author: HARRIS, Judge.

text:
    Barbara AVERY v. STATE.
    4 Div. 392.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
    Rehearing Denied June 15, 1976.

      Smith & Smith, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Mrs. Avery was convicted of possessing marihuana and sentenced to four years imprisonment in the penitentiary. At arraignment with retained counsel present she pleaded not guilty. After being sentenced she gave notice, of appeal. New counsel was employed to represent her on this appeal.

The evidence for the State is undisputed. Appellant did not testify and no testimony was adduced in her behalf.

This case stems from a search warrant issued by the Recorder of the Municipal Court of the City of Dothan, Alabama, on April 15, 1975.

The affidavit and search warrant are herein set forth.

“THE STATE OF ALABAMA, HOUSTON COUNTY.
1. Before me William L. Lee III Recorder of the Municipal Court of.the City of Dothan, Alabama, a Municipal Corporation
2. personally appeared Wallace Williams
3. who, being duly sworn, deposes and says that he has probable cause to believe and does believe that Kenneth Avery whose name to the affiant is otherwise unknown, has in his possession Marijuana, contrary to law, at his residence located at # 73 Ussery Homes, Dothan, Houston County, Alabama, said residence being occupied and under the control of Kenneth Avery; affiant’s probable cause for believing the above is as follows: a reliable informer personally told affiant that he personally saw Kenneth Avery, in the possession of Marijuana at said residence within the past 48 hours; affiant further states that his informer is reliable and has given affiant information in the recent past that has proved to be true and correct and upon which convictions have been obtained; affiant further states that he has personally observed people coming to and from this residence that has the reputation for using marijuana. Affiant is a Police Officer for the City of Dothan, assigned to work narcotics.
Sworn to and subscribed before me this, the 15th day of April 1975 /s/ Wallace Williams /s/ William L. Lee ÜI
Recorder of the Municipal Court of the City of Dothan, a Municipal Corporation
“SEARCH WARRANT THE STATE OF ALABAMA, HOUSTON COUNTY.
TO ANY POLICE OFFICER OF THE CITY OF DOTHAN ALABAMA
(a) Proof by affidavit having this day been made before me by Wallace Williams
(b) that he has probable cause to believe and does believe that Kenneth Avery whose name to the affiant is otherwise unknown, has in his possession Marijuana, contrary to law at his residence located at # 73 Ussery Homes, Dothan, Houston County, Alabama.
(c) You are therefore commanded, daylight/only to make immediate search on the person of Kenneth Avery and in and upon the above described premises for the following property:
(d) Marijuana, and if you find the same or any part thereof, to bring it forthwith before me, at my office at 121 North Oates Street, Dothan, Alabama. Dated the 15th day of April 1975. /s/ William L. Lee III
Recorder of the Municipal Court of the City of Dothan, A Municipal Corporation.”

The return to the search warrant shows that it was executed on the 18th day of April, 1975, and listed the following items:

Nine plastic bags containing vegetable material
Five plastic bags containing seed Two pipes
One piece of foil containing charred matter
One needle and syringe
One white plastic box containing seed.

Sergeant Wallace Williams testified that he was employed by the Dothan Police Department and had been so employed for a period exceeding 13 years. He said that on April 18, 1975, he was assigned to the dangerous drug and narcotic division.

He further testified that on the afternoon of April 18, 1975, he along with Officers Mack Cord and Charles Blount went to appellant’s home at Number 73 Ussery Homes in Dothan, Alabama, in Houston County, and served the warrant on appellant. They saw the appellant drive up and saw her enter the home. They followed her to the door and knocked but appellant did not come to the door immediately. When they finally got in the house, Officer Cord started searching in the living room. Officer Williams searched a bedroom and Officer Blount went to kitchen. Williams heard Cord say something and he stepped out of the bedroom to the door leading into the living room where he could see Cord. He saw Cord removing a brown paper bag from under a night stand. Officer Cord opened the brown paper bag in his presence and they found nine plastic bags with seeds and some brown vegetable material. Williams stated that he had personally seen marihuana 250 to 300 times and in his opinion the vegetable material was marihuana.

Appellant was arrested and carried to the Police Station along with the plastic bags in the brown bag, a plastic box containing seed, two pipes and a syringe. These items were sealed with tape and locked in a file cabinet until Williams removed these articles and carried them to the State Toxicology Crime Laboratory in Enterprise where they were delivered to Mrs. Melinda J. Long, the technician and criminalist at the laboratory. He further stated that all these articles were in the same condition as they were when they were removed from appellant’s home.

Sergeant Williams also testified that they had been to appellant’s home two or three times to execute the search warrant prior to April 18,1975. He said it was the policy of the Dothan Police Department to conduct a surveillance of the premises to be searched when they were acting on an informer’s tip to corroborate the informer’s information. He stated that he and Officer Cord had appellant’s apartment under surveillance on the night of April 17,1975. They were in a van parked about 20 to 25 yards from appellant’s apartment. Using binoculars he could see the apartment and the Avery car and he saw appellant come out of the apartment carrying a clear plastic bag containing a brown vegetable material which was similar to the bags found during the search. He stated appellant got in the car and left the apartment and was gone ten or fifteen minutes. That she returned to the apartment and did not have the plastic bag with her.

During cross-examination appellant attempted to elicit the name of the informer but the Court sustained the State’s objection.

Officer Charles Blount testified that he was employed by the ABC Board and assigned to the drug enforcement division and had been so employed for two and a half years. That on the afternoon of April 18, 1975, he went with Officers Williams and Mack Cord to execute a search warrant on appellant. He stated that Mr. Avery was at home at the time they served the search warrant and conducted the search of the apartment. He said they had the apartment under surveillance for 45 minutes or so and the search was around 5 o’clock in the afternoon. The rest of his testimony was substantially the same as that of Officer Williams.

Mrs. Melinda J. Long testified that she was employed as a criminalist at the Staté Toxicology Laboratory located in Enter-, prise, Alabama. She was duly qualified as to her education and experience and that her duties were to analyze drugs. She said that during the two years she had been employed at the laboratory she had performed tests on vegetable material many times to determine if it was marihuana.

She further testified that on August 29, 1975, she received a large sealed manila envelope from Sergeant Wallace Williams of the Dothan Police Department. She stated there were fourteen white plastic bags containing some vegetable material, a white plastic box containing some seeds and vegetable material, a piece of aluminum foil containing some charred material, two smoking pipes, and an insulin syringe. She testified that the total weight of the material in the plastic bags was 20,0.7 grams. That she conducted an analysis of the material in the plastic bags and found it to be marihuana. She said she conducted an analysis of the material in the white plastic box and found it to be marihuana and there was 53.71 grams by weight. She further stated that both smoking pipes contained prohibited substance.

Prior to trial appellant filed a motion to suppress all evidence obtained pursuant to the search of the residence at Number 73 Ussery Homes on the grounds, (1) that the search and seizure was unwarranted and illegal under the Fourth Amendment, (2) the search was illegal in that it was done without a valid search warrant, (3) that the search warrant was illegal in that the affidavit in support thereof failed to set forth sufficient underlying facts or circumstances from which the recorder issuing the search warrant could have made an independent finding of probable cause, and (4) that the search warrant was illegal in that the affidavit in support thereof failed to set forth sufficient underlying facts or circumstances from which the recorder issuing the search warrant could have made an independent finding of probable cause in that the affidavit fails to state evidence other than hearsay to justify a conclusion that the marihuana to be searched for was where the affiant said it was and the affidavit failed to state evidence other than hearsay to justify a conclusion that the hearsay was reliable.

The motion was set for hearing but the record fails to show that any testimony was taken at the hearing and the motion to suppress was denied.

We have carefully considered the affidavit in this case and hold that it meets the tests laid down in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Bates v. State, 51 Ala.App. 338, 285 So.2d 501, and Russell v. State, 53 Ala.App. 447, 301 So.2d 214.

The affidavit states positively that the reliable informer personally saw appellant’s husband in possession of marihuana at the described residence within the past 48 hours, and further the informer had given affiant information recently that proved to -be true and correct and upon which convictions had been obtained. In addition to this the affiant had personally observed people coming to and leaving this residence who had the reputation of using marihuana. This affidavit more than'meets the “two-prong” test required in Aguilar as to the veracity of the informer and the basis of his knowledge that the drugs were where he said they were.

To hold this affidavit insufficient we would have to completely disregard the case of United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, where the Court said, “ * * * * where reason for crediting the source of information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a, commonsense, manner. * * * ”

There were a number of refused charges. The refused charges stating correct principles of law were fully, substantially and adequately covered in the Court’s oral charge. Therefore, there was no error in the refusal of these charges. Title 7, Section 273, Code of Alabama 1940.

The other refused charges were either abstract, confusing, misleading or ungrammatical and for these reasons were properly refused. Paul v. State, 48 Ala.App. 396, 265 So.2d 180; Smiley v. State, 53 Ala.App. 268, 299 So.2d 312; Smith v. State, 51 Ala.App. 527, 287 So.2d 238; Mitchell v. State, 50 Ala.App. 121, 277 So.2d 395.

Appellant briefed this case on appeal on the theory that the State’s case was based on circumstantial evidence when in fact it was tried on direct evidence. All the contraband was found in appellant’s residence with her present in the house at the time of the search. All charges dealing with circumstantial evidence were properly refused as being, abstract. Mitchell v. State, supra.

We find no reversible error and the judgment is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    In re Barbara AVERY v. STATE of Alabama. Ex parte Barbara Avery.
    SC 1924.
    Supreme Court of Alabama.
    Aug. 6, 1976.
    J. Earl Smith, Dothan, for petitioner.
    No appearance for the State.
   FAULKNER, Justice.

Petition of Barbara Avery for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Avery v. State of Ala., Ala.App., 336 So.2d 195.

WRIT DENIED.

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


text:
    Samuel L. PEAVY, alias v. STATE.
    4 Div. 424.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Rehearing Denied June 1, 1976.

      Earl V. Johnson, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The Grand Jury of said County, charge, that before the finding of this indictment, Samuel Lavone Peavy, alias Samuel Lo-vone Peavy, alias Samuel L. Peavy, whose name respectively is unknown to the Grand Jury other than as stated, did intentionally and unlawfully, possess, sell, furnish, or give away, to-wit: dl Amphetamine, a controlled substance as enumerated in Schedules I through V, Title 22, Section 258(29-37) Code of Alabama, Recompiled 1958 as last amended, against the peace and dignity of the State of Alabama.”

This is another search warrant case and its validity must be tested by both State and Federal decisions. The affidavit and search warrant are herewith set forth:

“AFFIDAVIT AND WRIT FOR SEARCH WARRANT
“THE STATE OF ALABAMA, COVING-TON COUNTY
“Before me Clyde M. Love, Intermediate Court Judge personally appeared Jim Stallings, who, being duly sworn, deposes and says that he has this day since 12:00 O’clock Noon been informed by a reliable informant who has given him correct information in the past, that there are controlled substances in a mobile home located on the North side of U. S. Highway 84, approximately 200 Yards West of intersection of the Horn Hill Road and Highway 84, which said mobile home is usually occupied by one ‘Wormy’ Williams; that said informant has within the last 36 hours observed controlled substances in said mobile home and based upon said information he believes that controlled substances are situated in said mobile home.
“Sworn to and subscribed before me this, the 31st day of December 1974 /s/ Jim Stallings
/s/ Clyde M. Love Intermediate Court Judge Covington County, Alabama
“SEARCH WARRANT
“THE STATE OF ALABAMA, COVING-TON COUNTY
“TO ANY SHERIFF OR ANY CONSTABLE OF SAID COUNTY:
“Proof by affidavit having this day been made before me by Jim Stallings that he has this day since 12:00 o’clock Noon been informed by a reliable informant who has given him correct information in the past, that there are controlled substances in a mobile home located on the North side of U. S. Highway 84, approximately 200 Yards West of intersection of the Horn Hill Road and Highway 84, which said mobile home is usually occupied by one ‘Wormy’ Williams; that said informant has within the last 36 hours observed controlled substances in said mobile home and based upon said information he believes that controlled substances are situated in said mobile home.
“You are therefore commanded, in the day time, or night, to make immediate search on the person of each and every person present in or near said mobile home and any motor vehicle adjacent to said mobile home for the following property: Any controlled substances prohibited by the laws of the State of Alabama and if you find the same or any part thereof, to being it forthwith before me, at my office at Courthouse, Andalusia, Alabama
“Dated the 31st day of December 1974 /s/ Clyde M. Love
Judge of the Intermediate Court, Coving-ton County”

Appellant was convicted under the above indictment and sentenced to three years in the penitentiary. After sentence was imposed, appellant gave notice of appeal and requested that sentence be suspended pending appeal. His request was granted and bond was fixed at $3,000.00.

Prior to trial appellant filed a motion to suppress and considerable testimony was taken and at the conclusion of the hearing the Court denied the motion to suppress one pill or tablet taken from his automobile parked at the mobile home described in the affidavit and search warrant. During the trial appellant objected to the introduction into evidence the portion of the tablet which was not used by the person in the laboratory of the Department of Toxicology in making the analysis on the ground that it was obtained by an illegal search and seizure. The trial court overruled his objection and admitted the exhibit into evidence.

The person who made the affidavit and secured the search warrant was Jim Stall-ings, a Deputy Sheriff of Covington County. He testified on the motion to suppress that he executed the warrant on the night of December 31, 1974, by serving the same on “Wormy” Williams inside the mobile home. That there were present in the mobile home at the time about 20 men and women. He conducted a search to the mobile home and did not find any narcotics of any kind. He then searched each man present including appellant. He did not find any narcotics on the person of appellant. He stated that the women were not searched.

He further testified there were about twelve automobiles parked around the mobile home. He took each man out of the mobile home, one by one, to identify the automobile belonging to him and in the presence of the owner he, along with some auxiliary officers, searched each automobile. It took two and a half hours to complete the search after which all of the people present were transported to the jail in Andalusia.

Appellant was taken from the mobile home out to his Pinto car and by the use of a flashlight, Stallings claims he saw a small white pill on the dash of the automobile. He stated the car was locked and he asked appellant for the keys and they were surrendered to him. Stallings stated that he picked up the pill in the presence of appellant, put it in a plastic bag, sealed it and put his initials on it and the name of appellant. That he carried this pill with him to the jail and placed it in the evidence drawer where it remained until he got it a few days later and personally carried it to the State Laboratory in Enterprise, Alabama, and gave it to Mrs. Melinda J. Long who performed a chemical analysis on the tablet. The result of this chemical analysis was made the basis of the indictment and subsequent conviction of appellant.

Adverting now to the validity of the affidavit and search warrant, if it were not for the case of Ex parte State of Alabama ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640, we would unhesitatingly hold that the affidavit in this case is conclusory only by the use of the words, “a reliable informant who has given him correct information in the past,” and would strike it down as being invalid.

In Neagent v. State, Ala.App., released by this Court on December 16, 1975, Judge Bookout wrote an excellent opinion, and made an in depth research of recent cases, on the subject of the sufficiency of affidavits leading to the issuance of search warrants. He noted that State ex rel. Attorney General supra, was written in 1970 and in the light of numerous holdings by the Federal Courts since that time that case, “may no longer be held to be valid.” But we forego further comment on the sufficiency of the affidavit.

We turn now to a consideration of the search warrant and note at once that it is a complete departure from the affidavit. By its very language it authorizes a general exploratory search. General exploratory searches are forbidden by Federal and State courts alike. Haynes v. State, 50 Ala.App. 96, 277 So.2d 372; Go-Barty v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431; Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040.

There is nothing in this record indicating that any other information was imparted to Judge Love at the time he issued the search warrant in this case. The Fourth Amendment’s requirement that a warrant particularly describe the place to be searched and the things to be seized makes general searches impossible and prevents seizure of one thing under a warrant describing another and nothing is left to the discretion of the officer executing the warrant as to what is to be taken. The search warrant in this case is a dragnet instrument and cannot pass Constitutional muster.

The Court committed reversible error in overruling the motion to suppress the evidence taken from appellant’s automobile.

REVERSED AND REMANDED.

All the judges concur, except DeCARLO, J., who concurs in the result.


author: SHORES, Justice. BLOODWORTH, Justice

text:
    In re Samuel L. PEAVY, alias v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1897.
    Supreme Court of Alabama.
    Aug. 20, 1976.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
    No appearance for respondent.
   SHORES, Justice.

WRIT DENIED. Ala.Cr.App., Ala.App., 336 So.2d 199.

HEFLIN, C. J., and MADDOX, J., concur.

BLOOD WORTH, J., concurs specially.

FAULKNER, JONES, ALMON, EMBRY and BEATTY, JJ., concur with BLOOD-WORTH, J.

BLOODWORTH, Justice

(concurring specially.)

In concurring to deny the State’s petition for writ of certiorari, I wish to state the following.

Although the Attorney General contends that the white pill on the dash of defendant’s car was seized because it was in “plain view,” the facts of this case do not fit the “plain view” doctrine. See Shipman v. State, 291 Ala. 484, 282 So.2d 700 (1973); Kinard v. State (1976) Ala., 335 So.2d 924.

Moreover, it appears that the warrant in question was executed at night. Although the opinion of the Court of Criminal Appeals does not deal with this issue, we note that Tit. 15, § 107, states that warrants must be executed in the daytime unless the affiant states positively in the affidavit that the property is in the place to be searched.

FAULKNER, JONES, ALMON, EMBRY and BEATTY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Anna HUNTER v. The AUSTIN COMPANY.
    Civ. 707.
    Court of Civil Appeals of Alabama.
    May 19, 1976.
    Rehearing Denied June 16, 1976.

      Hubbard, Waldrop & Jenkins, Tuscaloosa, for appellant.
    Jones, McEachin, Ormond & Fulton, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff appeals from an order of the Circuit Court of Tuscaloosa County granting summary judgment in favor of defendant. We affirm.

On September 8,1970, defendant entered into a contract for the rental of certain trucks and drivers to be used in connection with a construction project. This contract consisted of a rental agreement and several purchase orders. The rental agreement was signed “Clarence Hunter, T/A Hunter Cricket Farm By Clarence Hunter, Lessor.”

During September and October 1970, services were performed under the contract. On October 23, 1970, defendant received a “Notice of Levy” from the Internal Revenue Service notifying defendant that there existed an assessment for unpaid taxes against Clarence H. Hunter, Jr. This document further served notice that the United States asserted a lien on all money then due and owing to Clarence H. Hunter, Jr.

On October 29, 1970, plaintiff and Clarence Hunter appeared at defendant’s office and delivered an instrument purporting to assign all of Clarence Hunter’s right, title and interest in the contract to plaintiff. This instrument read in part:

“ . . . I, the undersigned Clarence Hunter do hereby sell, assign, set over and transfer unto Anna Hunter all of my right, title and interest in and to that certain contract between the undersigned and The Austin Company . . . ” (Emphasis added.)

On October 30, 1970, defendant cancelled the contract in question and made a new one with plaintiff. The amount due under the contract as of October 29, 1970 was $4,200.00.

On January 21, 1971, an I.R.S. agent appeared at defendant’s office. He served a second notice of levy for amounts due to “Clarence H. Hunter, Jr., T/A Hunter’s Bait Shop” and a “final demand” for payment of monies owed to “Clarence H. Hunter, Jr., T/A Hunter’s Bait Shop.” He stated that he would remain in the office until defendant gave him a check for $4,200.00. The final demand and second notice contained excerpts from the Internal Revenue Code pertaining to penalties for failure to surrender property subject to the levy. Defendant gave the agent a check for $4,200.00.

Plaintiff filed suit July 1, 1971 in the Circuit Court of Tuscaloosa County, claiming the money paid under the levy to have belonged to her. The theory of the suit being that her husband executed the contract as her agent. Defendant petitioned for removal of the case to the United States District Court for the Northern District of Alabama on July 13, 1972. That court, finding that it lacked jurisdiction, remanded the case to Circuit Court on December 12, 1973. On January 24, 1974, defendant moved for summary judgment, attaching affidavits in support of its motion. Plaintiff filed affidavits in opposition to the motion. Both parties briefed the issues for the trial court, which ultimately rendered its order granting summary judgment for defendant on May 14, 1975. This appeal followed.

Appellant in brief urges that summary judgment was improper in this case because there existed a genuine issue of material fact. See Rule 56, ARCP and Langan Construction Co., Inc. v. Dauphin Island Marina, Inc., 294 Ala. 325, 316 So.2d 681. Defendant has extensively briefed the effect of the Internal Revenue Code and cases decided thereunder on the case. Basically it is defendant’s position that it was under no duty to determine the validity of a tax levy apparently valid on its face; that it was subject to strict sanctions for non-compliance with the levy and final demand; and that payment to the government was a complete defense to plaintiff’s claim, plaintiff’s only remedy being a suit for wrongful levy against the United States. Though possessing merit, our opinion will not determine whether plaintiff’s only remedy was to attack the levy in U.S. District Court as provided by 26 U.S.C. Sec. 7426.

As previously stated, the initial “Notice-of Levy” showed a tax assessment against Clarence H. Hunter, Jr. The “final demand” sought monies due “Clarence Hunter; T/A Hunter’s Bait Shop.” Plaintiff contends that she was the owner of Hunter’s Cricket Farm and the trucks used un^ der the contract. She argues that payment to the government to satisfy a tax lien against her husband is not a defense to suit for money defendant actually owed her.

Defendant’s affidavits state that its contract was with Clarence Hunter, Jr. Defendant’s project accountant swore that he, Hunter, and a man named Free negotiated the contract in September 1970 at defendant’s office; that Hunter and Free decided that the contract should be made in the name of “Clarence Hunter, T/A Hunter Cricket Farm;” and that at no time leading up to the contract was there any indication that Clarence Hunter was acting as agent of plaintiff.

Plaintiff’s affidavit states that she was the owner of Hunter Cricket Farm. Hunter’s affidavit states that he negotiated the contract as agent for plaintiff; that he told defendant’s agent this fact; that he had no proprietary interest in Hunter Cricket Farm; and that the term “Clarence Hunter, Jr., T/A Hunter Cricket Farm” merely indicated that he was acting as agent for plaintiff.

Defendant, contends that “T/A” as used in the contract stands for “trading as” and shows that as far as defendant knew, Clarence Hunter was Hunter Cricket Farm. Defendant argues that there is no genuine issue of material fact raised by the affidavits because any extrinsic evidence that Hunter negotiated the contract as agent of plaintiff would be inadmissible under the parol evidence rule.

Under 26 U.S.C. § 6331, the Internal Revenue Service is authorized to collect unpaid taxes by levy upon all property and rights to property belonging to the taxpayer. As an aid to the collection process, Congress enacted 26 U.S.C. § 6332 which provides in part:

“§ 6332. Surrender of property subject to levy.
(a) Requirement — Except as otherwise provided in subsection (b), any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary or his delegate, surrender such property or rights (or discharge such obligation) to the Secretary or his delegate, except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process.
“(c) Enforcement of levy.— ' '
(1)Extent of personal liability. — Any person who fails or refuses to surrender any property or right to property, subject to levy, upon demand by the Secretary or his delegate, shall be liable in his own person and estate to the United States in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of taxes for the collection of which such levy has been made
“(d) Effect of honoring levy. — Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary or his delegate, surrenders such property or rights to property (or discharges such obligation) to the Secretary or his delegate (or who pays a liability under subsection (c)(1)) shall be discharged from any obligation or liability to the delinquent taxpayer with respect to such property or rights to property arising from such surrender or payment. In the case of a levy which is satisfied pursuant to subsection (b), such organization shall also be discharged from any obligation or liability to any beneficiary arising from such surrender or payment. “(e) Person defined. — The term “person,” as used in subsection (a), includes an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to surrender the property or rights to property, or to discharge the obligation.”

The result of Section 6332 is to create a statutory attachment and garnishment scheme which takes the place of ordinary garnishment proceedings. The service of such a levy, valid on its face, in effect results in a transfer to the government of the property due taxpayer. United States v. Eiland, 4 Cir., 223 F.2d 118. No provision is made for the debtor (Austin) to contest the validity of the lien or correctness of the assessment. Bolling v. Samples, 117 Ga.App. 38, 159 S.E.2d 727. Indeed, if the debtor defies the lien he is subject to both civil and criminal penalties under § 6332(c).

The right of a taxpayer to receive payments under a contract is subject to levy under Section 6332. United States v. Barker, 309 F.Supp. 1369 (W.D.Va.1970). The court in Barker entered summary judgment against a debtor who paid the delinquent taxpayer rather than the government.

The contract read that it was between the Austin Company and Clarence Hunter T/A Hunter Cricket Farm. The second notice of levy and the final demand required defendant to turn over all funds due to “Clarence H. Hunter, Jr. T/A Hunter’s Bait Shop.” It would appear to a person who received such a levy that it was directed to the funds due under the contract in question. Assuming that the levy is valid on its face, payment under the levy would be a defense to this suit under Section 6332.

However, plaintiff contends that the contract was made with Hunter Cricket Farm, a name by which she did business. Her affidavit, and that of Clarence Hunter, support this position and, were they admissible, would create a genuine issue of material fact.

Affidavits in support of a motion for summary judgment may set forth only such facts as would be admissible in evidence. Rule 56(e) ARCP and comments thereto. Generally, when the parties to a contract reduce their agreement to writing, that writing becomes the sole expositor of the transaction. In the absence of fraud, mistake or ambiguity parol evidence is not admissible to vary the terms of the writing. Collier v. Brown, 285 Ala. 40, 228 So.2d 800. No allegation of fraud or mistake has been made. Therefore, unless the contract is ambiguous, the parol evidence contained in the affidavits of plaintiff and Clarence Hunter would be inadmissible.

The admissibility of parol evidence to show that a party executed a contract as agent for a principal was discussed in Richmond Locomotive & Machine Works v. Morange, 119 Ala. 80, 24 So. 834. We quote:

“If an agent, in the execution of a promissory note, disclose his principal, make it appear on the face of the paper that it is the contract of the principal, and sign it as agent, of course the principal is bound, the undertaking being within the agency; and the agent is not. On the other hand, if a principal is not disclosed on the face of the paper, and the party signing describes himself as agent, trustee, or the like, without more, it is the obligation alone of the party whose name is set to the paper, the superadded word or words being mere descriptio personae to be disregarded as surplusage; and evidence cannot be received to show that he was, in fact, the agent or trustee or the like of an undisclosed principal, cestui que trust, or the like, and that the obligation was that of such other person.”
“And again, if the paper discloses the names of two parties, either of whom may be the obligor, and it is doubtful from the whole instrument which of the two is intended to be bound, and the signer describes himself as agent, or as acting in other representative capacity, parol evidence is admissible to show that it is the obligation of the party named in, but not signing, the paper.”

We find the instant case falls within the rule, not the exception quoted above. The letters “T/A” have no etiology in the law of contracts or commerce. If accepted, as contended in briefs, to mean “trading as,” it carries no implication of agency. As in the use of the term “d/b/a,” it merely implies the trade name under which the signatory operates his business. It is des-criptio personae to be disregarded as sur-plusage. Parol evidence may not be received to show that the signer was acting as agent for an undisclosed principal.

The addition of the assignment of the contract executed by Clarence Hunter to plaintiff on October 29 again brings into operation the parol evidence rule. In the assignment, Clarence> Hunter, Jr. states that the contract which he signed with the appendage of “T/A Hunter Cricket Farm” was his contract. By affidavit plaintiff attempts to vary the admission of the assignment with parol explanation. Such was not permissible.

The original contract did not contain ambiguity permitting explanation by parol. The additional evidence of the assignment locks plaintiff in to the conclusion that the contract was with Clarence Hunter, Jr., and the benefit derived therefrom was his property and subject to payment by defendant under the levy.

Concluding that the legal evidence contained in the affidavits presented no issue of material fact, the granting of summary judgment was proper. The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: SHORES, Justice.

text:
    In re Anna HUNTER v. The AUSTIN COMPANY. Ex parte Anna Hunter.
    SC 1934.
    Supreme Court of Alabama.
    Aug. 13, 1976.
    Perry Hubbard, Tuscaloosa, for petitioner.
    M. T. Ormond, Tuscaloosa, for respondent.
   SHORES, Justice.

The denial of writ in this case shall not be construed to mean that this court approves or disapproves all of the statements contained in the opinion of the Court of Civil Appeals, Hunter v. Austin Company, Ala.App., 336 So.2d 203 (1976).

WRIT DENIED.

MADDOX, JONES, EMBRY and BEAT-TY, JJ., concur.


author: INZER, Presiding Justice,

text:
    Doyle V. MYRICK v. INCORPORATION OF A DESIGNATED AREA INTO A MUNICIPAL CORPORATION TO BE NAMED STRINGER.
    No. 48802.
    Supreme Court of Mississippi.
    Aug. 10, 1976.
    Tom Roberts, Bay Springs, for appellant.

      Oates & Houston, Bay Springs, for appel-lee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   INZER, Presiding Justice,

for the Court:

This is an appeal by Doyle V. Myrick from a decree of the Chancery Court of Jasper County granting a petition to incorporate the community of Stringer. It involves the question of whether the requirements relative to notice as provided in Section 21-1-15, Mississippi Code 1972 Annotated, are mandatory and jurisdictional. Holding that such provisions are mandatory and jurisdictional and the failure to comply with the requirements of said section can be raised for the first time in this Court, we reverse and dismiss the petition for incorporation.

The privilege of incorporation of a municipality can be granted only by the legislature and the procedure must be strictly complied with which grants to the chancery court the duty to determine whether public convenience and necessity will be served by the proposed incorporation. City of Jackson v. Boling, 241 So.2d 359 (Miss.1970); Bridges v. City of Biloxi, 250 Miss. 717, 168 So.2d 40 (1964).

On December 16, 1974, the proponents of the incorporation of Stringer filed four identical petitions signed by a total of 190 persons describing the area to be incorporated, alleging that 404 inhabitants resided in this territory and the assessed valuation of the real estate in the area was $107,587. Petitioners also averred that their aim in seeking incorporation was the betterment of public service to be rendered to the inhabitants of the territory, particularly by providing fire and police protection which was at the present time not adequate. The pétition as filed met the requirements of Section 21-1-13, Mississippi Code 1972 Annotated, and the chancellor set the cause for hearing on January 28, 1975. Prior to the date of the hearing a number of the inhabitants of the area sought to be incorporated filed objections, and among other things questioned the jurisdiction of the court alleging that the petition was not signed by two-thirds of the qualified electors residing in the territory proposed to be incorporated.

The burden of proof was upon the petitioners to show that they had met the statutory requirements to give the court jurisdiction to hear their petition. Section 21-1-15, Mississippi Code 1972 Annotated, provides in part as follows:

The said notice shall be given by publication thereof in some newspaper published or having a general circulation in the territory proposed to be incorporated once each week for three consecutive weeks, and by posting a copy of such notice in three or more public places in such territory. The first publication of such notice and the posted notice shall be made at least thirty days prior to the day fixed for the hearing of said petition, and such notice shall contain a full description of the territory proposed to be incorporated. . .

The notice required by this statute is in lieu of personal service and it is well settled that a statute providing for notice in lieu of personal service must be strictly complied with and where the statute requires the posting of notices, the notices must be so posted and the record must show that they were posted as required by the statute. Langstaff v. Town of Durant, 122 Miss. 471, 84 So. 459 (1920).

The record in this case shows that the notice was published as required in a newspaper, but does not show that copies of the notice were posted as required by statute. Section 13-1-145, Mississippi Code 1972 Annotated, provides as follows:

The posting of any notice required by law or the order of any court may be proved by filing a copy of the notice, with an affidavit of posting, in the court in which the proceeding was had in which the notice was required. Such affidavit shall be competent evidence in all courts, and shall be prima facie evidence of what it states.

No affidavit was filed as provided for in this section and no attempt was otherwise made to prove that the notices were posted as required by statute. Consequently, the finding of the chancellor that proper notice was given as required by statute is not supported by the proof.

Appellees contend that appellant is estopped from raising the question relative to notice because he failed specifically to raise this question in the trial court. This contention is not well taken for the reason that in the absence of proper notice, the trial court was without jurisdiction to order an incorporation, the decree doing so is void, and the question may be raised for the first time on appeal in this Court. McDaniel Brothers Construction Co., Inc. v. Jordy, 254 Miss. 839, 183 So.2d 501 (1966); Khoury v. Saik, 203 Miss. 155, 33 So.2d 616 (1947); and Herrington v. Stimpson Computing Scale Co., 159 Miss. 416, 131 So. 878 (1931).

It also appears from the record that thirty-one of the qualified electors who signed the petition for incorporation filed a petition asking that their names be withdrawn or deleted from the petition. In holding that the petition was signed by two-thirds of the electors, the chancellor did not considér the fact that these thirty-one people desired to have their names withdrawn from the petition. It is a general rule that one can withdraw from a petition at any time prior to the determination of the hearing. In Allison v. Camp Creek Drainage District, 211 Miss. 354, 51 So.2d 743 (1951), we held that a signer of a petition could withdraw on the return date. The legislature in its wisdom provided that two-thirds of the qualified electors of the territory sought to be incorporated must favor the incorporation before it can be incorporated. We held in Bridges v. City of Biloxi, supra, that provisions of the petition that it be signed by at least two-thirds of the qualified electors was mandatory, it must be fulfilled at the time the petition was filed and if the petition was not signed by two-thirds of the qualified electors at the time it was filed, it could not thereafter be amended to include the names of additional petitioners. Appellees contend that if the petitions were signed by two-thirds of the qualified electors at the time it was filed, the court had jurisdiction and none of the signers could thereafter withdraw from the petition so as to deny the court jurisdiction. With this contention we do not agree. It is our opinion that the legislature did not intend for a municipality to be created unless at least two-thirds of the qualified electors were in favor of its creation. The individual signers of the petition had a right to apply their best judgment and mature consideration to the matter and after such consideration had a right to advise the court that they had changed their opinion and no longer favored the incorporation. We hold that the chancellor should have, in making his determination as to whether there were two-thirds of the qualified electors as required by the statute, considered the fact that thirty-one of the original signers of the original petition had requested that their names be withdrawn from the petition.

For the reasons stated, we hold that the trial court was without jurisdiction to enter the decree appealed from and the same is void. For that reason the case is reversed and the petition dismissed.

REVERSED AND RENDERED.

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


text:
    Roy Dean WRIGHT v. Dorothy Lee WRIGHT.
    No. 48776.
    Supreme Court of Mississippi.
    Aug. 17, 1976.
    Jean D. Muirhead, Jackson, for appellant.
    Agnew, Agnew & Crawford, Jackson, for appellee.
    Before INZER, P. J., SUGG and LEE, JJ., and J. W. WALKER, Commissioner.
   AFFIRMED.


text:
    Danny HERRING v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
    No. 48852.
    Supreme Court of Mississippi.
    Aug. 17, 1976.
    Laurel G. Weir, Philadelphia, for appellant.
    Snow, Covington, Temple & Watts, Meridian, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ., and BROWN, Commissioner.
   AFFIRMED.


text:
    Eugene I. NELSON and Thomas E. Nelson v. H. E. HENRY.
    No. 48748.
    Supreme Court of Mississippi.
    Aug. 17, 1976.
    McKee & McDowell, Dolton W. McAlpin, Starkville, for appellant.
    James E. Brown, Starkville, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   AFFIRMED.


text:
    J. W. POWE v. Warren C. CONERLY.
    No. 48766.
    Supreme Court of Mississippi.
    Aug. 17, 1976.
    Joseph M. Stinson, Tylertown, for appellant.
    Anderson, Banks, Nichols & Stewart, Jackson, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   AFFIRMED.


text:
    V. A. TAYLOR, Jr. v. William MARSHALL et al.
    No. 48687.
    Supreme Court of Mississippi.
    Aug. 17, 1976.
    Taylor, Covington, Smith, Matrick & Gibson, Jackson, for appellant.
    Joe G. Moss, Raymond, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   AFFIRMED.


author: SUGG, Justice,

text:
    Lynn MURPHY v. STATE of Mississippi.
    No. 49152.
    Supreme Court of Mississippi.
    Aug. 3, 1976.

      Schissel & Harrigill, W. S. Stuckey, Jr., Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

Defendant, David Tindall, and defendant’s mother, Frances Murphy, were indicted by a grand jury in Leflore County for the murder of Kent Murphy, the father of defendant. Defendant was separately tried, convicted, and sentenced to life imprisonment.

Defendant assigns three errors but the principal question is whether a statement made to officers by the defendant after she requested consultation with a lawyer, but before she consulted the lawyer, was admissible for the purpose of impeaching defendant’s credibility as a witness when her trial testimony contradicted her prior statement.

About 5:30 p. m. on August 18, 1974, Kent Murphy, the father of defendant, was shot and killed in his home by David Tin-dall. Tindall was the boyfriend of defendant and confessed the killing to authorities shortly after the homicide, but did not, at that time, implicate any other persons in the homicide. On the following day defendant went to the sheriff’s office at the request of the sheriff for the purpose of giving a statement. At that time defendant was not a suspect in the homicide and was not given Miranda warnings.

When asked for a statement defendant told the sheriff and his deputy, Ricky Banks, that she did not want to make a statement without first consulting the attorney who later represented her at her trial. One of the officers tried to reach the attorney by telephone but was advised that the attorney was not available because he was in court. Questioning by the sheriff and deputy was resumed and in response thereto defendant gave an oral statement and a written statement.

Defendant also argues that her statements were the result of coercion. The trial judge ruled that her statements were not voluntary because they were solicited after she had requested an attorney. Neither the written statement nor the oral statement was inculpatory; however, the oral statement contradicted her trial testi- ■ mony as set forth hereafter.

Defendant denied that she made an oral statement but this did not preclude her from maintaining that the statement was not made voluntarily. Lee v. State, 201 Miss. 423, 29 So.2d 211 (1947) cert. granted and case reversed, 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330 (1947), conformed 203 Miss. 264, 34 So.2d 736 (1948).

Defendant testified that she was in the backyard when she heard a shot fired. She entered the house and found her father lying on the floor wounded. On cross-examination she stated:

A. Well — the only thing I really remember about what he was doing — he was moving — he was moaning and all— and I remember right after the gun went off — Daddy went Oh, God. He hollered. When I went in the house, he was moving around and moaning and then I turned around — I couldn’t stand it no more so I turned around and went in my mother’s bedroom.
Q. Let me ask you, when you walked in the house from the back yard, and saw your father on the floor, had he been shot then?
A. Yes, sir.
Q. Was he in blood lying on the floor?
A. There was — there wasn’t — at that time — I couldn’t say that there was a lot of blood but there was blood.
Q. Was he moaning?
A. Yes, sir.
Q. Was he moving, trying to crawl?
A. No, sir. He wasn’t trying to crawl.
Q. He was moving?
A. He was sorta flinching sorta — he wasn’t really trying to move or get up— he was just laying there. Every now and then, he would sorta jump.
Q. Lynn, did you go over to your father and try to help him?
A. No, sir.
Q. Why not?
A. Because I was scared and I didn’t know what to do.
Q. When you couldn’t stand seeing this any longer, what did you do then, Lynn?
A. I walked into my mother’s bedroom.
Q. What did you find when you walked into your mother’s bedroom?
A. David was standing at the foot of my mother’s bed and I walked behind— he had the gun in his hand and I walked behind him and I stood beside him — just standing there and it seemed like he just froze or something. Then I — he turned around and was fixing to walk back into the kitchen and I was right behind him and I was looking around the corner and he brought the gun up and he shot him again.
Q. Did you see him shoot your daddy the second time?
A. Yes, sir.
Q. Did you try to stop him?
A. No, sir. Not that I remember.
Q. Lynn, I ask you this, is it not a fact, that when David Tindall walked into that kitchen the second time, with the gun — you told him to shoot him again, David and get him out of his misery?
A. No, I did not.
Q. You deny that?
A. I deny that. (R. 383-85).

Deputy Sheriff Ricky Banks testified on rebuttal as follows:

A. Deputy Hughes brought Lynn to our office around lunch time on the 19th of August, 1974. Lynn sat down and talked to the Sheriff and I about what heppened the Sunday before the 19th. She said that — she went through the trouble that her and Sue and her father were having. They went out of his office — at the Colonial Mobile Homes and that Mr. Murphy had picked Sue up by the collar and threw her down and he had told them — she said he had told them if they were at home when he got there, he was going to kill them. So, she said they went back home and she said she was. outside and Sue was outside playing and Mrs. Murphy was trying to crank the lawn mower and that is when she heard the first shot. She said she ran in the house and David was standing there with a gun in his hand — the rifle. Her father was down on the floor. He was down on the floor on his all fours. I knew Mr. Murphy. David was standing there holding the rifle and her father was hollering. She said that she couldn’t stand to hear him hollering so she told David to shoot him again to get him out of his misery. (R. 451-52).

In her testimony defendant denied that she told David Tindall to shoot her father to get him out of his misery. This testimony was contradicted by the deputy sheriff.

The contradictory statement of defendant was made to the deputy sheriff under conditions similar to those made by the defendant in Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) in that the statements were made in both cases in response to questioning by officers after defendants requested an attorney. In Hass the defendant had been arrested when the contradictory statements were made, whereas in this case the defendant had not been arrested. The summary set forth in 43 L.Ed.2d at 570-71 of Hass follows:

After having been arrested by an Oregon police officer on suspicion of burglary, the defendant was given the warnings required by Miranda v. Arizona (1966) 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974. On the way to the police station the defendant expressed the wish to telephone his attorney; the officer replied that the defendant could do so as soon as they arrived at the police station, whereupon the defendant furnished in-culpatory information. At the trial in the Circuit Court, Klamath County, Oregon, defendant testified to his innocence, but the police officer, recalled by the prosecution in rebuttal, repeated the in-culpatory information furnished him by defendant. At the request of the defense, the trial court advised the jury that this information may not be used by them as proof of defendant’s guilt, but may be considered only as it bore to his credibility. The jury returned a verdict of guilty. The Oregon Court of Appeals, feeling itself bound by earlier Oregon Supreme Court decisions, reversed on the ground that the inculpatory statements made by defendant were improperly used to impeach this testimony. (13 Or.App. 368, 510 P.2d 852). The Supreme Court of Oregon affirmed (267 Or. 489, 517 P.2d 671), distinguishing Harris v. New York (1971) 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643, wherein the United States Supreme Court held that in the fact situation involved statements made by an accused to police under circumstances rendering the statements inadmissible to establish the prosecution’s case in chief under Miranda v. Arizona are admissible for purposes of impeaching the accused’s credibility as a witness.
On certiorari, the United States Supreme Court reversed the judgment of the Oregon Supreme Court. In an opinion by Blackmun, J., expressing the views of six members of the court, it was held that (1) the United States Supreme Court had jurisdiction to review the case, since the attempt of the Oregon Supreme Court to distinguish the Harris case revealed the federal basis of the latter court’s decision; and (2) the inculpatory information furnished by defendant was admissible only for the purpose of impeaching defendant’s testimony.

The United States Supreme Court also held that a state may not impose greater restrictions as a matter of federal constitutional law when the Supreme Court specifically refrains from imposing them. The opinion of the Court stated:

Hass suggests that ‘when state law is more restrictive against the prosecution than federal law,’ this Court has no power ‘to compel a state to conform to federal law.’ Brief for Respondent 1. This, apparently, is proffered as a reference to our expressions that a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards. See, e. g., Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967); Sibron v. New York, 392 U.S. 40, 60-61, 88 S.Ct. 1889, 1901-1902, 20 L.Ed.2d 917 (1968). See also State v. Kaluna, 55 Haw. 361, 368-369, 520 P.2d 51, 58-59 (1974). But, of course, a State may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them. See Smayda v. United States, 352 F.2d 251, 253 (CA9 1965), cert. denied, 382 U.S. 981, 86 S.Ct. 555, 15 L.Ed.2d 471 (1966); Altanase v. Economy Baler Co., 343 F.2d 187, 193 (CA8 1965). (420 U.S. at 719, 95 S.Ct. at 1219, 43 L.Ed.2d at 575-76).

In the instant case the statement made to the deputy sheriff was not admissible by the state on its case in chief for the reason stated by the trial judge in his ruling. However, it was not the result of coercion, duress, threats or promises and was therefore admissible for the purpose of impeaching the credibility of the defendant as a witness.

Defendant further contends that it was the affirmative duty of the trial judge to explain to the jury that the testimony of the deputy sheriff was offered for impeachment purposes only. In Booker v. State, 326 So.2d 791 (Miss.1976) we held that a defendant is entitled to an instruction that contradictory statements may not be used as proof of guilt but may be considered only in passing on his credibility as a witness. Defendant did not request such an instruction and did not object to the testimony when it was tendered. In the absence of a request for the instruction, no error was committed by the trial court.

Defendant also assigns as error that the verdict of the jury was contrary to the overwhelming weight of the credible and believable evidence and evinced bias, passion and prejudice on the part of the jury. The theory of the state’s case was that the defendant was an accessory before the fact to the crime of murder. She was indicted and punished as a principal as authorized by Mississippi Code Annotated section 97-1-3 (1972). We have carefully considered the entire record in this cause and find that the verdict of the jury was supported by credible evidence.

Defendant’s third assignment of error is that the court erred when it refused to give the instructions on manslaughter requested by her.

The rule in this state is that it is never proper to grant a manslaughter charge unless there is some competent evidence tending to show that the killing was in the heat of passion and without malice. Jones v. State, 222 Miss. 387, 76 So.2d 201 (1954); Newell v. State, 209 Miss. 653, 48 So.2d 332 (1950). Such evidence is not present in this case, but, to the contrary, the whole record points to a case of murder.

AFFIRMED.

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


author: DIXON, J.,

text:
    Judge Allen M. BABINEAUX et al. v. JUDICIARY COMMISSION OF LOUISIANA et al.
    No. 58450.
    Supreme Court of Louisiana.
    Aug. 19, 1976.
   In re Judiciary Commission of Louisiana applying for Supervisory Writs and Stay Order.

Writ granted with stay order.

DIXON, J.,

dissents.

Grant of this writ is premature. There is no reason to by pass proceedings in the district court.


text:
    STATE of Louisiana v. George HUDSON and Willie Matthews, Jr.
    No. 58509.
    Supreme Court of Louisiana.
    Aug. 25, 1976.
   In re: State of Louisiana, applying for writs of certiorari, mandamus and prohibition.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.

SUMMERS, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Walter BURNETTE and James Granger.
    No. 58467.
    Supreme Court of Louisiana.
    Aug. 12, 1976.
   In re: Walter Burnette and James Gran-ger applying for writs of certiorari, prohibition, mandamus and for a stay order.

Writ denied. Defendants have an adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Michael FONSECA.
    No. 58513.
    Supreme Court of Louisiana.
    Aug. 24, 1976.
   In re: Michael Fonseca, applying for supervisory writs and stay order.

Writ denied. This court will not interfere with the orderly proceedings in the trial court absent palpable error. Applicant has a remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Nolan Anthony SCHOUEST.
    No. 58459.
    Supreme Court of Louisiana.
    Aug. 25, 1976.
   In re: Nolan Anthony Schouest, applying for writ of certiorari and/or supervisory writ of review.

Writ denied. Trial of this case should proceed as a capital offense. Sentencing, in the event of conviction, shall be deferred pending order of this Court.


author: BLANCHE, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Charlie KORNMAN and Medallion Realty, Inc.
    No. 10834.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      A. William Mysing, Jr., Covington, Lucas J. Giordano, Metairie, for plaintiff-ap-pellee-appellant.
    Norman L. Sisson, William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Baton Rouge, for the Highway Dept.
    Alvin J. Liska, New Orleans, for the Highway Dept.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff, State of Louisiana, through the Department of Highways, and defendants, Charlie Kornman and Medallion Realty, Inc., both appeal the trial court judgment in these two consolidated expropriation suits. Separate appeals were taken in each case. We affirm the trial court judgment in its entirety.

In Appeal No. 10,834 (District Court Suit No. 39,805), 336 So.2d 227, judgment was rendered in favor of the defendants in the sum of $62,326.41, subject to a credit of $52,207 previously deposited. The judgment was to bear legal, interest on the sum of $11,526 (the amount of an additional deposit by the plaintiff) from the date of taking, February 6, 1974, until June 23, 1975, the date said sum was deposited into the registry of the court. The judgment was also to bear legal interest on $10,119.41 (the difference between the total deposit and the amount awarded by the trial court) from the date of taking until paid.

In Appeal No-. 10,835 (District Court Suit No. 39,806), judgment was rendered in favor of the defendants in the sum of $32,204, subject to a credit of $21,822 previously deposited into the registry of the court. The judgment was to bear legal interest on the sum of $4,526 (the amount of an additional deposit by the plaintiff) from the date of taking, February 6, 1974, until June 23, 1975, the date said sum was deposited into the registry of the court. The judgment was also to bear legal interest on $10,382 (the difference between the total deposit and the amount awarded by the trial court) from the date of taking until paid.

All costs in both suits were taxed to the plaintiff, as well as expert witness fees in the amount of $5,940.

Separate judgments will he rendered.

SUBJECT MATTER OF APPEAL NO. 10.834

Defendants owned Lot 1, Square 4, and Lots 1 and 17, Square 1, of Riverwood on the Tchefuncte Subdivision, west of Cov-ington, St. Tammany Parish, Louisiana.

Lot 1, Square 4, was located directly opposite from Lot 1, Square 1, on Belle Terre Boulevard at the very entrance to said subdivision. Standing partially on both lots was an ornate native stone gateway, extending approximately 45 feet on either side of the boulevard, parallel to U. S. Highway 190. One-third of the gateway stood on the boulevard right of way. ■ It was similar in style to many such structures which decorate the entrances of other affluent residential subdivisions in our locale. It differed from the average gateway, however, since it was solid stone rather than veneer, having at one time marked the entrance to the old Shushan Estate. There were no other structures or improvements located on either lot.

Lot 17 was unimproved. However, an old combination barbed and hog wire fence with concrete posts separated its rear boundary from the Highway 190 right of way.

Pursuant to State Project No. 13-11-09, Federal Aid Project No. F — 76(17), Chin-chuba-Covington Highway on State Route La.-U.S. 190, the three aforementioned lots were taken in fee.

SUBJECT MATTER OF APPEAL NO. 10.835

Defendants also owned Lots 21, 22 and 23 of Square 1, in the same subdivision. Those lots were also unimproved, except for a continuation of the aforementioned wire fence along the rear boundary of each. Only a portion of each of the latter lots was taken by the aforementioned project; 15,063 square feet from the rear of Lot 21, leaving a remainder of 9,737 square feet; 23,307 square feet' from the rear of Lot 22, leaving a remainder of 17,-230 square feet; and a small 2,844 square foot triangular portion from the rear of Lot 23, leaving a remainder of 31,431 square feet.

At the trial it was conceded that the highest and best use of all of the expropriated property in both suits was residential.

THE TRIAL COURT JUDGMENT

After hearing the testimony of four real estate appraisers, two for each side, the trial judge concluded that the appraisal of defendants’ expert, Frank J. Patecek reflected the true value of the property. Therefore, he adopted the values set forth therein.

Accordingly, fifty-three cents per square foot was set as the fair market value of Lot 17 and both Lots No. 1, resulting in a total worth of $62,326.41. Lot 21 was valued at approximately sixty-three cents per square foot; hence, the value of the part taken was $9,580. Lot 22 was valued at fifty-three cents per square foot, resulting in $12,353 due for the part taken. The fair market value of Lot 23 was set at fifty-seven cents per square foot, resulting in $1,621 due for the part taken.

All appraisers agreed that no severance damages were due for Lot 23 and, therefore, none were awarded.

Regarding Lot 22, the plaintiff’s appraisers argued that no severance damages were due. However, the trial judge adopted Pa-tecek’s conclusion that Lot 22 was damaged by the taking of 23,307 square feet from the total of 40,537. The value of the remaining 17,230 square feet was considered to be diminished by approximately 40 percent, resulting in severance damages oí $3,660 (approximately 40 percent of the before-value of the remainder, $9,131, equals $3,660).

Lot 21 was regarded as damaged by all appraisers, and the trial judge again accepted Patecek’s estimate that the 9,737 square foot remainder of Lot 21 had lost approximately 80 percent of its value since the remaining square footage was insufficient to accommodate a residence. Therefore, $5,000 was awarded for damages thereto (approximately 80 percent of the before-value of the remainder, $6,193, equals $5,000).

In recapitulation, the trial judge awarded $62,326.41 (fifty-three cents per square foot) for the total taking of Lot 17 and both Lots No. 1; $9,580 (approximately sixty-three cents per square foot) for the part taken from Lot 21, together with $5,-000 severance damages- $12,353 (fifty-three cents per square foot) for the part taken from Lot 22, together with $3,660 severance damages; and $1,621 (fifty-seven cents per square foot) for the part taken from Lot 23, with no severance damages awarded.

In spite of the defendants’ objections, no award was made for either the stone gateway or the wire fence.

A $2,400 appraisal fee was awarded to Patecek, plus $400 for conferences and court appearance. Kermit A. Williams, defendants’ other appraiser, was awarded a $2,500 appraisal fee, plus $400 for conferences and court appearance. Defendants’ witness, John Carr, was awarded $240 for his appraisal and court appearance with regard to the stone gateway.

PLAINTIFF’S APPEAL

The plaintiff contends that the trial judge erred by accepting the appraisal values in both suits offered by the defendants’ appraiser, Patecek. Plaintiff cites the comparable of Bailey to Morgan of 25,155 square feet for $17,600 as being the highest price paid for any lot in the subdivision prior to the taking. Since Patecek’s appraisal reached a value higher than $17,-600 on all lots but Lot 21, plaintiff contends that his figures should have been disregarded by the trial judge.

This argument fails to consider the large size of the subject lots, all of which were over 34,000 square feet except Lot 21. The additional square footage would certainly be justification for valuing the subjects at a higher price than that paid by Morgan for a lot of only 25,155 square feet.

The plaintiff relies heavily upon the sale of Strickland to Anzalone, which was 36,-000 square feet for only $16,000 (forty-four cents per square foot). However, the Anzalone property is not really comparable to the subject properties, even though it contains similar square footage.

Size alone does not give rise to comparability. The Anzalone property lies adjacent to a natural drainage area and the western and northern portions of the lot are subject to standing water during heavy rains, whereas the subject tracts are all high and well drained.

Patecek also utilized the Anzalone sale; however, contrary to the plaintiff’s appraisers, he adjusted the price upward by approximately 9 percent to account for the better topography of the subject tracts. From our review of the record, we feel this adjustment was warranted.

We have thoroughly studied the appraisals and testimony of each expert and conclude, as did the trial judge, that Patecek’s report is the most persuasive as to the value of all of the subject tracts. He logically adjusted each comparable for size, time, topography and shape; whereas, the plaintiff’s experts did not.

The most reliable and approved method for determining the fair market value of immovable property is to consider comparable sales, adjusting them to compensate for their good and bad features with regard to the subject. State, Department of Highways v. Smith, 270 So.2d 178 (La.App. 1st Cir. 1972), writ refused, 272 So.2d 379 (La.1973); State, Department of Highways v. Munson, 174 So.2d 923 (La.App. 1st Cir. 196S), writ refused, 247 La. 1091, 176 So.2d 146 (1965).

In expropriation cases much discretion is granted to trial judges in weighing the testimony of experts, and findings of value based upon such evidence will not be disturbed unless clearly erroneous. State, Department of Highways v. Spillman, 276 So.2d 905 (La.App. 1st Cir. 1973); State, Department of Highways v. Hickman, 277 So.2d 525 (La.App. 3rd Cir. 1973). We cannot say that it was error for the trial judge to adopt Patecek’s appraisal value of the subject tracts.

Regarding severance damages, the plaintiff again objects to the trial judge’s adoption of Patecek’s report.

Based upon Patecek’s report, the trial judge found that the 17,230 square foot remainder of Lot 22 was damaged by 40 percent. To justify his conclusion, Pate-cek showed that Lot 20, which was also partially expropriated by the project in a similar manner to Lots 21 and 22, suffered a decrease in value of approximately 40 percent when compared to other property in the subdivision which had not been affected by the project. Additionally, the taking left Lot 22 only slightly larger than the 16,000 square foot subdivision minimum.

There is ample evidence in the record to support a finding that Lot 22 was damaged by the instant taking and, therefore, in accordance with the Spillman and Hickman cases, supra, the trial judge’s conclusion will not be disturbed.

Plaintiff also argues that Lot 21 could be sold to one of the two adjacent lot owners and,- therefore, it was damaged only 50 percent rather than 80 percent, as found by Patecek and the trial judge.

As a result of the taking, Lot 21 was reduced to 9,737 square feet, or approximately 6,000 square feet below the subdivision minimum. Even with its reduced area, the subdivision restrictions limit the use of Lot 21 to that of a private residence for one family. Therefore, in addition to precluding the building of a residence thereon, the restrictions also seem to preclude the use of the lot for purposes of building a swimming pool or tennis court and, accordingly, greatly reduce its desirability to the adjacent lot owners. For these reasons, we find no error in the trial judge’s conclusion that the remainder of Lot 21 was damaged by 80 percent of its prior value.

The plaintiff argues that it should not be required to pay interest on the amounts of its amended deposits.

The day before trial, June 23, 1975, well over one year subsequent to its initial deposit, the plaintiff filed a Supplemental and Amended Petition increasing the deposits in Suit No. 39,805 by $4,526 and in Suit No. 39,806 by $11,526. Since the just compensation awarded by the trial judge was more than the total amount deposited by the plaintiff, the judgment assessed plaintiff for interest on both supplemental deposits from February 6, 1974, the date of taking, until the deposit date, June 23, 1975.

LSA-R.S. 48:455, as it applied on the date of taking, read as follows:

“The judgment rendered therein shall include, as part of the just compensation awarded, interest at the rate of five per centum per annum on the amount finally awarded as of the date title vests in the plaintiff to the date of payment; but interest shall not be allowed on so much thereof as has been deposited in the registry of the court. Added Acts 1954, No. 107, § 1, effective June 24,1954.”

The plaintiff argues that no interest is due on the amount deposited into the registry of the court regardless of when it is deposited, even where it is deposited the day before trial as was done herein. The plaintiff cites no authority for its interpretation of Section 455.

The intent of Section 455, when considered with the requirement that the landowner must be awarded just and adequate compensation under Article 1, Section 2 of the Louisiana Constitution of 1921, is that interest is due on all amounts awarded in excess of the initial deposit until the date of payment. Therefore, interest was correctly awarded by the trial judge on $4,526 and $11,526 from the date of taking until the sums were deposited on June 23,1975.

Lastly, the plaintiff challenges the award of expert witness fees. Plaintiff contends that the awards to Patecek and Williams were improper since they merely conformed to the amounts agreed to between the experts and the defendants; and furthermore, neither appraiser testified as to the amount of time spent compiling his report.

The agreement between an expert and the party for whom he testifies is not the sole criterion to set the amount to be taxed as court costs for his services. Recreation and Park Commission of East Baton Rouge Parish v. Perkins, 231 La. 869, 93 So.2d 198 (1957).

However, in order to change the amount awarded to defendants’ experts, this Court must find that the trial judge abused the great discretion properly accorded him in such matters. Monroe Redevelopment Agency v. T. D. L. Corporation, 321 So.2d 426 (La.App. 2nd Cir. 1975), writ refused, 323 So.2d 478 (La.1975); Monroe Redevelopment Agency v. Merkel, 321 So.2d 429 (La.App.2nd Cir. 1975), writ refused, 323 So.2d 478 (1975); State, Department of Highways v. Spillman, supra.

In the instant case, the appraisals and trial testimony of both of defendants’ experts speak for themselves. Both are indicative of a great deal of preparation and expertise and could not have been executed without much effort on their part. We, therefore, find no abuse of discretion in the awards.

Plaintiff also asserts that the $240 award to John Carr for his appraisal of the stone entranceway was improper since Carr was not qualified as an expert at the trial. It is true that Carr was not technically introduced as an expert witness; however, his function was the same as an expert, that is, he advised the court concerning a pending matter which was peculiarly within his knowledge as manager of a stone and marble business. It was, therefore, not an abuse of the trial judge’s discretion to tax his fee as costs.

DEFENDANTS’ APPEALS

The most serious issue on this appeal is defendants’ contention that they should have been awarded an additional amount over and above the fair market value of both Lots No. 1 as compensation for the taking of the native stone gateway. We quote from defendants’ brief:

“It is defendants’ contention that the stone wall is an immovable improvement, that it has an esthetic value, belonging to the defendants as the owners of the two lots expropriated, and that the defendants are entitled to be compensated for the value of this improvement on their lots as a separate item apart from the value of the land upon which the stone wall sits.”

Just and adequate compensation rather than fair market value is the requirement in expropriation cases, and there is no one set formula by which to establish that figure. State, Department of Highways v. Terrace Land Company, Inc., 298 So.2d 859 (La.1974). To clarify its conception of just compensation, the Court in the Terrace Land Company case stated:

“ * * * Whatever approach or formula of valuation used, it should take into consideration ‘all factors which lead to a replacement of the loss caused by the taking. This means substantially that the owner is placed in as good a position pecuniarily as he would have been had his property not been taken [Many citations omitted.]’ State Through Dept. of Highways v. Ragusa, 234 La. 51, 99 So.2d 20, 21 [1958].” (298 So.2d at 863)

Therefore, even though the stone wall may have possessed a certain amount of aesthetic value to the defendants, they are entitled to recover only what is required to place them in as good a position pecuniarily as they would have been had the property not been taken.

We note that the defendants’ own appraisers did not consider that the presence of the wall increased the fair market value of the lots. Patecek’s appraisal report completely ignored the presence of the wall to arrive at the fair market value.

Defendants’ other appraiser, Kermit Williams, did the same. In fact, Williams considered the wall to be an “amenity” to the property. According to Webster’s Third New International Dictionary, unabridged, the word “amenity,” when referring to real property such as that before the court, connotes: “1 * * * b(l): the attractiveness and aesthetic or nonmon-etary value of real estate or of any structure for purely residential use” (emphasis supplied). Accordingly, Mr. Williams did not consider that the wall was of any monetary value to the defendants.

The defendants have not shown that they are obligated to re-erect the' wall and, therefore, they have suffered no pecuniary loss therefor. In fact, only a portion of said wall rested upon defendants’ property. As previously noted, defendants have also not shown that they received less than the fair market value of the subject lots.

We are aware of the case of State, Department of Highways v. Blair, 285 So. 2d 212 (La.1973), where an award was made for horticultural specimens in addition to fair market value of the property. However, the improvements therein were “for the actual use in a business pursuit, to' exhibit to clients interested in the possibilities of landscape architecture.” Therefore, the Court held that to deprive the landowner of those improvements without additional compensation would have violated Article 1, Section 2, of the Louisiana Constitution of 1921.

Another example of the flexibility of the concept of just compensation is found in the excellent reasoning of Judge Redmann in Orleans Parish School v. Montegut, Inc., 255 So.2d 613 (La.App. 4th Cir. 1971). Therein the landowner was properly awarded the fair market value of his land plus reasonable expenses for an aborted apartment house project since the land was expropriated after pilings had been driven and financing costs, et cetera, had been incurred.

Without the additional compensation over and above the fair market value of the land, the owners in the Blair and Mon-tegut cases, supra, would not have been placed in as good a position pecuniarily as they would have been had the property not been taken, Terrace Land Company, supra.

In the instant case, the defendants have not met the burden of proving that the award of the trial court did not leave them in the same position as before the 'taking. The defendants have not proven that they ■ could have obtained a higher price for the subject property than they received as compensation from the plaintiff, nor have they shown that the wall was uniquely valuable to them as was shown with regard to the improvements in the Blair and Montegut cases, supra. In view of the foregoiilg, we conclude that it was proper to deny an award for the stone wall.

The trial judge also refused an additional award for the wire fencing. Because of the affluent nature of the subdivision, this ordinary barbed and hog wire fence added no value to the property before the taking. For the same reason, it would also not contribute to the value of the lot if it were reconstructed on the new property line after the taking.

The inescapable conclusion is that there was no showing that defendants, after receiving the fair market value of the lots plus applicable severance damages, were not in as good a position as they would have been had the property not been taken, Terrace Land Company case, supra. This was the finding of the trial judge, with which we agree.

For the above and foregoing reasons, the judgment of the trial court in Appeal No. 10,834 is affirmed. The State is to bear all costs as can be assessed against it.

AFFIRMED.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Charlie KORNMAN and Medallion Realty, Inc.
    No. 10835.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    A. William Mysing, Jr., Covington, Lucas J. Giordano, Metairie, for plaintiff-appel-lee-appellant.
    Norman L. Sisson, William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Baton Rouge, Alvin J. Liska, New Orleans, for the Highway Dept.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

For the reasons set forth in our opinion in “State of Louisiana, Through the Department of Highways v. Charlie Kornman and Medallion Realty, Inc., 336 So.2d 220” the judgment of the trial court herein is affirmed. The State is to bear all costs as can be assessed against it.

AFFIRMED.


text:
    Gerald AVERETT v. George ALEXANDER, Jr. and State Farm Mutual Insurance Company.
    No. 10827.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      Dale E. Branch, Bogalusa, for appellant.
    Duncan S. Kemp, III, Hammond, for Mr. Averett.

      Leonard L. Benedetto, Jr., New Orleans, for George Alexander.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

As a result of an automobile accident, suit was instituted by Gerald Averett, plaintiff-appellee, against George Alexander, Jr., and defendant-appellant, State Farm Mutual Automobile Insurance Company, claiming recovery against State Farm based on the uninsured motorist coverage of a policy of automobile insurance issued by State Farm to plaintiff-appellee. Arising out of the same accident and consolidated for trial with the aforementioned case was a suit instituted by Alexander against Averett.

Judgment was rendered by the trial court in favor of Averett in his suit, and only State Farm has appealed. No judgment was rendered in the Alexander suit. We affirm the trial judge’s findings as to liability but amend the award of damages in favor of plaintiff by reducing the same on the basis that they are grossly excessive and an abuse of discretion.

At the outset, we note that plaintiff’s recovery under the aforementioned policy hinges upon our determination of Alexander’s liability since at the time of the accident he was an uninsured motorist within the meaning of State Farm’s policy.

This suit involves basically a factual dispute. The uncontroverted evidence indicates that an automobile accident occurred on October 21, 1973, at approximately 11:00 A. M., at the intersection of Baham and Overmier Roads in Tangipahoa Parish, involving a 1972 Cadillac owned and driven by Gerald Averett and a 1966 Chevrolet owned and operated by George Alexander, Jr. The Alexander vehicle was towing a 1962 Oldsmobile being steered by Norman Cyprian, in which Melvin Williams, Alexander’s seventeen-year-old step-son, was riding. Both roads are approximately eighteen feet wide with gravel surfaces.

Plaintiff’s version of the incident is that he was traveling in a northerly direction on Baham Road and turned left onto Over-mier Road, with no car in sight behind him. Subsequently, he claims that he looked in both directions and reversed his direction, backing almost all the way across Baham Road. Then he claims he stopped, looked in both directions and placed his car in “Drive” to start forward, intending to turn on Baham Road in a southerly direction. At this point, plaintiff claims his car stalled partially in the intersection, but with room for a vehicle traveling on Baham Road to avoid a collision by maneuvering around his car. Plaintiff states that he believed his car was flooded and waited a minute or two before trying unsuccessfully two or three times to start his car. While stalled in the intersection, plaintiff asserts that Alexander’s vehicle, towing another car along Ba-ham Road in a northerly direction, rounded a hill about 750 feet south of the intersection, traveling about 40 to 50 miles per hour. Plaintiff further asserts that after rounding the hill the defendant’s car hit a rough section of road about 250 feet from the intersection, causing the back car to strike the front car and forcing the cars to slide and veer out of control. Plaintiff claims that before he could extricate himself from his automobile he was hit on the driver’s side by the Alexander vehicle, causing his injuries.

Alexander, on the other hand, claims he was following plaintiff’s vehicle along Ba-ham Road by about 50 feet for approximately three-quarters of a mile. He inconsistently asserts that plaintiff’s vehicle was traveling at about 40 to 50 miles per hour, while his automobiles were traveling at approximately 25 to 30 miles per hour. He further asserts that plaintiff turned left onto Overmier Road and suddenly and without warning reversed his direction and backed into the intersection, with Alexander’s automobile about 15 or 20 feet behind, causing Alexander to strike plaintiff’s vehicle. Alexander’s version of the facts would mean that while his automobile was traveling at a rate of speed of 25 to 30 miles per hour, the plaintiff was able to turn left, reverse, and back into the into the intersection before Alexander traveled 30 to 35 feet. Alexander claims he was unable to avoid the collision.

The burden of proof is on the plaintiff to prove his claim by a preponderance of the evidence. See Triche v. Mashburn, 303 So.2d 563 (La.App. 1st Cir. 1974), and the cases cited therein. In the instant case the only evidence offered by the plaintiff was his uncorroborated testimony, directly in conflict with Alexander’s version of the story. However, on the other hand, plaintiff has raised inconsistencies in Alexander’s testimony and that of his witnesses, discrediting their veracity. Thus, the issue is whether the trial judge was justified in accepting plaintiff’s uncorroborated version of the facts as sufficient to sustain his burden of proof.

The trial judge did not assign written reasons, but his ultimate disposition of the case requires the conclusion that he believed plaintiff and did not believe Alexander or any of his witnesses. While the plaintiff’s testimony as to how he happened to be blocking approximately half of the road was uncorroborated, Alexander’s testimony and that of his witnesses demonstrated inconsistencies concerning the rate of speed of the vehicles, the operation of the brakes in the car being towed, and the distance and time during which the Alexander vehicle followed behind plaintiff’s vehicle. The testimony of Melvin Williams, Alexander’s step-son, was in conflict with his prior deposition. Also, Alexander admitted to lying in an earlier deposition. Therefore, these factors would furnish a reasonable basis for the trial judge’s determination that Alexander’s repdition of the facts was not credible.

While the trial judge’s factual findings are only indicated by his final holding in favor of the plaintiff, it is apparent that he found the facts to be as plaintiff asserted. Such a finding necessarily depends on a determination of the credibility of the witnesses in this case. As this Court said in Heimbaugh v. Federal Insurance Company, 281 So.2d 839 (La.App. 1st Cir. 1973), writs denied, La., 283 So.2d 771 (1973):

* * * This determination lies within the province of the trier of fact, and our appellate review of facts is not synonymous with the role of the trial judge in making these findings ab initio. * * * ” (281 So.2d at 843)

Therefore, we uphold the trial judge’s obvious determination that the facts were as presented by plaintiff based on his ultimate decision in plaintiff’s favor. This result is in accordance with the standard of review of facts for appellate courts as set out in Canter v. Koehring Company, La., 283 So.2d 716 (1973).

State Farm contends that the plaintiff’s conduct constituted contributory negligence. However, the facts as evidently found by the trial court indicate that the plaintiff exercised reasonable care in backing across the intersection. Further, even assuming that plaintiff’s conduct in allowing his car to partially block the road was substandard, and thus a breach of a duty, the ambit of his duty did not extend to the risk encountered. The evidence relied on by the trial court indicates that Alexander was towing another vehicle at unsafe speeds on a gravel road was was unable to safely maintain control of his vehicle. Further, the plaintiff was only partially blocking the intersection, which left adequate room for another vehicle to avoid the collision by the exercise of reasonable care and attention in operating the vehicle. Thus, any duty owed by the plaintiff to Alexander would not extend to the risk encountered in this instance where, by the exercise of reasonable care in the operation of his vehicle, Alexander could have easily avoided the accident. See e. g., Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972).

Since Alexander is liable for plaintiff’s injuries, State Farm must indemnify plaintiff . for his losses pursuant to the provisions of their uninsured motorist’s policy.

QUANTUM

Immediately after the collision, plaintiff experienced pain in his left side and difficulty in breathing, as well as bleeding from his left ear. Upon being taken to Hood Memorial Hospital in Amite, Louisiana, an extensive examination to determine if there were any head or chest injuries revealed a fracture of the left, seventh rib and contusion of the chest. Plaintiff remained in the hospital for four days and was treated by Dr. Charles Genovese, a general practitioner, who prescribed bed rest and analgesics for pain. Dr. Genovese testified that the rib probably healed within a three-week period, during which time he saw plaintiff four times. During the next year, Dr. Genovese saw plaintiff at about three-month intervals, at which times. he complained of soreness and stiffness.

Plaintiff contends additionally that about two and a half months after the accident he developed some pain, although not severe, in his neck and between his shoulders, with a slight confinement of motion of the neck to the left. Dr. Genovese testified, however, that the first time plaintiff complained of neck soreness was on October 10, 1974, about one year after the accident. It is unexplained as to why plaintiff did not complain to the doctor about his neck even though he saw him several times within this period. Further, Dr. Genovese testified that if the pain in the neck had been related to the accident, in his opinion, the chances would have been greater that plaintiff would have complained of the pain soon after the accident happened. On March 4, 1975, Dr. Genovese referred him to Dr. Daniel S. Sinclair, an orthopedic surgeon.

We conclude that plaintiff has failed to carry his burden of proof and to show by a preponderance of the evidence that the neck injury was causally related to the accident.

Plaintiff asserts that his son took over the supervision of the dairy farm while he was disabled and that he is entitled to recover the sum representing additional wages paid to his son during this period. Plaintiff testified that he was confined to his house for about two or three weeks and was able to resume his regular supervision pf the operation about two and a half months after the accident. However, plaintiff contends that he is entitled to additional wages paid to his son for twenty weeks, to be computed by averaging twenty weeks’ wages prior to the accident and twenty weeks after the accident and finding the amount of additional wages paid.

The evidence in the record indicates that plaintiff’s son was responsible for additional duties caused by plaintiff’s disability for only two and a half months, or ten weeks. Furthermore, the payroll records do not show an increase in his son’s pay for the weeks immediately following the accident. In fact, during the weeks prior to the accident the son received $100.80 and $99.20, whereas the two weeks after the accident he received $83.20 and $94.40. If we combine the amount paid for the ten-week period before the accident and compare it to the ten-week period after the accident, a total of $452.40 more was paid for the period after the accident. From our review of the record, this is the maximum amount of additional wages which plaintiff is entitled to recover.

The trial judge awarded plaintiff a lump sum of $8,849.95 without any indication as to the basis of his computation of special and general damages. All medical and hospital bills were paid by the insurer except charges of $74 and $10 of Dr. Sinclair, which were for the neck injury that we have found not to be causally related to the accident. If we deduct the amount of additional wages of $452.40 from the award of $8,849.95, this leaves a total of $8,397.55 as the sum for general damages for pain, difficulty in breathing and soreness associated with the fracture of one rib.

The trial judge is granted great discretion in fixing awards for general damages which cannot be fixed with any degree of certainty, such as pain and suffering. The appellate court’s review must be limited to a determination of whether the trial court abused its discretion, based on the circumstances of the case. Anderson v. Welding Testing Laboratory, Inc., La., 304 So.2d 351 (1974). While awards made.in similar cases provide no scale for assessing damages, they may be used to determine if an issue of abuse of discretion is present. Anderson v. Welding Testing Laboratory, Inc., supra.

The amount awarded in this case for pain and suffering is excessive when compared to awards made to plaintiffs with similar or even more severe injuries. A sixty-five year old woman with three or four fractured ribs, necessitating the wearing of a rib brace for six weeks, and injuries to both knees received only $2,250 for pain and suffering. Harang v. Sparacino, 257 So.2d 785 (La.App. 4th Cir. 1971). In Boles v. Fireman’s Fund American Insurance Company, 250 So.2d 529 (La.App. 2nd Cir. 1971), the plaintiff received only $2,000 for pain and suffering resulting from three fractured ribs.

While plaintiff’s injury to his rib was painful, there was no residual effect, and an award of $8,397.55 for pain and suffering resulting from one broken rib and contusion of the chest cannot be reasonably supported by the evidence in the record. An award of $2,500 would adequately compensate the plaintiff.

For the above and foregoing reasons, the judgment of the trial court is amended by reducing the award to plaintiff, Gerald Averett, to the sum of $2,952.40, representing $452.40 for additional wages paid to his son and $2,500 for pain and suffering. In all other respects the judgment is affirmed. All costs of this appeal are to be borne by defendant-appellant, State Farm Mutual Automobile Insurance Company.

AMENDED, AND AS AMENDED, AFFIRMED.