author: LEE, Justice,

text:
    STATE of Mississippi v. George CLEMENTS, Jr.
    No. 51757.
    Supreme Court of Mississippi.
    May 14, 1980.
    John A. Gregory, Asst. Dist. Atty., Okolo-na, for appellant.
    Ottis B. Crocker, Jr., Bruce, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

George Clements, Jr. was indicted in the Circuit Court of Calhoun County on a charge of aggravated assault. He filed a motion to quash the indictment on the grounds that the charge was prohibited by constitutional provisions against double jeopardy and on the doctrine of collateral estoppel. The trial court, Honorable J. O. Sams, Sr., presiding as special judge, sustained the motion, quashed the indictment, and the State of Mississippi has appealed,

The sole question presented to this Court is whether or not the trial judge erred in quashing the indictment.

On October 8; 1977, appellee, accompanied by three (3) other male individuals, left his place of employment, went to a nearby tavern, and drank beer and shot pool for a lengthy period of time. On the way back to the plant, after leaving the tavern, evidence indicates that appellee, being drunk, grabbed the steering wheel of the car. Subsequently, appellee and two of the individuals got into a pickup truck with one Bryant driving same, and were proceeding to Calhoun City. All three had been drinking intoxicating liquor. According to the State’s evidence, appellee grabbed the steering wheel of the truck, caused it to veer into the opposite line of travel, and collide with a vehicle there, resulting in the deaths of two (2) women and injuries to a 12-year-old child, Lori Parker. Appellee denied that he grabbed the steering wheel, saying, “I couldn’t have, I was too drunk.”

Appellee was first indicted in the Circuit Court of Calhoun County for manslaughter of Alice Parker by culpable negligence in the operation of the pickup truck. He was tried and acquitted on the charge. Then appellee was indicted for aggravated assault of Lori Parker. A motion to quash the indictment was filed on the grounds of former jeopardy and collateral estoppel, and, as stated, it was sustained by the trial judge.

The case of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) applied the doctrine of collateral estoppel (and double jeopardy) as enunciated by the Fifth and Fourteenth Amendments to the United States Constitution. The rule was approved and expanded in Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972).

In State v. Smith, 278 So.2d 411 (Miss.1973), Smith was indicted and tried on a murder charge and was acquitted. Subsequently, he was indicted for robbery on the same facts, a plea in bar and motion to quash were filed, and were sustained by the trial court. In affirming the judgment, this Court discussed the facts and principles of Ashe, supra, and said:

“The defendant in this Plea contends the Fifth Amendment principle, double jeopardy applying to the State through the Fourteenth Amendment prevents his trial on the robbery indictment because the State is collaterally estopped from relitigating those issues already determined. in his favor at the murder trial; determinations which make his conviction on the robbery charge a logical impossibility. In the recent United States Supreme Court case of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Court set out certain principles. This is a summary of that case and the decision of the Court. Six men were engaged in a poker game and were robbed by three or four masked gunmen. Ashe was tried in the state court for the robbery of one of the players, which trial resulted in an acquittal. Ashe was again tried in the state court for the robbery of another of the players and in this trial was convicted. The witnesses in the two trials were for the most part the same and the State’s evidence establishing the facts of the robbery was not contradicted, but the testimony identifying Ashe as one of the robbers' was substantially stronger at the second trial. Some several years later Ashe brought a habeas corpus proceeding in United States District Court for the Western District of Missouri, claiming that the second prosecution had violated his right not to be twice put in jeopardy. The writ was denied and the United States Court of Appeals for the Eighth Circuit affirmed and it was reversed by the United States Supreme Court in an opinion by Mr. Justice Stewart, explaining the view of seven members of the Court, holding that since the single rationally conceivable issue in dispute before the jury was whether the defendant had been one of the robbers; the Federal rule of Collateral Estoppel, which is embodied in the Fifth Amendment currently against double jeopardy, made the second trial wholly impermissible. The Court said in that case that the principle of collateral estoppel means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit. The Court in that case held the trial judge in the original state trial of Ashe instructed the jury that if Ashe was one of the participants in the armed, robbery he would be guilty under the law even if he had not personally robbed Knight. Therefore, the principle of collateral estoppel was decided by the United States Supreme Court in this case.” 278 So.2d 413-414.

The Court further stated:

“The inescapable conclusion that must be drawn as a result of studying the record of the entire murder trial, the instructions granted the court on the law of the case and which were considered by the jury is that the jury determined that Tommy Lynn Smith was not a participant in the crime, thus rendered its general verdict of not guilty. The determination of this issue was adverse to the State of Mississippi. The facts in this case are almost identical with the facts in the case of Turner v. Arkansas, which was decided by the United States Supreme Court after the murder trial of Tommy Lynn Smith.” 278 So.2d at 415.

In State v. Cox, 339 So.2d 1374 (Miss.1976), Cox was indicted and tried in the Circuit Court of Monroe County for manslaughter arising out of the death of a 13-year-old child. At the conclusion of the State’s case, the trial judge sustained a motion for directed verdict. Subsequently, Cox was indicated for the felonious battery of the child and a motion to quash the indictment was sustained on the ground of former jeopardy. The judgment of the lower court was reversed and the case was remanded for trial on that charge. The Court distinguished the case from Ashe and Smith in the following respect:

“The crimes, manslaughter and felonious battery, are separate and distinct, each having essential elements not requisite to the other. An essential of manslaughter is a homicide without malice. Essentials of felonious battery are deliberate intention and tender years of the victim with mutilation, disfigurement or destruction of any part of the body of a child, but not necessarily including death — the very basis of manslaughter.” 339 So.2d at 1377.

In the case sub judice, in the manslaughter trial, the court instructed the jury at the request of the State “that she (Alice Parker) died as a result of George Clements, Jr.’s gross negligence demonstrating a reckless manner by grabbing the steering wheel of said pickup truck and causing said pickup truck to enter the lane of traffic reserved for the vehicle occupied by Alice Parker while in the state of public drunkenness

The indictment against appellee for aggravated assault charged that appellant “did . . . commit an aggravated assault upon one Lori Parker, a human being, by recklessly causing serious bodily injury to said Lori Parker, under circumstances manifesting extreme indifference to the value of human life, by causing a pickup truck to wrongfully and illegally enter the lane of traffic reserved by law for the operation of the vehicle occupied by the said Lori Parker and thereby causing a collision in which the said Lori Parker was seriously injured.”

In Nelson v. State, 361 So.2d 343 (Miss.1978), the Court said with reference to aggravated assault:

“The facts of this case require us to define the acts proscribed by the statute and which constitute aggravated assault. The statute provides:
‘A person is guilty of aggravated assault if he . . . causes such injury . . recklessly under circumstances manifesting extreme indifference to the value of human life.’
We hold these words are analogous to our definition of culpable negligence in homicide cases set forth in Smith v. State, 197 Miss. 802, 20 So.2d 701 (1945) as follows:
‘[C]ulpable negligence should be defined as the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the wilful [sic] creation of an unreasonable risk thereof.’ (197 Miss. at 817, 20 So.2d at 705).” 361 So.2d at 344.

We note that, unlike in Cox, supra, the same elements are present in the charge of manslaughter by culpable negligence and in the charge of aggravated assault. The simple issue of whether or not appellee grabbed the steering wheel of the pickup truck and caused the vehicle to drive into the opposite lane of traffic resulting in the death of Mary Parker was the charge and issue in the indictment charging aggravated assault upon Lori Parker. We see no difference in the litigation of that issue here than in the litigation of the issue of identity in Ashe, supra, or in the issue presented in Smith, supra.

Therefore, we are of the opinion that the trial judge correctly sustained the motion to quash the indictment and the judgment of the lower court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    James Edward LEE, Jr. v. STATE of Mississippi.
    No. 51867.
    Supreme Court of Mississippi.
    May 14, 1980.

      Johnston & Steinberger, Albert S. Johnston, III, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

James Edward Lee, Jr. was convicted in the Circuit Court of Jackson County for distribution of a controlled substance (cocaine), was sentenced to serve a term of fifteen (15) years in the Mississippi State Penitentiary, and was fined fifteen thousand dollars ($15,000). He appeals from the judgment of the trial court and assigns three (3) errors in the trial below.

On October 27, 1977, a confidential informant of the Mississippi Bureau of Narcotics arranged for the appellant, known at the time only as “Jumbo,” to meet with Agent Richard Humphreys for the purpose of selling him cocaine. Agent Humphreys met with appellant and the confidential informant at the appointed time in the Grant Plaza Shopping Center parking lot in Jackson County. Humphreys purchased two (2) grams of cocaine for one hundred dollars ($100.00). Agent Richards, also with the Bureau of Narcotics, observed the transaction from a short distance away.

I.

Did the lower court err in refusing to dismiss the indictment on the ground that appellant was tried and convicted of a crime more than two hundred seventy (270) days after arraignment?

Appellant was indicted at the April 1978 Term of court and arraigned on May 1, 1978. A motion for discovery was filed May 9, 1978, and an order granting same was entered June 19, 1978. Motion for a continuance was sustained October 6, 1978, with some question as to who requested the continuance. On January 18,1979, continuance was granted at the request of the appellant until the April 1979 Term of court. On May 2, 1979, a motion to dismiss was filed, a hearing was held, the motion was denied, and a continuance was granted at the request of appellant on May 3, 1979, until date of trial, May 18, 1979. The trial on that date resulted in a mistrial. Appellant was tried again on May 21, 1979, and was convicted. Appellant admits that he is responsible for part of the delay in that he sought and was granted a continuance on January 18, 1979, until the next April 1979 Term of court. However, evidence at the hearing on appellant’s motion to dismiss indicated that the delay, or continuance, during the October 1978 Term of court was granted after defense counsel notified the district attorney of a conflict in his trial schedule. The continuance was noted on the judge’s trial docket, although no formal order was ever entered. In overruling the motion to dismiss, the trial judge found that continuances granted at the request of the appellant were responsible for the delay in excess of 270 days, and we are unable to say that he erred in so holding. Therefore, we reject this contention of the appellant.

II.

Did the lower court err in admitting testimony concerning an incriminating statement made by appellant when the same had not been furnished to the defense counsel in the discovery order, prior to trial?

Appellant filed a motion for discovery prior to trial, and the motion was sustained. The statement in question was made by appellant at the time of his arrest. According to Agent Humphreys, appellant said that he knew he had done wrong. The statement was not made available to the defense attorney prior to trial, since it was not reduced to writing. The district attorney’s office was not notified of the statement until shortly before trial.

Appellant relies upon Armstrong v. State, 214 So.2d 589 (Miss.1968), wherein it was held that an accused should be permitted to inspect tangible evidence which may be used against him or which may be helpful to his defense. In the case sub judice, the statement in question was not tangible evidence, since it had not been reduced to writing, nor was it in possession of, or known by, the district attorney’s office at the time the discovery order was granted. Appellant had the right to subpoena and talk to all witnesses, including the officers, in order to determine what their testimony would be, and such procedure on the part of appellant could have brought that information to his attention. Furthermore, there is no showing in the record that appellant was prejudiced by not being informed of the statement prior to trial. Therefore, we find no merit in this assignment.

III.

Did the lower court err in reopening the case at the request of the prosecution to receive further evidence after the jury retired to consider its verdict?

The jury retired and took into the jury room, along with other physical evidence, State’s Exhibit A, which was the investigative report of Agent Humphreys. The jury discovered that page 3 of the report was missing, and so informed the trial judge, who ordered the cause to be reopened to explain the omission. Agent Humphreys testified that the page was inadvertently omitted. Appellant’s counsel was afforded an opportunity to cross-examine Humphreys and did engage in lengthy cross-examination.

In Perkins v. State, 253 Miss, 652, 178 So.2d 694 (1965), the Court held that ordinarily the reopening of a case after it has been submitted to the jury and before verdict for the purpose of receiving further evidence is a matter addressed to the sound discretion of the trial judge. The Court also stated that a strong reason must exist for reopening the cause, and when permitted, it must be done in such way as to afford ample opportunity for cross-examination or rebuttal. We are of the opinion that the trial judge did not abuse his discretion in reopening the case for this one purpose, and, again, there is no indication that the appellant was prejudiced by such action.

Therefore, the judgment of the lower court is affirmed.

AFFIRMED.

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


author: SUGG, Justice,

text:
    Patricia Ellen G. McHANN v. Bobby Leon McHANN.
    No. 51895.
    Supreme Court of Mississippi.
    May 14, 1980.

      Jean D. Muirhead, Jackson, for appellant.
    Young, Scanlon & Sessums, Robert R. Marshall, Jackson, for appellee.
    Before PATTERSON, P. J., and SUGG and BOWLING, JJ.
   SUGG, Justice,

for the Court:

This appeal is from a decree of the Chancery Court of the First Judicial District of Hinds County dismissing appellant’s petition to cite appellee for contempt and modifying the alimony provisions of a final decree of divorce by terminating all future obligations of appellee to pay alimony to appellant.

Patricia Ellen G. McHann, appellant, and Bobby Leon McHann, appellee, were married on January 4, 1963. Appellant was granted a divorce from appellee on April 2, 1974. The final decree of divorce incorporated a property settlement agreement of the parties. Under the property settlement agreement appellee conveyed the house and lot jointly owned by the parties in Edwards, Mississippi, to appellant, conveyed appellant an automobile, paid appellant a lump sum alimony of $6200, agreed to pay appellant alimony of $3600 annually, agreed to pay $22 per month on appellant’s medical insurance, and agreed to make appellant beneficiary in a $125,000 decreasing term life insurance policy which could never be reduced below $30,000.

Appellant filed a petition to cite appellee for contempt on September 13, 1977, and alleged that appellee had paid only $900 of the $3600 alimony payment due on April 2, 1977, and that appellee had failed to pay the premium due on the decreasing term life insurance policy for the months of June, July and August, 1977. On October 10, 1977, appellee filed his petition to modify the alimony and other support provisions of the divorce decree. Appellee alleged that appellant had engaged in adulterous affairs with numerous men since the divorce and prayed that he be released from all future obligation to pay alimony. The causes were consolidated for trial and hearings were held on April 3, 1979 and June 12, 1979. Appellant filed a motion to amend her petition to cite appellee for contempt to include the alimony payments due in 1978 arid 1979, and for additional insurance premiums on the decreasing term life insurance in the amount of $562.95.

Appellant assigns three errors which present four issues as follows: (1) Did the court err in dismissing the petition to cite appellee for contempt? (2) Were the 1978 and 1979 alimony payments vested in appellant? (3) Did the court err in modifying the final decree by relieving appellee of all future obligation to pay alimony or other financial support to appellant? (4) Did the lower court err in not awarding appellant attorney’s fees?

I.

In her petition to cite appellee for contempt, the appellant claimed appellee had paid only $900 on the alimony payment due in April, 1977, leaving a balance of $2700 plus three months premium on the decreasing term life insurance policy.

Appellee testified that, following the divorce, he paid appellant, as an advance on alimony, a sum in excess of $4,700 consisting of house payments, bills for electric service to appellant’s home, automobile insurance, taxes, and for fungus treatinent and for plastic installed in the home deeded to appellant. Appellee claimed that he had overpaid the amount due appellant in excess of $1,900 at the time appellant filed her petition to cite him for contempt. Appellant denied that the payments were made as an advance on alimony and contended that they were made voluntarily. The court, in the final decree, held that appellee was entitled to credit for the payments and had paid appellant an amount in excess of that required to be paid under the terms of the final decree of divorce. The chancellor made this finding based on conflicting testimony, and under the well established rule that we do not reverse a chancellor for finding of fact unless his findings are clearly against the weight of the evidence, we affirm and hold that the petition for citation for contempt was properly dismissed.

II.

The next question is whether the 1978 and 1979 alimony payments were vested in appellant, thereby depriving the chancery court of the authority to relieve appel-lee of these payments.

In Lee v. Lee, 182 Miss. 684, 181 So. 912 (1938) appellee was granted a divorce from appellant, his wife. The decree provided for alimony on a monthly basis which began at $60 and was reduced to $45 a month by the terms of the decree. After making all payments due by the terms of the decree, appellee filed a petition asking the court to reduce the monthly alimony payments from $45 to $25. After a hearing the trial court reduced the payments from $45 to $25 per month from the time of filing the petition. Appellant filed a petition to cite appellee for contempt for failure to pay the $45 per month required by the original decree. The two petitions were consolidated and tried together. The trial court dismissed the contempt proceeding and granted the prayer of appellee’s petition, reducing the amount of monthly payments to $25. One of appellant’s arguments on the appeal was that she had a vested right in the $45 per month alimony allowed her by the original decree and appellee was in default $20 per month because he had only paid $25 per month following the filing of his petition for modification. Appellant argued that the vested right could not be taken away because of the clean hands doctrine. On appeal, the decree of the chancery court was affirmed in the following language:

We are of the opinion that Section 1421, Code of 1930, and the principles laid down in Schlom v. Schlom, 149 Miss. 111, 115 So. 197, and Campbell v. Lovgren, 175 Miss. 4, 166 So. 365, are a complete answer to the first contention of appellant. In considering this question it should be borne in mind that the reduction complained of did not begin until after the filing of the petition for modification. That was true in the Schlom Case. In that case the court upheld the reduction made by the husband and father without first having such reduction approved by the court. In discussing the question the court said that the clean hands doctrine had no application — would not prevent the relief prayed for; that the husband and father had the right to make the reduction subject to the approval of the court. Section 1421 provides, among other things, for the allowance of alimony to the wife, and that the court may after-wards, on petition of the husband, change the decree and from time to time make such new decree as the case may require. Under this section, no alimony decree is ever a final judgment, it is always open to change. (182 Miss. at 688, 689, 181 So. at 912, 913).

In the case before us appellee had paid all sums due by him at the time he filed his petition to modify on October 10, 1977.

The 1978 and 1979 alimony and insurance premiums did not accrue until after appel-lee had filed his petition to modify the original decree. We therefore hold, under the authority of Lee, supra, that appellant did not have a vested right in the 1978 and 1979 alimony and insurance premiums, and the court did not err in so holding.

III.

The third proposition urged by appellant is that the court erred in modifying the final decree by relieving appellee of all future obligation to pay alimony or other financial support to her. The proof shows that appellant had committed adultery with at least four men since obtaining her divorce in 1974. The relationship with the first man began soon after the divorce and continued until 1976 and 1977. Appellant was not certain of the date she broke off her relationship with this man. Following this she admitted adultery with three other persons which continued until shortly before the last hearing in this case. In fact, one man lived in her house for a week between the April, 1979 and June, 1979 hearing. The chancellor held that appellant was not entitled to any alimony because of her adulterous conduct, and cited Rubisoff v. Rubisoff, 242 Miss. 225, 133 So.2d 534 (1961) as authority for his holding.

In McRae v. McRae, 381 So.2d 1052, 1055, we cited Rubisoff and stated:

The trier of fact, by the opinion, has the duty to find whether or not the alleged misconduct of the former wife is of such nature as to forfeit her right to future alimony. Where, as here, the misconduct has terminated before trial, the trier of fact has the further responsibility to decide whether the termination is in good faith and with intention not to revert to the error.
No hard and fast rule or mold may be laid down to fit at once all of the spectrum of misconduct. The question must be faced and determined on a case-by-case basis.

We are of the opinion that the chancellor was correct in holding that appellant had forfeited her right to future support from appellee because her admitted adultery during the period following her divorce was of sufficient duration and frequency to justify the holding of the chancellor. To hold otherwise would be to condone adultery and in effect would penalize a divorcee for marrying but reward her for cohabitation without benefit of marriage.

IV.

The last issue involved the question of attorney’s fees. The proof shows that appellant owns a house and lot in Edwards which has very little, if any, debt against it, savings accounts of $7400 and 42 or 45 shares of stock in the Bank of Edwards. She was able to pay her own attorney and the chancellor did not err in requiring her to do so.

For the foregoing reasons, we are of the opinion that the decree of the. chancery court should be affirmed.

AFFIRMED.

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


author: ROBERTSON, Presiding Justice,

text:
    Betty Sue WALTERS (Young) v. Jerry D. WALTERS.
    No. 51896.
    Supreme Court of Mississippi.
    May 14, 1980.
    Patricia A. Champagne, Gulfport, for appellant.
    Gaston H. Hewes, Jr., Gulfport, for appel-lee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

On December 16, 1978, the Chancery Court of Harrison County entered a decree dismissing the petition for modification filed by Jerry D. Walters to secure custody of his 10-year-old son, Jerry Dwayne Walters, Jr., custody having been awarded to the child’s mother, Betty Sue Walters in the final decree of divorce entered on March 25, 1974.

Betty Sue Walters (Young) had answered the petition for modification incorporating therein a petition for citation for contempt. She averred that, although Jerry D. Walters was able to make child support payments of $25 per week decreed against him in the decree of March 25, 1974, he had failed and refused to do so and was in arrears in the sum of $2,625.00.

In its decree of December 16, 1978, after dismissing the petition for modification filed by Jerry D. Walters, the court entered judgment against him for $3,350 for past-due child support, but refused to find him in contempt of court for failure to pay past-due child support and granted a stay of execution on the judgment “so long as the said Jerry D. Walters pays unto Betty Sue Walters Young the sum of $25.00 per month toward payment of said judgment.” The court also decreed that Walters continue to pay Mrs. Walters (Young) the sum of $100 per month as child support as provided in the decree of March 25, 1974, and that Walters pay unto Mrs. Walters (Young) the sum of $350 as “her reasonable attorney fee incurred by this proceeding.”

On appeal, appellant contends that:

I.The chancellor erred in not holding the appellee in contempt and in granting a stay of execution;
II.The chancellor erred in denying an increase in child support; and
III.The chancellor erred in awarding insufficient attorney’s fees.

There is no merit in the second and third assignments of error. The appellant presented insufficient proof of a material change in circumstances to warrant any increase in child support. With reference to attorney’s fees, only two witnesses testified at the hearing, the appellant and the appellee, and the record, including all pleadings and even some duplications of prior pleadings, consists of only 121 pages. We have consistently held that the chancellor has broad authority and discretion in setting appropriate attorney’s fees and unless the chancellor is manifestly wrong we will not disturb his award of attorney’s fees. Hartley v. Hartley, 317 So.2d 394 (Miss.1975). The chancellor did not abuse his discretion in awarding $350 attorney’s fees.

The testimony was conflicting as to why the appellee refused to pay child support payments after May 1976. Jerry testified that Betty called him in 1975 or 1976 and said that her present husband, Rex Gardner, was making enough money to support the child and that he did not have to send any more support payments. Betty denied making this statement, testifying that Jerry talked to her once about getting her present husband to adopt Dwayne and relieve him of support payments he could not .afford. Jerry also testified that Betty never made any direct demands on him for the child support payments after he stopped paying them in 1976, and that if she had wanted him to make the payments she should have called him direct. She testified that she did not call him directly because of an unpleasant relationship between her and Jerry’s present wife. She said that she told Jerry’s brother and mother, with whom she had a close relationship, to tell Jerry that she needed the child support money.

A Petition for Citation for Contempt for failure to pay child support was filed on January 28, 1975, in the Chancery Court of Harrison County because Jerry lived in Gulfport, while Betty lived in Waynesboro. Apparently as a result of this, Walters continued to pay $25 per week child support until May 9, 1976. Since that date, he has only made three $25 payments even though he has gotten annual increases from his employer, Struthers-Wells, and is now making $6.51 an hour as a fitter-welder and takes home $222 per week net. Walters also testified that he earns for overtime, and also $30 per night as a musician. He testified that he had worked as a musician one night each week for seven weeks the previous year. Walters admitted that he had made no child support payments since the filing of her Answer and another Petition for Citation for Contempt on May 2, 1978.

Walters has married again, has one child by his present wife, and has adopted her three children from a previous marriage. He owns a three-bedroom brick home in Gulfport to which he recently added a den and fireplace. He bought a new Ford LTD in 1977 on which he is making monthly payments.

Although it was a close question whether Walters was in contempt of court, the evidence was somewhat conflicting and we cannot say with certainty that the chancellor abused his discretion in not finding Walters in contempt of court for willfully refusing to make monthly child support payments.

The chancellor was in error in granting a stay of execution on the judgment for $3,350 past-due child support for “so long as he pays unto the said Betty Sue Walters Young the sum of $25.00 per month toward payment of such judgment.” At this rate of payment it would take about IIV2 years to pay out the judgment which would extend beyond the time that Dwayne Walters reached his majority.

In the meantime, the appellant is being denied the right to attempt to collect the judgment through the normal collection processes, that is, writ of garnishment or writ of execution, or even the right to negotiate a mutually satisfactory plan of payment with the appellee.

The chancellor was also in error in not providing for the payment of 8% per annum interest on the past-due amount so adjudged on December 16, 1978.

Mississippi Code Annotated section 75-17-7 (1979 Supp.) provides in part:

“All other judgments and decrees shall bear interest at the rate of eight percen-tum (8%) per annum.”

The decree of the lower court is affirmed, except as to the stay of execution and the failure to provide for 8% per annum interest from December 16, 1978. In these two respects the decree is reversed, and judgment rendered here setting aside the stay of execution and adding 8% per annum interest. from December 16, 1978, until the judgment is paid.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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


text:
    John D. PATTERSON v. Bob McKINNEY et al.
    No. 51833.
    Supreme Court of Mississippi.
    May 14, 1980.
    Parker, Averill & Butts, David 0. Butts, Jr., Tupelo, for appellant.
    Comer & Jenkins, Ed W. Jenkins, Boone-ville, for appellees.
   Appeal from Chancery Court, Prentiss County; James E. Bost, Chancellor.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    Mrs. Laverne Toles WESSON, Administratrix of Estate of Bernard Wesson, Deceased v. Jerry Wayne WILSON.
    No. 51881.
    Supreme Court of Mississippi.
    May 14, 1980.
    O’Barr, Hurlbert & O’Barr, Biloxi, William K. Duke, Omar D. Craig, Oxford, for appellant.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Mary Ann Connell, Oxford, for appellee.
   Appeal from Circuit Court, Lafayette County; W. W. Brown, Judge.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    Joseph R. BRIGANCE v. Clarissa J. VAXTER.
    No. 51919.
    Supreme Court of Mississippi.
    May 21, 1980.
    William K. Duke, Omar D. Craig, Oxford, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Guy Mitchell, III, Tupelo, Vettra Glenn Al-derson, Oxford, for appellee.
   Appeal from Circuit Court, Lafayette County; W. W. Brown, Judge.

Before SMITH, P. J., and BROOM and COFER, JJ.

REVERSED AND JUDGMENT HERE ON LIABILITY. REMANDED FOR NEW TRIAL ON ISSUE OF DAMAGES ONLY. MOTION TO STRIKE STATEMENT OF FACTS OVERRULED.

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


text:
    Jackie Ray MILLIGAN v. Charlotte Ann MILLIGAN.
    No. 51928.
    Supreme Court of Mississippi.
    May 21, 1980.
    Langston, Lott & Cadle, Duncan Lott, Booneville, for appellant.
    Keenum & Keenum, Thomas D. Keenum, Sr., Booneville, for appellee.
   Appeal from Chancery Court, Tishomingo County; Fred P. Wright, Chancellor.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    Ollie BUFORD v. STATE of Mississippi.
    No. 51712.
    Supreme Court of Mississippi.
    May 21, 1980.
    Walls, Buck & Irving, Robert E. Buck, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Panola County; Andrew C. Baker, Judge.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.

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


text:
    Harold Dewayne LEE v. STATE of Mississippi.
    No. 51853.
    Supreme Court of Mississippi.
    May 21, 1980.
    Thomas A. Coleman, Ackerman, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Choctaw County; Clarence E. Morgan, Jr., Judge.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.

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


text:
    Jimmy COBB v. STATE of Mississippi.
    No. 51856.
    Supreme Court of Mississippi.
    May 21, 1980.
    G. William McCarthy, Jr., Biloxi, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.

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


text:
    Mildred Mae McCLELLAN v. Theresa Williams TONNAR, Executrix of Estate of John P. Tonnar, Deceased.
    No. 51920.
    Supreme Court of Mississippi.
    May 21, 1980.
    Miller, Dean & Cordell, Hainon A. Miller, Greenville, J. Wesley Miller, Rolling Fork, for appellant.
    Campbell & DeLong, Roy D. Campbell, Jr., Greenville, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    William A. FULTON v. TEXACO, INC. and B. P. McGaugh.
    No. 51951.
    Supreme Court of Mississippi.
    May 21, 1980.
    Eaves & Eaves, G. Jyles Eaves, Louisville, for appellant.
    Fair & Mayo, James C. Mayo, Louisville, for appellees.
   Appeal from Chancery Court, Winston County; Edward C. Prisock, Chancellor.

Before PATTERSON, C. j., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Ed BOSTER v. NECO ELECTRICAL PRODUCTS CORPORATION.
    No. 51950.
    Supreme Court of Mississippi.
    May 21, 1980.
    Williams, Williams & Montgomery, L. O’Neal Williams, Jr., Poplarville, for appellant.
    Watkins, Pyle, Ludlam & Stennis, Peyton S. Irby, Jr., Robert H. Weaver, Jackson, for appellee.
   Appeal from Circuit Court, Pearl River County; R. I. Prichard, Judge.

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

AFFIRMED IN PART, REVERSED IN PART AND REMANDED TO WORKMEN’S COMPENSATION COMMISSION.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, BOWLING and COF-ER, JJ., concur.


text:
    Robert Henry TOLLIVER v. Ernest ANDERSON, et ux, et al.
    No. 51945.
    Supreme Court of Mississippi.
    May 21, 1980.
   Appeal from Chancery Court, Warren County; Nat W. Bullard, Chancellor.

Teller & Teller, Landman Teller, Jr., Vicksburg, for appellant.

Vicki Roach-Barnes, Vicksburg, for appel-lees.

Before PATTERSON, C. J., SMITH, P. J., and SUGG, J.

AFFIRMED.


text:
    Alice Ratcliff FOLEY v. Joseph F. TATUM, Jr.
    No. 51976.
    Supreme Court of Mississippi.
    May 21, 1980.
    William Harold Jones, Petal, for appellant.
    Aultman & Aultman, Bruce C. Aultman, Hattiesburg, for appellee.
   Appeal from Chancery Court, Forrest County; Michael Sullivan, Chancellor.

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

AFFIRMED.


text:
    Charles H. MORRIS v. Judy MORRIS.
    No. 51894
    Supreme Court of Mississippi.
    May 21, 1980.
    James G. McIntyre, Jackson, for appellant.
    Keyes, Moss & Piazza, Earl Keyes, Ben J. Piazza, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    Larry J. WILSON v. Sylvia WILSON.
    No. 51366.
    Supreme Court of Mississippi.
    May 21, 1980.
    Sekul, Hornsby, Wallace & Teel, Michael B. Wallace, Biloxi, for appellant.
    Holleman & Krogstad, Boyce Holleman, Ben F. Galloway, Gulfport, for appellee.
   Appeal from Chancery Court, Jackson County; Rex Gordon, Chancellor.

Before SMITH, P. J., and BROOM and COFER, JJ.

THE DECREE APPEALED FROM IS AFFIRMED AS TO THE AWARD OF CUSTODY OF THE CHILD TO MRS. WILSON AND THE PROVISION FOR ITS SUPPORT, THE JURISDICTION OF THE CHANCERY COURT OF JACKSON COUNTY AS TO THOSE MATTERS BEING A CONTINUING ONE; THE DECREE IS REVERSED, WITHOUT PREJUDICE, AS TO THE AWARD OF SEPARATE MAINTENANCE TO MRS. WILSON, AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

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


text:
    Lorenzo MOREY v. STATE of Mississippi.
    No. 51891.
    Supreme Court of Mississippi.
    May 21, 1980.
    Sidney J. Martin, Greenville, for appellant.
    Bill Allain, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

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

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and COFER, JJ., concur.


author: SHORES, Justice.

text:
    PAWNEE CONSTRUCTION COMPANY, INC. v. Dorothy Greene PAVELEC.
    78-590.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    James M. Holmes of Barber, Johnston, Holmes & Hughes, Birmingham, for appellant.
    John B. Tally, Jr. of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
   SHORES, Justice.

Plaintiff (Pavelec) sued defendant (Pawnee) alleging a breach of a written agreement by the defendant. From a judgment in favor of the plaintiff entered by the trial judge, who heard the case non-jury, the defendant appealed.

The written instrument sued on purported to be a lease and referred to the plaintiff as “Lessor” and the defendant as “Lessee.” By the agreement, Pawnee agreed to pay Pavelec a royalty of $1.30 per ton for coal mined from the property and also provided:

LESSEE represents to the LESSOR that he intends to mine from 10,000 to 12,000 tons of coal each month from the LESSOR’S Premises and does hereby guarantee to the LESSOR that he will mine from the LESSOR’S Premises a minimum of 30,000 tons of coal during each six-month term of this Lease.

It is undisputed that Pawnee never mined any coal from the lessor’s property and never paid any royalties to the lessor. It is also undisputed that there was coal on the property that was mined by someone else after the lessee refused to mine it.

On appeal, Pawnee argues that it is not liable to Pavelec under the agreement because it was a mere license to mine coal and not a lease. By this argument, Pawnee asserts that, inasmuch as it mined no coal, it owes Pavelec nothing. This construction of the agreement would leave the paragraph set out above and many other provisions of the instrument without any efficacy whatever. Although it is sometimes difficult to distinguish between licenses and leases in cases such as this, the general rules applicable to construction of written contracts apply and compel a construction which will effect the intention of the parties, and one aid in this regard is supplied by what they called it. Holt v. City of Montgomery, 212 Ala. 235, 102 So. 49 (1924). See generally 54 Am.Jur.2d, Mines and Minerals § 120. Mineral rights and interests may be transferred by contracts of sale, deeds, leases or licenses, but the intention of the parties is to be sought, and each instrument is to be considered in light of its own provisions. Adams v. Riddle, 233 Ala. 96, 170 So. 343 (1936).

Applying these rules to the instrument before us, we are compelled to the conclusion that the parties intended to provide that Pawnee would guarantee a minimum payment of $1.30 per ton for coal recovered from Pavelec’s property and would guarantee that it would mine 30,000 tons during each six-month term of the lease. Pawnee breached its agreement in this regard, and the trial court correctly held that Pavelec was thus entitled to damages in that amount: “The compensation to which a lessor of a mining lease is entitled, whether it is termed rent or a royalty, is primarily that stipulated for in the lease.” 54 Am.Jur.2d, Mines and Minerals § 136.

Having agreed to pay a certain amount, Pawnee is liable to Pavelec whether or not the instrument is a lease. Am.Jur., supra, § 143.

The judgment appealed from is affirmed.

AFFIRMED.

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

APPENDIX

STATE OF ALABAMA )

) LEASE

COUNTY OF WINSTON )

THIS LEASE made and entered into this 25 day of July, 1974, by and between DOROTHY GREENE PAVELEC, hereinafter referred to as LESSOR, and PAWNEE CONSTRUCTION COMPANY, INC., an Alabama Corporation, Birmingham, Alabama, hereinafter referred to as LESSEE:

WITNESSETH:

LESSOR, in consideration of the payment to her of the sums of money hereinafter stipulated, and for the further consideration of the covenants of LESSEE as hereinafter expressed to be kept and performed, hereby grant to LESSEE the right, to the extent of the interests of LESSOR, to mine by the strip-mining method only, the coal from all seams from the following described mineral rights located in Winston County, Alabama, to-wit:

WVs of WV2 of FJ/2 and EVi of EVfe of WV2 of Section 21, Township 10 South, Range 10 West, Winston County, Alabama,

which lands are hereinafter sometimes referred to as the Premises, the mining of the land located North of the paved road which divides the property and runs generally East and West to be completed before mining operations are commenced 6n the land located South of said Road. LESSEE may open an operation on the land North of the said Road to have two operations on each side of the Road provided both operations strip simultaneously to remove the overburden to a depth of at least fifty (50) feet provided the coal underneath is of equal consistency.

The rights herein granted are expressly made subject to the following terms, conditions, covenants and limitations:

1. EXTENT OF RIGHTS GRANTED. LESSOR grants to LESSEE, in addition to the foregoing mining rights, such rights to use, damage or excavate the surface of the Premises as may be reasonably necessary or proper in mining coal by the strip-mining method without being held liable for such damage, including the use of water and office space on said lands, but for no other purpose whatsoever, and subject in any event to all of the following terms and conditions of this Lease.

2. ROYALTY. LESSEE shall, as rental for the rights herein granted, pay to the LESSOR or assigns not later than the 20 day of each month for all coal mined from the Premises during the preceding month a royalty equal to the following:

(a) $1.30 per ton of 2,000 pounds avoirdupois of all coal removed from the Premises during said preceding calendar month.

LESSEE represents to the LESSOR that he intends to mine from 10,000 to 12,000 tons of coal each month from the LESSOR’S Premises and does hereby guarantee to the LESSOR that he will mine from the LESSOR’S Premises a minimum of 30,000 tons of coal during each six-month term of this Lease.

If the mining of coal under this agreement is prevented for any full calendar month during the primary or extended term of this Lease by any strike or work stoppage of miners or work stoppage due to shortage of vital materials unobtainable by LESSEE after reasonable diligent efforts by LESSEE, which is general in the district in which the Premises are located, then the guarantee set out above shall be reduced in direct ratio to the time of said work stoppage.

If either State or Federal Law is enacted which materially affects this agreement, either party, upon written notice to the other party, may, thirty (30) days thereafter, terminate this agreement.

Remittance of royalties provided for herein shall be accompanied by certificates signed by the LESSEE showing the total amount of coal mined during the preceding month for which the royalty is being paid.

3. RECORDS. LESSEE will keep proper books of account of the weights and sale prices of all coal mined from the Premises and, for the purpose of information and checking the certificates of weights and prices furnished by LESSEE, LESSOR, by its officers, agents or employees, at all reasonable times, shall have access to said books of account and other records insofar as it is necessary to ascertain such weights and prices, but said books and records shall not be conclusive of LESSOR’S rights. Promptly after the end of each six-month period of this Lease, LESSEE shall deliver to LESSOR at LESSEE’S expense, a map or blueprint furnished to the State of Alabama acceptable to LESSOR, which map shall show the progress of the mine workings at the end of such six-month period.

4.MANNER OF OPERATION. LESSEE agrees to mine from the Premises all of the coal contained therein which can be economically recovered by generally accepted methods of strip-mining and shall, in general, mine in the same manner as would a prudent owner conducting his own operation. It is further understood and agreed that LESSEE shall be required to remove the overburden to a depth of at least fifty (50) feet, provided the coal underneath is of equal consistency.

5. NONLIABILITY OF LESSOR AND INDEMNITY BY LESSEE. LESSOR shall not be held liable for any claims on account of or arising from or in any way connected with any act or acts of LESSEE on or in connection with the Premises or the exercise by LESSEE of any of the rights herein granted, and LESSEE agrees to and does hereby indemnify, protect and hold harmless to LESSOR against all claims, suits, demands, judgments, decrees, loss, cost or expense, including attorneys’ fees and court costs, which may arise in connection with or on account of any such claim.

6. COMPLIANCE WITH LAWS OF GOVERNING BODIES. LESSEE agrees in his operations on the Premises, to adhere to and comply with all rules, regulations and laws of the county, state and Federal governments or any agencies of such governments having jurisdiction, and hereby expressly agrees to indemnify and hold harmless the LESSOR from any liability whatsoever brought about by failure to comply with said rules, regulations and laws.

7. TERM. The initial or primary term of this lease is seven-months from its date of execution. LESSEE shall have the right to extend or renew this lease for five (5) additional terms of six months by notice in writing to the effect given to LESSOR or assigns not less than thirty (30) days prior to the expiration of the initial or primary term.

8. NOTICE. . Notice hereunder from the LESSEE to LESSOR shall be deemed to have been given when deposited in the certified U. S. Mail addressed to DOROTHY GREENE PAVELEC, 3241 Southview, Montgomery, Ala., or such other address as LESSOR may from time to time furnish to LESSEE. The notice from LESSOR to LESSEE shall be deemed to have been given when deposited in the certified U. S. Mail addressed to PAWNEE CONSTRUCTION COMPANY, INC., P. 0. Box 6257, Birmingham, Alabama, 35217, or such other address as LESSEE may from time to time furnish to LESSOR.

All payments due hereunder from LESSEE to LESSOR shall be made payable to DOROTHY GREENE PAYELEC (which may be changed from time to time by written request of the LESSOR).

9. ASSIGNMENT. LESSEE shall not have the right to assign, sublet or sublease this lease or any part thereof without the prior written consent of LESSOR.

10. INSPECTION. LESSOR or assigns shall have the right to enter upon said leased Premises for the purposes of inspecting the operations of the LESSEE, taking measurements, taking pictures, or doing whatever else is necessary or desirable in determining the extent of the operations and the amount of coal actually mined.

11. PULPWOOD AND TIMBER REMOVAL. LESSEE hereby grants to LESSOR the right to remove any and all pulpwood and timber from the Premises prior to strip-mining operation of LESSEE. This right shall not interfere or delay the strip-mining operation of said LESSEE.

12. RECLAMATION. LESSEE hereby agrees in compliance with the Laws of the State of Alabama to shape up and reseed the acreage disturbed by the mining operations of LESSEE as soon as the oxidation of the soil and appropriate planting conditions will permit after the said mining operations have been completed.

13. DEFAULT. In the event of any default by the LESSEE under this Lease, whether for the payment of royalties of for some other failure to comply with the terms of this agreement and if said default shall, continue for thirty (30) days after notice of said default, then the LESSOR shall have the right to immediately cancel this Lease and re-enter and take possession of the Premises and the LESSEE shall respond in damages whether for payment of any money due or for any other damages due to breach of said Lease or agreement, including attorneys’ fees and court costs.

14. ADJACENT PROPERTY. LESSEE hereby agrees to begin strip-mining operations on the herein described property on a new and different day in order to determine the tonnage on the herein described property correctly, or in lieu thereof one day’s notice will be given to Hugh D. Farris, Jasper, Alabama.

EXECUTED in duplicate this the 27th day of July, 1974.

/s/ Dorothy Green Pavelec,

Lessor

PAWNEE CONSTRUCTION COMPANY, INC.

AN ALABAMA CORPORATION

BY: Lamar Hawkins

Its President, Lessee

ATTEST:

/s/ Jean Collins

Secretary

STATE OF ALABAMA

COUNTY OF JEFFERSON

Before me, the undersigned authority, a Notary Public, in and for said County, in said State, personally appeared Dorothy Greene Pavelec, whose name is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of the instrument, she executed the same voluntarily on the day the same bears date.

Given under my hand and official seal, this 25th day of July, 1974.

/s/ Harry Cole

Notary Public

My Commission Expires:

3-30-76

STATE OF ALABAMA

COUNTY OF JEFFERSON

Before me, the undersigned authority, a Notary Public, in and for said County, in said State, hereby certify that Lamar Hawkins, whose name as President of Pawnee Construction Company, Inc., a corporation is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of the instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act of said corporation.

Given under my hand and official seal, this 27th day of July, 1974.

/s/ Hugh D. Farris

Notary Public

My Commission Expires:

12/5/1976

      . The agreement in its entirety is attached as an appendix to this opinion.


author: BRADLEY, Judge.

text:
    Darrell WALKER v. Jimmy JOHNSON.
    Civ. 2021.
    Court of Civil Appeals of Alabama.
    Feb. 13, 1980.
    Rehearing Denied March 19, 1980.
    Frank W. Riggs, Montgomery, for appellant.
    Maury D. Smith, T. W. Thagard, Jr., and Julia S. Waters of Smith, Bowman, Tha-gard, Crook & Culpepper, Montgomery, for appellee.
   BRADLEY, Judge.

The plaintiff, Darrell H. Walker, filed suit against the defendant, Jimmy Johnson, claiming $9,000.00 as damages for breach of an agreement by the defendant to pay a finder’s fee. The parties had reached an agreement whereby the plaintiff would try to find a buyer for the defendant’s business, and if a buyer was found, the defendant would pay the plaintiff a commission in the amount of ten percent of the agreed purchase price of $90,000.00.

The plaintiff contacted his brother, A. J. Walker, as a prospective buyer of the defendant’s business. Walker later contacted the defendant and entered into negotiations with him for the purchase of the business. Several of these meetings were held at the defendant’s place of business. At these meetings the defendant showed Walker the merchandise and shop as well as the books and records of the business.

Walker later had his attorney prepare a bill of sale which he presented to the defendant. The defendant objected to two of the terms of the agreement. Walker then agreed to remove the objectionable terms from the agreement. This agreement was never executed.

During these negotiations, Walker liquidated certain securities in order to have the necessary cash to make the purchase. It is undisputed that Walker had the ability to pay the purchase price. Before the sale could be consummated, Walker imposed a condition on his purchase of the business. He insisted that he be allowed to work in the defendant’s business to verify that the business was as represented. Due to illness on both sides, this was not done as originally scheduled. Walker then attempted several times to contact the defendant, but was unsuccessful. The defendant has not notified Walker that he does not want to sell the business.

Initially, it is important to note that in cases of this nature there is a presumption in favor of findings of fact made by the trial court since it hears the disputed evidence ore tenus. This presumption precludes our reversal of the trial court’s judgment unless it is determined to be plainly and palpably wrong. Alabama Farm Bureau Mutual Insurance Co. v. Davis, Ala.Civ.App., 354 So.2d 15 (1978).

The general rule regarding a broker’s commission is set out in Alabama Fuel Sales Co. v. Vulcan Energy Resources Corp., Ala., 339 So.2d 1007 (1976), as follows:

The general rule regarding a broker’s right to receive a commission is that unless the seller and the broker have agreed to the contrary the broker is entitled to receive a commission when he procures a purchaser ready, willing, and able to buy on the seller’s terms, even though the sale is never consummated.

In this case the trial court found that Walker was able to purchase the defendant’s business, but was not ready and willing to purchase. We conclude that this finding is supported by the evidence in the case. Walker’s testimony indicated that he intended to personally ascertain the financial condition of the business before agreeing to purchase; this he did not do. Therefore we affirm the judgment of the trial court.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: JONES, Justice.

text:
    Ex parte Darrell WALKER. (Re Darrell WALKER v. Jimmy JOHNSON).
    79-500.
    Supreme Court of Alabama.
    May 30, 1980.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: HOLMES, Judge. WRIGHT, Presiding Judge

text:
    READ NEWS AGENCY, INC., a corporation, et al. v. Guy E. MOMAN, Sr.
    Civ. 2003-X.
    Court of Civil Appeals of Alabama.
    March 5, 1980.
    Rehearing Denied March 26, 1980.

      Thomas B. Huie and John S. Civils, Jr., of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellants.
    Eugene A. Beatty and John A. Owens of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The trial court awarded the plaintiff workmen’s compensation benefits after his wife died of injuries received in a plane crash.

The defendants contend that the trial court committed reversible error in awarding the benefits because (1) the decedent was not an employee as required under the Act, (2) the trial court refused to allow testimony as to the capitalization of the defendant corporations, (3) the plaintiff was not dependent upon the decedent, and (4) the plaintiff’s negligence was the proximate cause of his wife’s death and bars recovery.

On cross-appeal, the plaintiff contends that the trial court erred in dismissing the decedent’s workmen’s compensation insurance carrier as a party-defendant and in refusing to award the plaintiff the penalty for failure of the defendant to pay compensation without good cause.

We find that the trial court did not commit reversible error and affirm.

A review of the record reveals the following:

The plaintiff is the principal shareholder and chairman of the board of directors of the five defendant corporations. His son is president of the corporations and a shareholder. The decedent who was the wife of the plaintiff was secretary-treasurer of each of these corporations and owned minimal stock in three of the corporations and substantial stock in the other two. However, the stock owned in the latter two corporations was less than 50%. The decedent received a salary of approximately $350 per week and maintained a separate office in her home in which she worked. She also sat on the board of directors of the corporations.

The decedent’s entire salary was deposited in a joint-checking account along with income from the plaintiff. The joint account was used to pay for household expenses such as food and clothing.

On February 1,1978, the decedent accompanied her husband, the plaintiff, on a trip to Montgomery. The plaintiff had contacted the owner of a piece of realty concerning its purchase, financing and sale terms. The plaintiff made an appointment to see the owner and this was the sole purpose for the trip.

The plaintiff piloted a small plane on this trip and upon returning to Tuscaloosa, the plane struck a tree and crashed during the landing approach. The decedent was killed.

Employer Casualty Company provided workmen’s compensation insurance for the defendant corporations and premiums were paid for coverage for the plaintiff and for the decedent.

After the death of his wife, the plaintiff sought benefits from the insurance company which denied the same. The plaintiff filed suit and after the insurance company was dismissed as a defendant and the instant corporate defendants were added, the trial court awarded benefits to the plaintiff.

Through able counsel, the defendants contend that, as a matter of law, the decedent was not an employee as required for recovery, but rather an employer within the meaning of the Workmen’s Compensation Act. More particularly, the defendants contend that the decedent was the “alter ego” of the defendant corporations and thus conclude the corporate entity should be disregarded and the decedent treated as the employer.

The trial court found as a fact that the decedent was an employee of the defendants. Additionally, the trial court found that the decedent was not the alter ego of the defendant corporations.

At the outset, we note that the courts have long been perplexed by classification problems such as those presented by defendants. In small, closely held corporations such as those at bar, the functions of shareholder-officers often overlap, making it difficult, if not impossible, to pinpoint exactly when executive duties, as opposed to more typical employee tasks, have been performed.

Without unduly lengthening this opinion with a survey of the various attempted solutions to these questions, suffice it to say, to this court, the better reasoned contemporary decisions tend to treat the executive of the small corporation as employee, absent a showing of circumstances that would justify ignoring the corporate entity altogether. Larson, Workmen’s Compensation Law, Vol. 1B, § 54, et seq.

Under basic tenets of corporate law, we conclude this is a sound approach. A corporation is a distinct and separate entity from the individuals who compose it as stockholders or who manage it as directors or officers. Cohen v. Williams, 294 Ala. 417, 318 So.2d 279 (1975). Furthermore, the corporation, as legal entity, can only conduct its business through its agents or employees. Rohme v. State, Ala.Cr.App., 339 So.2d 620 (1976).

Thus, the corporate executive, in discharging his duties, must necessarily be an employee of the corporation. If he is not, it is beyond this court’s abilities to say for whom he is working. Mine Service Co. v. Green, Ky., 265 S.W.2d 944 (1954).

The language of our Workmen’s Compensation Act, §§ 25-5-1, et seq., Code of Ala. 1975, compels this approach. At § 25-5-1, the basic definitional section of the Act, the terms “employee” and “workman” are expressly made interchangeable, and it is mandated they shall be construed to mean the same, including “every person . in the service of another under any contract of hire, express or implied, oral or written . . . .” § 25-5-1(6).

There is clearly no distinction drawn here between those who live by the sweat of their brow and those who enjoy the title, “executive.” In Gottlieb v. Arrow Door Co., 364 Mich. 450, 110 N.W.2d 767, 769 (1961), Michigan’s Supreme Court construed a similar statutory definition of employee in exactly this manner. Disdaining the argument that the sole incorporator and sole stockholder of a small corporation, who also served as its president and treasurer, could not be an employee of that corporation, the court said:

In the smaller corporations the line between manager and workman is blurred, and in the one-man corporation of the most limited type impossible to draw. Yet in these enterprises, we find the very persons who are in need of the protection of the act, since the hazards of production are shared personally by them, just as they are by those on the assembly lines of the large corporations.

Likewise, in the only Alabama decision we can find on point, it was held that the fact that the decedent was an officer, director, and shareholder of the defendant corporation did not, in and of itself, bar recovery. Queen City Furniture Co. v. Hinds, 274 Ala. 584, 150 So.2d 756 (1963).

In this instance, there was evidence the decedent was actually employed by the corporations and performed services. As noted above, she received a weekly salary. She worked in her home, maintaining a separate office for that purpose. During the fatal business trip which precipitated this appeal, she participated in the discussions concerning the financing of the proposed real estate acquisition. This was a natural and necessary duty of a secretary-treasurer.

Thus, there was evidence to support the finding that the decedent was an employee of the defendant corporations. As this court will not disturb the findings of the trial court in a workmen’s compensation case if there is any legal evidence to support those findings, this aspect of the case is due to be affirmed. Young v. City of Huntsville, Ala.Civ.App., 342 So.2d 918 (1976), cert. denied, Ala., 342 So.2d 924 (1977).

Likewise, we find no error in the finding that the decedent was not the “alter ego” of the defendant corporations. Defendants’ contentions on this issue must fail because, in order to justify “piercing the veil” of corporate existence, it is not enough to show that the corporation may have been controlled by one or a few persons. Goldmann v. Johanna Farms, Inc., 26 N.J.Super. 550, 98 A.2d 142 (1953). Although there are no Alabama cases specifically addressing this point in the workmen’s compensation context, as a matter of general corporate law our decisions hold that he who seeks to have the corporate cloak set aside must either demonstrate fraud or show that the recognition of the corporate form will result in injustice or inequitable consequences. Cohen v. Williams, supra; C. E. Development Co. v. Kitchens, 288 Ala. 660, 264 So.2d 510 (1972).

Our research reveals that the courts of other jurisdictions, when confronted with this issue in this context, follow these same principles. See, Lynn v. Lloyd A. Lynn, Inc., Mo.Ct.App., 493 S.W.2d 363 (1973); Industrial Commission v. Lavach, 165 Colo. 433, 439 P.2d 359 (1968); Marlin Electric Co. v. Industrial Commission, 33 Wis.2d 651, 148 N.W.2d 74 (1967); Shillinglaw v. Owen Shillinglaw Fuel Co., 70 N.M. 65, 370 P.2d 502 (1962); Gottlieb v. Arrow Door Co., supra; Goldmann v. Johanna Farms, Inc., supra. We adopt this reasoning today.

Under the record before this court, defendants have not met this burden. Clearly, the decedent did not have complete control of the corporations and did not attempt to use them as a sham through which to perpetuate inequitable or unjust activities.

At best, the defendants’ evidence tended to demonstrate that the decedent and the plaintiff did not at all times strictly follow statutory corporate formalities in tending to corporate business. In Lynn v. Lloyd A. Lynn, Inc., supra, the Missouri Court of Appeals addressed similar contentions and proof, and concluded that in the absence of a showing that the separate legal identity of the corporation was used as a subterfuge or to justify a wrong, there is no justification for piercing the corporate veil. We reach the same conclusion today.

Defendants also contend the trial court erred in sustaining an objection to testimony concerning the capitalization of the corporations. They contend that evidence as to how the corporations were capitalized was relevant and material in deciding whether decedent was the alter ego of the corporations.

The record, when read in its entirety, indicates that in answer to defendants’ question, “Do you know the capitalization of each of your companies?”, the witness replied, “No, sir.” Only after this answer was given was an objection made by plaintiff which was sustained by the trial court. When a party answers a question to which an objection is sustained, the party asking the question is not prejudiced by the ruling. This is so because the objection, coming after the answer, does not remove the answer from evidence. See, Cooper v. Magic City Trucking Service, Inc., 288 Ala. 585, 264 So.2d 146 (1972), and cases cited therein.

In addition, it is harmless error to sustain an objection to a question after the witness has testified that he does not know the answer. Decker v. Hays, 282 Ala. 93, 209 So.2d 378 (1968).

Next, the defendants contend that the plaintiff was not entitled to the conclusive presumption that he was wholly dependent upon the decedent under § 25-5-61, Code of Ala.1975. The defendants argue that the plaintiff made approximately $130,000 per year and the decedent made only approximately $17,000 and that there was no evidence that the decedent’s salary was in any way intended or considered to be necessary for the support of her husband. That is, the mere fact that the decedent deposited her check in a joint account does not satisfy § 25-5-61.

Section 25-5-61 provides:

For the purposes of this article, the following described persons shall be conclusively presumed to be wholly dependent:
(2) The husband, . . . unless it is shown that the wife was not in any way contributing to his support and had not in any way contributed to his support for more than 12 months next preceding the occurrence of the injury causing her death; .

We again note that if there is any evidence to sustain the trial court’s finding of dependency, this court will not disturb such finding. Young, supra.

The words “in any way” refer to the character and intent of the purpose of support by the spouse giving and contributing and not merely to the nature and extent thereof. Woodward Iron Co. v. Jones, 217 Ala. 361, 116 So. 425 (1928).

In this instance, as noted above, all of the decedent’s salary was placed in a joint-checking account and said funds were used by both parties in payment for necessary living expenses such as food and clothing. Thus, looking to the intent, and not to the extent, of these deposits, it cannot be said decedent did not in any way contribute to plaintiff’s support. The fact that the plaintiff also put money into the account and earned a considerable amount more than the decedent does not, as a matter of law, make the plaintiff nondependent under § 25-5-61. Woodward Iron Co., supra. Thus, there is evidence to support a finding that the plaintiff was wholly dependent for purposes of the Workmen’s Compensation Act.

Next, the defendants contend that the negligence of the plaintiff was the proximate cause of the death of his wife and conclude he is thereby barred from benefiting from such negligence as a matter of law.

The trial court found as a fact that the plaintiff was in no way negligent in causing the plane crash.

The record indicates that the crash occurred at night. Additionally, there was light rain in the area. The plaintiff testified that he followed normal landing procedures and that everything seemed normal. He also testified that he never saw the tree that the plane struck which caused the crash. While we should not be understood as necessarily finding that negligence would bar recovery, there is nothing in the record to indicate any negligence on the part of the plaintiff and defendant offered no evidence to prove otherwise. Thus, the trial court’s finding is supported by the evidence and will not be disturbed.

On cross-appeal, the plaintiff contends that the trial judge committed reversible error in dismissing the workmen’s compensation insurance carrier as a party defendant because the plaintiff was a third party beneficiary of the policy between the insurance company and the defendant corporations. In the instant case, the policy expressly provided that employees could proceed directly against the insurance company. The plaintiff contends that there is nothing to prevent such an agreement and relies on Hale v. United States Fidelity & Guaranty Co., 45 Ala.App. 379, 231 So.2d 156 (1970).

However, Hale, supra, involved a specific statute for the Alabama State Docks employees which provided for a direct right of action against the insurance carrier in the discretion of the director of the docks.

On the other hand, § 25-5-53, of the Workmen’s Compensation Act, states:

The rights and remedies herein granted to an employee shall exclude all other rights and remedies ... at common law, by statute or otherwise- on account of said . . . death. .

Additionally, the Workmen’s Compensation Act creates rights, remedies, and procedures all its own. Gilmore v. Rust Engineering Co., 45 Ala.App. 626, 235 So.2d 673 (1970).

Under the Workmen’s Compensation Act, a procedure for an employee to sue an insurance carrier directly is provided by § 25-5-8(f)(4), Code of Ala.1975. This section allows, and indeed mandates, a direct action only if certain requirements are met.

In the instant case, there is nothing in the record to indicate compliance with § 25-5-8(f)(4). Thus, there was no error in the trial court’s dismissal of the insurance carrier as a party-defendant. See, Thomason v. Midland Insurance Co., 380 So.2d 902, Civ. 2086 (Ala.Civ.App., February 6, 1980).

Next, the plaintiff contends on cross-appeal that the trial court erred in not awarding the 10% penalty against the defendants as provided by § 25-5-59, Code of Ala.1975.

This section provides a 10% penalty where any installment of compensation payable is not paid without good cause within thirty days after it becomes due.

Where a statute is unambiguous, the words chosen will be given their plain meaning. Quick v. Utotem of Alabama, Inc., Ala.Civ.App., 365 So.2d 1245 (1979).

Turning to the statute, we note that § 25-5-59 begins:

In cases of temporary total or temporary partial disability .

Nothing in this section specifically mentions recovery of a penalty in a death case. It therefore appears that § 25-5-59 does not apply in the instant death case.

In any event, § 25-5-88 of the Act, which covers situations where there is a disputed claim for compensation, requires the filing of a verified complaint alleging certain facts “as may be necessary to enable the court to determine what, if any, compensation the employee or, in case of a deceased employee, his dependents, are entitled to

This court has held that the award can be made only after the trial court makes a determination based on a sufficient finding of facts and conclusions of law that such an award is warranted. Eddons Drug Co. v. Wright, 46 Ala.App. 645, 248 So.2d 140 (1971); Gilmore v. Rust Engineering Co., supra.

It can only follow that, where there is a good faith dispute as the one before us, the defendant employer is not bound to make compensation payments until the trial court has made its decision, and in appropriate cases where the requisite bond has been posted, that decision has been confirmed on the appellate level.

This case is due to be affirmed.

AFFIRMED.

BRADLEY, J., concurs.

WRIGHT, P. J., concurs in part and dissents in part.

WRIGHT, Presiding Judge

(concurring in part and dissenting in part).

I concur in the decision upon the appeal and cross appeal in all respects except as to the holding that the employer’s insurer may not be sued directly by a claimant when there is a clause in’ the policy authorizing a direct suit. The majority relies upon § 25-5-53, Code of Ala.1975, to exclude a direct suit against the insurer. I do not so interpret that statute. I believe it clear that § 25-5-53 only excludes former rights and remedies for the injury or death, and provides in lieu thereof an exclusive and new 'cause of action with limited recovery by workmen from an employer. There is no reason why it should be construed to restrict an agreement between the employer and his insurer permitting the employee to sue the insurer directly if he so desires.

To do so does not conflict with the intent and purpose of § 25-5-8(f)(4). That statute provides a procedure for the benefit of the employer by which he may released not only as a party but from further liability except in the event of insolvency of the insurer or insufficiency of the amount of coverage. The contractual provision allowing direct suit against the insurer is not binding upon the claimant. If he chooses to take advantage of it, he does not thereby release the employer from liability. To sue the insurer directly does not affect the claimant’s right or remedy. He still must pursue the right and remedies provided by the act. The claimant is better off if he sues an insurer directly as beneficiary- of the provisions of the policy than he would be having to sue the insurer if the employer forced him to by complying with § 25-5-8(f)(4). To interpret the act as the majority is contrary to the mandate for liberal construction. Riley v. Perkins, 282 Ala. 629, 213 So.2d 796 (1968). I therefore respectfully dissent from the stated portion of the court’s decision.


author: MADDOX, Justice.

text:
    Ex Parte READ NEWS AGENCY, INC., et al. In re READ NEWS AGENCY, INC., et al. v. Guy E. MOMAN, Sr.
    79-503.
    Supreme Court of Alabama.
    May 30, 1980.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


author: WRIGHT, Presiding Judge.

text:
    Margaret Peddy DENTON v. James Roy SANFORD.
    Civ. 2084.
    Court of Civil Appeals of Alabama.
    March 26, 1980.
    Rehearing Denied May 14, 1980.

      Ira DeMent, Montgomery, for appellant.
    William B. Reneau and Robert B. Reneau of Reneau, Enslen & Reneau, Wetumpka, for appellee.
   WRIGHT, Presiding Judge.

This is an independent action in equity for relief from a judgment. The parties were divorced on March 10, 1977, by decree of the Elmore County Circuit Court. The divorce was granted upon complaint, answer and waiver. On December 21, 1977, the wife filed an independent action for relief from' judgment pursuant to Rule 60(b), ARCP, based on fraud and misrepresentation in obtaining her signature to the answer and waiver to the divorce complaint.

The wife alleged that the husband concealed from her the fact that the attorney who prepared the divorce complaint and the answer and waiver which she signed had been hired by him and had a duty to represent his interests. She further alleged that the husband concealed from her the fact that she had a right to employ individual counsel and he represented to her that if she would sign the answer and waiver, he would pay her certain money which she claimed was owed to her. Answer was duly entered and the matter was submitted to the trial court on the depositions of the parties and exhibits.

The trial court’s order granted partial relief to the wife. Specifically, the husband was ordered to pay the balance of an outstanding note executed by the parties during their marriage. It was determined that the wife was not entitled to any other relief. The wife appeals from the trial court’s refusal to set aside the judgment or grant further relief.

Rule 60(b) provides that relief from a final judgment may be had by motion or by an independent action. Skillman v. First State Bank of Altoona, 341 So.2d 691 (Ala.1977); Rule 60(b), ARCP. A Rule 60(b) motion for relief from judgment on the ground of fraud, misrepresentation, or other misconduct of an adverse party must be brought within four months of the judgment. Sheffield v. Sheffield, 350 So.2d 1056 (Ala.Civ.App.1977).

However, an independent action for relief from a judgment may be brought after the four months has run. Rule 60(b) specifically states:

This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three years after the entry of the judgment ... to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.

This provision of the rule continues whatever power the court would have had to entertain an independent action if the rule had not been adopted. Brice v. Brice, 340 So.2d 792 (Ala.1976). Thus, the trial court has inherent power to afford relief from a judgment because of supervening invalidity based on fraud practiced on the court by a party in the procurement of the judgment. Brice v. Brice, supra; Crisco v. Crisco, 294 Ala. 168, 313 So.2d 529 (1975).

In passing upon such an attack upon a final judgment, the trial court is allowed wide discretion. In exercising this discretion,- the court must balance the desire to remedy injustice against the need for finality of judgments. Tichansky v. Tichansky, 54 Ala.App. 209, 307 So.2d 20, cert. denied, 293 Ala. 775, 307 So.2d 24 (1974).

The trial court in this case in fact granted a part of the relief demanded by the wife. Thus the real issue presented by her appeal is whether the trial court abused its discretion in denying further relief. After a careful review of the record we cannot find the trial court’s refusal of further relief to be so unsupported by the evidence as to constitute an abuse of discretion.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Rosie Lee POSEY v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA and Elton Posey, a minor.
    Civ. 2100.
    Court of Civil Appeals of Alabama.
    March 26, 1980.
    Rehearing Denied April 23, 1980.
    William Conway, Fred Blanton, Birmingham, for appellant.

      Ralph B. Tate of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appel-lee Prudential Ins. Co.
    Judith S. Crittenden, Douglas P. Corretti, Birmingham, guardians ad litem for Elton Posey.
   WRIGHT, Presiding Judge.

The Prudential Insurance Company of America (Prudential) filed a complaint of interpleader on February 12, 1979, admitting liability under a policy issued on the life of Daniel Posey, Sr., deceased, and alleging conflicting claims between decedent’s son, Elton Posey, and his niece, Rosie Lee Posey. Prudential later amended its complaint to admit further liability under the accidental death provision of the policy. Prudential paid the full amount due into court and asked to be discharged from liability under Rule 22(b), ARCP.

On August 13, 1979,' the trial court, upon finding that there was no just reason for delay in entering a final judgment in favor of Prudential, expressly directed the entry of such a final judgment pursuant to Rule 54(b), ARCP.

After an ore tenus hearing, the trial court held that Elton Posey was entitled to the proceeds of the policy and ordered payment to him. Rosie Lee Posey appeals from the trial court’s final judgments in favor of Prudential and Elton Posey.

Prudential has filed a motion to dismiss the appeal from the final judgment in its favor as untimely filed. The judgment was filed on August 13,1979. There was no post-trial motion concerning this judgment and the notice of appeal was filed on October 26, 1979, more than forty-two days after entry of the judgment. It is clear that the appeal in this case was not timely filed if the judgment entered on August 13,1979, is a final judgment, appealable as such. Rule 54(b), ARCP provides that in cases involving multiple parties the trial court may direct entry of a final judgment as to one or more but fewer than all of the parties upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. The trial court’s order of August 13, 1979, met both of those requirements and was a final appealable judgment. Appellant’s appeal from the judgment of August 13,1979, was not timely filed. Bertschinger v. National Surety Corporation, 449 F.2d 746, 747 (9th Cir. 1971). Prudential’s motion to dismiss the appeal from that judgment is granted.

Rosie Lee Posey also appeals from the trial court’s judgment ordering payment of the proceeds to Elton Posey.

Daniel Posey, Sr., the deceased, was divorced on February 11, 1977, from Joyce Posey. The divorce decree included the following provision:

5. That the Defendant shall forthwith execute or cause to be executed such documents as may be necessary and required to designate the minor child of the parties, namely: Elton Posey, as the irrevocable beneficiary of all of his life insurance. The Defendant shall maintain, keep in full force and effect, and pay the premiums on all of his said life insurance.

At the time of this divorce decree, the decedent had in effect the Prudential policy which is the subject of this controversy. At some time after the entry of this divorce decree, the decedent designated his niece, Rosie Lee Posey as the beneficiary under the policy.

The trial court found the case of Williams v. Williams, 276 Ala. 43, 158 So.2d 901 (1963), dispositive of this issue. In Williams the insured father was ordered in a divorce decree to make his children the beneficiaries of his life insurance policies: However, he designated his mother as beneficiary. In upholding the trial court’s finding that the children should recover the proceeds of their father’s life insurance policy the Alabama Supreme Court stated:

The legal consequence of the decree in the divorce suit was to give the children a vested equitable interest in the policy, and the subsequent change of beneficiary did not establish superior rights in the new beneficiary. In violation of the agreement and the decree, the insured wrongfully attempted to deprive his children of the proceeds of the policy by an attempted change of beneficiary. Equity will intervene and declare them the beneficiaries [of] the policy. 276 Ala. at 46, 158 So.2d at 903.

Although the appellant has tried to distinguish Williams on the basis that in that case the provision concerning the insurance was part of an agreement incorporated into the divorce decree, we find the principle stated in Williams to apply equally where there is no agreement. The trial court’s judgment awarding the proceeds of the insurance policy to Elton Posey is affirmed.

The trial court awarded an attorney’s fee of $500 to the guardian ad litem of Elton Posey. She has applied for allowance of a fee on appeal. The guardian ad litem is granted a fee of $300 for her services on appeal, such sum to be paid from the proceeds of the policy.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte Rosie Lee POSEY. In re Rosie Lee POSEY v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA et al.
    79-564.
    Supreme Court of Alabama.
    May 30, 1980.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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