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

text:
    Gordon SCREWS and Borden’s, Inc. v. Jerry PARKER.
    No. 50125.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Heidelberg, Woodliff & Franks, W. Swan Yerger, Watkins & Eager, Velia Ann Mayer, Jackson, for appellants.
    John W. Prewitt, Vicksburg, for appellee.
   SUGG, Justice for the Court:

Jerry Parker filed suit in the Circuit Court of Yazoo County against Gordon Screws and Borden’s, Inc. for injuries received in an automobile accident. The trial court instructed the jury to find for the plaintiff against both defendants, whereupon the jury returned a verdict in favor of the plaintiff for $1,650. On motion of plaintiff a new trial was granted on damages only unless the defendants accepted an additur of $10,650. Defendants did not accept the additur and appealed under the provisions of section 11-7-213, Mississippi Code Annotated (1972). Plaintiff did not cross-appeal.

The principal question involved is whether the trial judge abused his discretion in granting a new trial because damages were inadequate. Section 11-1-55, Mississippi Code Annotated (Supp.1975) authorizes trial courts to overrule a motion for a new trial upon condition of an additur or remittitur if the court finds the damages are excessive or inadequate for the reasons stated in the statute. The statute further provides that if the additur or remittitur is not accepted, then the court may direct a new trial on damages only. The additur was not accepted by the defendants so we must determine if the court abused its discretion in granting a new trial because of inadequate damages.

It was settled in City of Meridian v. Dickson, 266 So.2d 143 (Miss.1972) that, on appeal under section 11-7-213, “The only issue that the party appealing can raise is whether the trial court abused its discretion in granting a new trial on the question of damages only.”

In Biloxi Electric Co. v. Thorn, 264 So.2d 404 (Miss.1972), the defendant, Biloxi Electric Co., did not accept the additur, appealed, and we reinstated the jury verdict of $6,500 holding the trial court abused its discretion by granting a new trial. Plaintiff did not cross-appeal. We reversed the action of the trial court which granted plaintiff a new trial unless the defendant accepted an additur of $6,000, and stated:

Therefore, the decisive question in this case is whether appellant has shown that the trial court manifestly abused its discretion in granting a new trial. As heretofore stated, a careful review of the evidence in this case convinces us that $6,500 was ample compensation for appel-lee’s injuries. It is manifest to us that the trial court abused its discretion in granting a new trial. (264 So.2d at 406).

In Dorris v. Carr, 330 So.2d 872 (Miss. 1976), plaintiff, Carr, obtained a judgment for $4,500 against the defendant, Dorris. The trial court granted plaintiff a new trial unless the defendant agreed to an additur of $3,000. Defendant appealed, and we affirmed the action of the trial court in granting a new trial for the inadequacy of damages holding the trial court did not abuse its discretion in granting plaintiff a new trial based on the inadequacy of the damages awarded by the jury. After determining that the trial court properly granted plaintiff a new trial because of inadequate damages, the amount of the additur was then considered. A majority of the court was of the opinion that the amount fixed by the trial judge was proper and justified by the evidence. We provided for an additur on the same amount fixed by the trial court.

From the foregoing it is clear that, when a defendant does not accept an additur and appeals from an order granting a new trial because of inadequate damages, the scope of review on appeal is limited to the question of whether the trial court abused its discretion in granting a new trial.

In this case the defendants seek to have us review the action of the trial court in directing a verdict against them on the issue of liability and the refusal of an instruction requested by one of them. These questions are beyond the scope of review in this appeal; therefore, we will review the evidence to determine if the trial court abused its discretion by granting a new trial on damages only.

Parker was injured in a collision between an automobile and a truck on October 17, 1974 at approximately 6:00 o’clock a. m. The collision occurred on U.S. Highway 61 about four miles north of Valley Park just north of the intersection of Highway 61 and a road leading to the Delta National Forest to the east of Highway 61. The weather was clear and the road was dry. Parker and Screws had spent all of the previous night at various night spots near Vicksburg and both of them had consumed some beer. Parker was driving when he and Screws left a night spot in Vicksburg to return to Holly Bluff where Parker and Screws both worked and lived. Parker drove about one mile and then Screws began to drive the automobile. Parker testified he observed Screws driving for about ten miles until he fell asleep. They proceeded north on Highway 61 with the intention of turning east onto the road which led through Delta National Forest and eventually to Holly Bluff. Screws was not familiar with the turnoff and went past it approximately 50 yards north of the intersection. Screws testified that he stopped in the right-hand lane with the intention of backing up; however, he could not get the automobile in reverse gear. He observed the lights of a vehicle approaching from the south about a quarter of a mile away. Screws said he pressed the brake pedal in an effort to attract the attention of the driver of the approaching vehicle and called out to Parker that the vehicle was going to hit the automobile. Screws estimated the vehicle was traveling about 65 to 70 miles per hour at the time of the impact; that the headlights and tail lights on the automobile were on; that no vehicles were approaching from the opposite direction; that the left lane was clear; and, that he and Parker were inside the automobile with the doors closed. Parker testified that he waked up when Screws missed the road leading to Delta National Forest and the next thing he remembered was Screws yelling that the vehicle was going to hit them.

Willie Washington, the driver of the Borden’s truck, testified that he was proceeding north in the right-hand lane of highway 61 at a speed of 45 to 55 miles per hour. Washington testified that as he was coming out of a curve south of the point of impact his headlights reflected on the automobile approximately 100 feet away. Washington stated that no lights were visible on the automobile, neither were the brake lights flashing. Washington stated that he saw a man on the right side of the automobile standing with one foot inside the door and the other foot on the ground. Parker denied that he was standing with one foot inside the door and the other foot on the ground. Washington testified that another vehicle was approaching from the north and that he applied his brakes but did not sound his horn. The right fender of the truck driven by Washington hit the left rear of the automobile, knocking it off the road.

Pete Williams testified that he was driving a pickup truck south on Highway 61 and he saw the lights of the truck driven by Washington but did not see the lights of any other vehicle between him and the truck. Williams testified that as the truck neared him it swerved across the road into his lane and that he pulled off on the shoulder of the road to give the truck clearance and he first saw the automobile in the ditch east of the highway. He testified that no lights were burning on the automobile when he saw it but later the lights of the automobile were turned on.

John Earl Moore, a passenger in the Williams pickup, testified to the same facts. Moore also said the door of the automobile on the passenger side was open and Parker was lying face down in the ditch. He said that Parker was mumbling but he could not understand what he was saying. He testified that he smelled alcohol on Parker and Screws and he noticed a puddle on the highway that appeared to be where someone had urinated. Moore also stated that the lights on the automobile were not on when he first approached it in the ditch but within the next fifteen to twenty minutes the lights were turned on.

Washington further testified that he stopped his truck, returned to the scene of the collision and saw Parker lying partially under the automobile with his face in the water. He said he touched Parker’s shoulder and Parker looked up and said to him: “You black s. o. b., you get your hands off me.” Parker denied that he made such a statement.

Patrolman Larry K. James of the Mississippi Department of Public Safety arrived at the scene at approximately 7:00 o’clock a. m. He observed Screws and Parker and stated that both appeared to have been drinking, but no alcohol was found at the scene of the collision. The patrolman noticed the stain just off the shoulder and expressed the opinion that it was urine. James testified that the car was knocked into the ditch, coming to rest approximately 120 feet from the point of impact and that the truck did not leave any skid marks.

At the scene of the collision the road was level with wide shoulders on each side with a curve immediately to the south. The driver of any vehicle proceeding north out of the curve of the point of collision had good visibility toward the north.

After the accident Parker was carried to a hospital, X-rayed, with no objective findings. Parker later consulted Dr. Charles Hogue of Yazoo City who took further X-rays of Parker’s skull, neck, chest and back. None of the X-rays showed any fracture. Dr. Hogue testified that he found no concrete evidence of anything more than muscle spasms. Parker was hospitalized from October 19 to November 2 and again from December 4 to December 14. While in the hospital Parker was given pain relieving medication and muscle relaxants. Parker’s medical bills for his treatment by Dr. Ho-gue amounted to $837 and his hospital bills were $928.75 and $543.30.

Parker testified that he was employed at the time of the accident, by F. H. Coghlan, a farmer who produced cotton and soybeans. He earned $85 a week and was furnished a house trailer. Parker testified he was unable to work from October 17, 1974 until May, 1975 when he obtained employment with a farmer in Louisiana doing the same work that he had previously been doing for Mr. Coghlan. Parker earned $100 per week after May, 1975 and was furnished a house trailer.

Based on the above evidence the trial court gave a peremptory instruction for the plaintiff against both defendants on the issue of liability and gave the defendants a contributory negligence instruction. Although the defendants urge that giving the peremptory instruction was error, this may not be considered because it is beyond the scope of review as discussed infra. Neither may we consider whether the court was correct in giving the contributory negligence instruction because the plaintiff did not cross-appeal nor assign this as error. City of Meridian v. Dickson, 266 So.2d 143 (Miss.1972).

We recognize that the verdict of the jury did not fully compensate plaintiff for his medical expenses, loss of earnings and pain and suffering; however, the jury had been instructed by the court to consider the contributory negligence of the plaintiff. Undoubtedly the jury found that the plaintiff was guilty of contributory negligence to a substantial extent and reduced the verdict for this reason.

Obviously the jury did not believe plaintiff was exercising reasonable care for his safety under the circumstances in view of the testimony that plaintiff was standing by the side of an automobile without any lights on at night in the north bound lane of Highway 61; that he was under the influence of alcohol because he admitted that he had consumed eight or nine beers that night, and, when asked whether he could see how to drive, plaintiff responded: “Yes, Sir, I could see, but I didn’t have any business driving.”

In Standard Products, Inc. v. Patterson, 317 So.2d 376 (Miss.1975) we reinstated the verdict of the jury where the trial court had allowed an additur, and, after quoting from Biloxi Electric Company v. Thorn, supra, stated:

This means that the trial court should determine, before allowing an additur to a jury verdict for damages, that the jury verdict was so inadequate under the facts in the case as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous and such as to manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption. (317 So.2d at 379).

In this case we feel that the verdict of the jury was proper although it did not fully compensate plaintiff for his damages. There was strong proof of contributory negligence and we feel that the size of the verdict reflects that the jury believed plaintiff was guilty of contributory negligence to a substantial extent.

In City of Meridian, supra, we stated:

When a defendant appeals because the trial court grants a new trial due to inadequacy of damages, it is asking the court to reinstate the judgment and by the very act of appealing it must be willing to accept the verdict in all other respects, including the determination of liability. Otherwise, there would be no way to limit the scope of appeal to the question of whether the trial court abused its discretion in granting a new trial on the issue of damages only. (266 So.2d at 144).

The defendants in this case appealed because the trial court granted a new trial on the ground the damages awarded by the jury were inadequate; therefore, under the rule announced in City of Meridian, supra, defendants must be willing to accept the jury verdict in all other respects. Having determined plaintiff was not entitled to a new trial due to inadequacy of damages, we reinstate the jury verdict.

REVERSED AND VERDICT OF JURY REINSTATED.

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

COFER and LEE, JJ., dissent.

BOWLING, J., took no part.

COFER, Justice,

dissenting:

I dissent.

After a thorough examination of the record, I am convinced that the trial judge correctly granted a new trial unless additur was accepted by appellants.

As a preliminary statement, it is my view that appellee’s conduct on the night ending with the accident and resulting injuries to him about six a. m., the following day, was less than commendable and not deserving of approbation. This may have influenced the jury in its paltry verdict of $1,650, but my dissent is not founded on that thesis. However, the best can be thankful that the protection of the law is not reserved alone to the pure in heart. (In Robertson v. Welch, 242 Miss. 110, 118, 134 So.2d 491, 494 (1961), the Supreme Court said “Intoxication, either in whole or in part, does not place the addict beyond the protection of the law. After all, such an unfortunate has rights just as any other human being or member of society.”)

The record shows appellee was twenty-six years of age at the time of the vehicle accident, and in good health. The uncon-tradicted proof shows that, either as a passenger in the automobile in which he and appellant Screws were riding, or outside of the vehicle with one foot inside, he, with the vehicle was, by the impact, hurtled some one hundred or more feet into the borrow pit where he was found partly under the car and partly beside it; that he was taken by ambulance to the emergency room of Mercy Hospital, Vicksburg, where he was examined and released; the back side of his head and his neck and leg were hurting; when he reached home from the emergency room he had to be helped from the car and into bed; his wife washed “blood and stuff off him and he passed out; and on regaining consciousness, he talked irrationally.”

Before midnight of that day, he had a high fever, just lying in bed and jerked; he was turned over on his side and went back to sleep.

Dr. Charles Hogue, his doctor during this treatment, testified. He first saw appellee at his clinic on October 19, 1974, at which time appellee complained of pain in his head, neck, and lower back area. He had bruises, there was a sore spot on the right side of his head; x-rays showed muscle spasm, (a tightening of the muscle,) but never showed any fractures or dislocations. He was hospitalized then from October 19,

1974, to November 2, 1974, and the doctor thought he should stay longer because of the pain he was suffering and the x-ray evidence of muscular spasm in his neck and back.

He was seen in Doctor Hogue’s office on November 4, when he complained of hurting all over; on November 6; December 3; he entered the hospital again on December 4, and was discharged December 13, during which hospitalization, Dr. Hogue determined that he had had a concussion of the head, and now testified that he had had multiple contusions to his body generally. Dr. Hogue saw him again on December 18, 1974, December 26, 1974, January 3, 1975, January 15, 1975, January 23, 1975, February 13, 1975, February 27, 1975, March 15, 1975, November 28, 1975, and last saw him professionally on January 5, 1976.

There were some fourteen x-rays, not in an extravaganza, but five on the first visit, two each on December 3 and 26, 1974; and January 27, 1975; and one each on February 13, March 14 and November 20, 1975, used and useful in determining progress in his recovery, especially from the muscle spasm, which, Dr. Hogue testified, can be, but does not have to be, permanent, and indicates injury.

Throughout these calls and examinations, he persisted in suffering with this neck and back, which, he said, may be problems for a long time.

He incurred doctor bills with Dr. Hogue in the amount of $837; and hospital bills of $928.75 and $543.30, a total of $2,309.05. Dr. Hogue testified that these were necessary and reasonable and he further testified that he did not consider appellee was pretending, but had a real injury.

At his trial plaintiff testified that he was, while on the witness stand, suffering pain all across his back, about his belt line.

In the spring of 1974, appellee was employed as a farm hand by F. H. Coghlin, and continued in this employ as a satisfactory farm hand until the accident. His employment was for $85 per week with a house trailer furnished him and his family for living quarters, and with the understanding that, if he stayed through the crop season, he would receive a bonus of the average yield of twenty acres of beans, which, the employer without contradiction said that year amounted to about fifteen bushels per acre, which he estimated sold for about seven dollars a bushel. He undertook to work for Coghlin after the accident but was unable to do the work, and was not paid for any time after the accident nor did he earn the bonus, not being able to complete the crop.

Coghlin testified that, had he remained through the season able to work, and desired employment with him for 1975, they would have made such an agreement.

Although the record shows that appellee wanted to return to work, and was given reluctant permission to do so by Dr. Hogue, he was unable to work until May 1975, when he obtained employment similar to that with Coghlin on a farm in Louisiana. During this interval between the accident and May 1975, he was not working nor receiving wages.

The court granted plaintiff Parker a peremptory instruction against both defendants on the question of liability. He also granted appellants’ request for two contributory negligence instructions:

The Court instructs the jury that if you believe from the evidence in this case that at the time of the aforesaid accident the plaintiff Jerry Parker was standing on the outside of a vehicle which had been stopped in the main traveled portion of the roadway at night and that there were no lights burning on said vehicle, and you further find that in so doing the said Jerry Parker failed to exercise a reasonable degree of care and caution for his own safety, then Jerry Parker was guilty of negligence. If you further find from a preponderance of the evidence that such negligence on the part of Parker, if any was a proximate contributing cause of the damages and injuries sustained by him, then it is your sworn duty to reduce any award of damages by that proportion of negligence attributable to the said Jerry Parker, if any.

and

The Court instructs the jury that if you believe from a preponderance of the evidence in this case that the plaintiff Jerry Parker allowed the defendant Gordon Screws to undertake the operation of the motor vehicle at a time when Parker knew or in the exercise of reasonable care should have known that the said Screws had been drinking, and that the judgment or functions of Screws was impaired in any degree, then Jerry Parker was guilty of negligence. If you further find that such negligence if any was a proximate contributing cause of the injuries sustained by Parker then it is your sworn duty to reduce any award of damages to Parker by the degree of his negligence, if any.

The first of these had to do with the conflicting testimony as to whether appellee was in or beside or partially in and partially out of the vehicle at the collision. The court reluctantly gave this instruction, first reasoning:

Well, it’s immaterial in considering this instruction, of course, but if he’d been standing outside of the car no reasonable juror would find that he would end up 120 feet away under the car or beside the ear, anyway.

I acknowledge that weird happenings can come from a collision like this, but it challenges one’s reasoning to conclude that ap-pellee was standing outside or partially outside the car and was borne, along with the car, the long distance shown in the record ending up partially under the vehicle.

The second contributory negligence instruction quoted above, makes negligence appellee’s act of letting appellant Screws drive the car, if appellee knew, or in the exercise of reasonable care, should have known that Screws had been drinking and that the judgment or functions of Screws were impaired in any degree.

The record establishes that appellee had consumed much beer. Appellee denied seeing Screws drink any alcoholic beverage that night, and during appellee’s observation of his driving returning from Vicksburg, he was “A No. 1.” Screws testified that, at Rolling Fork, where he and appellee first went, he drank a beer or two, did not know how many, “two or three cans, yes, sir.” The last he had drunk, he said, was midnight or a little earlier. Witness. Pete Williams saw a man leaning on the car door down in the borrow pit and he did not seem to be hurt, and he smelled alcohol on the man, it did not smell like beer. Witness Speed said that after the accident Screws was not handling himself too well, and had been drinking whiskey. Patrolman James said Screws’ motor functions were impaired, and had the appearance “no definite way to describe it, of a man who had quite a bit to drink, not a stagger, because he did not seem to be drinking that much, just not a normal walk to me.” There was no whiskey or beer in the car, he said, and he did not remember whether there was an alcohol odor on Screws. Washington, driver of appellant Borden’s heavy truck, did not talk with Screws at the scene.

Turning to appellant Borden’s participation in the negligence, its truck-trailer, weighing loaded, as it practically was, some 75,000 pounds came at forty-five to fifty miles per hour, according to its driver around a left-hand curve, and observed the car of Screws and appellee stopped in its right-hand lane. Whether the lights were on is disputed, as is Screws’ testimony that he was pumping the brake pedal to get the truck driver’s attention. Screws had overrun the turn off he intended to take, had stopped to change to reverse to return to the turn off, but was having difficulty in getting the gears changed, and this, he testified, caused him to be stopped in the road. The truck driver did not think the ear was more than one hundred feet away when he first saw it. The testimony shows that witness Williams and his passenger were moving south in their right lane that there were wide shoulders on the road, and that by action of Williams’ maneuvering his vehicle onto the shoulder, there was room for the truck-trailer to pull to the left lane and avoid the collision altogether. Washington insisted that, had he taken this course he would have had a head-on collision with Williams’ vehicle. The truck-trailer had its low beam lights on, which would light up a distance equal to the length of the rig, fifty-five feet or more; they were not on bright, the driver testifying that he did not need them that intense, although it was still dark. It was not yet dawn, but the weather was clear.

After the collision the truck driver went down into the borrow pit, and appellee was lying on his face, with his head in the water; he pulled him from under the car, and the driver said he told him, “You black s. o. b., you get your hands off of me,” a statement flatly denied by appellee.

Under these circumstances, the issue is whether the trial judge was correct in' granting a new trial on the damages issue only with condition of additur. As I perceive the threshold issue, it is not whether an additur in the amount suggested by the trial judge or any amount, was proper, but whether the verdict falls within the reach of Mississippi Code- Annotated, Section 11-1-55 (Supp.1978). This statute [Chapter 396, Laws of 1971], marked the advent of additur to the authority of courts in dealing with jury verdicts. Biloxi Electric Co. v. Thorn, 264 So.2d 404 (Miss.1972).

It was amended by Chapter 411, Laws of 1972, and now reads, the amendment being only the last sentence thereof:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct appeal, upon condition of an additur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such ad-ditur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remittitur.

This statute looks with favor upon addi-tur as a means of relieving crowded dockets and expediting the end of litigation, according to the Thorn case, supra, 264 So.2d at 406. According to the wording of the statute, additur or remittitur may be made a condition upon which new trial will be denied, if the court finds that in the verdict, the judge or trier of fact (here the jury) was influenced by bias, prejudice, or passion or that the damages awarded were contrary to the overwhelming weight of the credible evidence.

In this case, the judge, at the end of a painstaking trial and hard consideration of the entire record, including the presence of contributory negligence, found, on review thereof, that passion and prejudice were present in the record, and the verdict was contrary to the overwhelming weight of the evidence. Under the statute either finding would be sufficient.

Chief Justice Kent, writing in Coleman v. Southwick, 9 Johns 45, 53, 6 Am.Dec. 253 (New York, 1812), announced a legal principle touching upon interference with jury verdicts, 6 Am.Dec. at 258, part of which is quoted in 22 Am.Jr.2d, Damages, § 366, p. 473 (1965), which is in turn quoted in the Thorn opinion supra, and the majority opinion quotes from Standard Products, Inc. v. Patterson, 317 So.2d 376 (Miss.1975), which, citing the Thorn case, supra says:

This means that the trial court should determine, before allowing an additur to a jury verdict for damages, that the jury verdict was so inadequate under the facts in the case as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous and such as to manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption. (317 So.2d at 379).

It is my view that we should return to the plain meaning of Mississippi Code Annotated, Section 11-1-55 (Supp.1978), as the Legislature expressed it, and remove the stern precedent findings which have followed Kent’s pronouncements in the Coleman case, supra. In doing so, we would return to the lawmaking body the prerogative of lawmaking.

Regardless of what I think should be done, as expressed next above, I do not hesitate to say the the jury award is so inadequate as to strike me “at first blush, as being beyond all measure, unreasonable, and outrageous and such as to manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption,” and contrary to the overwhelming weight of the evidence.

I would affirm the lower court.


source: Caselaw Access Project

license: Public Domain

text:
    Grace Powell DAVIS v. Clifford J. DAVIS.
    No. 50535.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Rehearing Denied Jan. 10, 1979.
    Johnston & Steinberger, Karl R. Steinberger, Pascagoula, for appellant.
    Hengen & Hengen, Louis Hengen, Biloxi, for appellee.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

Before ROBERTSON, P. J., SUGG and COFER, JJ., and J. W. WALKER, Commissioner.

AFFIRMED.


text:
    RAY GEOPHYSICAL DIVISION OF MANDREL INDUSTRIES, INC., et al. v. Burnell O’QUIN and Wife, Gwendolyn O’Quin.
    No. 50798.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Rehearing Denied Jan. 10, 1979.
    Roberts & Easterling, M. M. Roberts, Hattiesburg; William Ben Regan, Magnolia, for appellant.
    Roach, McMillan & Welch, John Gordon Roach, Jr., McComb, for appellee.
   Appeal from Circuit Court, Pike County; Russel D. Moore, Special Judge.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.


author: J. RUBLE GRIFFIN,

text:
    MASONITE CORPORATION and Roy L. Jones v. Ethel BALDWIN.
    No. 50805.
    Supreme Court of Mississippi.
    Dec. 20, 1978.

      Daniel, Coker, Horton, Bell & Dukes, B. Stevens Hazard, Jackson, for appellants.
    Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellee.
    Before ROBERTSON, P. J., WALKER and BROOM, JJ., and GRIFFIN, Commissioner.
   J. RUBLE GRIFFIN,

Commissioner for the Court:

This is an appeal from the Circuit Court of Smith County, wherein a judgment was rendered for the plaintiff, Ethel Baldwin. On the trial, the following facts were developed: Roy L. Jones, one of the appellants here, and other employees of the appellant Masonite Corporation, while acting within the scope of their employment, went upon lands of the appellant corporation on August 24, 1976 and there discovered the ap-pellee Baldwin performing a logging operation.

The agents of the corporation informed appellee as to the ownership of the land. The ownership is not in dispute and never was. Further, it was not disputed that the logs came from appellee’s own land and had been brought by him to a 40-foot cleared area on a pipeline right of way on Masonite property for loading at a point on a “road.” A conversation ensued between the agents of Masonite and the appellee wherein he was requested to leave the property of Masonite until a “right of way” was obtained.

This the appellee refused to do, stating in effect that he had a right to use the “road” due to long use by him in the past. The appellee asserted a prescriptive easement to the “road.”

Two days later the appellant Jones again found the appellee on Masonite property, performing his logging operation as before, whereupon he filed before a justice court judge an affidavit for trespass under Section 97-17-97, Mississippi Code Annotated (1972). The appellee was acquitted before a justice court jury and thereafter this action for malicious prosecution was instituted. It should be pointed out that the evidence shows, by appellee’s witnesses, the long use of the “road” by the appellee and others. Physical evidence (pictures) as well as statements of the witnesses show that the “road” is primarily a logging trail that crosses the lands of Masonite and at least borders on the 100-acre tract of the appellee which was surrounded by Masonite’s lands.

Even though the evidence may show that the appellee had a prescriptive easement to use the trail or “road”, this Court is of the opinion that this is not determinative of the issue and that the question now before us is whether or not there is a lack of probable cause for the filing of the affidavit by Jones. Said Section 97-17-97, supra, reads as follows:

(1) If any person or persons shall without authority of law go into or upon or remain in or upon any building, premises or land of another whether an individual, a corporation, partnership, or association, or any part, portion or area thereof, after having been forbidden to do so, either orally or in writing including any sign hereinafter mentioned, by any owner, or lessee, or custodian, or other authorized person, or after having been forbidden to do so by such sign or signs posted on, or in such building, premises or land, or part, or portion, or area thereof, at a place or places where such sign or signs may be reasonably seen, such person or persons shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than five hundred dollars ($500.00) or by confinement in the county jail not exceeding six (6) months, or by both such fine and imprisonment.
(2) The provisions of this section are supplementary to the provisions of any other statute of this state.

The uncontradicted evidence shows that the appellee entered upon Masonite lands not only on the trail or “road” on which he claims a prescriptive easement but also along the pipeline right of way on Masonite lands after he had been orally forbidden to do so. Following, then, the language of the above quoted section, the Court is of the opinion that Jones had probable cause to file the affidavit even though he may have been mistaken in doing so. The recent case of J. C. Penney Co. v. Blush, 358 So.2d 590 (Miss.1978) is persuasive on the question here. The following language is found therein:

The issue was not whether the prosecution ultimately resulted in a verdict of acquittal in the criminal case but whether there had been probable cause for the action taken by appellants. Probable cause merely means “reasonable cause.” Black’s Law Dictionary (1968). It has been defined as a reasonable ground for belief in the existence of facts warranting the proceedings complained of. Owens v. Graetzel, 149 Md. 689, 132 A. 265, 267. In other words, the issue was whether the facts and circumstances upon which appellants acted were such as to constitute probable cause or reasonable ground for their belief that appellee was engaged in shoplifting or whether their actions were unreasonable under the circumstances and prompted by malice against Mrs. Blush.
While evidence of Mrs. Blush’s acquittal is relevant upon the issue of probable cause, it is neither exclusive nor conclusive upon that issue. The quantum of evidence required to convict in a criminal case is different and is greater than in civil proceedings. In the criminal case, proof beyond a reasonable doubt is necessary and a verdict of acquittal means no more than that the evidence did not remove from the jurors’ minds every reasonable doubt of guilt. The jury in the ease now before us must reach its decision upon the basis of a preponderance of the evidence and not upon the single fact of the ultimate acquittal of appellee by a jury on the criminal charge. Allen v. Ritter, 235 So.2d 253 (Miss.1970). (356 So.2d at 593).

It is the opinion of the Court that even though the appellee may have been properly acquitted in the justice court, still, under the language of Section 97-17-97, supra, and the prior holdings of this Court, above pointed out, there was probable cause for the filing of the affidavit. The burden was on the appellee to properly prove his prescriptive easement and not upon the appellants to disprove it, therefore the directed verdict should have been given.

For these reasons, the judgment of the circuit court is reversed, and judgment rendered here for the appellants.

REVERSED AND RENDERED.

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

BOWLING, J., took no part.

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


author:
      NEAL B. BIGGERS, Commissioner for the Court:
     SUGG, Justice,

text:
    Donald VAN NORMAN v. STATE of Mississippi.
    No. 50455.
    Supreme Court of Mississippi.
    Dec. 20, 1978.
    John R. Poole, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., LEE and BOWLING, JJ., and BIGGERS, Commissioner.
   NEAL B. BIGGERS, Commissioner for the Court:

Donald Van Norman was indicted in the Circuit Court of Pike County for the crime of adultery. Upon trial, he was found guilty and sentenced to five years in the State penitentiary. The indictment charged the appellant with committing an act of adultery with his daughter “on or about the 15th day of January, 1976.” The indictment was drawn under Mississippi Code Annotated, Section 97-29-5 (1972), which provides as follows:

Persons being within the degrees within which marriages are prohibited by law . who shall ... be guilty of a single act of adultery or fornication, upon conviction, shall be punished by imprisonment in the penitentiary for a term not exceeding ten (10) years.

After the voir dire, but prior to the taking of testimony, the defendant moved the court to require the State to specify an exact date on which the alleged offense occurred. The motion was overruled, the court pointing out that “on or about January 15th, 1976”, as stated in the indictment, was sufficient.

The State’s sole witness was the prosecu-trix, the natural daughter of the appellant, who testified to a lurid pattern of sexual contacts between her and the appellant beginning in approximately October of 1974 and continuing through July of 1976. She testified that she and the appellant had sexual relations many times in January, 1976, and January 15th, the date alleged in the indictment, was merely an estimate. After the State rested, the appellant testified, denying any sexual contact with his daughter and introduced certain time logs he was required to keep by the Interstate Commerce Commission in his work as a truck driver. The logs allegedly showed his whereabouts on most of the dates charged in the indictment and other witnesses testified as to the appellant’s whereabouts at other times on January 15th, 1976, to further his alibi defense. The appellant also brought out in his testimony that on the date complained of, he was not married, having been divorced from the prosecutrix’s mother in October, 1975, and having remained single until marrying his present wife in July of 1976. The testimony had also shown that the prosecutrix had never been married.

The trial judge, after hearing the testimony of the prosecutrix concerning many alleged acts of intercourse with the appellant, the testimony having been offered without objection, and after having considered further the motion of the appellant made earlier to require the State to elect a specific date to rely on in presenting its proof, correctly decided to sustain the motion of the appellant. The State then filed a written motion to amend the indictment to change the date of the alleged offense from “on or about January 15th, 1976”, to “on or about June 25th, 1976.” Defense counsel objected to the amendment and moved further that any amendment of the date be required to include an act on a date already testified to in the State’s case-in-chief. The amendment as offered was allowed and the appellant requested and was given one hour to prepare a defense concerning the new date. After the recess, the prosecutrix - was recalled and testified that she also had sexual intercourse with the appellant on June 25, 1976, after which the State rested again.

The appellant returned to the witness stand and introduced additional logs to support his testimony that he also was out of town on a trip on June 25th, 1976, until around 7:30 P.M., and was with his then fiancee (his present wife) until approximately midnight.

At the conclusion of the testimony the appellant moved for a directed verdict of not guilty on the grounds that the State had failed to prove that either the prosecu-trix or the appellant were married at the time of the alleged act and therefore “adultery” as alleged in the indictment had not been proved. The motion was overruled.

The first error assigned is that the trial court should have granted a directed verdict since the appellant was charged with adultery and the proof showed neither the appellant nor the prosecutrix were married at the time. The second assigned error is the allowing of the State to amend the indictment, after it had rested and after the defendant had introduced evidence of his whereabouts on the date stated in the indictment, so as to change the date from January 15th, 1976 to June 25th, 1976.

In regard to the first assigned error, the question to be answered is whether the State, when it charges an accused with adultery under Mississippi Code Annotated, Section 97-29-5, (1972), must prove that at least one of the parties to the alleged act was married at the time. After considering the applicable law, it is clear that the answer to that question must be in the affirmative. Under the statute, the State had the option of charging the defendant with adultery or fornication. It chose the former.

2 C.J.S. Adultery § 6, page 610 (1972) provides:

Valid marriage to another of at least one of the parties at the time of the commission of the offense is an essential element of the crime in all jurisdictions .

A long line of cases in this jurisdiction has consistently held that in unlawful cohabitation cases, even though it perhaps is not necessary to distinguish whether the unlawful cohabitation be in adultery or fornication, if the pleader does so distinguish, then it is incumbent upon him to so prove what he has charged.

In Kemp v. State, 121 Miss. 580, 83 So. 744 (1920), this Court said:

On the trial of the case the state failed to prove that either party was married; that is, that the parties had cohabited “in adultery” as charged. When counsel for appellant moved the court for a peremptory instruction and discharge of the appellant for the reason that the state had failed to prove the adultery as alleged in the indictment, the court permitted the district attorney, on motion, to amend the indictment by striking out the words “in adultery.” Thereupon the case went to the jury, resulting in a conviction, and this action of the court is assigned here as reversible error.
The indictment was drawn under section 1029, Code of 1906 (section 754, Hemingway’s Code), which provides that, “if any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined,” etc. The latter part of this section also provides, “but it may be proved by circumstances which show habitual sexual intercourse.”
We think that the charge of cohabitation “in adultery” was a matter of substance in the indictment, and should have been proved by the state, since the grand jury had charged that the unlawful cohabitation was a cohabitation by the parties “in adultery.” Therefore the court erred in permitting the amendment of the indictment with reference to a substantial part of the crime as charged by the grand jury. Whether or not it was necessary in the first instance to charge that the unlawful cohabitation was either in adultery or fornication, since it did not charge habitual sexual intercourse between the parties as the statute prescribed the state could do, we do not decide. But, having specifically charged the cohabitation, “in adultery”, it should have been so proved by the state.
The judgment of the lower court is reversed and the case remanded.

The ruling in Kemp has been reaffirmed by this Court in other cases. In Patterson v. State, 190 Miss. 643, 1 So.2d 499 (1941), the indictment charged a man and woman, “they not being then and there lawfully married each to the other, did lewdly and unlawfully cohabit together in adultery.”

The Court reversed a conviction, saying: However, the instructions granted on behalf of the state wholly fail to require the jury to believe beyond a reasonable doubt, from circumstances or otherwise, that either of the appellants were married to some other person at the time complained of, before the jury could return a verdict of guilty. .
This omission was held to be fatal error.

In State v. Meyer et al., 135 Miss. 878, 101 So. 349 (1924), this Court held that it was not necessary in an unlawful cohabitation indictment to charge, in the first instance, that it was either “in adultery” or “in fornication.” However, it reaffirmed the rule of Kemp v. State, in the following language:

In that case the indictment expressly charged that the unlawful cohabitation was in adultery. Under well-known rules, where the state has charged in this way, the description becomes a part of the offense, and must be proved as alleged. .

The State contends that the term “adultery” in the indictment is mere surplusage and need not be proved. However, a reading of the indictment shows that if the term “adultery” were deleted, there would be no offense charged.

Since the case must be reversed for failure to prove the crime as charged in the indictment, the second assignment of error will be dealt with very briefly. It is the opinion of the Court that the State should not have been allowed to amend the indictment after it had rested its case, and after the defendant had presented evidence of his whereabouts on the date charged. Amendments are allowed to correct a variance between the proof and the indictment where the amendment is to an immaterial matter and the defendant cannot be prejudiced thereby in his defense. See Jones v. State, 279 So.2d 650 (Miss.1973). This amendment met none of these tests. It was not for the purpose of curing a variance between the proof and the indictment, as the prosecutrix did testify that she had sexual contact with the appellant on the original date charged. Since the offense charged is not a continuing offense, but each separate act constitutes a separate offense, this amendment in effect charged a new and distinct offense from that for which the grand jury indicted. In 41 Am. Jur.2d, Indictments and Information, Section 194 (1968), it is stated:

Correcting an erroneous or insufficient allegation as to the time of the commission of the offense has usually been allowed under one form or another of permissive statute, where time was not of the essence of the crime. ... An amendment of the allegation as to the time of the commission of the offense is unauthorized if its effect would be to charge a different crime, or to add another offense not charged by the grand jury.

REVERSED AND APPELLANT DISCHARGED.

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

SUGG and COFER, JJ., dissent.

SUGG, Justice,

dissenting:

I dissent, and the reasons for my dissent are stated in the discussion of the two assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE COURT ERRED IN NOT GRANTING A DIRECTED VERDICT.

Defendant contends under this assignment of error that he was entitled to a peremptory instruction because the state failed to prove that he was married when he had sexual intercourse with his daughter.

The principal issue presented by this assignment of error is whether the state was required to prove the marital status of defendant. Defendant was indicted under section 97-29-5 Mississippi Code Annotated (1972) which follows:

Persons being within the degrees within which marriages are prohibited by law to be incestuous and void, or persons who are prohibited from marrying by reason of blood and between whom marriage is declared to be unlawful and void, who shall cohabit, or live together as husband and wife, or be guilty of a single act of adultery or fornication, upon conviction, shall be punished by imprisonment in the penitentiary for a term not exceeding ten (10) years.
The indictment charged:
[Tjhat Donald Van Norman, late of the county, aforesaid, on or about the 15th day of January, 1976, in the county aforesaid and within the jurisdiction of this Court, did wilfully, unlawfully and feloni-ously commit an act of adultery with one Rhonda Van Norman when he, the said Donald Van Norman, was then and there a male person, contrary to and in violation of Section 97-29-5 of the Mississippi Code of 1972, . . .

The office of an indictment is to apprise a defendant of the charge against him so that he may prepare a defense and so that the charge may form the basis of a plea of former jeopardy in any subsequent proceeding. Westmoreland v. State, 246 So.2d 487 (Miss.1971) [cert. denied 404 U.S. 1038, 92 S.Ct. 702, 30 L.Ed.2d 729, rehearing denied 405 U.S. 948, 92 S.Ct. 931, 30 L.Ed.2d 818 (1971)]. The indictment charges with particularity that the defendant had sexual intercourse with his natural daughter. Defendant argues that he was entitled to the peremptory instruction because the evidence showed that he was not married when he had sexual relations with his daughter; therefore, adultery was not proved.

Obviously marital status is not an element of the offense defined by section 97-29-5. The clear intent of the statute is to outlaw incestuous sexual intercourse. The marital status of the defendant is not an element of the crime because a father, whether married or unmarried, is guilty of the crime of incest under the statute when he has sexual relations with his natural daughter. All that is required to charge the crime is: (1) that defendant was the natural father of Rhonda Van Norman, and (2) that defendant had sexual intercourse with his natural daughter.

Section 97-29-5 provides that a crime may be charged in any one of three ways: the indictment may allege (1) cohabitation, (2) that defendant and his daughter lived together as husband and wife, or (3) that the defendant is guilty of a single act of adultery or fornication.

Defendant was not misled by the allegations in the indictment that he committed adultery with his daughter because the gravamen of the offense is incestuous intercourse with his daughter. To reverse this case solely because the indictment charged the defendant committed adultery rather than fornication with his daughter favors form over substance.

Defendant relies on the following cases in support of his position. State v. Lindsey, 202 Miss. 896, 32 So.2d 876 (1947); Patterson v. State, 190 Miss. 643, 1 So.2d 499 (1941); State v. Meyer, 135 Miss. 878, 101 So. 349 (1924); Kemp v. State, 121 Miss. 580, 83 So. 744 (1920). All of these cases deal with an indictment under section 97-21-1 Mississippi Code Annotated (1972) and deal with the crime of unlawful cohabitation as opposed to incestuous intercourse.

In Spikes v. State, 98 Miss. 483, 54 So. 1 (1910), it was held that habitual sexual intercourse is the gist of the offense under section 97-29-1. We also held in Cutrer v. State, 154 Miss. 80, 121 So. 106 (1929), that evidence of actions of sexual intercourse, without showing cohabitation, was insufficient to sustain a conviction for unlawful cohabitation.

There is a difference between section 97-29-1 which requires that cohabitation must be shown and section 97-29-5 which makes a single act of sexual intercourse between a defendant and his natural daughter a crime.

Admittedly Kemp v. State, supra, held that the charge of cohabitation “in adultery” was a matter of substance in the indictment and should have been proved by the state because the grand jury had charged that the unlawful cohabitation was a cohabitation by the parties in adultery. Kemp has been followed in other cases; however, it is distinguishable because the statute under which this indictment was drawn, does not make marital status of the parties the gravamen of the offense. Incest is committed when a single act of sexual intercourse is performed by a defendant with his natural daughter, because the statute states: “or be guilty of a single act of adultery or fornication.”

The words adultery and fornication as used in the statute should be considered as synonymous because the real offense is the act of sexual intercourse.

ASSIGNMENT OF ERROR NO. 2

THE COURT ERRED IN REFUSING DEFENDANT’S INSTRUCTION NO. 9, REQUIRING THE STATE TO PROVE ADULTERY.

Under this assignment of error defendant argues that the trial court erred by permitting an amendment to the indictment. The indictment charged that defendant committed adultery with his daughter on or about January 15, 1976. The court permitted the indictment to be amended to charge the commission of the crime on the date of June 25, 1976. The court stated the following:

Very well, all the parties are in the courtroom. By the Court: While the jury was being selected, after the jury had been voir dired, the defendant made a motion to require the State to specify the date upon which the offense charged allegedly occurred. The Court overruled the motion, thinking at that time that there would be evidence of only one specific offense that occurred ‘on or about the 15th day of January, 1976.’ Later, testimony was offered in line with Brooks versus State, and no objection was made to the testimony, indicating the commission of the same offense on numerous occasions. Now, the Court, in keeping with Skinner versus State, 198 Mississippi 505; 23 Southern 2nd 501; calls upon the District Attorney to specify the one count charging a single incestuous offense for which the defendant is being tried, with reasonable certainty, so that the jury may be properly instructed to consider the guilt or innocence of the defendant as to that specific offense. Very well.
Whereupon, the following transpired:
BY MR. KITCHENS:

Your Honor, the State specifies June 25, 1976, and asks leave to recall Rhonda Van Norman.

BY MR. SMITH:

Your Honor, we object and ask that he select one of the dates that he has put on proof about.

BY THE COURT:

Well, I think that the proof thus far has been as to several occasions without specifying definite dates, and that’s the purpose of the proceedings at this juncture, to narrow the issue down to one specific, single offense. So, does the State wish to amend the indictment accordingly?

BY MR. KITCHENS:
Yes sir.
BY THE COURT:
To charge the date of—
BY MR. KITCHENS: (Interposing)
June 25, 1976.
BY THE COURT:
June 25, 1976.
BY MR. SMITH:

We would ask for a one hour continuance, your Honor. To prepare to defend for this specific date.

BY MR. KITCHENS:
There is no objection.
BY THE COURT:
Very well.
BY MR. SMITH:

Your Honor, we would object to his recalling Rhonda Van Norman because he has rested.

BY MR. KITCHENS:

That’s discretionary with the Court, I think.

BY THE COURT:

Well, I think that, uh, he could recall her as a rebuttal witness, anyway.

BY MR. SMITH:

Yes sir, but that would be for the purpose of rebuttal, and not putting on a prima facie case as to an act alleged to have occurred on June 25th, 1976. This puts the defense to a great prejudicial disadvantage of the State reaching out and grabbing a date and then the defense running and trying to fmd, and then grabbing another date, and then the defense having to run—

BY THE COURT: (Interposing)

No, uh, this, this is the offense, date of the offense that is alleged, uh, now in the indictment, June 25, 1976. I understand you want an hour. Very well.

(RECESS TAKEN OF APPROXIMATELY ONE HOUR, THEN COURT RECONVENED AT 4:55 P.M., AT THE SAME PLACE, DEFENDANT PRESENT, AND PROCEEDINGS OCCURRED FOR THE RECORD, TO-WIT:)

BY MR. SMITH:

We’re ready.

During the case in chief Rhonda Van Norman testified that defendant molested her many times over a two year period, every time her mother left the house and almost every night after her mother and father were divorced. The initial testimony of Rhonda Van Norman covered the date of June 25, 1976 without specifically mentioning it and the amendment simply conformed to the proof.

I would affirm.

COFER, J., joins in this dissent.

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


author: JONES, Justice.

text:
    George TANNER, Individually and as Executor of the Estate of Hazel Tanner, Deceased v. Mary Ann WINFIELD.
    77-406.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    S. P. Keith, Jr., Birmingham, for appellant.
    J. Gary Pate, Birmingham, for appellee.
   JONES, Justice.

This case involves a dispute between Appellant, George Tanner, and his daughter, Mary Ann Winfield, Appellee, over the ownership of certain personal property. The categories of properties involved are: (1) certain pieces of expensive jewelry purchased by Mrs. Hazel Tanner, now deceased, who was the wife of Appellant and the mother of Appellee; (2) certain furs which belonged to Mrs. Tanner; and (3) various items of personalty which Appellee contends either belonged to her prior to her mother’s death or were left to her under her mother’s Will. Appellee alleged by way of counterclaim that the items in the last category were converted by Tanner’s taking of these items to Atlanta and selling them at auction.

The trial Court heard the evidence ore tenus and held that the jewelry and furs belonged to Appellee and awarded a money judgment of $4,100 in favor of Mary Ann Winfield on her counterclaim. We affirm.

On several occasions during Hazel Tanner’s life, she made purchases of expensive pieces of jewelry and at least two purchases of unmounted diamonds. One of the unmounted diamonds was set to wear prior to Mrs. Tanner’s death; however, the other diamond was never mounted during her life. Extensive testimony was received pertaining to the manner in which the jewelry was acquired, where and when it was purchased, who bought the jewelry, and the prices paid. Included in the jewelry were a diamond brooch and two rings purchased in Atlanta for $11,500 and $10,000, respectively; a diamond ring purchased in Florida for approximately $6,000; and certain pieces of jewelry purchased at Brombergs in Birmingham. Additionally, Mrs. Tanner purchased one of the unmounted diamonds in Florida and one of them in Birmingham.

Mrs. Tanner died on April 6,1974, leaving a Will. The pertinent portions of her Will provided for the following disposition of property:

“ITEM II
“I give and bequeath to my daughter, Mary Ann Tanner, all of my personal jewelry, antique pins, rings,- bracelets, watches; all of my handpainted antique china, including plates, vases, cake sets, dessert sets, lamps, odd pieces, trays, bowls, bric-a-brac, dresser sets; also all of my antique china, including Dessert Sets of Limoges, Dinner Sets of Limoges, vases, odd plates, Figurines and bric-a-brac; all of my cut glass sets, and all odd pieces of cut glass; all crystal sets and odd pieces, including crystal sconces, punch bowl and cups and chandeliers; all of my sterling silver including odd pieces, serving pieces, trays, reflectors, epergne, vases; one set (service for 12) flatware sterling and serving pieces; one service for 12 Gold Dirilyte flatware and serving pieces; one sterling 7 piece silver service and candelabras; one 25 piece Gold Royal China dessert set; 2 pink lusters; one pair gold leaf candelabras; one Garland of Roses picture frame; 4 French Bisque Figurines; 2 French China Figurines; and Baby Grand Piano.
“ITEM III
“All the rest, residue and remainder of my property of any kind, nature and character whatsoever and wheresoever situated, I give, devise and bequeath unto my husband, [George] Tanner, all to be his absolutely.”

After Mrs. Tanner’s death, Appellant placed all of the jewelry involved in this action in a safety deposit box at First National Bank in Birmingham. On June 26, 1974, Appellant, at his daughter’s request, took the jewelry from the safety deposit box and delivered the jewelry to his daughter, the Appellee. She immediately placed the jewelry in a safety deposit box which she had opened that day.

Also, after Mrs. Tanner’s death, several of the furs, which she had owned, were put into storage. It is Appellee’s contention that these furs were given to her by her father. Appellant contends that he never gave the furs to anyone, but he did allow the furs to be placed in storage.

Two years after Mrs. Tanner’s death, Appellant filed this action seeking to recover the jewelry and the furs. Appellee answered, and counterclaimed for conversion of certain items of personalty, which, as noted earlier, she claims belonged to her and were sold by her father at an auction in Atlanta. Other pertinent facts appear in the opinion.

This is an ore tenus case and the decree below is favored with a presumption of correctness and the trial Court’s finding will not be disturbed on appeal unless plainly erroneous or manifestly unjust. White v. White, 350 So.2d 326 (Ala.1977). In the present case, the trial Court specifically found that “a substantial and significant portion of Plaintiff’s [Appellant’s] testimony is incredible to the Court.” Additionally, the trial Judge noted that he believed Mrs. Winfield’s testimony. These findings are indeed significant when viewed in light of the underlying rationale of the ore tenus rule: Where the witnesses are examined orally before the court and the judge has the benefit of observing their manner and demeanor, he has the better opportunity to pass upon the credibility of the testimony. Stevens v. Thompson, 279 Ala. 232, 184 So.2d 140 (1966).

We have reviewed the record carefully and have found that, although Appellant vigorously contends that he never gave the furs in question to his daughter, but only allowed the furs to be stored, there is ample evidence to support the trial Court’s finding that the furs were delivered to Ap-pellee by Appellant with the requisite dona-tive intent so as to constitute a gift. Similarly, there is considerable evidence to support the trial Court’s finding that certain items of personal property sold by Appellant in Atlanta were items of property belonging to Appellee. This would support that portion of the decree allowing Appellee to recover money damages from Appellant.

A large portion of Appellant’s brief is devoted to his argument that the jewelry involved in this ease was “investment jewelry” and not “personal jewelry,” passing to Appellee under the Will of Mrs. Tanner. Apparently, Appellant’s contention is that the jewelry in question was purchased by Mrs. Tanner and himself solely for investment.

Appellant argues that there is substantial evidence that Mrs. Tanner never wore any of the jewelry involved in this case and that the jewelry was bought for investment purposes. Admittedly, some of the definitions of jewelry found in the cases seem to require that, in order to be considered jewelry, the item in question must be prepared or set for wear. See, e. g., Dantzig v. Universal Car Loading Co., 17 Misc.2d 928, 185 N.Y.S.2d 718 (1959) (articles of jewelry defined as articles of adornment); Cavendish v. Cavendish, 1 Brown’s C.C. 467 (jewels are valuable stones set for wear). We have found no case where a court specifically held that, in order to be jewelry, the item must actually be worn by some person.' Several of the cases cited by Appellant, discussing the definition of jewelry, have been tariff cases. See Friedman v. U. S., 280 F.Supp. 464 (Cust.Ct.1968); Robbins v. Robertson, 33 F. 709 (Cir.Ct.N.Y.1888). If Appellant’s contention is accepted, no item imported into this country could be classified as jewelry unless it had been previously worn. Similarly, none of the cases cited by Appellant are cases distinguishing between personal jewelry and jewelry purchased for investment. Appellant himself refers to the items in question as “investment jewelry”; therefore, the cases defining jewelry add little to his theory that the items in question were purchased solely for investment.

Appellant’s own testimony shows that the jewelry was purchased by Mrs. Tanner alone; that she used money out of her own banking account; and that the accounts at the various jewelry stores were in her name. Furthermore, the record discloses that, while Mr. Tanner knew that his wife purchased jewelry from time to time, he was unaware of the specific details as to where and when the jewelry was purchased and how much was spent on the individual purchases. We think the testimony by Appellant supports the trial Court in its finding against him. We note that, while the trial Court may have been justified in finding on the facts presented in this case that the jewelry in question was the personal jewelry of Mrs. Tanner (passing under her Will to her daughter, Mary Ann Winfield), there may be other cases where the facts are such as to recognize a distinction in “personal jewelry” and “jewelry purchased for investment.”

As a concluding note, Appellant cites the case of Denny v. Automobile Ins. Co. of Hartford, Conn., 106 F.Supp. Ill (W.D.Mo. 1952), which held that loose stones were not “jewelry” within a personal property floater provision in an insurance contract requiring scheduling of jewelry, but were unscheduled personal property. This interpretation would have allowed Plaintiffs in that case to recover the full value of a number of loose stones stolen from their home.

If the Denny holding — defining stones set for wear as jewelry, and loose stones as personal property — were accepted by this Court, we would be constrained to agree that the loose stone purchased by Mrs. Tanner, and which was never mounted, would be considered personal property passing to Mr. Tanner under the residuary clause of Mrs. Tanner’s Will. On appeal, however, this case was reversed. Automobile Ins. Co. of Hartford, Conn. v. Denny, 206 F.2d 401 (8th Cir. 1953). In reversing the District Court, the 8th Circuit Court of Appeals stated:

“Counsel have supplied us with definitions of the word ‘jewelry’ taken from various dictionaries, and have cited eases thought to be indicative of the meaning of the word. Since we are convinced that in the policy in suit the word ‘jewelry’ was used in a broad sense and included mounted and dismounted diamonds, there is no point in discussing the cases referred to by counsel, none of which requires a different conclusion.”

Likewise, we are of the opinion that, based on the evidence presented in this case, the trial Court was justified in a broad reading of the term “personal jewelry” used in Mrs. Tanner’s Will; and we uphold the trial Court in including the loose stone as an article of personal jewelry, passing to Ap-pellee under the Will. This is not to say that a Will could not specifically distinguish between mounted jewelry and unmounted gems or stones.

AFFIRMED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: EMBRY, Justice.

text:
    Donald YARBROUGH et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    77-376.
    Supreme Court of Alabama.
    Dec. 22, 1978.
    Charles E. Floyd, Phenix City, for appellants.
    J. Pelham Ferrell, of Ferrell & Davenport, Phenix City, for appellee.
   EMBRY, Justice.

This is an appeal from a declaratory judgment holding a policy of insurance issued by appellee, State Farm Mutual Automobile Insurance Company (State Farm), to appellant, Jimmie L. Yarbrough, lapsed by reason of nonpayment of premium after notice that an additional premium was due and that the policy would be cancelled upon failure to pay such additional premium.

The additional premium was charged Jimmie Yarbrough for two reasons. First, his policy had originally been issued at a discount because he had two policies with State Farm. He had, however, allowed the other policy to lapse for nonpayment of premium. Second, coverage of a youthful driver, Donald Yarbrough, in the lapsed policy was transferred to Yarbrough’s remaining policy.

The issue is whether State Farm lawfully charged the additional premium.

In light of §§ 27-13-67, -68, -76, Code 1975, and the facts as stipulated by the parties, we hold State Farm was required by law to charge the additional premium and affirm the judgment of the circuit court.

This case began when Donald Yarbrough was injured on 30 January 1975 while riding as a passenger in the car of his brother, Jimmie L. Yarbrough, which collided with an uninsured motor vehicle driven by an uninsured motorist. Donald Yarbrough sought to recover damages from State Farm under the uninsured motorist provision of a policy issued by State Farm to Jimmie L. Yarbrough. State Farm denied coverage and Donald Yarbrough filed this action for breach of contract. By amendment, Jimmie L. Yarbrough was added as a party plaintiff. State Farm answered and counter-claimed for declaratory judgment declaring that no contract of insurance existed between Jimmie Yarbrough and State Farm on 30 January 1975 when Donald Yarbrough was injured.

The parties stipulated that State Farm had complied with § 27-23-23, Code 1975, requiring notice as a condition precedent to the cancellation of a policy. It was further stipulated that the Manual of Rates and Rules of State Farm, which included the rates given Jimmie Yarbrough, had been submitted to, and approved by, the Alabama Department of Insurance as required by §§ 27-13-67, -68, Code 1975. There was no contention on the part of the Yarb-roughs that any unearned premium was due, nor that they were the victims of any fraud, deceit, or misrepresentation. Upon submission under the stipulated facts, and evidence taken ore tenus, the trial court entered the declaratory judgment in behalf of State Farm.

The Yarbroughs contend that although State Farm’s underwriting rules, as filed and approved, provide for the discount, they do not authorize State Farm to charge an additional premium in the event one of the policies is dropped. Since § 27-13-76, Code 1975, prohibits insurers from charging a premium not in accordance with a rating system on file with, and approved by, the Insurance Commissioner, the Yarbroughs maintain State Farm’s charge of the additional premium was unlawful.

An examination of the relevant underwriting rules in the State Farm Manual of Rates and Rules refutes this contention. Rule 211 states:

“ * * * when two or more private passenger automobiles are insured for one family the premiums for bodily injury and property damage liability, medical payments, collision and comprehensive coverages are discounted 10%.”

It is clear the ten percent discount was conditioned on two or more automobiles being insured. Rule 105 further provides:

“Changes that affect the coverage provided by the policy, or the territory, use, description or rating classification of the risk, may require transfer of the insurance to a new policy or endorsement of the present policy.
“If a different premium is required by the Company for the remainder of the current policy term, any additional premium or premium credit shall be computed pro rata.”

These rules when taken together authorize the additional premium charged Jimmie Yarbrough.

It was stipulated the rules were filed and approved with the Insurance Commissioner. Sections 27-13-68, -76, Code 1975, required that State Farm charge premiums in accordance with those rules. To charge a lesser rate than provided for would violate these provisions. See generally, American Motorists Insurance v. New York Seven-Up Bottling Co., 18 App.Div.2d 36, 238 N.Y.S.2d 80 (1963). Section 27-13-76 further requires:

“ * * * No insurer, or employee thereof, and no broker or agent shall pay, allow or give, or offer to pay, allow or give, directly or indirectly, as an inducement to insurance, or after insurance has been effected, any rebate, discount, abatement, credit or reduction of the premium named in a policy of insurance, or any special favor or advantage in the dividends or other benefits to accrue thereon or any valuable consideration or inducement whatever not specified in the policy of insurance, except to the extent that such rebate, discount, abatement, credit, reduction, favor, advantage or consideration may be provided for in rating systems filed by, or on behalf of, such insurer and approved by the commissioner. No insured named in a policy of insurance nor any employee of such insured shall knowingly receive or accept, directly or indirectly, any such rebate, discount, abatement or reduction of premium, or any such special favor or advantage, or valuable consideration or inducement.”

A gratuitous discount was not intended by the underwriting rules of State Farm nor is it allowed by law.

State Farm was both authorized and required to charge the additional premium. Since it was stipulated that Jimmie Yarb-rough refused to pay the premium and State Farm complied with statutory prerequisites to termination, the judgment of the circuit court holding the policy had lapsed at the time of the injury to Donald Yarb-rough must be affirmed.

AFFIRMED.

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


text:
    Don REYNOLDS v. Mrs. B. I. RUTLAND et al.
    77-422.
    Supreme Court of Alabama.
    Dec. 22, 1978.

      Bryce U. Graham, Tuscumbia, Steve R. Graham, Florence, for appellant.
    Murray W. Beasley, Tuscumbia, for ap-pellees.
   JONES, Justice.

This appeal involves a boundary line dispute between coterminous owners of real property. Appellees filed a complaint in the Circuit Court of Colbert County, seeking to have the court establish and define the true boundary line between the properties of the parties.

In their complaint, Appellees contend that they are owners of property being described as follows:

The NW Vi of Section 36, Township 4 South, Range 13 West .

The complaint alleged that Appellant owned the property described as follows:

The East V% of the SW Vi of Section 36, Township 4 South, Range 13 West . . .

Appellees contend that the dividing line between the properties was uncertain and disputed, and sought an order defining the true boundary line between the properties. An ore tenus hearing was held and the trial Judge rendered a final decree in which he found that the joint corner (the SE corner of Appellees’ property and the NE corner of Appellant’s property) between the two lots was marked by a rock pile with an iron pin located therein. Furthermore, the trial Court found that the boundary line ran from this point and was marked by blazed trees. Although the line as established by the trial Court was approximately 60 feet south of the quarter-section line, defined in the parties’ deeds as being the boundary between the parcels, the trial Court held that Appellees had adversely possessed to the line of blazed trees in open, adverse, notorious possession for more than 10 years.

The Appellant contends there was not sufficient evidence to support the trial Court in its adverse possession ruling. Additionally, Appellant contends that the trial Court failed to establish and describe the boundary line with sufficient certainty to resolve the dispute.

In Smith v. Brown, 282 Ala. 528, 213 So.2d 374 (1968), it was held that, if a coterminous landowner holds actual possession of a disputed strip under claim of right, openly and exclusively for a continuous period of 10 years, believing that he is holding to the true line, he will acquire title to that line, even though the belief as to the correct location of the line originated in a mistake. It is immaterial what he might or might not have claimed had he known he was mistaken. While intent to claim the disputed strip is required, there is no requirement that the intent be to claim property of another, as such a rule would make adverse possession dependent upon bad faith. Possession is hostile when the possessor holds and claims property as his own, whether by mistake or willfully. Smith v. Brown, supra.

It appears that, in the present case, Appellees never intended to claim property belonging to another, but only intended to hold to the true line. A review of the record discloses that there was sufficient evidence to support the trial Court in finding that Appellees did openly and notoriously hold the disputed strip in question intending to claim it as their own, although admittedly it was held under the mistaken belief that they were holding to the true line. This is sufficient to make out a case of adverse possession under the rule of Smith v. Brown.

Admittedly, there is some problem with the certainty of the boundary line as established by the trial Court. There is evidence that a number of the blazed trees referred to no longer exist, having died or been cut for timber. We find, however, that the evidence clearly supports the finding that the SE corner of Appellees’ property and the NE corner of Appellant’s lot is established as the rock pile containing an iron pin therein. Furthermore, the evidence is consistent with the trial Court’s finding that the east-west line forming the boundary between the parties is a line running west from this rock pile that formerly was evidenced by a line of blazed trees. It is our view of the record that the evidence is insufficient to ascertain with reasonable exactness this east-west line; and that, while the point of beginning of this line has been established by the decree below, the line itself is still in dispute.

Accordingly, we remand this case with the instruction that, upon Appellant’s motion forthwith, the trial Court shall order a survey to be made pursuant to § 35-3-20, Ala.Code 1975, in order to clarify the location of the line running from the established joint corner westwardly to the western boundary of Appellant’s property as determined from the evidence by the trial Court.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: MADDOX, Justice.

text:
    Ida GOZA v. Jack N. EVERETT.
    77-491.
    Supreme Court of Alabama.
    Dec. 22, 1978.

      Loma B. Beaty, Port Payne, for appellant.
    Beck & Beck, J. C. Kellett of Kellett & Gillis, Fort Payne, for appellee.
   MADDOX, Justice.

This appeal is to be dismissed because the judgment appealed from is not a final order under Rule 54(b) ARCP.

Plaintiff Everett filed a civil action in the Circuit Court of DeKalb County against defendants Goza and Bonnie Mills, Inc. seeking specific performance of a contract to convey real property and damages. Defendants demanded a jury trial, and in an amended answer counterclaimed against Everett. The defendants filed a motion for summary judgment, which the court denied. Plaintiff’s motion to strike the defendants’ jury demand was granted as to the claim for specific performance. The trial judge entered an order on his bench notes on January 30, 1978, which read as follows:

“The court this date entered a ruling in favor of the plaintiff in regard to the non-jury issue of specific performance. Remaining issues are to be tried to a jury. See order in file. Randall L. Cole, Judge.”

When more than one claim for relief is presented in an action, an order entered upon less than all of the claims is not a final, appealable order unless the judge makes an express determination that there is no just reason for delay pursuant to Rule 54(b) ARCP. No such determination is found in the record.

The claim for monetary damages was not disposed of, but that issue was specifically reserved “to be tried to a jury.” The appeal, therefore, must be dismissed. Chambers v. Chambers, 356 So.2d 634, 12 ABR 872 (Ala.1978).

APPEAL DISMISSED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: BEATTY, Justice. TORBERT, Chief Justice

text:
    Frank SMITH v. WILCOX COUNTY BOARD OF EDUCATION, etc., et al.
    77-528.
    Supreme Court of Alabama.
    Dec. 22, 1978.

      Solomon S. Seay, Jr., Montgomery, John D. Prince, Jr., Birmingham, for appellant.
    J. Garrison Thompson, Selma, for appel-lees.
   BEATTY, Justice.

In this action brought by Frank Smith against the Wilcox County Board of Education, the trial court sustained the defendants’ motion to dismiss. Smith has appealed that decision. We reverse and remand.

The plaintiff had been employed a number of years as a teacher by defendant Board when in 1965 his employment contract was cancelled. He appealed the Board’s action to the Alabama State Tenure Commission which determined that the Board had not held a legal hearing under Ala. Code of 1940, Tit. 52, § 359 (now Ala. Code of 1975, § 16-24-9). Thus, defendant’s cancellation of plaintiff’s contract was rendered null and void.

Plaintiff then received a letter from the Board’s superintendent advising him that he was still suspended pending further action of the Board. Plaintiff was never reinstated.

In May of 1966 plaintiff filed a petition in the Wilcox County Circuit Court for an alternative writ of mandamus, requesting the court to order the defendants to reinstate plaintiff and award back pay. The court issued the writ, granting the requested belief, or in default thereof to show cause therefor, on May 13, 1966. Defendants thereafter filed demurrers on May 26, 1966. Except for execution of a subpoena duces tecum in June of 1966, there was no further action of record in the case until 1973. In April of that year interrogatories were served upon the plaintiff, and in July of the same year the record of the case— previously lost or misplaced — was reconstructed.

In early 1974 plaintiff’s attorney by telephone asked the clerk of the court to set a hearing in the case. Later, on March 11, 1974, the circuit court dismissed the case for want of prosecution. Costs were taxed to defendants. Plaintiff’s attorney received no notice of the dismissal and did not discover that action until sometime in 1977. He claimed that he received no notice from the clerk under Rule 77(d).

On February 10, 1978 this action was instituted, essentially requesting the resurrection of the earlier case. The defendants filed a motion to dismiss which the trial court granted in April. Plaintiff appeals from that order of dismissal.

Preliminarily, defendants-appellees have filed a motion to strike portions of appellant’s brief; however, we find that a ruling on the motion is not essential to a disposition.

The controlling issue here is whether, pursuant to Rule 41(b), ARCP the trial judge abused his discretion in dismissing the action with prejudice. Because the Alabama and Federal rules are virtually verbatim, “a presumption arises that cases construing the Federal Rules are authority for construction of the Alabama Rules.” Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978).

The general rule, of course, is that a court has the inherent power to act sua sponte to dismiss an action for want of prosecution. Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). However, since dismissal with prejudice is a drastic sanction, it is to be applied only in extreme situations. Brown v. Thompson, 430 F.2d 1214 (5th Cir. 1970); Durham v. Florida East Coast Ry. Co., 385 F.2d 366 (5th Cir. 1967).

Therefore, appellate courts will carefully scrutinize such orders and occasionally will find it necessary to set them aside. 9 Wright & Miller, Federal Practice & Procedure, § 2370, p. 203, n. 1; see, e. g., Connolly v. Papachristid Shipping, Ltd., 504 F.2d 917 (5th Cir. 1974); Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.) cert. den. 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968).

The Fifth Circuit Court of Appeals follows the rule that a trial judge may dismiss with prejudice an action “only in the face of a clear record of delay or contumacious conduct by the plaintiff.” Durham v. Florida East Coast Ry. Co., supra, followed in Pond v. Braniff Airways, Inc., 453 F.2d 347 (5th Cir. 1972); Boazman v. Economics Laboratory, Inc., 537 F.2d 210 (5th Cir. 1976). Several other circuits follow that rule. See 9 Wright & Miller, Federal Practice & Procedure, § 2369, p. 194-95, n. 70. Other courts refer to a “serious showing of willful default.” Gill v. Stolow, 240 F.2d 669 (2nd Cir. 1957); Dabney v. Burrell, 67 F.R.D. 132 (D.Md.1975).

Consequently, it appears that the plaintiff’s conduct must mandate the dismissal. Brown v. Thompson, supra. On the record before us there is no such conduct. It does not appear there was any “contumacious conduct,” or any “serious showing of willful default,” or a “clear record of delay.” Although there appeared to be a long period of inactivity from 1966 to 1973, nevertheless within the eleven months before the dismissal the defendants filed interrogatories, the parties reconstructed the record, and the plaintiff’s attorney had tried to have a hearing set on the case.

Furthermore, since the Tenure Commission had ruled the Board’s action ineffective and the trial court had issued an order to the Board to reinstate the plaintiff with back pay, it would seem that any burden of acting thereafter would have been on the defendants.

Appellees argue that Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) strongly supports their position. In Link a sharply divided court (5-4) found that the district court did not abuse its discretion in dismissing an action for failure to prosecute, based on the record before it. Plaintiff’s attorney had failed to attend a pretrial conference, without adequate excuse, and there was a history of a drawn-out litigation (6 years). In the court’s view this was sufficient evidence from which it could have been inferred that plaintiff had been deliberately proceeding in a dilatory fashion. But Link is inapposite to the instant case because there was activity by the parties in the eleven months before the dismissal, and there was no activity on the part of the plaintiff from which it can be inferred that he was deliberately proceeding dilatorily. There was no evidence of any kind of “fault” on plaintiff’s behalf. Pond v. Braniff Airways, Inc., supra; Brown v. Thompson, supra.

Finally, appellees argue that a lengthy period of inactivity may be sufficient to justify dismissal. First, as noted before, there was activity in this case preceding the dismissal: even where there has been a period of inactivity, present diligence has barred dismissal. Raab v. Taber Instrument Corp., 546 F.2d 522 (2d Cir. 1976); Morales v. Lionel Corp., 439 F.Supp. 53 (S.D.N.Y.1977); United States v. Myers,

38 F.R.D. 194 (N.D.Cal.1964). Second, the rule is that a lengthy period of inactivity may justify dismissal in the circumstances of a particular case. Thus, a period of inactivity is generally coupled with some other act to warrant the severe penalty of dismissal. See, e. g., Link v. Wabash R. Co., supra (inactivity coupled with counsel’s failure to appear at a pre-trial conference); Forest Nursery Co. v. Crete Carrier Corp., 319 F.Supp. 213 (E.D.Tenn.1970) (failure of defendant to answer a summons 6 months after required by statute); Delta Theatres, Inc. v. Paramount Pictures, Inc., 398 F.2d 323 (5th Cir.) cert. den. 393 U.S. 1050, 89 S.Ct. 688, 21 L.Ed.2d 692 (1968) (failure to obey court order coupled with lapse of activity for 14 years).

There are no such circumstances in this case. Accordingly, the case must be reversed and remanded, and it is so ordered.

REVERSED AND REMANDED.

MADDOX, JONES and SHORES, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially):

At the time the original action was dismissed the record shows that defendants had filed and there was pending before the court a demurrer to plaintiff’s petition. Although the case had been pending almost eight years, the demurrer should have been ruled upon before the court considered dismissing the action for want of prosecution. The record does not show a ruling on defendant’s demurrer. So long as the defendant’s demurrer was pending and not ruled upon, plaintiff could not be faulted to the extent of warranting a dismissal of his action “for want of prosecution.”

Additionally, plaintiff was entitled to notice of the court’s action. Our Rules of Civil Procedure which became effective July 3, 1973, provides in Rule 77(d) that:

“Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and who was not present in person or by his attorney or not otherwise notified, when such order or judgment was rendered, and make a note on the docket of the mailing. . . . ”

Rule 86 provides that these rules govern all further proceedings in actions pending on the effective date of the rules except to the extent that in the opinion of the court the applicability would not be feasible or would work an injustice. I believe Rule 77(d) should have been applied in this case.


author: BLOODWORTH, Justice.

text:
    INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, etc., et al. v. W. V. MORTON, suing Individually and on behalf of all employees of Alabama Power Company.
    No. 77-561.
    Supreme Court of Alabama.
    Dec. 22, 1978.

      John C. Falkenberry, of Cooper, Mitch & Crawford, Birmingham, for defendants-appellants.
    William L. Irons, Birmingham, for plaintiff-appellee.
   BLOODWORTH, Justice.

The International Brotherhood of Electrical Workers (the Union) appeals from an interlocutory order granting a preliminary injunction barring it “from distributing, publishing, disseminating or mailing out any confidential employer-employee information * * *We reverse and remand.

The Union is attempting to organize the clerical and technical employees of Alabama Power Company. As part of this organizing campaign, the Union distributed handbills containing allegedly confidential salary information. The plaintiff is one of the employees whose salary was disclosed. She filed a class action seeking an injunction to prevent distribution of confidential employer-employee information, plus compensatory damages of $100 million and punitive damages of $20 million. Codefendants, the Union and Local 253, filed motions to dismiss for lack of jurisdiction. The trial court reserved decision on the motions to dismiss, but granted plaintiff’s motion for a preliminary injunction pending consideration on the merits.

The Union claims that (1) the order granting the preliminary injunction should be vacated arjd the complaint dismissed because the trial court has no jurisdiction, federal law having preempted the field, or (2) the order granting the preliminary injunction should be vacated for failure to comply with Rule 65(d)(2), ARCP.

We proceed to consider whether the form of the trial court’s order complied with Rule 65(d)(2).

The Union contends that the order violates Rule 65(d)(2), ARCP, by failing (1) to give reasons for the issuance of the injunction, (2) to be specific in its terms, or (3) to describe in reasonable detail the acts sought to be restrained. We agree.

The trial court’s order granting the preliminary injunction is, in pertinent part, as follows:

“ONE: Plaintiff’s motion for preliminary injunction is hereby granted upon the posting of good and sufficient sureties in the amount of Five Hundred Dollars ($500.00), with such bond to be approved by the Register of the Court. Upon the posting of such bond, Defendants, International Brotherhood of Electrical Workers (AFL-CIO), and Local No. 253, of the International Brotherhood of Electrical Workers (AFL-CIO), or any person or persons participating or acting in concert with said Defendants, are temporarily enjoined, from distributing, publishing, disseminating or mailing out any confidential employer-employee information (including but not limited to wage, salary or compensation data) on any employee of the Alabama Power Company, past or present, pending final adjudication of this cause.
“DONE AND ORDERED this 18th day of May, 1978 at 3:15 P.M.”

It is clear that the order does not comply with Rule 65(d)(2). There are no reasons given for the issuance of the preliminary injunction, not even a recital that irreparable loss to the plaintiff will result if the injunction does not issue. The acts sought to be enjoined are not described in specific terms. The phrase “any confidential employer-employee information” is too broad to give the Union notice of what it may or may not distribute.

In Schmidt v. Lessard, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974), the United States Supreme Court held, viz:

. . Rule 65(d) of the Federal Rules of Civil Procedure provides, in relevant part:
“ ‘Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained
The order here falls far short of satisfying the second and third clauses of Rule 65(d). Neither the brief judgment order nor the accompanying opinion is ‘specific’ in outlining the ‘terms’ of the injunctive relief granted; nor can it be said that the order describes ‘in reasonable detail . the act or acts sought to be restrained.’ Rather, the defendants are simply told not to enforce ‘the present Wisconsin scheme’ against those in the appellee’s class.
“As we have emphasized in the past, the specificity provisions of Rule 65(d) are no mere technical requirements. The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood. International Longshoremen’s Assn. v. Philadelphia Marine Trade Assn., 389 U.S. 64, 74-76, 88 S.Ct. 201, 206-208, 19 L.Ed.2d 236; Gunn, [Gunn v. University Committee to End the War, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684] supra, at 388-389. See generally 7 J. Moore, Federal Practice ¶ 65.11; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2955. Since an injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed.
The requirement of specificity in injunction orders performs a second important function. Unless the trial court carefully frames its orders of injunctive relief, it is impossible for an appellate tribunal to know precisely what it is reviewing. . . . ” [Footnotes omitted.]

Rule? 65(d) F.R.C.P. is almost identical to our Rule 65(d). It is thus that we hold the provisions of Rule 65(d)(2) to be mandatory. See C. Wright & A. Miller, Federal Practice and Procedure § 2955 (1973). Since its provisions were not followed, thus cause must be reversed and remanded.

In view of the result we reach, it is unnecessary that we write to the “preemption” question.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.