injuring plaintiff. The proof also showed that if the machine had been dismantled and inspected by Mason on October 19, that the loose set screws would have been discovered.

The trial court denied a peremptory instruction requested by Hartford and Mason. Our decision turns on whether the court erred in submitting the case to the jury. This involves several questions later stated and discussed.

Plaintiff’s theory of liability is grounded on Restatement (Second) of Torts section 324A (1965), which is as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increased the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other person or the third person upon the undertaking.

' To bring this case within the Restatement rule, section 324A, plaintiff must show (1) that Hartford and Mason owed a duty to make the inspections, and (2) reliance by Sanderson on Hartford and Mason to make inspections, thus inducing Sander-son to forego making inspections.

Did Hartford and Mason owe a duty to inspect?

If Hartford and Mason had a duty to inspect, the obligation must derive either from the policy or because Hartford and Mason assumed responsibility for performing inspections to the extent that they should have recognized the inspection of the machines was necessary for the protection of third persons.

The provision of the policy giving Hartford the right to inspect is permissive. There is no obligation to make inspections and the proof shows that such inspections as Mason made were for the purpose of reducing the risk of loss that Hartford might have under the policy. The incidental benefits that accrued to Sanderson’s employees and the public by Mason’s inspections and recommendations should not rationally give rise to liability for failure to inspect a particular piece of equipment. See Zamecki v. Hartford Accident & Ind. Co., 202 Md. 54, 95 A.2d 302 (1953).

In our opinion, there was no reason why Hartford and Mason should have recognized that Sanderson’s employees or third persons were dependent upon Mason’s inspections or that inspections by Mason were necessary for their protection. Mason made inspections only for the purpose of reducing risk of loss under Hartford’s policy.

We hold that Hartford and Mason had no duty to make inspections generally or to inspect the machine in question. If Hartford and Mason had been under a duty to make inspections, why should the failure to inspect the Frick 9X9 compressor be considered a breach of duty? The machine was operating satisfactorily on October 19, and had been since Sanderson’s mechanics had gone into it on September 28. Indeed, it had performed properly since the June repairs. In our opinion there was no reason for anyone to inspect the machine in question when Mason was in the plant on October 19.

Was there reliance by Sanderson on inspections made by Mason to the extent that Sanderson was induced to forego its own inspections?

Stegall testified that he relied on Mason’s inspections of the machines. The reliance by Stegall on Mason consisted of complying with Mason’s recommendations when the latter was called in because of trouble with a particular machine. This was because “I relied upon him. He was the insurance man and he had been in the business for years. I figured it was for the company’s [Sanderson’s] benefit to follow his directions.”

We find no basis in the evidence for a finding that Sanderson was induced by Mason’s undertaking to forego taking precautions against harm to its employees or third persons for the following reasons: (1) Mason did not undertake to make safety inspections or general system-wide maintenance inspections; (2) the insurance policy did not require or contemplate that Hartford or its agent would be obligated to oversee the maintenance and safety of Sanderson’s equipment; (3) Sanderson employed an experienced refrigeration mechanic as superintendent and six other mechanics who continuously engaged in maintaining the equipment on a twenty-four-hour basis; (4) the inspections Mason made for Hartford were for the purpose of reducing Hartford’s losses; (5) there is no proof that Hartford undertook the duty of discovering unsafe conditions in Sanderson’s plant, the recommendations Mason made falling far short of a system-wide assumption of Sanderson’s duty to provide his employees with reasonably safe appliances; (6) Mason’s visits to the plant were sporadic, usually when there was trouble with a specific machine; and (7) the fact that when it was suspected that the machine in question might not be functioning properly, Sander-son’s mechanics undertook to go into it, inspect, and reassemble it in Mason’s absence.

The opinion in Stacy v. Aetna Casualty & Surety Co., 484 F.2d 289 (5th Cir. 1973), contains a good analysis of the question of reliance and the application of section 324A to the factual situation there involved. Accord Tillman v. Travelers Indemnity Company, 506 F.2d 917 (5th Cir. 1975).

Applying section 324A in the light most favorable to plaintiff, there is no evidence to satisfy either of the conditions plaintiff must meet to establish liability. The trial court erred in refusing Hartford’s and Mason’s requested peremptory charge.

We do not reach other questions, including the claim of immunity, raised by Hartford and Mason.

REVERSED AND JUDGMENT HERE FOR APPELLANTS.

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

      . The facts do not bring the present case within Rule 324A and we do not decide whether or not the rule should be adopted in whole or in part.

      . Either under the policy or by having gratuitously or otherwise assumed it.


author: JONES, Justice.

text:
    Lela HANNAH and C. H. Hannah v. CENTRAL BANK OF BIRMINGHAM and John C. Henley, III, as Executor of the Estate of Delia Truss Robert, Deceased, et al.
    SC 1651.
    Supreme Court of Alabama.
    Dec. 17, 1976.
    Rehearing Denied Feb. 4, 1977.
    William E. Hereford, Jr., Gaines, Hereford & Cleckler, Pell City, for appellants.
    E. M. Friend, III, Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellees.
   JONES, Justice.

This case involves the conveyance of 280 acres of land by Mrs. Delia Robert valued at $182,000 and sold for $12,000 to C. H. Hannah and his wife, Lela. The Hannahs subsequently conveyed a portion of the property to Jimmy Hardwick. Two years subsequent to her conveyance-to the Han-nahs, Mrs. Robert conveyed this same property in a charitable trust agreement with the Central Bank of Birmingham.

Mrs. Robert’s complaint alleged that she did not understand the nature of the transaction due to her age (86) and physical and mental condition at the time of the transaction. Subsequent to the filing of this suit, Mrs. Robert died and the suit was revived by the Central National Bánk of Birmingham as trustees of Mrs. Robert’s charitable trust.

The Hannahs had rented this property for fifteen years from Mrs. Robert. The evidence shows that, on the day of conveyance, the Hannahs picked Mrs. Robert up from her house in Birmingham and drove her to Pell City where the property is located. The Hannahs allege that on that day their lawyer apprised Mrs. Robert of the consequences of her action. The lawyer testified in court that Mrs. Robert was aware of her action.

Mrs. Robert had filed suit seeking to set aside the deed, to set aside any conveyance of any part of the property to people not bona fide purchasers for value, and to account for any such sale. Apparently, a pre-trial order was issued stating that Jimmy Hardwick may be a necessary party. Trial was commenced, however, without the Hardwicks and, because of this, the Han-nahs moved for a continuance. Central Bank’s attorney advised the court that their discovery showed that Hardwick was a bona fide purchaser for value and, therefore, not an indispensable party. The trial Judge overruled the motion for continuance.

The trial Judge, hearing the evidence ore tenus without a jury, weighed the conflicting evidence as to Mrs. Robert’s condition on the day of the transaction and found that the Hannahs had exerted undue influence on Mrs. Robert. The trial Judge also found that Mrs. Robert did not have the mental ability to understand the significance of what she was doing. After stating his findings of facts, the Judge decreed that the deed be declared null and void and ordered the conveyance be set aside. The Judge further ordered the Hannahs to account for the money paid them by Jimmy Hardwick in the subsequent conveyance.

Two issues are presented on appeal. The first is whether the trial Court committed reversible error by not requiring Central Bank to add Jimmy Hardwick as a necessary party pursuant to its pre-trial order. Secondly, we must determine whether the trial Court’s finding of undue influence is supported by credible evidence.

As to the first issue, there is some question regarding the addition of Hardwick at pre-trial as an indispensable party. It appears that the trial Judge merely expressed his opinion that Hardwick may be a necessary party. In any event, Rule 16, ARCP, states that a pre-trial order may be amended at trial by the judge to prevent manifest injustice.

The Hannahs agreed that Hardwick was a bona fide purchaser for value. The Court, properly exercising its discretion, determined that the Hardwicks were not necessary parties. Hardwick did not fulfill the requirements set out in Rule 19, ARCP, to qualify as a necessary party. His interest was not and could not have been affected by the findings of the trial Judge. We say this because the relief prayed for in the complaint asks for an accounting for any property sold to bona fide purchasers. As stated in paragraph 9 of the complaint, “. . . the plaintiffs will seek court approval to amend their complaint by adding the aforesaid Hardwicks as parties defendant to this suit in the event that they do not have the status of bona fide purchasers for value.” The Hannahs must not be allowed to complain of surprise at the trial Judge’s actions when they knew that the Hardwicks were bona fide purchasers and were put on notice by Central’s complaint as to the action Central would take when this determination was made.

As to the second issue, the Hannahs request this Court to set aside the findings of the trial Judge that undue influence was exerted upon Mrs. Robert and that she did not understand the consequences of her action.

There is no question that conflicting evidence was presented in this case concerning undue influence and Mrs. Robert’s capacity. However, as this Court stated in Gamble v. Moore, 278 Ala. 104, 176 So.2d 35 (1965), where testimony in an equity suit to have a deed declared void was taken ore tenus, any conflict in evidence could better be resolved by the trial court rather than an appellate court. Mr. Justice Bloodworth, speaking for the Court in Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695 (1975), stated, “This rule is especially applicable when, as here, the oral testimony of witnesses is in direct conflict and some of the testimony supports the trial court’s findings.”

We find ample credible evidence to support the trial Judge’s findings. Thus, we affirm.

AFFIRMED.

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


author: JONES, Justice. BLOODWORTH, Justice

text:
    Lacey H. NICHOLS, III, who sues as Administrator of the Estate of Lacey H. Nichols, Jr., Deceased, v. SEABOARD COASTLINE RAILWAY CO., a corp., et al.
    SC 1590.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    Rehearing Denied Feb. 4, 1977.

      Selman & Beard, Jasper, and Hogan, Smith & Alspaugh by W. Clay Alspaugh, Birmingham, for appellant.
    Morris W. Savage of Bankhead, Savage & Stephens, Jasper, for appellees.
   JONES, Justice.

Plaintiff, Lacey H. Nichols, as personal representative of his deceased father, appeals from an adverse judgment and order overruling his motion for a new trial. The suit is based on a crossing accident claiming damages for wrongful death against Seaboard Coastline Railway Co. and its employee, Jim C. Laird.

The sole dispositive issue may be stated: Where extraneous material was introduced into the jury’s deliberations, must actual prejudice be shown to work a reversal of the verdict? We hold that the character and nature of the extraneous material in this case constitutes prejudice as a matter of law and no showing that the jury was in fact influenced thereby in arriving at their verdict is necessary. The trial Court erred in overruling the motion for a new trial; therefore, we reverse and remand.

Because each “extraneous matter” case must be decided in light of its particular facts and attending circumstances, it is essential that we set forth the factual context in which this issue is presented. Following the close of the evidence (May 28), the Court gave a rather lengthy jury instruction — both oral and written requested charges — including, for example, the legal definitions of negligence, contributory negligence, subsequent negligence, subsequent contributory negligence, and wantonness.

After deliberating for some period of time, the jury came in and asked the Court the following question:

“Judge, we ask for more clarification on negligence. We are confused. We can’t remember all that we heard and could we have that? That is what has us confused. There was more than one kind and we are confused.”

The Court responded:

“Let me ask this before answering your question, would you gentlemen like to go home and get a good night’s rest and come back tomorrow and take up? It would be improper for the Court to recharge on the law. You have been charged on the law, and it would be improper for the Court to undertake to charge all of it. For that reason, I wonder if you . . . you are like the rest, you are tired and I wonder if you would like to go home and come back tomorrow. We will get out and let you decide.”

The following morning (May 29), upon the jury’s arrival in the courtroom, the Court said:

“Mr. Foreman, in regard to your statement made by you as foreman of the jury to the Court yesterday afternoon before you adjourned for the night, the Court wants to state this in regard to additional instruction. The Court feels it would be improper to rehash what has already been given. Court might not use the same language and there might be different interpretations put on it and the Court feels it might be improper. If there is additional instructions as to the law that the Court didn’t charge on that is applicable in the case, I think that would be proper, but the Court doesn’t know of any law that it did not charge on that he feels is applicable. If you would like to just briefly apprise the Court of what the jury had in mind for additional instructions, all right, or if you feel, all of you feel, that you are now ready to go back and deliberate and have discussions and it might clarify things then we will withdraw and let you go right in to your work this morning.”

The jury foreman responded:

“Your Honor, I think . . . what we wanted was clarification and not instructions. That was the way I asked for it. But, I believe we can go ahead this morning.”

One of the grounds of Nichols’ motion for a new trial raised the “extraneous matters” issue and attached affidavits of five jurors, which, though varying as to certain minor details, stated in substance the following: Shortly after the jury began its deliberations on the morning of May 29, one of the jurors took a piece of paper from his pocket, explained that he had looked up some definitions the night before, and listed on the blackboard the terms negligence, contributory negligence, subsequent negligence, and subsequent contributory negligence. He then stated the definitions of these terms which he said he had gotten from the World Book Encyclopedia. He further advised the other members of the jury that, by the law as he understood it, if both parties contributed to the fault of the accident, the jury could not find against the defendants.

Three of the affidavits contained statements to the general effect that several members of the jury, who had felt after the first day’s deliberations that the plaintiff should recover, accepted the juror’s explanation of the legal terms from the World Book and changed their minds in favor of the defendants.

At the hearing on the motion for a new trial, eleven of the twelve jurors (one was physically disabled) testified in person and disclosed without material variation essentially the same account of the jury room events on the morning of May 29. Four other jurors (in addition to the one named in the affidavits) stated that they too had consulted either the World Book or the American College Encyclopedic Dictionary to clear up confusion concerning several legal words and phrases. One of these publications cites a railroad crossing accident to illustrate “negligence” and “contributory negligence.” Several of the jurors testified that, in spite of the definitions of the legal terms from the reference books discussed by the jury, they based their verdict on the evidence from the “witness chair” and on the law as charged by the Court.

The trial Judge asked a juror — one of the four who testified they had consulted the World Book for definitions — the following question:

“Did you base your verdict on what was in the book solely or did you base it on the evidence and the law that was given to you in the Court room?”

The juror answered:

“I did not base it on the book. I looked it up on what you gave us, the law and I understood that if he contributed to the accident that he could not receive . I looked it up to be sure I understood what you gave.”

Our resolution of the issue here presented presupposes two propositions:

1. We aré not faced with the general rule which forbids jurors from impeaching their own verdict. This well entrenched rule relates to intrinsic influence and is based on the sound public policy of judicial administration which zealously guards the sanctity of the jury room. Dumas v. Dumas Brothers Manufacturing Company, Inc., 295 Ala. 370, 330 So.2d 426 (1976); Alabama Fuel & Iron Co. v. Powaski, 232 Ala. 66, 166 So. 782 (1936); Central of Georgia Ry. Co. v. Holmes, 223 Ala. 188, 134 So. 875 (1931).

2. Definitions of legal terms and concepts (negligence, contributory negligence, subsequent negligence, subsequent contributory negligence) from general reference books (World Book and American College Encyclopedic Dictionary) are extraneous matters and fall within the exception to the general rule which, likewise, is well recognized in our case law. Weekley v. Horn, 263 Ala. 364, 82 So.2d 341 (1955). The fact that the books themselves were not before the jury does not vitiate the operative effect of this exception to the general rule, for, indeed, there is no contention that this extraneous matter was not before the jury during its deliberations and before it reached a unanimous verdict.

Within the context of these facts and legal premises, then, the issue is narrowly focused: whether the movant bears the burden, as a matter of law, to prove to the reasonable satisfaction of the trial judge that such extraneous matter was, in fact, prejudicial. Seaboard claims that the law places this burden on the movant, and that the trial Judge has resolved the factual issue of prejudice against the plaintiff and in favor of the railroad and its employee.

We disagree. We hasten to add, how-' ever, as previously noted, our holding is restricted to the particular facts and attending circumstances of the instant case. The difficulty of stating with precision a legal principle to govern the “extraneous facts” exception to the general rule was recognized in Weekley v. Horn, supra, in which Mr. Justice Mayfield, speaking for the Court, said:

“No cases are brought to our attention wherein this court has sought to define the meaning of extraneous facts within the stated exception. The cases which the appellant brings to our attention involve the consideration by juries of papers, documents, a dictionary, etc., which were not introduced into the evidence. We shall not here attempt to define and limit the term extraneous facts as embraced in the exception to the general rule.”

While the concern of the Weekley Court was whether the alleged influences were extraneous (invoking the exception) or intrinsic (within the general rule prohibiting impeachment), the “extraneous influence” cases have turned chiefly on this same inquiry rather than on a definitive rule requiring proof of actual prejudice. For example, Dulaney v. Burns, 218 Ala. 493, 119 So. 21 (1928), interpreting Leith v. State, 206 Ala. 439, 90 So. 687 (1921), says, “It must appear that injury was done by the extraneous matter being before the jury.” At first glance the emphasis here seems to be on the introductory phrase, “It must appear that injury was done . . . ”— implying that movant has the burden of proving injury. The holdings of Leith and Dulaney, however, do not bear this out.

Leith rejected jury impeachment testimony because the trial judge found the extraneous matter was not before the jury until after the verdict had been reached. Dula-ney holds that dictionary definitions of common words, commonly understood, did not in fact constitute-extraneous matters. Thus, the proper emphasis on the quoted portion of Dulaney is, “ . . . by the extraneous matter being before the jury.” In other words, Leith found the extraneous matter was not before the jury, and Dula-ney found that the matter before the jury was not extraneous. Neither turned on lack of proof that extraneous matter before the jury was not in fact prejudicial. See Louisville & Nashville Railroad Co. v. Sides, 129 Ala. 399, 29 So. 798 (1900). See also McCormick v. Badham, 204 Ala. 2, 85 So. 401 (1919).

Weighing heavily against the absolutism of a rule impeaching all extraneous matter verdicts is the well established rule that jury verdicts are presumed to be correct, and that this presumption is strengthened when the trial court, as here, refused to grant a new trial. Allred v. Dobbs, 280 Ala. 159, 190 So.2d 712 (1966). It is the head on collision course of these two dominant rules — the presumption of correctness of jury verdicts versus the right to a fair and impartial trial, governed exclusively by the evidence given from the witness stand and the law given by the court — that requires us to resolve this issue on a case by case basis.

Only by individual consideration of all attending circumstances of each case can it be determined which one of these fundamental rules must give way in accommodation to the other. We are unwilling to say every extraneous matter verdict must be set aside absent a factual showing to the reasonable satisfaction of the trial judge that the verdict is the prejudicial result of such extraneous matters. See, for example, Clay v. City Council of Montgomery, 102 Ala. 297, 14 So. 646 (1893).

In concluding that the “fair and impartial trial” rule must prevail in the instant case, we think it appropriate to observe that our holding is not in the spirit of blameworthiness with respect to the conduct of this jury in seeking to inform themselves on matters material to their consideration. To the credit of the system, present-day jurors are not only better informed and more sophisticated, but they show an increasing willingness to serve and conscientiously discharge their civic responsibilities as the fact finders within the constitutional framework of our judicial system.

The record in this case clearly shows that several jurors became concerned over their confusion of definitions of certain legal terms. The confusion is understandable; the case, while not overly complicated factually, involved the most intricate of legal concepts of tort liability and countervailing defenses. This lack of understanding is no reflection on the accuracy or completeness of the judge’s instructions to the jury. What is routine within the professional training and discipline of lawyers and judges is nonetheless novel and outside the common experience of lay jurors. Any credible verdict, reflecting justice among the parties, must of necessity apply the facts as found by the jury to the law of the case, and this application cannot be made where there is confusion and doubt as to the applicable legal concepts.

This confusion was communicated to the Court. When the Court declined to assist the jurors to a better understanding of the law applicable to the case, they were left either to proceed in their confusion or to resort to their own initiative to alienate their uncertainties. Given this choice, the jurors can hardly be blamed for looking to their home reference books during the night recess to clarify in their minds the legal concepts essential to a resolution of the case.

The quoted portion from the record of the conversation between the trial Judge and the jury foreman before deliberations resumed on the early morning of May 29 completes the story. When the Judge reiterated his reluctance to reinstruct on any matters covered in his original charge, we can hear in the foreman’s actual response the further implication: “That’s all right, your Honor, we understood when we were excused for the night that you would not instruct further on the points of our confusion; so, overnight, we have cleared up these matters on our own, and we are now ready to proceed without additional instructions from the Court.”

Thus, it is within the context of all the circumstances attending this particular case that we hold the trial Court erred in overruling the motion for a new trial on the allegation and showing that extraneous matters were before the jury during its deliberations. The time honored assertion of our constitutional forebearers — “We are a government of laws and not of men”— dictates the traditional separation of functions between the court as the law giver, on the one hand, and the jury as the fact finder, on the other hand. Indeed, the record here discloses seven different references by the Court in its jury instructions to these separate functions of the court and jury. Three examples are found in the following quotations from the trial Judge’s charge:

“It is further the duty of the Court to preside at the trial and pass upon matters of evidence and objections, both in the taking of testimony and in the arguments, and finally, of course, to charge you gentlemen what the law is. .
“The jury also has its duty, and a very important duty, and it is so for this reason; if the Court gives you a statement about what the law is and if the Court is incorrect, any party who is hurt by it may review the Court in a higher Court and have it corrected . . . It is for you and you alone to determine what the truth is from the disputes in the testimony and, of course, to take the law that the Court gives you and apply that to the truth and thus arrive at your verdict in this case .
“ . . .On the one hand is the evidence. You can’t ignore the evidence nor go outside of it in deciding any issue involved. And on the other hand is the law — you can’t ignore that or set it aside.”

The trial Court was not without prece-dential authority for these instructions. The decisional law of this State is replete with clear and definitive statements of the rule. Relying on a series of earlier cases, the Court in White v. State ex rel. Hardegree, 256 Ala. 18, 53 So.2d 599 (1951), stated:

“ ‘It is essential to an orderly administration of justice that juries should obey the instructions of the court. If the court is in error in giving instructions, the jury should, nevertheless, obey the instructions, and the injured party would have recourse by appeal to this court, which is the proper forum to pass upon the actions of the trial court.’ ”

The Court of Appeals, in commenting on the discretion of the trial Court in allowing an attorney to read a Code section to the jury, stated, in City of Anniston v. Oliver, 28 Ala.App. 390, 185 So. 187:

“The reason for this is obvious. The duty of the jury is to try the facts and apply such facts to the law as given them in charge by the court. It is the duty of the court to declare the law, and it is the duty of the jury to follow the law as given them in charge by the court.”

Suppose, in this case, counsel for one of the parties, while addressing the jury during closing arguments, had said: “Ladies and Gentlemen of the jury, the Court is going to charge you on several very complicated legal concepts and definitions of legal terms. Because you may be left confused by all this legal talk, let me read the definition of several of these terms from the World Book Encyclopedia and the American Coliege Encyclopedic Dictionary." The impropriety of such a practice lies not in the fact that the statement is being made by counsel (which ordinarily is within the discretionary rule) but in the source of the material.

To further illustrate the point: Under the above hypothesis, it could hardly be contended that any error in admitting such argument would be rendered harmless absent a showing that the jury was in fact influenced by such extraneous matter. This clearly falls within the category of one of those bells which the law recognizes cannot be unrung.

In conclusion, we emphasize that our disapproval of the source of the extraneous material — here condemned as prejudicial as a matter of law — consists not in any technical fallacy in defining the legal terms in question. We pass no judgment on the accuracy vel non of the abstract definitions of the various legal terms contained in the two reference books discussed by the jury. Rather, it is the use of any source, beyond the court itself, for instructions on the law of the case that condemns such practice.

Explanations and definitions of legal concepts — even when technically correct — are rarely meaningful in the abstract. It is the interplay of these concepts — one with the other — explained by the court to the jury, in the formal setting of the courtroom and in the context of the particular facts of a given case, that breathes life and meaning into the law of the case. Only through this orderly procedure is the jury capable of discharging its sworn duty to apply the law as charged by the court to the facts of the case “ . . . and true verdict render according to the evidence, so help me God.”

REVERSED AND REMANDED.

FAULKNER, J., concurs.

HEFLIN, C. J., concurs in the result.

BLOODWORTH, J., concurs specially.

MADDOX, ALMON, SHORES, EMBRY and BEATTY, JJ., concur with BLOOD-WORTH, J.

BLOODWORTH, Justice

(concurring specially).

I concur in the result to reverse and remand this cause for a new trial. I do not agree with some of the reasons given nor with some of the language used in Justice Jones’ opinion justifying the reversal.

I would hold that the introduction into the jury room during deliberations by jurors of definitions of “negligence” and “contributory negligence,” obtained from World Book Encyclopedia, constituted the introduction of extraneous matters which were “prejudicial” to plaintiff under the facts of this case. It is therefore that I concur in the result to reverse and remand for a new trial.

I do not agree that no prejudice need be shown in this case. I simply say that it is clear here that prejudice has been shown under the facts of this case.

Our ease law has long required, in the absence of improper act of the prevailing party, that prejudice must be shown. Faust v. Miller, 260 Ala. 665, 72 So.2d 294 (1954).

See also Davis v. Damage, 328 S.W.2d 203 (1959) where the Texas Court of Civil Appeals held that the question as to the use of a dictionary by the jury to look up “proximate cause” must be shown to constitute “prejudice.”

The events which culminated in the introduction of the “extraneous matter” here complained of had their origin in the eminent and distinguished trial judge’s refusal to charge the jury further when they asked for additional instructions.

I think it not amiss here to strongly suggest that trial judges ought to accede to juror’s requests for additional instructions or for those instructions already given to be repeated. The court reporter's notes will, of course, reflect what was said by the trial judge.

MADDOX, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


author: SHORES, Justice.

text:
    Lizzie B. SNIDER et al. v. Joseph Emil SHIRLEY, Jr., et al.
    SC 1771.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    Rehearing Denied Feb. 11, 1977.

      Olin W. Zeanah and Wilbor J. Hust, Jr., of Zeanah, Donald, Williams & Hust, Tuscaloosa, for appellants.
    E. D. McDuffie of McDuffie & Holcombe, Tuscaloosa, for appellees.
   SHORES, Justice.

This litigation involves a disputed boundary line between property owned for many years by the Shirley family and the adjoining property owned by the Snider family. According to the record title, the boundary line between the property of each family is the section line. However, the Shirleys contend that, for more than thirty years, both families have recognized as the boundary line between their respective properties an old fence and hedgerow, which the evidence shows has been on the property for many, many years. It is this same fence and hedgerow which were involved in litigation between other coterminous owners in Hagler v. Clark, Ala., 337 So.2d 327, decided September 3, 1976.

This litigation was begun when Mrs. Margaret Shirley Koster filed suit against Lizzie B. Snider and Arlo J. Snider asking the court to establish a boundary line between their respective properties. She alleged that the proper boundary line was the hedgerow and that the defendants Sniders have been destroying the hedgerow and trespassing on her property. Another Shirley, who also owned land adjacent to that of the Sniders, filed a second complaint alleging essentially the same facts. The Sniders denied that the hedgerow was the boundary line and contended that the section line was the boundary between the properties.

The trial court heard evidence from both sides and entered a judgment specifically finding that the boundary line between the parties was the hedgerow with the remnants of a wire fence which had been in existence for more than twenty years, and that it had been recognized as the true boundary line by the parties for many years. The Sniders appealed.

There is evidence from which the trial court could have concluded that the parties have recognized the hedgerow as the dividing line between their property for more than sixty years. Also, there is evidence from which it could have concluded that the Shirley family has claimed the property up to the hedgerow for that period of time. This court has repeatedly held that “A decree establishing a boundary line between coterminous lands on evidence submitted ore tenus in open court is presumed to be correct; and in such cases the trial court’s conclusions will not be disturbed unless plainly erroneous or manifestly unjust. . ” Thames v. Henson, 293 Ala. 458, 459, 305 So.2d 365 (1974).

A decree fixing a boundary line between coterminous owners must only be supported by credible evidence and, when presented with a boundary line dispute, the trial court has a duty to “. . . sift the evidence and make a determination as to the location of the true boundary . . . ” Edwards v. Farmer, 285 Ala. 118, 121, 229 So.2d 507, 509 (1969).

Under the evidence in this case, the trial court was clearly justified in fixing the boundary line between the parties as it did.

AFFIRMED.

MADDOX, FAULKNER and BEATTY, JJ., and EMBRY, FRANK B., Supernumerary Circuit Judge, sitting by designation of the Chief Justice, concur.


text:
    Austin PUGH v. Lizzie ANDERSON.
    SC 1941.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    Rehearing Denied Feb. 11, 1977.
    William H. Saliba, Mobile, for appellant.
    Harry Seale, Mobile, for appellee.
   SHORES, Justice.

The following finding of facts was made by the trial court at the request of the appellant, Pugh:

During the early part of 1975, the State of Alabama filed, in the Probate Court of Mobile County, an eminent domain proceeding to condemn the major part of certain real property located on Moffat Road in the City of Mobile. The property was owned by Mrs. Lizzie Anderson.

On March 10, 1975, the probate court entered a judgment condemning the property and fixing an award of $75,000 for the taking of the property. The state appealed to the Circuit Court of Mobile County on March 11, 1975.

On April 17,1975, Pugh intervened in the proceeding in the circuit court, claiming that he was a lessee of all of the property under two leases from Mrs. Anderson, which leases were to terminate on September 1, 1979.

On June 10,1975, Pugh filed in the circuit court a motion seeking to join the action pending in the circuit court with an unlawful detainer action which Mrs. Anderson had filed against Pugh in the Inferior Civil Court of Mobile County on May 29, 1975. Judgment in the unlawful detainer action was rendered in favor of Mrs. Anderson in the inferior court on June 11, 1975, and Pugh appealed the adverse judgment against him to the circuit court.

On November 12, 1975, by agreement of all the parties concerned, Mrs. Anderson and Pugh, an order was signed by the circuit judge in the condemnation case reducing the award made in the probate court from $75,000 to $70,000. Subsequently, Mrs. Anderson was permitted by order of the circuit court to withdraw $40,000 of this amount, leaving $30,000 to be paid to the party or parties entitled thereto.

On December 19, 1975, a summary judgment was rendered in favor of Mrs. Anderson in the unlawful detainer action appealed from the inferior court, upholding the judgment of that court ordering the eviction of Pugh from the property. No appeal was taken by Pugh from the judgment of the circuit court upholding the judgment of eviction.

In June, 1976, the court entered judgment in the condemnation case ordering the remaining $30,000 of the award paid to Mrs. Anderson. The appeal by Pugh is from that judgment.

Mr. Pugh contends that the trial court erred in failing to award him any amount for his leasehold interest in the condemned property.

The thrust of Pugh’s argument is that Mrs. Anderson lost all right to evict him from the premises when the state filed its petition for condemnation. He concedes that he paid no rent on the premises after April 9, 1975, but he argues that the landlord lost all right to any rent after the condemnation proceeding was commenced and that, therefore, the unlawful detainer suit was groundless in that Mrs. Anderson had no right to evict him. Mr. Pugh made these same arguments in the unlawful de-tainer action in both the Inferior Civil Court of Mobile County and the Circuit Court of Mobile County. Both courts ruled adversely to him and in favor of Mrs. Anderson. Mr. Pugh did not appeal from the judgment rendered in the circuit court on December 19, 1975, which held that Pugh’s right of possession of the premises terminated on April 9,1975, for failure to pay the rent provided for in the two leases. The trial court specifically took judicial notice of the record in the unlawful detainer case, and specifically noted that no appeal had been taken from that judgment.

It had been judicially determined that Pugh had no interest in the property by virtue of the two leases as of April 9, 1975. He, therefore, had no standing to intervene in the condemnation proceeding when he attempted to do so on April 17, 1975.

The only basis of a claim by Pugh to any of the condemnation award was his status as a lessee of the property, and his assertion that Mrs. Anderson had no right to oust him from the premises in the unlawful de-tainer action. This amounts to no more than a collateral attack on the judgment of the court in the unlawful detainer action. A. B. C. Truck Lines v. Kenemer, 247 Ala. 543, 25 So.2d 511 (1946); Wise v. Miller, 215 Ala. 660, 111 So. 913 (1927). Pugh’s remedy was by appeal from the judgment entered against him in the unlawful detainer action. His only explanation for not pursuing that remedy was that the building burned down in the summer of 1975. We cannot agree with him that this event rendered the question of Mrs. Anderson’s right to maintain the action moot.

We find no error to reverse and, therefore, affirm the trial court.

AFFIRMED.

HEFLIN, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: MADDOX, Justice. JONES, Justice

text:
    In the Matter of Alfred Lee BOYD v. STATE of Alabama.
    SC 1998.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    Rehearing Denied Feb. 4, 1977.

      Guy F. Gunter, III, of Maye, Melton, Kent & Gunter, Opelika, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State, appellee.
   MADDOX, Justice.

This appeal challenges the constitutionality of the juvenile transfer of jurisdiction statute (Title 13, § 364, Code). A brief statement of the case is necessary to pose and treat in context the issue presented.

A petition was filed in the juvenile court of Lee County, Alabama on June 5, 1976, alleging that Alfred Lee Boyd, age 15, was a delinquent child. The petition contained an allegation that Boyd had committed the offense of assault with intent to ravish. The juvenile court entered an order of temporary detention of the juvenile on June 6, 1976. The State, on June 10, 1976, filed a motion in the juvenile court for the transfer of the defendant from the jurisdiction of the juvenile court to the jurisdiction of the circuit court of Lee County, Alabama. A hearing was held in the juvenile court on the State’s motion for transfer. The juvenile court judge found that the State had failed to prove that the juvenile Boyd could not be made to lead a correct life and could not be properly disciplined under the provisions of Title 13, §§ 350-383, Code; therefore, the juvenile court denied the State’s motion for transfer. The State appealed to the circuit court.

The juvenile, through his appointed attorney, filed a motion to dismiss the appeal in which he claimed that the circuit court lacked jurisdiction. He also filed a motion to quash, in which he attacked the constitutionality of Title 13, § 364, as follows:

“4. That the provisions of Title 13, Section 364 require the Juvenile Court to make two findings of fact: (1) That the defendant is a delinquent child and (2) The defendant is incorrigible — he can not be made to lead a correct life and can not be properly disciplined. This conclusion is supported by the case of Rudolph v. State, 286 Ala. 189, 238 So.2d 542 (1970) in which the court held: under our statute (Title 13, Section 354) the proceedings in the Juvenile Court are to determine whether the child so charged has committed unlawful acts alleged in the petition. Before a minor over 14 may be transferred from Juvenile Court and tried in court having jurisdiction over the offense with which the child is charged, and before such child may be subjected to criminal prosecution like an adult, the court must first determine whether the child is a delinquent child.
“5. The words delinquent child are defined under the provisions of Title 13, Section 350(3) as follows: A delinquent child shall mean any child while under sixteen years of age violates any penal law of the United States or of this State, or any regulation, ordinance or law of any city, town or municipality, or who commits any offense or act for which an adult could be prosecuted in a method partaking of the nature of a criminal action or proceeding; or who is beyond the control of his parents, guardian or custodian, or who is otherwise incorrigible, or who is guilty of immoral conduct; or who is leading an idle, dissolute, lude or immoral life; or who engages in any calling, occupation, or exhibition punishable by law or is found in any place permitting for which an adult may be punished by law.
“6. That in Breed v. Jones, [421 U.S. 519], 95 S.Ct. 1779 [44 L.Ed.2d 346] (1975) the United [States] Supreme Court held that a State prisoner is put in jeopardy at a Juvenile Court adjudicatory hearing, whose object is to determine whether the defendant has violated a criminal law and as a result should stand prosecution as an adult after a finding that he was unfit for treatment as a juvenile. In footnote 16 of that opinion the United [States] Supreme Court cited Alabama as a,jurisdiction that requires a finding of delinquency before the transfer of the juvenile to an adult court.
“7. That as a prerequisite for this Honorable Court to order a transfer of jurisdictions, the Court would be required to find that the defendant was a delinquent child and violated a criminal statute as alleged in the petition; that is — assault with intent to ravish.
“8. That the Alabama transfer provision, Title 13, Section 364, is unconstitutional because it deprives the defendant of the constitutional protection against multiple trials in violation of the Fifth Amendment of the United States Constitution.”

The juvenile court denied the juvenile’s motion to quash, but also denied the State’s motion to transfer. The circuit court denied the juvenile’s motion to dismiss the appeal and motion to quash, which the juvenile refiled in circuit court, and ordered the defendant transferred to the jurisdiction of the circuit court of Lee County for trial as an adult.

Section 364, in pertinent part, provides:

“If, at any time, after thorough investigation or exercise of its disciplinary measures, the juvenile court shall be convinced that a delinquent child, more than fourteen years of age, brought before it under the terms of this chapter cannot be made to lead a correct life and cannot be properly disciplined under the provisions of this chapter, the juvenile court . . . shall have authority to transfer the care of such delinquent to the jurisdiction of any other court in the county having jurisdiction of the offense with which said child is charged, there to be proceeded against according to law.

This section makes no reference to right of appeal by either party. The State claims the right of appeal of the juvenile court’s adverse ruling pursuant to § 362, which, in pertinent part, provides:

“Any party aggrieved may take an appeal from any judgment or order of the court arising under provisions of this chapter to the circuit court of the county sitting as a court of equity Upon appeal, the circuit court shall try the case de novo and shall proceed, under and in pursuance of the intent and terms of this chapter, to render such judgment as to it shall seem just and for the best interest of the child. . .

The State cites as authority the following cases: Seagroves v. State, 279 Ala. 621, 189 So.2d 137 (1966); Duck v. State, 278 Ala. 138, 176 So.2d 497 (1965). In each of these cases, the juvenile defendant appealed from the juvenile court’s order of transfer. The introductory phrase, “Any party aggrieved,” of § 362 indicates, on the surface that the right of appeal is available to either the defendant from an order of transfer or to the State from an order denying transfer.

As is apparent from the juvenile’s motion to quash, he believes that the juvenile court was required by statute to find him delinquent because he had committed the offense of assault with intent to ravish before it could order a transfer. See paragraph No. 7 of his motion which is quoted above. If the juvenile is correct, the State could never proceed against a juvenile as an adult when he had committed a criminal offense because any adjudicatory finding in juvenile court that he had violated a criminal statute would cause jeopardy to attach. He could not then be prosecuted as an adult. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).

The record filed here is silent as to whether there was an adjudicatory finding of delinquency that Boyd had committed the crime of assault with intent to ravish. However, every indication is that there was no such adjudicatory finding.

As we read Breed v. Jones, the State is required to determine whether it wants to treat a juvenile within the juvenile court system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law. As the Supreme Court noted in Breed v. Jones, 95 S.Ct., at page 1790:

“We note that nothing decided today forecloses States from requiring, as a prerequisite to the transfer of a juvenile, substantial evidence that he committed the offense charged, so long as the showing required is not made in an adjudicatory proceeding. See Collins v. Loisel, 262 U.S. 426, 429, 43 S.Ct. 618, 625, 67 L.Ed. 1062 (1923); Serfass v. United States; 420 U.S. 377, 391-392, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). The instant case is not one in which the judicial determination was simply a finding of, e. g., probable cause. Rather, it was an adjudication that respondent had violated a criminal statute.”

Our review of the record does not show that either the juvenile court or the circuit court made an adjudicatory finding that Boyd was delinquent because he had committed the offense of assault with intent to ravish. If, in fact, there was an adjudication of delinquency on this charge which does not appear of record, the juvenile can file a plea of double jeopardy in the trial on the criminal charge, as was done in Breed v. Jones.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER, ALMON, EMBRY and BEATTY, JJ., concur.

JONES and SHORES, JJ., dissent.

JONES, Justice

(dissenting):

I respectfully dissent. I agree with defendant’s contention that the legal impediment to the conclusion urged by the State is the constitutional prohibition against double jeopardy.

“That no person shall, for the same offense, be twice put in jeopardy of life or limb; but courts may, for reasons fixed by law, discharge juries from the consideration of any case, and no person shall gain an advantage by reason of such discharge of the jury.” Art. 1, § 9, Constitution of Alabama of 1901.

The constitutional dilemma faced by the State is dramatized in its own brief. Under “Statement of the Facts” appears the following:

“[T]he chief probation officer of the Lee County Juvenile Court testified that according to the school records of Boyd, Boyd had been in trouble at school for fighting, bothering other students, sticking another student with a pencil, arguing, hitting another student with a guitar, and placing his head on a girl’s breast. Boyd was repeatedly suspended, chastized, and even spanked. Boyd was finally charged with [committing a criminal offense] . . . Boyd was adjudicated a delinquent child and was sent to King’s Acres for evaluation, where he stayed for six weeks. The [criminal] charge . . . against him was heard . and Boyd was placed on probation for six months for the commission of that crime. The reports on Boyd to his probation officer were admitted as evidence for Boyd. No unfavorable reports were made against Boyd until he was charged with assaulting a twelve year old girl with intent to ravish.” [Emphasis added.]

Under the “Argument” portion of the State’s brief appears the following:

“At a hearing to determine whether a charge against a juvenile should be transferred to a court other than a juvenile court, two questions are presented: (1) whether the child is a delinquent child and (2) whether the child can be made to lead a correct life and can be properly disciplined .... A ‘delinquent child’ is defined in Title 13, Section 350(3), ... as any child who while under sixteen years of age violates any penal law of this state. Thus Boyd was proved ‘delinquent’ by the State’s evidence which showed that he had committed the crime [13 months earlier]. The State also proved that Boyd had been charged with the assault with intent to ravish of a fourteen year old girl. At trial, Boyd objected to the State’s introduction of any evidence concerning the assault with intent to ravish, thus the State did not go into details of the crime.” [Emphasis added.]

The State’s awareness of the double jeopardy problem is evidenced at the Circuit Court hearing by the District Attorney’s response to the double jeopardy defense argued by the juvenile’s counsel. I quote from the record:

“[A]s I understand Mr. Gunter’s [the juvenile’s court-appointed attorney] position, he would say that this Court would . have to . declare that this individual at this trial today, Alfred Boyd, is a delinquent in that if the Court would do that, then, of course, jeopardy would attach and any further prosecution by the State of Alabama would be unauthorized. And, of course, the State would agree with that contention, and we do not ask that Alfred Boyd be declared a delinquent at this hearing today [W]e do not believe that Title 13, Section 364, while it refers to a delinquent child, is referring to a delinquent child as being one who is just immediately been declared a delinquent in the motion to transfer hearing but, in fact, refers to a child that has been declared a delinquent on some prior occasion .
“If it please the Court, the State does not plan to offer evidence at this time with regards to any of the details of the charge of assault with intent to ravish in the petition presently on file against this individual. The State plans only to offer evidence of the prior delinquency of the child and the fact that he is incorrigible and not subject to existing juvenile procedures.”

The first horn of this dilemma is that such lack of proof leaves the Circuit Court’s finding of delinquency without supportive evidence. On the de novo appeal, the burden of proof was on the State to first show that the juvenile defendant has committed a criminal act for which he could be tried as an adult. Rudolph v. State, 286 Ala. 189, 238 So.2d 542 (1970). Otherwise stated, the alleged offense — assault with intent to ravish — shown on the petition as the conduct constituting “delinquency” must be proved or else the Circuit Court is without jurisdiction.

The mere showing of some prior adjudication of delinquency is itself subject to the double jeopardy defense; and any effort to meet this first requirement by proving one or more of the remaining statutory definitions of “delinquency” (e. g., “immoral,” “idle,” “dissolute,” “lewd,” etc.) is fraught with Due Process problems because no such conduct is charged in the petition. Title 13, § 350(3). Additionally, as I have already observed, such proof, if allowed, would still leave the Circuit Court without jurisdiction. An affirmative finding by the Circuit Court under any of the statutory definitions of delinquency, other than the commission of a crime, could result only in a retransfer of the case by the Circuit Court back to the Juvenile Court, rendering the entire transfer proceedings futile.

Unless the first element (delinquency consisting of a criminal act) is proved, the second element (incorrigibility) is never reached. Seagroves v. State, supra.

The second horn of this dilemma — the State’s attempt to avoid double jeopardy by not proving the specific act of delinquency alleged in the petition — is likewise fatal to the State’s transfer attempt. The juvenile defendant does not have to await his trial as an adult in the Circuit Court to raise as a defense . the constitutional prohibition against the risk of twice being tried and convicted for a single offense. Rather, this constitutional defense is available at the transfer hearing on the de novo appeal; and this for the reason that jeopardy attached at the earlier Juvenile Court hearing when it was determined: (1) that the 15-year-old was a “delinquent child”; (2) that the motion to transfer be denied; and (3) that the State had failed to prove the juvenile could not be made to lead a correct life and could not be properly disciplined under the juvenile code.

The adjudication of delinquency by the Juvenile Court, which is statutorily required in the transfer determination, contains all the classical incidents of jeopardy to effectively bar another trial for the same offense. Assuming — as does the majority opinion — we were inclined to rule otherwise, our holding of double jeopardy has already been mandated by the United States Supreme Court’s decision in an analogous factual situation, grounded on the Fifth Amendment to the United States Constitution, in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). There, Chief Justice Burger, speaking for the Court, said:

“[T]he risk to which the term jeopardy refers is that traditionally associated with ‘actions intended to authorize criminal punishment to vindicate public justice.’ . Because of its purpose and potential consequences, and the nature and resources of the State, such a proceeding imposes heavy pressures and burdens— psychological, physical, and financial — on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once ‘for the same offence.’ .
“[I]n terms of potential consequences, there is little to distinguish an adjudicatory hearing such as was held in this case from a traditional criminal prosecution. For that reason, it engenders elements of ‘anxiety and insecurity’ in a juvenile, and imposes a ‘heavy personal strain.’ .
“We deal here, not with ‘the formalities of the criminal adjudicative process,’ . but with an analysis of an aspect of the juvenile court system in terms of the kind of risk to which jeopardy refers. Under our decisions we can find no pérsuasive distinction in that regard between the proceeding conducted in this case . . . and a criminal prosecution, each of which is designed ‘to vindicate [the] very vital interest in enforcement of criminal laws.’ . . We therefore conclude that respondent was put in jeopardy at the adjudicatory hearing. Jeopardy attached when respondent was ‘put to trial before the trier of the facts.’ . . . that is, when the Juvenile Court, as the trier of the facts, began to hear evidence. . .”

Additionally, footnotes (16 and 19) to the Breed case contain two separate references to the Alabama transfer statute:

“[T]wo jurisdictions appear presently to require a finding of delinquency before the transfer of a juvenile to adult court. Ala. Code, Tit. 13, § 364 (1958) [see Rudolph v. State, 286 Ala. 189, 238 So.2d 542 (1970)] ...”
“[Apparently only three States presently require that a hearing on the juvenile petition or complaint precede transfer . [see Rudolph v. State, 286 Ala. 189, 238 So.2d 542] ...”

I emphasize, however, that, while I am in complete agreement with the holding and rationale of Breed, I have looked to and found in our own State Constitution adequate safeguards against being put twice in jeopardy of prosecution for a single criminal charge.

What the majority decision overlooks, in my opinion, is that this is not a case in which constitutional standards have been judicially ingrafted into an otherwise unconstitutional statute; and the State does not so contend. The transfer statute was followed by the State in its effort to transfer the case from Juvenile to Circuit Court; and this, not because I say so, but because the State frankly admits that it did. In following the statute, an adjudication of “delinquency” was made by the Juvenile Court on the State’s petition for transfer. This is not even a contested issue in the case. In this posture, Breed stands foursquare against the majority’s denial of relief. And this defect is not cured by the State’s effort to avoid a “delinquency” determination in the transfer appeal hearing in Circuit Court. As stated earlier, jeopardy had already attached.

While, absent a showing of delinquency in the commission of a criminal offense in the transfer hearing in Circuit Court, I cannot see how the Circuit Court has jurisdiction to proceed, the double jeopardy defense will again avail itself on the trial of this cause on its merits. There, on remand, the double jeopardy plea can be supported by evidence of the Juvenile Court’s transfer hearing which is missing in this record because of the de novo nature of the Circuit Court hearing now before us.

As I have previously noted, I do not intend to comment on the constitutionality of the transfer provision of the juvenile code which will shortly become effective in Alabama. It is interesting to observe, however, that all references to an adjudication of the juvenile as a delinquent have been deleted in this provision of the new Code, which, in my opinion, is an obvious attempt on the part of the legislature to comport to the constitutional requirements for transfer spelled out in Breed.

I would hold that Title 13, § 364, has been unconstitutionally applied in this case. I would reverse and remand this cause to the Circuit Court of Lee County for retransfer to the District Court of Lee County for further proceedings.

SHORES, J., concurs.

      . The record shows that the only question relative to the criminal charge alleged in the petition to which the juvenile’s attorney objected was one which asked the probation officer what the petition said. Upon objection, the District Attorney responded, “We will withdraw that and ask that the Court take judicial notice of the petition without going into the details.”

      . For an excellent discussion of this entire problem, see W. Kimmelman, Double Jeopardy: A Political Perspective, 5 Cumb.-Sam.L.Rev. 369 (1975).


author: HEFLIN, Chief Justice.

text:
    Jerry W. TILLMAN v. Dewey SIBBLES, et al.
    SC 1704.
    Supreme Court of Alabama.
    Jan. 7, 1977.

      James H. Lackey, Mobile, for appellant.
    William H. Brigham, Mobile, for appel-lees.
   HEFLIN, Chief Justice.

This appeal is from a declaratory judgment proceeding in Mobile Circuit Court, in which Tillman, a former fireman of the City of Mobile, sought a declaration of his rights under a local policeman’s and fireman’s pension fund statute found in the 1964 Acts of Alabama, 1st Special Session, p. 326, approved September 2, 1964. These parties were before this court in Tillman v. Sibbles, 292 Ala. 355, 294 So.2d 436 (1974), wherein this court reversed and remanded the case after the trial court had sustained demurrers filed by the defendants. On remand a hearing was held and the trial court ruled that Tillman was not entitled to a pension.

Appellant Tillman was employed by the Mobile Fire Department under the general classification of firefighter from 1957 to 1971. During the twelve years from 1957 to 1969, Tillman was a line fireman, during which time he sustained injury to his left knee on two occasions. After an injury to his knee in 1969, Tillman underwent surgery. At the time of his injury, Tillman was in the job classification of firefighter-driver. Upon returning to work after surgery in 1969, Tillman was given the classification of firefighter-desk operator. This job primarily involved the answering of fire phones, sounding alert gongs, alerting other fire companies, and other sedentary tasks. In October 1969, while still employed as a desk operator, Tillman applied for a pension on the basis of his disability as a result of the bad left knee. This application was denied. In early 1971, another application for pension, based on disability, was filed by Tillman and was appealed through the municipal administrative procedure and, after being denied, Tillman sought relief in the circuit court.

Tillman presented evidence at trial that he has a permanent partial disability of his left leg of 35%, and that he cannot perform the duties of a regular, active firefighter. He also presented testimony that his left knee had an unpredictable tendency to buckle and cause him to fall. The appel-lees, on the other hand, produced evidence that Tillman was physically capable of performing sedentary work and that his capability was compatible with the job of desk operator.

The findings of the trial court in its final decree included, in part, the following:

“(1) [U]nder the classified position of Firefighter there are several different grades, two of which are Firefighter-Driver and Firefighter-Desk Operator.
“(2) Jerry W. Tillman, when he applied for pension, was in the grade within Firefighter classification known as Driver, and in accordance with the law and rules of the Personnel Board was changed to the grade of Desk Operator at the same pay, after claiming to be qualified for pension under Section 13(a) [set forth later in this opinion] above.
“(3) [T]he Firefighter grade of Desk Operator can be carried out by a fireman who does not meet all of the physical requirements contained in the job description of Firefighter.
“(4) [T]he position of Desk Operator is part of the service as described in Section 13(a), above; and that the court is not reasonably satisfied that Jerry W. Tillman, is unable to perform the duties of Desk Operator.”

After a review of the record this court cannot conclude, that the findings of the trial court are without supporting credible evidence or that they are plainly erroneous or manifestly unjust. Thus, under the ore tenus rule, the findings of the trial court are presumed to be correct; and, of particular importance, here, is the finding that Tillman was physically able to perform the duties of desk operator. Martin v. Howard, 293 Ala. 36, 299 So.2d 727 (1974); San-Ann Service, Inc. v. Bedingfield, 293 Ala. 469, 305 So.2d 374 (1974); Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So.2d 847 (1973).

Tillman contends that, because there is uncontradicted evidence that he can no longer perform the duties of a line fireman, he is entitled to a pension under the following provision of Section 13(a), Act No. 243, 1st Special Session (1964):

“If any member of the * * * fire department while in the performance of his duty is found and determined to by physically or mentally permanently disabled for service by reason of such service so as to render his retirement necessary, the Board of Pensions shall make the necessary orders and shall retire such disabled member from service. * * * [Emphasis added.]

It is Tillman’s contention that the terminology, “permanently disabled for service by reason of such service,” is ambiguous and subject to two interpretations: one being, that he must be disabled for the performance of any service within the Fire Department; the other being, that he must be disabled from performing the service of “firefighter-driver” which was his designation and the type of service he was engaged in at the time of his injury. It is this latter interpretation that Tillman contends the court should adopt in light of the general rule that pension acts should be construed liberally in favor of the pensioner.

As in all cases in which this court is called upon to interpret a legislative enactment, the underlying consideration is to ascertain and effectuate the intent of the legislature as expressed in the statute. See, e. g., State ex rel. City of Birmingham v. City of Tarrant City, 294 Ala. 304, 315 So.2d 583 (1975); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In arriving at a determination of legislative intent the entire statute must be examined and, if possible, each section must be given effect. See, e. g., In re Ashworth, 291 Ala. 723, 287 So.2d 843 (1974); State ex rel. Moore v. Strickland, 289 Ala. 488, 268 So.2d 766 (1972).

It is this court’s conclusion that the legislative intent expressed in Act No. 243, which is applicable to the facts of this case, is evidenced by the language which immediately follows the emphasized language found in the quoted portion of Section 13(a) of Act No. 243 heretofore set out in this opinion. This language is “so as to render his retirement necessary.” Thus, in order to be eligible for a pension the firefighter must be determined to be physically permanently disabled for service by reason of such service so as to render his retirement necessary.

The phrase, “so as to render his retirement necessary,” clearly indicates that the Legislature had in mind that there could be instances, such as in this case, where a fireman might become disabled but not entitled to a pension because the disability would not prevent the performance of other services. The potential for abusive practices under this provision is limited by the applicability of the civil service laws and rules which ensure that under such circumstances the “service” would be lawful.

Thus, Tillman’s contention that because he is disabled from performing the duties of firefighter driver he is entitled to a pension, is not persuasive since he is able to carry out the duties of other positions in the Fire Department.

Alternatively, Tillman argues that he is not physically able to perform the duties of desk operator or any other position with a fireman’s classification, and hence should be entitled to a pension. As noted earlier, the trial court made a finding contrary to this proposition and from a review of the evidence this court cannot say that this conclusion was plainly erroneous.

No error being shown, the ruling of the trial court is affirmed.

AFFIRMED.

BLOODWORTH, JONES, ALMON and EMBRY, JJ., concur.