author: SMITH, Justice, for the Court:

text:
    STATE OIL AND GAS BOARD OF MISSISSIPPI and Texas Pacific Oil Company, Inc., et al. v. Robert S. BRINKLEY and Petro Grande, Inc.
    No. 48818.
    Supreme Court of Mississippi.
    March 30, 1976.
    A. F. Summer, Atty. Gen., by P. L. Douglas, Asst. Atty. Gen., Brunini, Grant-ham, Grower & Hewes, Edmund Brunini, Jr., Jackson, for appellants.
    Craig Castle, Green, Cheney, Jones, Hughes, McKibben & Stack, Jackson, for appellees.
    Before INZER, SMITH and SUGG, JJ.
   SMITH, Justice, for the Court:

These proceedings were begun by Petro Grande, Inc., (successor to Robert S. Brinkley), by petition addressed to the Mississippi Oil and Gas Board in which forced integration was sought of the S of the NE of Section 9 with the N of the NE 14 °f Section 9, Township 1 North, Range 11 East, Jasper County, into a proposed 160 acre drilling unit, with permission to drill. Pursuant to published notice, appellants, Texas Pacific Oil Company, Inc. (and others interested), objected, and, after a hearing, the petition was denied. Petro Grande Inc. appealed from the decision of the Oil and Gas Board to the Circuit Court of Hinds County where the order of the Oil and Gas Board was reversed. The Oil and Gas Board, Texas Pacific Oil Company, and other parties in interest, have appealed here from the ruling of the circuit court.

The proceedings are statutory and were brought by Petro Grande under Mississippi Code Annotated section 53-3-7 (1972), which provides in part:

§ 53-3-7 Integration of interests; pooling agreements and orders.
(a) When two or more separately owned tracts of land are embraced within an established drilling unit, the person owning the drilling rights therein and the rights to share in the production therefrom may validly agree to integrate their interests and to develop their lands as a drilling unit. Where, however, such persons have not agreed to integrate their interests, the board may, for the prevention of waste or to avoid the drilling of unnecessary wells require such persons to integrate their interests and to develop their lands as a drilling unit. All orders requiring such pooling shall be made after notice and hearing, and shall be upon terms and conditions that are just and reasonable, and will afford to the owner of each tract the opportunity to recover or receive his just and equitable share of the oil and gas in the pool without unnecessary expense.

Petro Grande alleged in its petition that the relief sought would result in “the prevention of waste and “avoid the drilling of unnecessary wells.”

It appears from the record that Petro Grande, (successor to Brinkley), owned the mineral interests in the S of the NE 14 of Section 9, Township 1 North, Range 11 East, in Jasper County. It owned .06% of the working interest in the NE 14 of the NE 14 of Section 9. Texas Pacific, (for convenience used in this opinion to include all objectors), owned virtually all of the working interests in the N of the NE 14 of Section 9, except the .06% of the working interests owned by Petro Grande.

Texas Pacific at one time had held the mineral leasehold in the S of the NE 14 of Section 9 and had drilled a well which had resulted in a dry hole. Since then Petro Grande has acquired this interest and in its petition sought to have it combined through forced integration with the N 14 of the NE 14 of Section 9, owned substantially by Texas Pacific.

While the matter was pending, Texas Pacific filed with the Oil and Gas Board its petition for approval of a plan for uni-tization of the Smackover Unit in the Lake Como Field which included the N J4 of the NE 14 of Section 9.

The petition of Petro Grande and the petition of Texas Pacific were mutually exclusive and patently both could not be granted. After some postponements and continuances, one of the continuances having been granted by agreement and another at the request of Petro Grande, the two interrelated (but inconsistent) matters were heard together. It does not appear that there was any objection to this procedure.

At the hearing conducted by the Oil and Gas Board, Texas Pacific put on two geologists who testified for objectors that the S 14 of the NE 14 of Section 9, sought to be integrated with the productive lands of Texas Pacific, was “dry” and was not underlain by any part of the Smackover Oil Pool of the Lake Como Field as a result of an existing fault and that there was no oil producing Smackover formation beneath the S Y2 of the NE 14 of Section 9. A geologist for Petro Grande gave a contrary opinion. The Board found, on this and other evidence, that to grant the petition of Petro Grande for the forced integration would not have the effect of preventing waste and would not avoid the drilling of unnecessary wells' and denied the petition.

On the present appeal it is argued that it was error on the part of the circuit court to hold that the Oil and-Gas Board should not have considered the geological evidence. This Court has held, however, that decisions of the Oil and Gas Board may be based upon testimony of geologists. Superior Oil Co. v. Foote, et al., 214 Miss. 857, 59 So.2d 85 (1952).

It was for the Board, as trier of facts, to decide the conflicts in the testimony given by the geologists who testified for Texas Pacific and the geologist who testified for Petro Grande.

While the posture of the case was different in Southwest Gas Producing Co. v. Seale, 191 So.2d 115 (Miss.1966), in which it was held that pooling of known dry lands with productive lands was unfair, the principle applies with equal or greater force here where such pooling is sought by forced integration.

The circuit court’s view that the role of the Oil and Gas Board with respect to Pe-tro Grande’s petition for forced integration was, in effect, ministerial and that the Board had no discretion and no alternative but to grant the petition, was not correct. The language of the statute itself provides that the Board “may” order forced integration (provided) it finds that such integration would prevent waste or avoid the drilling of unnecessary wells. In this case the Board found expressly that it would neither prevent waste nor avoid the drilling of unnecessary wells.

The action of the Board in denying the petition was within its statutory power.

In general, in the absence of a mandatory requirement, the power vested in an officer or agency to grant licenses, permits, or other authorizations carries with it the power to exercise a reasonable discretion in granting or refusing them. Administrative boards or officers empowered to issue licenses are not authorized to act arbitrarily or capriciously, but only in the honest exercise of a reasonable discretion.
[73 C.J.S., Public Administrative Bodies and Procedure, section 71 (1951)].
It is the general rule that when a public board such as the Mississippi Public Service Commission is granted certain enumerated powers, there is usually conferred the implied power that may be reasonably necessary to the performance and exercise of the powers expressly granted.
[Mississippi Public Service Commission v. Chambers, 235 Miss. 133, 142, 108 So. 2d 550, 554 (1959)].

In Barnwell, Inc. v. Sun Oil Co., 249 Miss. 398, 162 So.2d 635 (1964), this Court held:

The Board has the authority to require the operation of wells with efficient gas-oil ratios and to fix the limits of such ratios. It has authority to regulate secondary recovery methods, including the introduction of gas, air, water or other substances into the producing formation. It also has authority to allocate and apportion the production of oil or gas, or both, from any pool or field for the prevention of waste as therein defined, and to allocate such production among or between tracts of land, under separate ownership in such pool, on a fair and equitable basis, to the end that each tract will be permitted to produce not more than its just and equitable share of the pool; provided, however, the owners and producers of each discovery well in the new field or pool shall certify to the Board an itemized list of the expenses incurred in the actual drilling of the wells.
[249 Miss, at 406, 162 So.2d at 638].
The Court said:
It appears from the record that the argument of the appellants here is similar to the contention of the appellants in Corley v. Miss. State Oil & Gas Board, 234 Miss. 199, 105 So.2d 633, wherein this Court said: “Clearly the Board had the power to define the zero isopach line of the pool”, and pointed out that the Board carefully adhered to the statutory requirements of allocation by surface acreage, and that the reduction in allowable per surface acre and the redefining of the field or the aerial extent of the pool were within the Board’s statutory power. The Court then said: “Reading the conservation objectives of the Act together with the powers vested in the Board, and considering them in the light of the evidence in this case, we do not think it would be fair or equitable to permit a very small minority of small fractional owners in this common source of supply of hydrocarbons to prevent the Board and the overwhelming majority of the operating and royalty owners from pursuing a unitization program designed to obtain a maximum recovery from the field.”
[249 Miss, at 409, 162 So.2d at 639].

The circuit court was in error in considering that the Board’s failure to take action within thirty days after the conclusion of the hearing (Mississippi Code Annotated section 53-1-29 (1972)) invalidated the Board’s order. It has been pointed out that some of the delay, at least, resulted from postponements by agreement or at the request of Petro Grande. In any event, however, in Superior Oil Co. v. Foote, supra, this Court addressed the question as follows:

Hence appellees say that the hearing was concluded on July 19, and the final order was not entered until about two months thereafter on September 20; that therefore the Board did not comply with the requirement of Sec. 7(f) that it must take action within 30 days after the conclusion of the hearing; and that the order is void.
We cannot agree. The Board had the right to continue the “hearing” in order to determine what it would do. It did this on July 20 until August 17. It then rendered its opinion and continued the matter until September until a proper order could be drafted. Moreover, Sec. 7(f) does not provide that action of the Board taken more than 30 days after a hearing is invalid. That was not the legislative intent. The purpose of the statute was to place upon the Board a responsibility to act expeditiously. We do not consider whether appellees could have had any remedy by mandamus; that is not an issue here. Moreover, ap-pellees do not show that they were prejudiced in any respect by the delay in the execution of the order.
(214 Miss, at 883, 59 So.2d at 96).

It was error for the circuit court to reverse the Oil and Gas Board. The test on judicial review of the acts of an administrative body has been stated by this Court in numerous cases. In Mississippi State Tax Commission v. Package Store, Inc., 208 So.2d 46, 48 (Miss. 1968), the Court said :

The test to be applied by an appellate court to a decision of a commission or administrative agency is whether such decision is supported by substantial evidence or whether such action is arbitrary, capricious, unreasonable or an abuse of discretion.

REVERSED AND THE ORDER OF THE OIL AND GAS BOARD REINSTATED.

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


source: Caselaw Access Project

author: SUGG, Justice, for the Court:

license: Public Domain

text:
    PET, INCORPORATED, DAIRY DIVISION, and Liberty Mutual Insurance Company v. Stanley E. ROBERSON.
    No. 48610.
    Supreme Court of Mississippi.
    April 6, 1976.

      Daniel, Coker, Horton, Bell & Dukes, Donald V. Burch, Jackson, for appellant.
    Jack A. Travis, Jackson, for appellee.
    Before INZER, SUGG and WALKER, JJ-
   SUGG, Justice, for the Court:

The Workmen’s Compensation Commission awarded Stanley E. Roberson, claimant, compensation benefits for temporary total and permanent partial disability as the result of a work-related low back injury claimant sustained while in the employment of Pet, Incorporated, Dairy Division. The Circuit Court of the First Judicial District of Hinds County revered in part the order of the Commission and awarded compensation for temporary total and permanent total disability. Pet and its insurance carrier appealed and contend that the finding of the Commission was supported by substantial evidence.

We have reviewed the record in detail and conclude that there was substantial evidence to support the order of the Commission with the exception of that portion of the order that full credit be given the employer and carrier for the period of disability after injury when the claimant was paid his full salary as “sick pay.”

From January 1, 1973 until May 16, 1973, claimant was paid $3,285 as sick pay under an established company policy that guaranteed an employee his regular salary for ninety working days out of each year for any injury or sickness the employee suffered. A supervisor for Pet testified that the company paid an employee his regular salary as sick pay for ninety days but required the employee to remit to the company all compensation payments received for the period covered by sick pay. As part of his order the Attorney-Referee directed that:

Full credit shall be given the employer and carrier for the period of disability after injury, when the claimant was paid his salary as sick pay but shall not include credit for salary paid the claimant for his vacation period of approximately four weeks.

The circuit court allowed Pet credit “for the amounts paid as salary up to $56 per week from January 1, 1973, through July 16, 1973.” Pet contends that it should receive full credit on all amounts paid in excess of what the claimant was entitled to receive under temporary total disability and permanent partial disability.

We cannot agree with either of these positions. Under the facts of this case the employee is entitled to receive compensation benefits for the period from January 1, 1973 to May 16, 1973 in addition to the sick pay payments he received during the same period. The sick pay that claimant received was not salary in lieu of compensation but was money that claimant was entitled to receive based upon his past service with the company rather than because of the injury he sustained. In this respect the sick pay was no different from the vacation pay claimant received: it was a benefit accumulated on the basis of past service and for which Pet was entitled to no credit.

Our holding is in accord with the principle laid down in 2 A. Larson, The Law of Workmen’s Compensation § 57.46 at 10-102 (1976):

A second type of payment for which credit is usually disallowed is any kind of sick pay or vacation pay of which it can be said that the claimant’s entitlement to the payment is based on past service rather than on the injury as such.

Accord Guerrera v. City of New Orleans, 212 So.2d 223, 226 (Ct.App.La.1968); Southwestern Bell Telephone Company v. Siegler, 240 Ark. 132, 398 S.W.2d 531, 533-34 (Ark.1966).

Our holding does not conflict with Koestler’s Bakery, Inc. v. Boland, 299 So.2d 205 (Miss.1974) or George S. Taylor Construction Co. v. Harlow, 269 So.2d 337 (Miss.1972). In each of those cases we held that a claimant was not entitled to draw disability compensation for the interval during which he was paid his regular salary because the payments he received were simply salary in lieu of compensation. Nor does our holding in any way conflict with Mississippi Code Annotated section 71-3-7(d) (1972) which reads in part as follows:

If maximum medical recovery has occurred before the hearing and order of the attorney-referee, credit for excess payments shall be allowed in future payments.

The credit for excess payment mentioned in the statute is for excess payment of workmen’s compensation benefits or salary in lieu of compensation made after the date of maximum medical recovery and not for sick pay, vacation pay, donations or gratuities. Subsection (d) must be construed in light of the entire Act. Its purpose is to encourage employers and carriers to pay benefits to an injured worker promptly and allow the employer or carrier credit for any excess payment of workmen’s compensation benefits if maximum medical recovery occurs before the order of the attorney-referee.

The order of the Workmen’s Compensation Commission is reinstated as modified, employer and insurance carrier to bear all costs of this appeal.

AFFIRMED IN PART, REVERSED IN PART AND ORDER OF COMMISSION REINSTATED AS MODIFIED.

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


text:
    Mrs. Sandra WELLS v. Melvin L. SCRUGGS.
    No. 48605.
    Supreme Court of Mississippi.
    April 6, 1976.
    Leonard B. Melvin, Jr., Sarah L. En-trekin, Laurel, for appellant.
    Harold W. Melvin, Laurel, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   AFFIRMED ON CONDITION OF ADDITUR IN THE AMOUNT OF $4,-000 MAKING A TOTAL JUDGMENT OF $7,000; OTHERWISE, REVERSED AND REMANDED FOR A NEW TRIAL ON DAMAGES ONLY.

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


text:
    Jean Rand RICHEY v. Homer G. RICHEY.
    No. 48579.
    Supreme Court of Mississippi.
    April 6, 1976.
    Burgin, Gholson, Hicks & Nichols, Columbus, for appellant.

      Tubb, Stevens & Morrison, J. Murray Tubb, West Point, for appellee.
    Before PATTERSON, P. J., and SMITH and BROOM, JJ.
   REVERSED AND RENDERED AS TO ALIMONY AND RELEASE OF LIENS; REMANDED AS TO ATTORNEYS’ FEES.

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

SUGG, J., took no part.


author: SUGG, Justice, for the Court: ROBERTSON, Justice

text:
    Mrs. Josie HINTON v. Mrs. Marie McKEE, Executrix of Estate of Julius Roy McKee, Deceased.
    No. 48463.
    Supreme Court of Mississippi.
    March 30, 1976.
    Rehearing Denied April 20, 1976.
    Robertson, J., filed dissenting opinion in which Patterson, P. J., and Smith, J., concurred.
    Melvin & Melvin, Leonard B. Melvin, Jr., Laurel, for appellant.
    W. Vol Jones, William Vol Jones, Jr., Waynesboro, for appellee.

      Before PATTERSON, ROBERTSON and SUGG, JJ.
   SUGG, Justice, for the Court:

Mrs. Josie Hinton, plaintiff, sued Mrs. Marie McKee, Executrix of the Estate of Julius Roy McKee, Deceased, in the Circuit Court of .Wayne County for injuries received in a collision in which Julius Roy McKee lost his life.

On November 12, 1971, about 5:30 p. m., plaintiff was driving her automobile south on Highway No. 63 and deceased was driving his pickup north on the same highway. As deceased negotiated a gradual curve to the left, his truck crossed the center line into the plaintiff’s lane and struck her automobile head-on causing injuries to plaintiff. The defense was that, immediately prior to the collision, decedent was suddenly stricken with an illness which he had no reason to anticipate and which rendered it impossible for him to control his pickup. Defendant relied on the rule of law in this state that the driver of an automobile is not ordinarily chargeable with negligence when he is suddenly stricken by a fainting spell or loses consciousness from an unforeseen cause and is unable to control his car. Loss of consciousness while driving is a defense to an action based on negligence if such loss of consciousness was not foreseeable. Warren v. Pinnix, 241 So.2d 662 (Miss.1970) and Dickinson v. Koenig, 242 Miss. 17, 133 So.2d 721 (1961).

In both Warren and Dickinson the drivers of the vehicles survived the accidents and were able to testify that they suffered a sudden loss of consciousness which was not foreseeable. There is no direct evidence in this case that the deceased suffered a sudden loss of consciousness, but defendant attempted to prove that fact by circumtantial evidence.

The deceased had a heart attack on April 6, 1971, which was diagnosed by Dr. Dabbs as an acute myocardial infarction. Dr. Dabbs continued treating the deceased until the day of the collision and stated that the deceased had made a remarkable recovery, that his electrocardiogram had become stable, and that his prognosis was very good. Dr. Dabbs examined deceased on the morning before the collision.

A passenger in plaintiff’s automobile testified that she observed deceased’s pickup cross the center line into the plaintiff’s lane of travel, that plaintiff slowed almost to a stop, and that deceased’s pickup struck plaintiff’s automobile head-on. She further testified that deceased remained seated upright in his pickup for a short interval after the collision and was able to get out of his pickup and take several steps toward the vehicle of plaintiff when he suddenly collapsed and died. Another witness stated that he took only one step after getting out of his pickup.

Dr. Dabbs testified that the cause of death was an acute coronary thrombosis, such diagnosis being based on the doctor’s examination of the patient and knowledge of his past history. An autopsy was not performed on the body of the deceased.

The burden of proving the affirmative defense that decedent suffered a blackout or loss of consciousness rested on the defendant. The burden is on a defendant to prove matter in avoidance, special or affirmative defenses, and other new matter urged by him as ground for denying a plaintiff relief. Cf. Commercial Union Insurance Co. v. Byrne, 248 So.2d 777, 782 (Miss.1971). In Harris v. Sims, 155 Miss. 207, 124 So. 325 (1929), a false imprisonment case, an instruction secured by the plaintiff placed the burden on him [plaintiff] to prove the original issue tendered by his declaration, and then, as to the plea of justification, placed the burden on the defendant who pleaded it to prove it by a preponderance of the evidence. There the Court said:

“Where the party having the burden of proof establishes a prima facie case, and no proof to the contrary is offered, he will prevail. Therefore the other party, if he would avoid the effect of such prima facie case, must produce evidence, of equal or greater weight, to balance and control it, or he will fail. Still the proof upon both sides applies to the affirmative or negative of one and the same issue, or proposition of fact; and the party whose case requires the proof of that fact has all along the burden of proof. It does not shift, though the weight in either scale may at times preponderate. But where the party having the burden of proof gives competent and prima facie evidence of a fact, and the adverse party instead of producing proof which would go to negative the same proposition of fact, proposes to show another and a distinct proposition which avoids the effect of it, there the burden of proof shifts, and rests upon the party proposing to show the latter fact." [Original emphasis] (155 Miss, at 218-219, 124 So. at 328).

In our case plaintiff proved that decedent’s vehicle crossed the center line of the highway and struck plaintiff’s vehicle head-on in plaintiff’s lane of travel. Plaintiff’s evidence established the negligence of defendant, and she thus met the burden of proving her case by a preponderance of the evidence. The defendant did not offer any proof to negate the negligence of decedent, but sought to avoid his negligence by proving the affirmative defense of loss of consciousness. The burden of proof then shifted and rested on the defendant to prove the affirmative defense by a preponderance of the evidence.

We are of the opinion that since defendant’s proof of the affirmative defense was so weak, this is one of those rare cases which should be remanded for a new trial before another jury.

REVERSED AND REMANDED.

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

PATTERSON, P. J., and SMITH and ROBERTSON, JJ., dissent.

ROBERTSON, Justice

(dissenting):

I would affirm the jury verdict for the defendant. This case was fully and fairly tried, the evidence fully developed, and the jury properly and correctly instructed as to the law.

There was ample circumstantial evidence to justify and support the jury verdict. Even in criminal cases we have said that the sufficiency of circumstantial evidence is peculiarly for the determination of the jury. Long ago, in Johnson v. State, 23 So.2d 499 (Miss. 1945), we stated this principle :

“It was long ago held by this Court in the case of Browning v. State, 33 Miss. 47, citing Cicely v. State, 13 Smedes & M. (21 Miss.) 202, 211, and the principle has been uniformly adhered to since that time, that the sufficiency of circumstantial evidence is peculiarly for the determination of the jury, ‘because it is always solemnly to be weighed and acted upon by their understandings and consciences, and is, from its very nature, the subject of inferences and conclusions in their minds,’ and that a verdict, therefore, found on circumstantial evidence, will always be permitted to stand unless it is opposed by a decided preponderance of the evidence, or is based on no evidence whatever.’ ’’ 23 So.2d at 500.
(Emphasis added).

Another principle is that an appellate court is to look with favor on all evidence that supports the jury’s verdict.

This jury had before it this evidence: J. R. McKee, five minutes before the collision, had carefully driven his pickup truck up to the highway, looked both ways and then slowly driven into the highway. Five minutes later, McKee’s pickup truck was observed gradually crossing the center line of the highway and proceeding inexorably on its course into a head-on collision with Mrs. Hinton’s car, which was in its proper lane and almost stopped.

Mrs. Madelyn Parker and Joel Holifield, witnesses called by the plaintiff, both testified that after the accident McKee got out of his pickup truck and without saying a word to anybody he took one or two steps and fell face down.

The pictures in evidence show no appreciable damage to McKee’s truck. Dr. James Dabbs, McKee’s family physician, testified that he had been treating him since April 3, 1971, for an acute myocardial infarction, that he had examined McKee at the hospital a few minutes after the accident, that the cause of death was “Acute Coronary Thrombosis” and that the interval between onset and death was “few minutes”. In elaborating on the duration of heart attacks, Dr. Dabbs further testified:

“Of course, a massive coronary, one that is beyond the stage of recovery, they may not live but just a few moments. To put it in exact minutes and times, I have seen them where they were almost instantaneous, just lasting a few minutes, 30 minutes or less, or four or five minutes, something of this sort. I think it would be hardput for ‘ any physician to put an exact time on it. I don’t think you can.” (Emphasis added).

Dr. Dabbs was vigorously cross-examined as to whether there were any bruises on his chest, particularly on the left side of the heart cavity. The doctor’s answer was “No”. Dr. Dabbs’ expert opinion was that the sole cause of death was an acute coronary thrombosis.

With this undisputed and irrefutable evidence before it, I think that the jury would be hard put to draw any other inference than the normal and logical one that McKee was in the throes of a fatal heart attack at the time his pickup truck gradually crossed the center line of the highway and that it was impossible for him to control the inexorable course of his pickup truck, which proceeded in a straight line to a head-on collision with the plaintiff’s automobile. Surely it would have been illogical and unreasonable for the jury to conclude that McKee deliberately drove his truck head-on into the car of the plaintiff when five minutes before the accident he had carefully driven his pickup truck up to the highway, stopped and looked both ways, and then driven slowly onto the highway. The jury also had before it the doctor’s statement that he had allowed McKee to go back to work on a half day basis on May 28, 1971, and that he had driven his pickup truck without incident since that time.

This is a much stronger case than either Warren v. Pinnix, 241 So.2d 662 (Miss. 1970), or Dickinson et al. v. Koenig, Admr., 242 Miss. 17, 133 So.2d 721 (1961). Warren, immediately after the accident, extracted his driver’s license from his wallet at the request of a police officer, and undertook to start his motor. It was undisputed in Warren had he had a stroke or a cerebral vascular hemorrhage, that he_ “shortly after the collision fell to the ground unconscious, and that he was in a coma at the hospital for twelve hours.” Warren did live to testify in his case. A jury verdict for the plaintiff was reversed by this Court because the one instruction granted the plaintiff on Warren’s affirmative defense placed a greater burden on Warren than this Court thought proper and was thus misleading to the jury.

In Dickinson et al. v. Koenig, Admr., supra, Wenstrom, the driver, was the only survivor of a one-car accident, where the car driven by him gradually crossed the center line of the highway and ran into a culvert on the wrong side of the highway. The other three occupants of the car were killed. In affirming the jury verdict for the defendants, this Court said:

“The primary issue raised by the plaintiffs in the court below was whether the operator of a motor vehicle who is suddenly stricken by a fainting spell and loses consciousness from an unforeseeable cause is chargeable with negligence. Many courts have granted peremptory instructions in favor of defendants under such circumstances. Other courts have determined that similar facts present an issue for the jury. This case, being one of novel impression in this State, was submitted to the 'jury by the trial court, and we think under proper instructions. The jury’s verdict was for the defendants, and hence the plaintiffs, sons and sole heirs-at-law of Albert D. Dickinson, deceased, have prosecuted this appeal.
“The defendant Wenstrom testified as to his version of what occurred, as follows: T was driving I understand about eight miles west of here and there was a semi-truck ahead of me and I pulled out to go around it and I looked ahead and there was as I remember one or two semis ahead of him. I had figured that I was pretty close to the junction going north. We were only going to Tupelo that day and I thought “Well, what is the use of passing this first one, I won’t get anywhere”, so I slowed up and got back of the semi that I was passing and I slowed down and got back in my right hand lane and that is the last I remember.’ ”
“See 28 A.L.R.2d, p. 22, Annotation entitled Automobiles — Illness or Drowsiness, which states, in part, as follows: ‘ * * * proof that the driver momentarily lost consciousness and that such loss was not foreseeable constitutes a complete defense to an action against the driver based on negligence or gross negligence’.’ 242 Miss, at 22-24, 133 So.2d at 722-23. (Emphasis added).

In many cases circumstantial evidence is more reliable than direct evidence. In my opinion this is just such a case. McKee was dead at the scene of the accident beside his pickup truck, which was only slightly damaged. McKee’s own doctor testified that there were no bruises on his chest, and he further testified positively and unequivocally that he died of an acute coronary thrombosis of a “few minutes” duration.

The jury was fully justified in returning a verdict for the defendant and the jury’s verdict is supported by ample and substantial evidence. If we look at the evidence supporting the jury’s verdict in its most favorable light, which we are required to do, I think we are duty-bound to affirm the verdict.

PATTERSON, P. J., and SMITH, J., concur.


text:
    Victor W. HOLLADAY and Charles Michael “Mike” Holladay v. STATE of Mississippi.
    No. 48930.
    Supreme Court of Mississippi.
    March 9, 1976.
    Rehearing Denied April 20, 1976.
    Murray L. Williams, Water Valley, for appellants.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before GILLESPIE, C. J., and ROBERTSON and WALKER, JJ.
   Affirmed.


text:
    Carrol L. TURNAGE v. BARNES TRUCK LINES.
    No. 48512.
    Supreme Court of Mississippi.
    April 6, 1976.
    Henry E. Pope, Columbia, for appellant.
    Watkins & Eager, Joe W. Hobbs, Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and WALKER, JJ.
   Affirmed.


author: PATTERSON, Presiding Justice:

text:
    Billie Mae BABERSON v. STATE of Mississippi.
    No. 48945.
    Supreme Court of Mississippi.
    March 30, 1976.
    R. Jess Brown, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SMITH and BROOM, JJ.
   PATTERSON, Presiding Justice:

Billie Mae Baberson was convicted in the Circuit Court of Clay County for the manufacture of marijuana and sentenced to a term of years in the state penitentiary. He contends on appeal that the verdict was against the overwhelming weight of the evidence and that evidence introduced was inadmissible because the search warrant was invalid. We consider only the first contention and reverse.

On March 19, 1974, officers of Clay County traveled to the property of Baber-son and pursuant to a warrant searched his property. They found approximately 800 small marijuana plants about seventy yards behind Baberson’s house. The plants were in small containers which had been placed in two dresser drawers, a tin tub, and other nondescript vessels. There was no evidence that Baberson cultivated or otherwise tended the marijuana plants. The evidence connecting the defendant to the marijuana was totally circumstantial.

In the light most favorable to the state’s case it can only be said that Baberson leased a house from the rear of which a path extended to an old “dead field” some seventy yards away and that the marijuana was found in the brush adjacent to the “dead field.” There is testimony that Ba-berson was on occasion seen on the path. There is no evidence placing him in close proximity to the brush in which the marijuana was found.

Two officers testified the dresser drawers in which some of the pot plants were found came from an abandoned dresser of similar color near Baberson’s house. Another container, a tin tub, was identified by the officers as having previously been in the possession of Baberson. The identity was possible because the tub, with three bullet holes in it, had been observed by the officers before in Baberson’s possession.

Both the witnesses for the state and the defendant testified the yard of the house was not fenced and other people had access to the premises. Baberson’s lessor testified the area he had rented to the defendant included the house and a small garden space, but did not include the “dead field” near which the marijuana was discovered.

There are numerous “beaten path” cases in our jurisprudence. Most are related to the illegal possession of intoxicating liquor. In McMillian v. State, 218 Miss. 264, 67 So.2d.290 (1953), the general rule is expressed as follows:

. where the whiskey is not found upon premises in the exclusive possession and control of the accused there must be additional incriminating facts connecting him with such possession, other than the mere finding of the whiskey, aided or unaided by a trail, to sustain a verdict of guilty. Lewis v. State, 198 Miss. 767, 23 So.2d 401; Walker v. State, 199 Miss. 289, 24 So.2d 751; Sellers v. City of Picayune, 202 Miss. 741, 32 So.2d 450; Baylis v. State, 209 Miss. 335, 46 So.2d 796; Hansbrough v. State, 209 Miss. 625, 48 So.2d 120; Revette v. State, 209 Miss. 860, 48 So.2d 511; Foster v: State, Miss., 49 So.2d 258. . . . (218 Miss, at 267, 67 So.2d at 291)

More recently, see Pope v. State, 242 Miss. 454, 135 So.2d 819 (1961).

We are of the opinion the evidence in this case does not meet the burden imposed upon the state to prove the guilt of the defendant beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence.

REVERSED AND DEFENDANT DISCHARGED.

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


text:
    Roosevelt HARRIS v. STATE of Mississippi.
    No. 48966.
    Supreme Court of Mississippi.
    April 6, 1976.

      G. Hite McLean, Greenwood, for appellant.
    A. F. Summer, Atty. Gen., by Vera Ma-del Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice, for the court :

Roosevelt Harris appeals from a conviction in the Circuit Court of Leflore County of the crime of attempted robbery. The sentence was ten years, with five years suspended.

Mrs. R. T. Pigg operated a liquor store in Greenwood. While standing in the back of the building she heard the front door open and saw a man wearing a face mask enter the store on the run. Mrs. Pigg started toward the counter to press an alarm button which was connected to the police department. The man jumped the counter before she reached the alarm button, grabbed her, pulled both of her arms behind her and began pushing her toward the. cash register, while she struggled to get to the alarm button. In the meantime, another man, who was unmasked, entered the store and stood on the other side of the counter near the cash register. Mrs. Pigg freed one arm and pressed the alarm button. At that point the unmasked man said, “Let’s get out of here quick,” and left immediately. The man who was struggling with Mrs.. Pigg loosened his grip, jumped over the counter and ran for the door. Mrs. Pigg grabbed a gun from a counter near the cash register and fired as the masked man left the door. Policemen arrived shortly and found the defendant, Roosevelt Harris, lying between some railroad tracks near the liquor store. He had been seriously wounded by gunfire. A pullover type cap, with a slit cut in it, was lying near his left leg.

Of the several assignments of error briefed and argued, only one requires discussion.

Relying upon the case of State v. Lindsey, 202 Miss. 896, 32 So.2d 876 (1947), the defendant contends that the indictment is insufficient to charge the crime of attempted robbery in that the overt act was not sufficiently charged. The overt act charged in the indictment is as follows:

entry into the store, physically grabbing Mrs. R. T. Pigg and forcing her toward the cash register, and desisting and fleeing on learning that Mrs. R. T. Pigg had activated an alarm.

It is defendant’s contention that it is mere guesswork as to whether the defendant intended to kill, injure, rape, rob or kidnap Mrs. Pigg. In Lindsey, the Court used language that might be construed as holding that unless the overt act charged in the indictment relates exclusively to the crime charged, the indictment is insufficient. We are of the opinion that Lindsey is distinguishable from the instant case in that the overt act of physically grabbing Mrs. Pigg and forcing her to the cash register manifestly relates to robbery and not to rape, intent to kill, or intent to kidnap. Moreover, Lindsey could not rationally be construed as laying down a rule that the overt act must relate exclusively to the crime named in the • indictment. A great many attempts to commit crimes involve overt acts that could relate to more than one cirme. For instance, every armed robbery involves an assault. In the instant case, there was an assault and battery committed upon Mrs. Pigg. Where the overt act charged is manifestly adapted to effec-. tuate the offense, the overt act is sufficiently charged. State v. Burton, 145 Miss. 821, 111 So. 300 (1927). We are of the opinion that the overt act charged was manifestly adapted to effectuate the purpose of robbing Mrs. Pigg.

AFFIRMED.

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


text:
    Charles MOREA v. STATE of Mississippi.
    No. 48969.
    Supreme Court of Mississippi.
    April 6, 1976.
    Tommy B. Rogers, Collins, A. A. Calhoun, Mt. Olive, for appellant.
    A. F. Summer, Atty. Gen., by Vera Madel Speakes, Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice, for the Court:

This case involves a conviction of murder and a life sentence. The facts reveal a tragedy arising out of a problem as old as the human race. No one, sensitive to the human condition, could read this record without a profound sympathy for the several people whose well-being fell victim to the tragedy. All that need be said concerning the merits of the appeal is that the two court-appointed lawyers did their very best with what they had to work with, but there is no assignment of error justifying discussion.

The statute provides for an opinion in cases where the defendant is sentenced to serve ten or more years in the penitentiary. Miss.Code Ann. § 9-3-41 (1972). This statute is deemed as advisory and is not to be construed as requiring needless opinions or opinions restating well established rules of law.

This Court said in Yazoo & M. V. R. Co. v. James, 108 Miss. 852, 67 So. 484 (1915), shortly before the number of judges was increased from three to six, that:

The time of a court, the docket of which is crowded to the extent that the docket of this court is, should not be wasted in the writing of opinions solely for the purpose of advising a litigant of the reasons upon which the court acted in deciding his case. Moreover, the burden of case law has become unbearable to both bench and bar, and the courts owe it both to themselves and to the bar to refrain from increasing this burden unnecessarily. 108 Miss, at 853, 67 So. at 484.

What the Court said in that case is equally applicable to the present problems facing this Court.

The Judges of this Court have, for a number of years, been concerned with the increase in the number and length of judicial opinions produced by this Court -and other Courts throughout the country. And in 1972, this Court adopted Rule 43 of the Rules of the Supreme Court providing that no opinion will be written where the case is affirmed unless a majority of the justices deciding the case determines that a written opinion will add to the jurisprudence of this State. Thereafter, in 1975, Rule 43 was amended to provide for unpublished opinions in certain instances.

A distinguished committee of scholars has made a study of the matter of limiting publication of judicial opinions. Some of the salient points of the report, which was prepared for the Advisory Council for Appellate Justice, are as follows:

But unlimited proliferation of published opinions constitutes a burden and a threat to a cohesive body of law. Even when the focus is confined to appellate courts, it is plain to every lawyer, every judge, and to most law students that many opinions are written that do not merit publication. Often the matter decided has no potential effect upon our knowledge of the ■ law or its development, yet it results in a written opinion that takes the time and energy the judges could better spend in more attentively considering and developing resolutions of significant issues in other cases.
Besides, there are limits on the capacity of judges and lawyers to produce, research, and assimilate the sheer mass of judicial opinions. Those limits are dangerously near at present and in some systems may already be exceeded. Ten years ago there were estimates that published decisions of American courts approached two and a half million. Today this figure is probably nearer three million. Common law in the United States could be crushed by its own weight if present trends continue unabated. The collegial process of an appellate court requires consideration by all members of the court of all published opinions of that court. The burden of examining unnecessary opinions seriously constricts the time available for consideration of critical opinions. This results in an erosion of collegiality and a consequent impairment of a rational and cohesive enunciation of the law for the jurisdiction.

It is estimated that some 30,000 judicial opinions are being produced each year, plus approximately 12,000 decisions of administrative boards and commissions.

The courts cannot ignore this problem and continue to produce, and cause to be published, needless opinions of undue length. Members of the bar should be equally concerned with this question so that the absence of an opinion or the issuance of an unpublished opinion will not be understood as meaning that the Court has not given the case full and deliberate consideration. The determination of whether to write an opinion and if so, whether to publish it, is made after, and not before, a decision is reached on the merits. All cases are processed by the Court and decided on the merits in conference in the same manner.

AFFIRMED.

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

      . The Advisory Council for Appellate Justice is an assembly of judges, other government officials, lawyers and law teachers who are working to improve the structure and operating processes of state and federal courts.

      . Joiner, Limiting Publication of Judicial Opinions, 56 Judicature 195 (1972-1973).


author: PER CURIAM. MADDOX, Justice EMBRY, Justice

text:
    Paul HOLLOWAY v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a corporation.
    SC 1444.
    Supreme Court of Alabama.
    March 26, 1976.
    Smith & Smith, Dothan, for appellant.
    Lee & Mclnish, William L. Lee, III and Stephen T. Etheredge, Dothan, for appel-lee.
   PER CURIAM.

We reverse and remand the summary judgment rendered in favor of the defendant insurer because it did not bear the burden placed upon it (as the movant) to show that it was entitled to summary judgment — i. e., that there is no genuine issue as to a material fact. Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975); Fleming v. Alabama Farm Bureau Mut. Cas. Ins. Co., 293 Ala. 719, 310 So.2d 200 (1975). We refer the reader to the dissent for a copy of the judgment.

There is a genuine issue as to a material fact, in our judgment, as to whether there was a policy of liability insurance in effect on the date of the' accident. Putting the issue another way, we cannot say as a matter of law that the policy was cancelled before the accident occurred. Fleming v. Alabama Farm Bureau Mut. Cas. Ins. Co., supra.

“On motion for summary judgment, summary judgment is not appropriate unless it appears that the non-moving party could not prevail under any set of conceivable circumstances.” Fleming, supra.

Plaintiff alleged in his complaint that Mrs. Davis, with whom he had the accident, was insured. Defendant insurer denied this allegation.

In an affidavit supporting the motion for summary judgment, defendant insurer states that a policy of insurance with the Davises was cancelled and notice of cancellation mailed December 12, 1973, a copy thereof being attached. The cancellation notice attached states that "PAYMENT OF THE AMOUNT INDICATED ABOVE PRIOR TO THE CANCELLATION DATE WILL VOID THIS CANCELLATION NOTICE AND- YOUR POLICY IN EFFECT. ...”

Further, the notice adjures: “ACT NOW TO PREVENT CANCELLATION OF YOUR INSURANCE PREMIUM.”

In reply thereto, plaintiff proffered his affidavit which read, inter alia:

“. . . That at the time of the accident, Faye Anna Davis was insured with Government Employees Insurance Company, a corporation, under Policy 662-41-13-3 as evidenced by general change endorsement to the policy, a copy of which is attached hereto and marked Exhibit‘A’ . . . .”
sfc ‡ jfi >Jc %
“Affiant further says that on November 1, 1973, Faye Anna Davis mailed a payment to the defendant, Government Employees Insurance Company, a corporation, in the amount of $124.12, a copy of the check is attached hereto and marked Exhibit ‘B’. A copy of the policy adjustment notice is also attached hereto and marked Exhibit ‘C’.”
Although the plaintiff’s affidavit is not a model of clarity, nor does it contain more than a modicum of allegations we consider that it is sufficient for summary judgment purposes in this case. To hold it subject to the insurer’s criticisms that it is not based on personal knowledge and fails to state facts would require that we take a hypercritical view of the meaning of Rule 56(e) A.R.C.P.
We think the pleading allegations, supporting and countervailing affidavits make out a genuine issue as to a material fact — was the policy cancelled as the insurer contends, or was it in full force and effect, as plaintiff contends ?

REVERSED AND REMANDED.

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

MERRILL, MADDOX, FAULKNER and EMBRY, JJ., dissent.

MADDOX, Justice

(dissenting).

This is a close case, but close only because Alabama requires such a small amount of proof to raise an issue of fact. Nevertheless, I would not reverse this case.

I am quite aware that this Court, in Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975), held that the movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to a judgment as a matter of law, and that no defense to an insufficient showing is required. Midfield Park follows Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L.Ed.2d 142 (1970). In both Midfield Park and Fleming, 293 Ala. 719, 310 So.2d 200 (1975), cited by the majority, this Court found the movants failed to meet this burden.

However, if a movant meets his initial burden, Rule 56(e) requires the party opposing the motion ■ to come forward with evidence setting forth specific facts showing that there is a genuine issue for trial. Adickes, supra.

What are the facts of this case ?

Holloway’s complaint was:
“Plaintiff claims of the Defendant the sum of FIFTEEN THOUSAND ($15,000.00), for that heretofore on to-wit, March 9, 1974, Plaintiff was injured and damaged as a result of an accident which occurred on said date involving the Plaintiff and Faye Anna Davis, wife of Billy J. Davis, who was insured by the Defendant under Policy No. 662-41-13-3. That the Defendant had notice of said accident and of the claim and suit filed by the Plaintiff; that on the 22nd day of November, 1974, judgment was entered in the Circuit Court of Houston County, Alabama, against Faye Anna Davis in the amount of $15,000.00, the amount of injuries and damages received by the Plaintiff; that Faye Anna Davis was covered under said policy at the time of the accident.” GEICO answered, in part, as follows:
“Defendant denies that Faye Anna Davis, wife of Billy J. Davis, was insured by it on March 19, 1974, the date of the alleged accident between Billy J. Davis and Paul Holloway.”

GEICO then moved for summary judgment and filed an affidavit in support of its motion, as follows:

“STATE OF GEORGIA,
BIBB' COUNTY.
Before me, the undersigned authority, personally appeared J. Harry Canfield. He is employed with Government Employees Insurance Company in the capacity of Claims Examiner. He is familiar with the lawsuit and the claim involved. Government Employees Insurance Company insured Billy J. Davis under policy number 662-41-13-3. His wife’s name was Faye Anna Davis. On March 19, 1974, she was involved in an accident with Paul Holloway. Our company received notice of the automobile accident. On December 12, 1973, Billy J. Davis’s policy of insurance with Government Employees Insurance Company was can-celled and notice of the cancellation was mailed to him at his address. The cancellation was effective December 27, 1973. Since December 27, 1973, Billy J. Davis has not been an insured of Government Employees Insurance Company. Faye Anna Davis has never been an insured of Government Employees Insurance Company and the car Faye Anna Davis was driving on the date of the accident, March 19, 1974, was not insured by Government Employees Insurance 'Company under the policy of Billy J. Davis since that policy was cancelled on December 12, 1973, said cancellation being effective December 27, 1973. A copy of said cancellation is attached hereto.
“/s/ J. Harry Canfield
“Sworn to and subscribed before me this 18th day of March, 1975.
“/s/ Ronald A. Metzzar Notary Public
Notary Public State of Georgia at Large My Commission expire [d] August 14, 1978
Notary Public STATE OF GEORGIA RONALD A. METZZAR”

At this point, I believe GEICO met its burden of showing that the policy was can-celled and therefore it was not liable to pay Holloway’s judgment.

Holloway did not rely on the allegation of his pleading but filed an affidavit which reads as follows:

“AFFIDAVIT “STATE OF ALABAMA HOUSTON COUNTY
Before me, the undersigned authority, personally appeared Paul Holloway, and after duly sworn, deposes and says:
“That he is the plaintiff in the above styled cause and that on March 19, 1974, he was involved in an accident in which Faye Anna Davis was operating a motor vehicle. That at the time of the accident, Faye Anna Davis was insured with Government Employees Insurance Company, a corporation, under Policy 662-41-13-3 as evidenced by general change endorsement to the policy, a copy of which is attached hereto and marked Exhibit ‘A’. Said endorsement shows the effective date as November 1,1973.
“Affiant further says that the policy was originally issued on a 1965 Chevrolet automobile but that on October 23, 1973, the policy was adjusted to cover a 1969 Skylark Buick which was the automobile plaintiff was injured in.
“Affiant further says that on November 1, 1973, Faye Anna Davis mailed a payment to the defendant, Government Employees Insurance Company, a corporation, in the amount of $124.12, a copy of the check is attached hereto and marked Exhibit “B”. A copy of the policy adjustment notice is also attached hereto and marked Exhibit “C”.
“/s/ Paul Holloway Paul Holloway
Sworn to and subscribed before me this 27th day of May, 1975
/s/ Myrtle F. Jordan
Notary Public
Filed: May 27, 1975 /s/ Julia L. Trant, Clerk

The check and policy endorsement mentioned in the affidavit were attached.

The trial court decreed that the Holloway affidavit was insufficient to controvert GEICO’s factual showing of cancellation. I think he is correct. In Midfield Park and Fleming neither movant sustained its burden. Here, GEICO did. At least I think it did.

The very purpose of summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a triable issue. But where the moving party’s papers are in themselves sufficient, the opposing party’s papers at the hearing on the motion must be sufficient to raise a triable issue of material fact. Although he need produce only as much evidential material as is needed to defeat the movant’s burden of clearly establishing the nonexistence of any genuine issue of material fact, he must produce enough. If, of course, all his evidence is needed to make such a showing it must all be produced. The evidence considered by the court in determining a motion must all be filed prior to the hearing (unless the court should allow a continuance for the purpose of procuring additional evidence) and good practice would dicate that a person resisting a motion should, whenever possible, make certain that ample opposing evidence is on file, although he may not feel it necessary to disclose his entire case. He should also bear in mind that although a factual issue emerges as to one or more issues so that a summary judgment cannot be rendered upon the whole case or for all the relief asked, the court at the hearing on the motion is under a duty, so far as performance is practicable, to make an order stating what issues are and are not in good faith controverted.

Holloway’s statement in his affidavit that “Faye Anna Davis was insured with Government Employees Insurance Company, a corporation, under policy 662-41-13-3” is as conclusionary as his allegation to this effect in his pleading; consequently, that portion of the affidavit is insufficient. The only evidence which would controvert the fact of cancellation because of nonpayment of premium is the statement that a check in the amount of $124.12 dated November 1, 1973, was sent to GEICO. The notice of cancellation was dated December 13, 1973, some 43 days later. I do not believe Holloway’s papers were sufficient to raise a triable issue.

Holloway can prevail on his claim only if he shows that the policy was not can-celled. Once a moving party has shouldered the burden of showing there is no material issue of fact (cancellation in this case), I believe Rule 56(e) and (f) contemplate that the non-moving party, while not required to divulge all his evidence prior to trial, should not be permitted to prevent summary judgment by formally filing an affidavit. The better practice would require the non-moving party to submit sufficient proof to show either that the question of fact (cancellation here) is contested or that he needs additional time to gather his evidence. See Wright and Miller, Federal Practice and Procedure, § 2738, p. 710 (Obligation of Party Opposing Summary Judgment to Present Evidence).

In any event, the movant probably can, on remand, by filing additional proof, ask the trial court again for summary judgment.

I hope this Court will one day adopt the rule announced by Judge, later Justice, Cardozo:

“The very object of a motion for summary judgment is to separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only the latter may subject a suitor to the burden of a trial.”

EMBRY, Justice

(dissenting) :

I respectfully dissent. Paul Holloway, plaintiff below appeals from the following:

“ORDER

“May 30, 1975 — Summary judgment rendered in favor of Defendant and against Plaintiff. Counter-affidavit filed by Plaintiff not sufficient under Rule 56(e) ARCP; therefor (sic) court find (sic) from pleadings and affidavit filed by Defendant that there is no genuine issue of fact in this cause and that the Defendant is entitled to judgment as a matter of law.”

The appeal was to the Court of Civil Appeals. The amount claimed by plaintiff being in excess of ten thousand dollars ($10,000), the case was transferred to this court.

The sole issue presented for review is the sufficiency of plaintiff’s affidavit filed in response to defendant’s motion for summary judgment, and its affidavit in support thereof, to set forth “specific facts showing that there is a genuine issue for trial.” Rule 56(e) ARCP.

The crucial fact dispositive of the case as a matter of law is whether a policy of liability insurance had been effectively cancelled by the mailing to, and receipt by, the insured of a notice of cancellation. Plaintiff’s affidavit failed to controvert facts recited in the affidavit of defendant’s employee to the effect that the policy had been cancelled by notice mailed to the insured. There was no error in entry of the order set out above. Although the trial court did not enter a judgment dismissing the plaintiff’s action, it is evident the order was a “judgment” within the purview of Rule 58(b) ARCP and therefore appeala-ble.

MERRILL and FAULKNER, JJ., concur.

      . Richard v. Credit Suisse, 242 N.Y. 346, 350, 152 N.E. 110, 111 (1926).


author: SHORES, Justice.

text:
    Ex parte LOUISVILLE AND NASHVILLE RAILROAD COMPANY, a corp. In re Christopher C. WHATLEY, President, Alabama Public Service Com’n., et al.
    SC 1475.
    Supreme Court of Alabama.
    March 19, 1976.
    Steiner, Crum & Baker and Walter R. Byars, Montgomery, for petitioner.
    William J. Baxley, Atty. Gen., and Jerry L. Weidler, Asst. Atty. Gen., for the State.
   SHORES, Justice.

L & N asks us to review a judgment of contempt entered in the Circuit Court of Jackson County, Alabama, on September 15, 1975, for failure to comply with an “Order to Cease and Desist” issued by two members of the Alabama Public Service Commission (hereinafter referred to as Commission).

On October 25, 1974, L & N and Southern Railway Company filed with the Commission a joint application to discontinue a L & N and Southern station agency and to remove the depot building at Stevenson, Jackson County, Alabama (APSC Docket 16943). Subsequently, L & N posted notice of its intent to abolish three operator positions at the Stevenson agency and to replace them with automatic equipment. L & N extended the termination date of these positions at the request of the Commission to May 22, 1975. Prior to this date, however, the Commission sent a telegram ordering L & N to cease and desist from removing the operators pending a final order in Docket 16943 and informing L & N that a written order would follow.

The order was received by mail on May 22, 1975, and recited that final action had been taken on Docket 16943, that the Commission had decided that the joint application for discontinuance of agency operations should be denied, and that L & N’s decision to abolish the operator positions was contrary to the Commission’s decision.

On June 12, 1975, L & N appealed to the Circuit Court of Montgomery County from the final action of the Commission in Docket 16943.

On the next day, June 13, 1975, the two Commission members filed in the Circuit Court of Jackson County a motion for issuance of order to show cause for contempt judgment against L & N for its failure to comply and seeking compliance with its "Cease and Desist Order.” L & N responded by filing a motion to transfer the proceeding to the Circuit Court of Montgomery County on the basis that the entire proceeding was properly before the Montgomery Circuit Court.

The Circuit Court of Jackson County found L & N to be in contempt, ordered it to purge itself by compliance with the “Cease and Desist Order,” ordered reimbursement to the Commissioners for legal expenses, and provided for a fine of $500 per day until L & N purged itself of contempt. The contempt judgment and the enforcement thereof and all further proceedings thereunder were stayed by this court pending review.

The matter is before this court on L & N’s petition for writ of certiorari and/or prohibition to review the contempt judgment of the Circuit Court of Jackson County.

We address but one issue presented to us by the petition: Did the Jackson County Circuit Court have jurisdiction to impose contempt sanctions onL&N?

The Commission contends that Title 48, § 78, Code, places jurisdiction in any circuit court to enforce orders of the Alabama Public Service Commission. That statute provides:

“In case of failure or refusal on the part of any person to comply with any valid order of the commission or of any commissioner . . . any circuit court in this state, or any judge thereof, on application of a commissioner, may issue an attachment for such person and compel him to comply with such order . and the court or judge shall have power to punish for contempt as in cases of disobedience of a like order or subpoena issued by or from such court, or a refusal to testify therein.” (Emphasis added)

L & N, on the other hand, maintains that the Circuit Court of Jackson County had no jurisdiction, since an appeal from the Commission’s order had been perfected to the Circuit Court of Montgomery County under the provisions of Title 48, § 79, which provides in part:

“From any final action or order of the commission ... an appeal therefrom shall lie to the circuit court of Montgomery County . . .”

Under Title 48, § 78, any circuit court in the state has jurisdiction to compel compliance with valid orders of the Commission. However, the validity of the order involved here is the subject of the appeal pending in the Circuit Court of Montgomery County. We hold that, under the circumstances, the jurisdiction of the Circuit Court of Montgomery County is exclusive.

In Walker v. Alabama Public Service Commission, 292 Ala. 548, 297 So.2d 370 (1974), rehearing was sought by the Commission in a rate proceeding pursuant to Title 48, § 76, after the order of the Commission had been appealed to the Circuit Court of Montgomery County. Although the statute provides that a rehearing by any interested person can be had “At any time after an order has been made by the commission . . .,” we determined that the appeal divested the Commission of jurisdiction to grant or refuse a motion for rehearing and found Title 48, § 76 (providing for rehearings by the Commission), applicable only to cases not appealed.

We think the same principle is applicable here. While it is true that Title 48, § 78, provides that'any circuit court may compel compliance with any valid order of the Commission, it seems clear that this statute applies only to orders of the Commission not then on appeal to the Circuit Court of Montgomery County. This case is a good example of the confusion that an opposite result would produce. The order of the Commission in the instant case had been appealed to the Circuit Court of Montgomery County. Its validity is being questioned there. The Circuit Court of Montgomery County acts as an appellate court in such cases. Therefore, the validity of the order of the Commission was before the Montgomery County Circuit Court at the time enforcement thereof was sought in Jackson County. We hold that once an appeal was taken to the Montgomery County Circuit Court, no other circuit court had jurisdiction to enforce such order under the provisions of Title 48, § 78.

This is not to say that the Commission can be stripped of the statutory right to seek compliance with its orders by the filing of an appeal pursuant to Title 48, § 79. Title 48, § 78, permits the Commission to seek enforcement in the Montgomery County Circuit Court.

Our holding is limited to a finding that the Circuit Court of Jackson County had no jurisdiction to enforce the Commission’s order under the facts of this case. We do not pass on the merits of the order. The question of the power to issue the order and its alleged deficiencies are all before the Montgomery County Circuit Court for review.

The judgment of contempt is hereby vacated.

JUDGMENT OF CONTEMPT VACATED.

HEFLIN, C. J., and MERRILL, JONES and ALMO’N, JJ., concur.


text:
    Hamilton CATRETT v. J. A. CRANE. J. A. CRANE v. Hamilton CATRETT.
    SC 1390, 1390-X.
    Supreme Court of Alabama.
    March 19, 1976.
    Taylor D. Wilkins, Jr., Bay Minette, for appellant.
    Chason, Stone, Chason & Partin, Bay Minette, for appellee and cross-appellant.
   SHORES, Justice.

This is an appeal from a decree fixing the boundary line between coterminous landowners. Both sides submit that the trial court must be reversed.

Plaintiff-appellant filed the suit alleging that a dispute existed between him and the defendant-appellee as to the boundary between their respective properties. The property of both parties begins at a point described as “The Southeast corner of the Southwest One-quarter of Section 35, Township 1 North, Range 2 East.” Thus, the real dispute between the parties is the location of the one-half section on the South line of Section 35.

Both parties obtained their property in the late thirties from a common owner. The original tract was known as the “Gerald Hall Tract.” The plaintiff contended that there had been a dispute over the boundary for many years. It was his testimony that both sides agreed to have a survey made of both pieces of property to determine the proper line. Both agreed that Mr. Tunstall Bryars, a surveyor of many years’ experience, should make the survey. When his survey was complete, the defendant disagreed with the boundary fixed by Mr. Bryars. He then proceeded to cut timber on the disputed portion of the land and this suit followed. Defendant subsequently hired another surveyor.

The major dispute between these neighboring landowners is the true location of the half section corner of Section 35 since both deeds call for that beginning point. Mr. Bryars testified that the government field notes call for a distance of 5,280 feet along the South boundary of Section 35. He located the half section corner on the South line of Section 35 by locating the established one-half section corner due North on the North line of Section 35. He also located from an established corner the Southeast corner of Section 35 and measured a distance of 2,640 feet West. When he completed running the North/South one-half section line, it intersected the South boundary of Section 35, a distance of 12.4 feet West of the stake he had set on that line by measuring 2,640 feet from the Southeast corner of Section 35. Thereafter, he ran West along the South line of Section 35 a distance of 2,652.5 feet where he found an old railroad iron with painted lines going in two directions. It was his opinion that this stake marked the Southwest corner of Section 35.

The defendant contended that the true corner of the half section line was some 309 feet West of the corner fixed by Mr. Bryars and marked by an old pipe in a fence row. He contended that this corner had for many years been accepted as the true half section corner. The defendant’s surveyor did not attempt to locate the half section corner but made his survey from that old pipe, accepting it as the true half section corner.

The case was tried to an advisory jury which found in favor of the plaintiff, thus agreeing with the Bryars’ survey. The trial court thereafter entered its judgment finding:

“I. That the ‘Gerald Hall Tract’ was thought to have contained 38 acres, more or less, when in fact said tract contained 51 acres, more or less. That the Plaintiff purchased 13 acres of said tract which constitutes approximately 1/3 of what was considered as 38 acres and the Defendant purchased 25 acres or approximately % of what was considered to be 38 acres.
“J. That since the ‘Gerald Hall Tract’ contained approximately 13 acres more than was known to the owners thereof, that this matter should be resolved by awarding to the Plaintiff 4i/> acres or approximately 1/3 of the excess lands contained in said tract and by awarding to the Defendant the balance of said property or approximately of the excess lands contained in said tract.”

The court then went on to order the parties to exchange deeds to accomplish such a division of the disputed property.

There was evidence to support the plaintiff’s version of the true boundary between his property and that of the defendant. The jury apparently believed this evidence. Of course, its finding was advisory only. White v. Berrey, 266 Ala. 379, 96 So.2d 725 (1957). There was also evidence to support the defendant’s contention that the old pipe in the fence row was considered for many years to mark the true half section corner. But the effect of the trial court’s judgment is to fix the boundary line at neither of the points supported by the evidence.

Both sides to this appeal assert that the cause must be reversed. We agree. In Wilson v. Cooper, 256 Ala. 184, 54 So.2d 286 (1951), the trial court fixed the boundary line between coterminous owners equidistant between the lines asserted by each. In reversing, we said:

“We are unable to find any evidence in the record to support the decree. In fact, neither party claims that the line established by the trial court is the true boundary line dividing their lands, nor did either party offer evidence to prove that such a line was the true line.” (256 Ala. at 185, 54 So.2d at 287)

The same is true here. There is no evidence to support the line fixed by the trial court. Neither party to this appeal claims that the line fixed is the true line. Neither offered any evidence to establish such a line. Both parties agree that the cause must be reversed. Each asks this court to fix the line as contended for by each of them. We cannot fix the line, but do reverse and remand the cause to the trial court for the establishment of the boundary between the lands of these parties, based upon evidence to support such line as fixed.

REVERSED AND REMANDED.

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


author: JONES, Justice.

text:
    Bob BRYANT et al. v. Polly A. MOSS, a person of unsound mind, suing by her guardian, Willie Dan Bryant.
    SC 1356.
    Supreme Court of Alabama.
    March 19, 1976.

      John H. England, Jr. and Booker T. Forte, Jr., Eutaw, for appellants.
    Thomas F. Seale, Jr., Livingston, Lipscomb & Lipscomb, Bessemer, for appellee.
   JONES, Justice.

Polly A. Moss, an elderly and mentally incompetent woman, through her guardian, Willie Dan Bryant, sued her nephews, Bob Bryant, Robert Bryant, and Oscar Bryant, to void a deed she executed to them in 1968 on the grounds that she was of unsound mind and that Bob Bryant unduly influenced Mrs. Moss in his confidential relationship with her. At the close of the evidence, the trial Court allowed the guardian’s attorney to add a count to his complaint based upon the statutory right of a grantor to rescind a conveyance which was given in exchange for the grantee’s promise to support the grantor. Tit. 20, § IS, Code. The trial Court, without a jury, then entered an order cancelling the deed. We affirm.

The deed sought to be cancelled conveyed approximately 180 acres of land in Sumter County with an appraised value of $30,000. The consideration recited in the deed was $100. At the time of the conveyance, Mrs. Moss was 72 years old and was living with Bob Bryant.

The nephews present four issues for review. First, the trial Judge should not have allowed the appellee to amend her complaint at the close of the evidence to include Tit. 20, § 15, as a ground for relief. Second, Tit. 20, § IS, cannot be exercised by a guardian. Third, a letter which was admitted into evidence should not have been read by the trial Judge because it was hearsay. Fourth, the judgment was not supported by the weight of the evidence.

The first and second issues presented by the nephews deal with the propriety of the trial Judge’s allowing Mrs. Moss to amend her complaint to add a count for rescission under Tit. 20, § IS. The nephews claim that they were prejudiced by the amendment and they also assert that an action for rescission under Tit. 20, § IS, cannot be brought by a guardian.

We do not find that the nephews have been prejudiced by the amendment. The issue of whether Mrs. Moss granted the deed to her nephews in exchange for their promise to support her was first introduced into the case by the nephews in their answer. In his direct examination of Bob Bryant, the nephews’ attorney elicited testimony that Bob Bryant had agreed to take care of Mrs. Moss in exchange for the conveyance. In essence, therefore, the promise of support was the nephews’ issue and the trial Court cannot assume that they were suprised by statutory rights linked to their own issues.

The second issue is whether a guardian has the power to initiate a rescission proceeding under Tit. 20, § 15, on behalf of his ward. The nephews’ argument of this issue presupposes that the trial Judge based his order cancelling the deed upon Tit. 20, § IS. Whether the trial Judge based his ruling on this statutory ground is not here material. If the judgment or decree correctly determines the equity of the case, the reasons upon which the trial Court proceeded are unimportant and the judgment will be affirmed. Statements by the trial Judge showing the basis on which his conclusion of fact is founded are not part of the judgment. A correct decision will not be disturbed because the Court gave a wrong or insufficient reason therefor. Cherokee County v. Cunningham, 260 Ala. 1, 68 So.2d 507 (1953); Georgia, Florida, Alabama Transportation Company, Inc. v. Deaton, Inc., 293 Ala. 371, 304 So.2d 168 (1974).

Where, as here, the testimony is taken ore tenus, the findings of fact made and entered by the trial Court will be sustained unless they are clearly and palpably wrong or without supporting evidence, or manifestly unjust. Sterling Oil of Oklahoma v. Pack, 291 Ala. 727, 287 So.2d 847 (1973).

Besides the relief sought under Tit. 20, § 15, Mrs. Moss’s guardian also alleged that she was mentally incompetent at the time she executed the deed and that Bob Bryant unduly influenced Mrs. Moss. The record discloses sufficient competent evidence to support the trial Court’s order that Bob Bryant exerted undue influence in his confidential relationship with Mrs. Moss in the procurement of the deed.

In transactions inter vivos, where the parties stand in confidential relationship and evidence tends to show that the beneficiary is the dominant party, the law raises a presumption of undue influence and casts upon the beneficiary the burden of repelling such presumption when the transaction is assailed. Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878 (1970). The evidence is clear that at the time of the execution of the deed, Bob Bryant held a power of attorney for Mrs. Moss, and Mrs. Moss, although she may or may not have been mentally competent, was living with Bob Bryant and was not capable of caring for herself alone.

The nephews presented extensive evidence to establish Willie Dan Bryant’s relationship with Mrs. Moss and to establish her mental capacity at the time of the execution of the deed; nevertheless, the trial Court was justified, under the evidence, in finding they did not meet their burden of showing that the deed was the voluntary and well understood act of Mrs. Moss’s mind and that it was fair and just. Webb v. Webb, 250 Ala. 194, 33 So.2d 909 (1948). Therefore, we need not reach the issue whether a guardian may initiate a rescission proceeding under Tit. 20, § 15.

The third issue involves the admissibility of a letter dated April 11, 1967, sent by Bob Bryant’s attorney to Willie Dan Bryant, advising Willie Dan to stay away from Polly Moss. The letter contains the following pertinent statement:

“This is to advise you to stay away from Polly and under no circumstances to take her from Bob’s house to her house as you have done recently.”

The nephews contend that the letter is hearsay and was only admitted to prove that it was received. Therefore, they contend, it was reversible error for the trial Judge to read the letter. If the letter was admitted to prove the truth of any assertions it contained, the nephews’ hearsay argument would be valid. However, the significance of the statement in the letter is not the truth of any factual matter asserted but simply the fact that the statement was made. A statement made out of court is not hearsay if it is given in evidence for the purpose merely of proving that the statement was made, provided that purpose be otherwise relevant in the case at trial. 5 Wigmore, Evidence, § 1361; 6, Ibid., § 1770; Motors Ins. Corp. v. Lopez, 217 Ark. 203, 229 S.W.2d 228 (1950). We find that the letter is relevant to this case because Mrs. Moss’s guardian is seeking cancellation of a deed to her nephews on the basis of inadequate consideration and undue influence.

In order to establish a presumption of undue influence in a confidential relationship, Alabama law requires the grantor to present evidence which clearly and satisfactorily shows that the grantee was the dominant spirit. Webb v. Webb, supra. The letter is relevant to this element because it tends to show that Bob Bryant was attempting to isolate Mrs. Moss from her other relations; therefore, it was not error for the trial Judge to read it.

The final issue presented by the nephews is that the judgment was against the weight of the evidence. Since the trial Judge heard the evidence of this case ore tenus, his findings of fact will be sustained unless they are clearly and palpably wrong or without supporting evidence, or are manifestly unjust. Sterling Oil of Oklahoma v. Pack, supra. Upon review of the record, we are of the opinion that there was ample evidence to support a conclusion by the trial Court that Bob Bryant unduly influenced Mrs. Moss in the procurement of the conveyance. We therefore affirm.

AFFIRMED.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.

      . Polly A. Moss was adjudicated a non compos mentis and letters of guardianship were issued to Willie Dan Bryant in 1969.


author: MADDOX, Justice.

text:
    AFRICAN METHODIST EPISCOPAL CHURCH, a corp. v. ST. PAUL METHODIST CHURCH OF SELMONT, a corp.
    SC 1376.
    Supreme Court of Alabama.
    March 19, 1976.
    Chestnut, Sanders & Sanders, Selma, for appellant.
    Gamble & Gamble, Selma, for appellee.
   MADDOX, Justice.

The question presented is the propriety of the circuit judge’s granting summary judgment in a contest between two religious groups over the ownership of church property.

African Methodist Episcopal Church in the United States of America, a national religious organization, and St. Paul African Methodist Episcopal Church, Selma, Alabama, an unincorporated local congregation affiliated with the national organization, brought suit against St. Paul Methodist Church of Selmont, an incorporated local congregation which was organized on June 12, 1969, when a majority of the local congregation disaffiliated from the national organization. In the suit the national organization and the local affiliate sought to enjoin and restrain the newly formed church group from using the church facilities. They also sought an accounting.

The trial judge granted summary judgment in favor of the newly formed church. In granting summary judgment, the court stated:

“It further appearing to the Court that the rights and claims of the parties in and to the real estate involved in this cause depends upon the interpretation and construction of two similar conveyances made to certain individuals as Trustees of St. Paul African Methodist Episcopal Church, Selma, Alabama, which was, at the time said deeds were executed, an unincorporated association consisting of members of a local church or religious society, and that the members of said unincorporated association became incorporated on June 11, 1969, under Article 3 of Chapter 7, Title 10, 'Code of Alabama 1940 (Recompiled 1958), with its corporate name specified to be St. Paul Methodist Church of Sel-mont, a Respondent in the present cause; and,
“It further appearing to the Court from the words and language used in the aforesaid deeds and also from existing statutes applicable thereto (§ 126(1) and (126(2), Title 10, Code of Alabama, 1940 (Recompiled 1958) that the parties to the aforesaid deeds intended that the legal title to the real estate conveyed therein should vest in the trustees named as grantees therein free from any regulation and control of the Plaintiffs in this cause, and that upon the incorporation of the members of the aforesaid unincorporated association with its corporate name specified as St. Paul Methodist Church of Selmont, the legal title to said real estate vested in said last named corporation free from any regulation and control of the Plaintiffs in this cause

The essential facts appearing in the record are as follows:

Before September 1, 1955, the lot upon which the church building stood for many years was contained in a larger tract of land known as the King estate, which had been devised by will equally to Frederic D. King and an alien German woman, Marie Smitter. The undivided one-half interest owned by Marie Smitter was seized by the alien property custodian of the United States government during the second World War. By similar deeds, dated September 1, 1955, and October 15, 1955, respectively, the Attorney General of the United States and Frederic D. King, conveyed their entire interest in the real estate involved to certain named individuals “as trustees of St. Paul African Methodist Church, Selma, Alabama.” Pertinent portions of these deeds read as follows:

“This Indenture, made ... by and between . . . parties of the first part, and ... as Trustees of St. Paul African Methodist Episcopal Church, Selma, Alabma, as parties of the second part.” (Emphasis added.)
The habendum clauses contain this language :
“TO HAVE AND TO HOLD, . forever in trust, for the use of the members of the African Methodist Episcopal Church in the United States of America, according to the rule and discipline of said Church, which from time to time may be adopted and agreed upon by the ministers and preachers of said Church at their General Conference in the United States of America.” (Emphasis added.)

It is apparent that the trial court, in resolving the question of whether the parties to the deeds intended for the national organization to have an interest in the property, relied upon Title 10, §§ 126(1) and 126(2), Code of Alabama 1940 (Recomp. 1958), which provides:

“§ 126(1). Corporation free and independent of control unless otherwise provided by deed or vote. — Unless otherwise clearly stated in the deed or other instrument under which any church corporation organized under the provisions of this article derives title, or unless aft-erwards approved by a majority of the adult members of the congregation of such church at a meeting held after announcement from the pulpit of the church at least 7 days from the date of the announcement, such church corporation, whether heretofore, or hereafter organized and incorporated under the provisions of this article, shall be and shall remain a distinct and independent church corporation, free from the regulation and control of any higher church body, denomination or other organization with which it is now or hereafter associated or affiliated insofar as the management, control, disposition, or alienation of its real property is concerned.”

Although this statute may aid the fact finder in this case in determining the intent of the grantors, the trial judge inappropriately granted summary judgment. As a general proposition, summary judgment, when issues of motive, intent, and other subjective feelings and reactions are material, is likely to be inappropriate. Moore’s Federal Practice § S6.17[41.-2],

The judgment of the trial court is REVERSED and REMANDED.

HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.


text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE CO., INC. v. Lawrence D. SMELLEY.
    SC 1358.
    Supreme Court of Alabama.
    March 19, 1976.

      Bedford & Bedford, Russellville, for appellant.
    O’Bannon & Gonce, Florence, for appel-lee.
   JONES, Justice.

This is a suit for damages under uninsured motorist coverage of two insurance policies and an endorsement issued by Alabama Farm Bureau Mutual Casualty Insurance Co., Inc. After pre-trial conference, the parties stipulated that the policies and endorsement provided at least $20,000 uninsured motorist coverage to the plaintiff, Lawrence D. Smelley, an Alabama State Trooper. The question of whether the endorsement provided an additional $10,000 in coverage was submitted to the trial Judge, who ruled that the endorsement did provide an extra $10,000 coverage. Farm Bureau admitted liability and the case was tried to a jury solely on the issue of damages. The jury returned a verdict of $17,500 in favor of the plaintiff.

Farm Bureau appeals, primarily asserting four errors. First, Farm Bureau claims the Judge erroneously found that the endorsement provided an additional $10,000 coverage; therefore, his instructions to the jury that they could return a maximum verdict of $30,000 was error. Second, the trial Judge erroneously refused Farm Bureau’s requested instructions that the jury could not award damages for medical bills not paid for by the plaintiff, and the trial Judge allowed into evidence the amount of Smelley’s medical bills without proof that Smelley had paid them. Third, Farm Bureau claims that there was no evidence that Smelley suffered permanent injuries, loss of future earnings or loss of future earning capacity; therefore, it was error for the trial Judge to admit mortality tables into evidence and instruct the jury as to those elements of damages. Fourth, the verdict of $17,500 is excessive. We will address these issues in order.

First, for the purpose of this appeal, we assume without deciding that the trial Judge was in error in finding that the endorsement provided an additional $10,000 coverage. We nevertheless hold that the error of instructing the jury that they could return a verdict up to $30,000 was rendered harmless by the jury’s returning a verdict of $17,500. ARAP 45 provides:

“No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal or special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

The alleged erroneous instruction only informed the jury that their verdict could not exceed $30,000; it did not indicate to the jury that $30,000 or any other amount was justified by the evidence. Farm Bureau argues that by extending the limits of their liability, the instruction persuaded the jury to return a higher verdict than it would have returned if the maximum liability had been $20,000. However, the maximum limit of recovery is not an element of damages, and we cannot assume, without proof, that the jury disregarded its obligation to reach a verdict based on evidence of damages properly before them. For other cases holding that an erroneous instruction may be rendered harmless by the jury verdict, see W. E. Belcher Lumber Co. v. Woodstock Land & Mineral Co., 245 Ala. 5, 15 So.2d 625 (1943); Hill v. Wyrosdick, 216 Ala. 235, 113 So. 49 (1927).

Farm Bureau’s second argument is that the trial Judge erroneously refused its requested instruction that the jury could not award damages for medical bills which were not paid by Smelley. The trial Judge’s instruction on this issue, which was taken from Alabama Pattern Jury Instructions, § 11.09, clearly informs the jury that damages for medical expenses are to be allowed only “for doctor’s and medical bills which the plaintiff has paid or has become obligated to pay.” This is a correct state-' ment of the law, and we find no error in the Court’s refusing additional instructions. Farm Bureau also objects to the introduction of evidence of the plaintiff’s medical bills without any proof that the plaintiff has paid them. Farm Bureau cites Title 36, § 58(69), Code, as evidence that the State of Alabama insured against the hospital and medical expenses of the plaintiff. However, evidence that an insured has been compensated for a loss by an indemnity insurer is not admissible in Alabama notwithstanding the fact that the plaintiff has introduced evidence of the amount of medical expenses incurred by the plaintiff. Vest v. Gay, 275 Ala. 286, 154 So.2d 297 (1963). Since the parties have stipulated to the reasonableness of the bills, the trial Judge committed no error by admitting the evidence of the plaintiff’s hospital and medical bills.

Third, Farm Bureau claims that mortality tables were introduced into evidence despite the fact that there was no evidence of permanent injuries, loss of future earnings, or earning capacity. In Alabama, mortality tables are admissible when there is evidence (even though it may be controverted) from which the jury may draw a reasonable inference that a plaintiff’s injuries are permanent. Louisville & Nashville Railroad Co. v. Richardson, 285 Ala. 281, 231 So.2d 316 (1970); Louisville & Nashville Railroad Co. v. Steel, 257 Ala. 474, 59 So.2d 664 (1952); Southern Railway Co. v. Cunningham, 152 Ala. 147, 44 So. 658 (1907). If the tables are admitted, they may be used by the jury to determine the plaintiff’s impaired or diminished earning capacity. Alabama Great Southern Railroad Co. v. Gambrell, 262 Ala. 290, 78 So.2d 619 (1955).

We have examined the record for specific legal evidence from which the jury could draw a reasonable inference that Smelley suffered permanent injuries. The record reveals that he was involved in an automobile accident on October 6, 1974, and was taken to the emergency room of Eliza Coffee Memorial Hospital. The doctor who examined Smelley in the emergency room testified that he was complaining of severe neck pain plus pain in the chest and hip. An examination of Smelley revealed that he had a cerebral concussion, cervical strain, muscle spasms in the shoulder blade area, and separation of rib cartilages. An x-ray of Smelley’s spine revealed a narrowing of the L-5 vertebra. Since the accident, the doctor testified, Smelley had apparently developed bursitis in his shoulder blade radiating out his right upper extremity, which was treated with an injection into the muscle under his collarbone. The doctor also testified, “I think the chances are that he will have some recurrent pain in his neck and as time goes by, some arthritic changes.” Smelley testified that since the accident he has had constant pain in his shoulder which has hampered his ability to move his shoulder. He also testified that he has had recurring lower back pain, headaches and dizziness.

On cross examination, the doctor stated that the only positive permanent injury Smelley suffered was to his L-5 disk, but the doctor stated that he could not say that plaintiff would not have some future trouble with his neck. The doctor also stated that he was not able to say that the injury to Smelley’s spine definitely resulted from the injury.

The plaintiff introduced evidence of loss of earning capacity or future income on direct examination. The plaintiff is employed as an Alabama State Trooper. His job requires extensive driving and possibly arresting unwilling persons. He testified that the pain in his lower back is especially troublesome after driving and the doctor testified that any vigorous activity such as arresting unwilling persons “might trigger some of his muscle spasm and pain over again or else his pain under his shoulder blade.”

In our opinion, the jury could draw a reasonable inference from this evidence that Smelley suffered permanent injuries which would impair his future earning capacity. Therefore, it was not error to admit the mortality tables.

. Farm Bureau’s fourth argument is that the verdict is excessive. We have already recited the testimony of Smelley’s pain from his injuries to his spine, shoulder, and ribs and the potential for continued pain from bursitis in his shoulder and the narrowing of his lumbar disk. There is also evidence which indicates that Smel-ley’s capacity to pursue his occupation has been impaired. The trial Judge overruled Farm Bureau’s motion for a new trial on the ground that the verdict was excessive; and, in our opinion, the verdict does not indicate passion, prejudice, corruption, or mistake on the part of the jury. Louisville & Nashville Railroad Co. v. Tucker, 262 Ala. 570, 80 So.2d 288 (1955).

We therefore affirm.

AFFIRMED.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.

      . We recognize that Alabama has been cited as the only jurisdiction contra to the general principle of the “collateral source” rule. Torts — Cases and Materials, Green et al., 1968; 14 Ala.L.Rev. 148. This results from a misconstruction of Jones v. Keith, 223 Ala. 36, 134 So. 630 (1931), and overlooks later case law development.