text:
    Rena VINCENT, Plaintiff and Appellant, v. Jerome J. ROMAGOSA et al., Defendants and Appellees.
    No. 7785.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.
    Writ Refused Jan. 26, 1981.
    Gerald Block, Lafayette, for plaintiff-appellant.
    Voorhies & Labbe, Marc W. Judice, Lafayette, for defendants-appellees.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   CULPEPPER, Judge.

This is a medical malpractice case. The plaintiff, Rena Vincent, alleges she suffered injury as a result of negligent medical treatment by the defendant, Dr. Jerome J. Romagosa, a specialist in radiology. Also named as defendants are the partnership of Romagosa, Klinger, Kraemer, Steiner, Der-cier and Kuebler, and the members of the partnership individually. Defendants filed an exception of lack of jurisdiction over the subject matter and an exception of lack of venue. The trial judge sustained both exceptions and dismissed plaintiffs suit. We affirm the dismissal of plaintiff’s suit, but on other grounds.

The issues are: (1) Does the court have subject matter jurisdiction? (2) Is the suit filed in the proper venue? (3) Is the exception, titled by defendants as an exception to the court’s jurisdiction over the subject matter, actually an exception of prematurity? (4) If so, is the suit premature? (5) Is plaintiff relieved of the pre-suit medical review panel requirements by the impossibility of complying with the requirements of LSA-R.S. 40:1299.48(C), that all members of the panel practice in the same community or locality as the defendant physician?

The general facts are that in April of 1977 plaintiff underwent a hysterectomy performed by a Dr. Fell. Following the hysterectomy, Dr. Fell referred plaintiff to Dr. Jerome R. Romagosa, a radiologist practicing in Lafayette. During the period July through August, 1977, Dr. Romagosa administered certain radiology treatments. Following these treatments, plaintiff developed certain abnormalities in her abdomen, which she alleges were caused by negligent treatment by Dr. Romagosa.

SUBJECT MATTER JURISDICTION

Although, as hereinafter explained, we conclude defendants’ pleading, entitled “Exception to Subject Matter Jurisdiction”, is actually an exception of prematurity, we will nevertheless address the question of subject matter jurisdiction. This type of jurisdiction cannot be conferred on the court by consent or by waiver of the parties. LSA-C.C.P. Article 3. Thus, regardless of whether defendants filed an exception to subject matter jurisdiction, we will consider the issue.

In support of their pleading labeled “Exception to Subject Matter Jurisdiction”, defendants cite LSA-R.S. 40:1299.47, which provides in pertinent part:

“A. All malpractice claims against health care providers covered by this Part .. . shall be reviewed by a medical review panel established as hereinafter provided ....
“B. No action against a health care provider covered by this Part, or his insurer, may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel. By agreement of both parties, the use of the medical review panel may be waived.”

Since no medical review panel was established in this case, defendants contend the above statutory provisions divest the district court of subject matter jurisdiction until after the medical review panel has been chosen and has rendered an opinion.

Plaintiff’s answer to this argument is that LSA-La. Constitution of 1974, Article 5, Section 16, grants to the district courts “original jurisdiction of all civil and criminal matters, except as otherwise authorized by the Constitution.” Under this constitutional provision, plaintiff argues the original jurisdiction of the district courts to hear medical malpractice cases cannot be divested, diminished or infringed upon by legislative enactment.

In Everett v. Goldman, 359 So.2d 1256 (La.1978), plaintiff filed a medical malpractice action. The defendant physician filed an exception of prematurity on the grounds that plaintiff had failed to submit her claim to a medical review panel. In opposition to the exception of prematurity, plaintiff contended the provisions of R.S. 40:1299.47, requiring a pre-suit medical review panel, are unconstitutional for several reasons, including the denial of access to the courts. In rejecting plaintiff’s argument, our Supreme Court held the requirement that the plaintiff first submit her claim to a medical review panel, before filing suit in the district court, does not violate constitutional rights to court access.

Although Everett v. Goldman, supra, does not discuss the argument made by defendants in the present case that the district court lacks jurisdiction over the subject matter until after a medical review panel has rendered an opinion, we can infer that the court would have rejected such an argument had it been made. The district court did actually take jurisdiction over the subject matter, even though no review panel had acted. Under LSA-C.C.P. Article 3, jurisdiction over the subject matter cannot be conferred by the parties, and a judgment by a court which lacks jurisdiction over the subject matter is void. We must assume our Supreme Court considered the district court had jurisdiction over the subject matter. Otherwise, it would have dismissed the suit for lack of such jurisdiction.

Defendants cite Anderson v. State, 368 So.2d 728 (La.App.2d Cir. 1978), writs denied, La., 364 So.2d 600, for the general rule that plaintiff must exhaust his administrative remedies before seeking judicial review. In that case, employees of a police jury contended they were de facto deputy sheriffs and as such entitled to supplemental pay. The State filed an exception of prematurity, based on plaintiffs’ failure to first submit their claim to an administrative board created by R.S. 33:2218.7 to determine eligibility for supplemental pay. Plaintiffs attacked the constitutionality of the statute creating the board on’ the grounds that it divested district courts of the original jurisdiction granted them by the Louisiana Constitution. The court cited the Administrative Procedure Act, LSA-R.S. 49:951, et seq., as authorizing legislative creation of such administrative boards, provided there is a right to judicial review of the findings of the administrative board. As regards the jurisdictional issue, the court stated:

“The constitutional article vesting district courts with original jurisdiction of civil matters and exclusive original jurisdiction of cases involving the state does not preclude the legislature from creating administrative agencies with quasi-judicial duties, and whose decisions are subject to judicial review. ‘Original’ and ‘exclusive’ are terms regulating jurisdiction of cases as between the several courts established by the constitution. The terms do not preclude the exercise of jurisdiction by administrative agencies over matters which are not ripe for judicial action.”

In Anderson v. State, as in Everett v. Goldman, there was no exception to the district court’s jurisdiction over the subject matter. However, the district court took jurisdiction, and the Court of Appeal did not question this. Again, we must assume the Court of Appeal considered the district court had jurisdiction over the subject matter.

Plaintiff cites Godchaux Sugars v. Ockman Godchaux Sugars, Inc., 73 So.2d 577 (La.1954), Douglas Public Service Corporation v. Gaspard, 74 So.2d 182 (La.1954) and Roksvaag v. Reily, 113 So.2d 285 (La.1959) as cases holding that certain statutes creating required pre-suit administrative procedures violated the constitutional grant of original jurisdiction to the district courts. Our answer to this argument is that the specific pre-suit procedure at issue here, i. e., the medical review panel, has been held constitutional by our Supreme Court in Everett v. Goldman, supra. We conclude the district court does have jurisdiction over the subject matter of the present suit.

VENUE

As we understand defendants’ argument in support of their exception to venue, it is the same as their argument regarding jurisdiction. They contend the district court does not have venue until after a medical review panel has rendered an opinion. For the reasons stated above in our discussion of jurisdiction, this argument has no merit. Moreover, the proper venue is clearly in Lafayette Parish, where the alleged malpractice occurred, and where the defendant physicians are domiciled.

IS EXCEPTION LABELED “TO SUBJECT MATTER JURISDICTION” ACTUALLY AN EXCEPTION OF PREMATURITY?

Defendants urge that if we hold the court has subject matter jurisdiction, we treat their exception as being one of prematurity. Clearly, the grounds urged in support of the exception are actually the basis of the dilatory exception of prematurity. In Everett v. Goldman, supra, our Supreme Court sustained an exception of prematurity based on the identical grounds urged here, i. e., the suit is premature because plaintiff has failed to submit his claim to a medical review panel. Thus, we conclude defendants have actually filed an exception of prematurity.

IS THIS CASE PREMATURE?

Under the holding by our Supreme Court in Everett v. Goldman, supra, the present case is clearly premature, because no medical review panel has been established nor rendered an opinion.

MUST PHYSICIAN PANEL MEMBERS RESIDE IN SAME LOCALITY AS DEFENDANT?

After this suit was filed on May 7, 1979, the defendant, Dr. Romagosa, wrote a letter to plaintiff of date, May 14,1979, advising that defendant had chosen Dr. Joseph V. Schlosser of New Orleans to serve on the medical review panel. On May 23, 1979, plaintiff filed a motion to reject Dr. Schlos-ser as a member of the medical review panel on the grounds that his selection is prohibited by R.S. 40:1299.47. In his brief, plaintiff argues the selection of Dr. Schlos-ser violates a requirement of the statute that physicians on the panel be from the same community or locality as the defendant. Additionally, plaintiff argues on appeal that since Dr. Romagosa is a specialist in radiology and the only other radiologists in Lafayette are partners of Dr. Romagosa and also defendants in this suit, the provisions of the statute requiring a medical review panel are unenforceable in this case, and his suit is therefore not premature. Plaintiff calls attention to a stipulation, entered into at the hearing on the exceptions to jurisdiction and venue, that Dr. Romago-sa is a radiation therapist, and the only other radiation therapists in the Lafayette area are partners of Romagosa.

LSA-R.S. 40:1299.47 provides in pertinent part:

“C. Except as provided in Paragraph 5 of this Subsection, the medical review panel shall consist of three physicians who hold unlimited licenses to practice medicine in Louisiana and one attorney.
* * * * # *
“The qualification and selection of the physician members of the medical review panel shall be as follows:
“(1) All physicians engaged in the active practice of medicine in this state who practice in the same community or locality as does the health care provider against whom claim is made, whether in the teaching profession or otherwise, who holds a license to practice medicine in the state of Louisiana, shall be available for selection.
“(2) Each party to the action shall have the right to select one physician and upon selection, said physician shall be required to serve.
“(3) Where there are multiple plaintiffs or defendants, there shall be only one physician selected per side. The plaintiff, whether single or multiple, shall have the right to select one physician and the defendant, whether single or multiple, shall have the right to select one physician. “(4) A panelist so selected and the attorney member selected in accordance with Subsection C shall serve unless for good cause shown may be excused. To show good cause for relief from serving, the panelist shall present an affidavit to a judge of the appropriate district court, which shall set out the facts showing that service would constitute an unreasonable burden or undue hardship. The court may excuse the proposed panelist from serving, and in such event a replacement panelist shall be selected within fifteen days in the same manner as the excused panelist.
“(5) If there is only one party defendant, other than a hospital, all panelists except the attorney shall be from the same class and a speciality of practice of health care provider as the defendant. If there are claims against multiple defendants, one or more of whom are health care providers other than a hospital or physician, the panelists selected in accordance with this Subsection may also be selected from health care providers who are from the same class and specialty of practice of health care providers as are any of the defendants other than a hospital.
* * * its * *
“(8) The party aggrieved by the alleged failure or refusal of another to perform according to the provisions of this Section may petition any district court of proper venue over the parties for an order directing that the parties comply with the medical review panel provisions of the medical malpractice act.”

Subparagraph (8), quoted above, was added to R.S. 40:1299.47(C) by Act 299 of 1979, which did not become effective until after the plaintiff in the present case had filed on May 23, 1979 her objection to naming Dr. Schlosser as a member of a panel. Nevertheless, the 1979 amendment is procedural and thus retroactive. If express statutory provision was needed for plaintiff’s May 23, 1979 motion, the procedure is now clearly provided by the statute.

We cannot agree with plaintiff’s-contention that LSA-R.S. 40:1299.47(C)(1) requires that all physician members of the medical review panel practice in the same community or locality as the defendant physician. As we read subparagraph (1), in the context of the other subparagraphs quoted above, it is part of the legislative scheme to insure that competent and impartial physicians who practice in the same community or locality as the defendant shall be required to serve on the panel if selected by one of the parties. However, subparagraph (1) is not intended to restrict panel members to physicians practicing in the same community or locality. If either of the parties desires, he may select a physician who does not practice in the same community or locality as the defendant, provided the physician has the other required qualifications and is willing to serve voluntarily.

We are guided to this construction of the statute by the rule that courts must seek to ascertain the legislative intent, in light of the statute as a whole, so that the entire statute may be construed in harmony with its objectives and purposes. Board of Trustees of East Baton Rouge v. All Taxpayers, 336 So.2d 305 (1st Cir. 1976).

In Everett v. Goldman, supra, our Supreme Court described as follows the general legislative intent and purpose of the medical review panels:

“A second advantage to a health care provider who has qualified under the act is that his patient must provoke a medical review panel and receive an opinion from it before he can file suit in a court of law. R.S. 40:1299.47. Although this requirement can be waived by the agreement of both parties, it is assumed that most malpractice cases against health care providers will be filtered through such a panel.
“The sole duty of the panel is to express its expert opinion(s).
sfc * sfc sf: sH ¡fc
“The findings of the medical review panel are not binding on the litigants.
“Pretrial screening through a medical review panel is designed to weed out frivolous claims without the delay or expense of a court trial. It is thought that the use of such panels will encourage settlement because both parties will be given a preliminary view of the merits of the case. 1975 Duke L.J. 1417,1456-63. If a claim is found by the panel to be without merit it is thought that the claimant will be likely to abandon his claim or agree to a nominal settlement. Martin H. Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex.L.Rev. 757 (1977); 50 Tul.L.Rev. supra at 681; U. S. Depart, of Health, Education & Welfare, Pub. No. (OS)73-88, Medical Malpractice: Report of the Secretary-Commission on Medical Malpractice, p. 91 (1973). Moreover, a plaintiff who gains a favorable opinion from the panel may be able to negotiate a favorable settlement with his defendants, a procedure which also avoids much of the time and expense of a trial. HEW Report, supra at 91: Mallor, A Cure for the Plaintiff’s Ills? 51 Ind.L.J. 103, 106-07 (1975). See Anderson v. Florence, 288 Minn. 351, 181 N.W.2d 873 (1970). Thus, to the extent that the use of medical review panels encourages settlement of suits before trial, litigation costs will probably be reduced. Because out of court settlements usually do not garner the publicity, of jury verdicts it is also hoped by proponents of the legislation that publicity concerning the award figure will be minimal and that this fact will gradually reduce awards granted by juries. Redish, supra at 767. Additionally since jury awards are believed generally to be larger than settlements, the in-crease in prevalence of the latter should serve to reduce the overall payment of claims. Thus, litigation costs and actual awards are expected to be lessened by virtue of the employment of pre-suit medical review panels.”

■ It is obvious the legislature intended the medical review panel to play a major role in the entire scheme of the Medical Malpractice Act. The principal purpose of Section C is to provide a fair and equitable means of selecting panel members, and to ensure their availability to both plaintiff and defendant. The act should be construed liberally to accomplish this purpose.

The organization of Section C is important to an understanding of its provisions. The opening paragraph of Section C provides for the composition of the panel and ensures their qualification by requiring members hold an unlimited license to practice medicine in Louisiana, with the exception. provided in Paragraph (5) discussed below. Then, the selection procedure is set out. Thereafter,, there are eight paragraphs designed to aid and implement the selection process. Examination of these paragraphs as a whole reveals an overall concern with ensuring the availability and impartial behavior of panel members.

Subparagraph (1), which contains the language primarily at issue, provides a general rule: “All physicians engaged in the active practice of medicine in this state who practice in the same community or locality as does the health care provider against whom the claim is made, ... shall be available for selection.” (Emphasis supplied) We do not view this general rule as a restriction on the selection process. Rather, the mandate conveyed by use of the word “shall” applies to “be available for selection.” We find this mandate is directed at those physicians described and not at the parties making the selection. The purpose of the mandate is to ensure both plaintiff and defendant a readily available body of physicians from which to select a panel member.

Subparagraph (2) repeats the mandate of Subparagraph (1) more clearly: “Upon selection, said physician shall be required to serve.” We note here the fact that both subparagraphs (2) and (3) emphasize each party’s right to select a panel member. Subparagraph (3) also provides for a situation of multiple plaintiffs and defendants.

Subparagraph (4) emphasizes the strength of the mandate upon physicians by providing a physician may be excused from service only for good cause and only by a district judge.

Subparagraph (5), also at issue here, provides two exceptions to the general rule of Subparagraph (1). In a case where there is only one defendant other than a hospital, all panelists “shall” be of the defendant’s class of specialty. The second exception must be read in connection with the opening paragraph of Section C and applies at the option of the parties when there are multiple defendants and one or more are not physicians or hospitals.

The balance of the subparagraphs are procedural in nature and need not concern us here except to note the general purpose of implementing the selection procedure.

As stated above, we conclude Section C does not require that physician panel members be selected from the same community or locality as the defendant, whether the defendant is a general practitioner or a specialist. The purpose of the phrase “same community or locality” in Subparagraph (1) is to identify and ensure a readily available body of physicians who cannot refuse to serve upon selection. This interpretation is consistent with the advisory duties of the panel and the legislative intent to have most medical malpractice cases filter through such a panel at minimum costs.

Our construction of the statute is supported by Ardoin v. Hartford Accident & Indemnity Company, 360 So.2d 1331 (La.1978), in which our Supreme Court abolished the “locality rule” insofar as it applies to medical specialists serving as expert witnesses. The decision in that case clearly indicates a trend away from a strict locality rule.

We conclude that plaintiff’s May 23,1979 motion, objecting to the selection of Dr. Schlosser as a member of the panel and urging that a pre-suit medical review panel cannot be selected in the present case, should have been denied.

For the reasons assigned, the judgment appealed is set aside and recast as follows: It is ordered, adjudged and decreed that the district court has jurisdiction over the subject matter, that defendants’ exception to the venue be overruled, and that defendant’s exception to subject matter jurisdiction is actually an exception of prematurity and is sustained, and plaintiff’s suit is dismissed. All costs in the trial and appellate courts are assessed against the plaintiff.

AFFIRMED.


source: Caselaw Access Project

author: BOWLING, Justice, for the Court:

license: Public Domain

text:
    HANBERRY CORPORATION v. STATE BUILDING COMMISSION and Aetna Casualty & Surety Company.
    No. 52036.
    Supreme Court of Mississippi.
    Sept. 10, 1980.
    Rehearing Denied Dec. 10, 1980.
    George E. Gillespie, Jr., Zachary, Gillespie & Rogers, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Donald Clark, Sp. Asst. Atty. Gen., Jackson, Lawrence C. Gunn, Jr., Aultman & Aultman, Hatties-burg, for appellees.
    Before ROBERTSON, WALKER and BOWLING, JJ.
   BOWLING, Justice, for the Court:

This cause originated in the Circuit Court of Forrest County and involves questions of whether or not demurrers were • properly sustained by the lower court.

Appellant, Hanberry Corporation (successor to A. K. Mclnnis, Jr., Inc.) filed its declaration against Mississippi State Building Commission and Aetna Casualty & Surety Company. The suit grew out of the construction of the Student Union Building on the campus of the University of Southern Mississippi at Hattiesburg. The State Building Commission entered into three separate “co-prime” contracts to perform the work. These contracts were with plaintiff, Hanberry Corporation, for the general building construction, Mechanical Contractors, Inc., for the mechanical installations and construction, and an electrical contracting company that is not a party to this litigation. The separate contracts with each of the contractors contained essentially the same terms, except, of course, for specifications.

Hanberry contends in its declaration that Mississippi Mechanical Contractors, Inc., failed to carry out its contractual obligations and that due to that failure and the manner in which Mechanical performed its work, the entire construction job was delayed; that plaintiff was delayed in doing its work beyond the normal construction time period, and that due to the actions of Mechanical, Hanberry sustained considerable loss in completing its contract with the Commission. The declaration further charged that Mechanical breached its contractual duty to coordinate its operations with that of plaintiff; that the contracts with all three “co-prime” contractors required each to cooperate with the other, and required a mutual responsibility among them and gave each a cause of action if these contractual provisions were not carried out, and a “co-prime” contractor was injured thereby.

Mississippi Mechanical Contractors, Inc., defaulted in the performance of its contract with the Commission. The Mechanical contract was completed by another construction company, secured and paid by appellee, Aetna Casualty & Surety Company. This company had entered into a performance-payment bond as surety for Mississippi Mechanical Contractors, Inc., principal, as required by Mississippi Code Annotated section 31-5-1 (1972).

The charge in the declaration against the Building Commission was that as “owner” it was required by statute to coordinate the work of the three prime contracts and supervise the project, and further that it had an implied contractual duty to see that the three prime contractors cooperated and coordinated their work with each other. The declaration alleged that the Building Commission had failed to carry out these duties.

Hanberry charged that appellee, Aetna Casualty & Surety Company, under the terms of its bond with Mechanical Contractors, Inc., was liable to plaintiff as a third party beneficiary under the bond for plaintiffs alleged damages resulting from the failure of Mechanical to properly perform its contract with the Building Commission. It was charged that the provisions of the bond protected the “co-prime” contractors under the terms of the contracts with the Building Commission as those terms related to the bond provisions.

Aetna filed its demurrer to the original declaration. Its answer and other defenses were filed and its pleading included a counterclaim against plaintiff Hanberry. The counterclaim alleged that if it should be held that Hanberry had a claim against Aetna, then Aetna had a counterclaim against Hanberry. The counterclaim alleged that after the new mechanical contractor was employed by Aetna and entered into completion of the work, Hanberry had been guilty of wrongful acts that delayed that completion. Aetna requested in its counterclaim a judgment against Hanberry for the amount it paid for completion of the work in excess of the original contract amount.

We first consider the original declaration as to Aetna and whether or not the lower court was correct in sustaining Aetna’s demurrer. We hold that this was error.

The contract between the Building Commission and Mississippi Mechanical Contractors, Inc., as well as the other two contractors, included the following provision:

If, through acts of neglect on the part of the contractor, any other contractor or any subcontractor shall suffer loss or damage on the work, the contractor agrees to settle with such other contractor or subcontractor by agreement or arbitration if such other contractor or subcontractor will so settle. If such other contractor or subcontractor shall assert any claim against the owner on account of any damage alleged to have been sustained, the owner shall notify the contractor, who shall indemnify and save harmless the owner against any such claim.
The contractor shall coordinate his operations with those of other contractors. Cooperation will be required in the arrangement for the storage of materials, and in the detailed execution of the work. The contractor, including his subcontractors, shall keep informed of the progress and the detailed work of other contractors and shall notify the architect-engineer immediately of lack of progress or defective workmanship on the part of other contractors. Failure of a contractor to keep informed of the work progressing on the site and failure to give notice of lack of progress or defective workmanship by others shall be construed as acceptance by him of the status of the work as being satisfactory for proper coordination with his own work.

A provision of the performance bond between Aetna and Mechanical provided as follows:

If the principal (Miss. Mechanical) shall well, truly and faithfully perform its duties, all the undertakings, covenants, terms, conditions, and agreements of said contract [with the State Building Commission] . . . and shall promptly make payment to all persons, firms, subcontractors, and corporations furnishing materials for or performing labor in the prosecution of the work provided for in such contract . . . then this .obligation shall be void; otherwise, to remain in full force and effect. (Emphasis supplied).

It is recognized that the provisions of most construction contracts and performance bonds are different under various situations. It is, therefore, required that we interpret the particular contracts in question to determine whether or not this particular bond written by Aetna for Mechanical covers Hanberry’s alleged claim. In Burns v. Washington Savings, 251 Miss. 789, 171 So.2d 322 (1965), this Court had the following to say:

In order for the third person beneficiary to have a cause of action, the contracts between the original parties must have been entered into for his benefit, or at least such benefit must be the direct result of the performance within the contemplation of the parties as shown by its terms. There must have been a legal obligation or duty on the part of the promisee to such third person beneficiary. This obligation must have a legal duty which connects the beneficiary with the contract. In other words, the right [of action] of the third party beneficiary to maintain an action on the contract must spring from the terms of the contract itself. 17A C.J.S., Contracts § 519(4) (1963).

In Burns, the Court further stated:

(1) When the terms of the contract are expressly broad enough to include the third party either by name as [sic] one of a specified class, and (2) the said third party was evidently within the intent of the term so used, the said third party will be within its benefits, if (3) the promisee had, in fact, a substantial and articulate interest in the welfare of the said third party in respect to the subject of the contract. Cf. 17 Am.Jur.2d, Contracts § 308 (1964). Accord, Engle Acoustic & Tile, Inc. v. Grenfell, 223 So.2d 613 (Miss.1969).

The United States Court of Appeals for the Fifth Circuit had a similar question before it in the case of M. T. Reed Con struction Co. v. Virginia Metal Products Corp., 213 F.2d 337 (5th Cir. 1954). There the Federal appellate court said the following:

These contractors agreed in their respective contracts to coordinate their work and cooperate with each other so as to facilitate and expedite the completion of the building . . . [W]e agree with the appellant [the general contractor] that it was a direct beneficiary of the contract of appellee [a “co-prime” contractor] with the state building commission, which obligated the appellee to cooperate with appellant and coordinate its work with that of appellant so as to enable both of them to complete their respective jobs on time. The building could not have been completed without such mutual obligation on the part of each of the contractors, and the obligation so to do was a part of the consideration that induced each of the contractors to undertake its particular job at the agreed price.
Finally, there was a clause with reference to the mutual responsibility of contractors which provided that, should any contractor cause damage to any separate contractor on the work, the contractor causing such damage agreed, upon due notice, to settle with such other contractor by agreement or arbitration. According to Funk and Wagnall’s New International Dictionary, one meaning of “to settle” is to liquidate or pay, and that is the meaning in which it was used in this instance. One who contracts to pay or liquidate an obligation by agreement or arbitration is liable in an action for damages if he breaches the contract . Accordingly the contract between the State and the appellee created the latter’s direct obligation to settle with, that is to pay, the appellant; out of the facts of this obligation and the fact of its breach, the claim, liability, or cause of action, and suit arose against the appellee in favor of appellant by virtue of the common law of Mississippi.
We think, under the local law, that the contract in suit made the several contractors direct beneficiaries of the contractual provision that any contractor would be liable for any actual damages inflicted upon another contractor on this job because of the breach of any duty assumed under the contract by the contractor.

The contractual obligations of a surety as pertains to so-called third parties was discussed by this Court in Western Casualty & Surety Co. v. Stribling Bros. Machinery Co., 244 Miss. 12, 139 So.2d 838 (1964), wherein the Court said:

The material inquiry in surety contracts in connection with construction enterprise is whether there is a purpose to benefit someone in addition to the one for whom the construction is being done. Where there is no promise on the part of the surety to pay the liabilities of the contractor, and where the surety has not excluded a liability to pay them, the surety contract can be interpreted in terms of right, or lack of right. A.L.I., Restatement of the Law of Security, Section 166. Where the surety only guarantees the contractor’s promise to complete a construction project free and clear of all liens and claims, there is no right in third parties because there is no indicated purpose to benefit them. The promise that the contractor will furnish an item does not of itself amount to a promise to pay for the item. The rule is illustrated by contrasting two of our cases: In Linde Air Products Co. v. American Surety Company, [168 Miss. 877, 152 So. 292] supra, the condition of the bond was ‘that if the said contractor shall pay all persons, firms and corporations who . furnish equipment ... for use in the work under the contract.’ The Court held that the surety was liable for the purchase of new tools and machinery necessary to enable the contractor to do the work under the contract. In that case the obligation of the surety was clearly one for the benefit of third persons furnishing equipment in addition to the obligation in favor of the one for whom the construction was being done. On the other hand, in the [Hartford Accident & Indemnity Co. v.] Hewes case, 190 Miss. 225, 199 So. 93, the surety on the subcontractor’s bond guaranteed the faithful performance of the subcontract which required the subcontractor to carry public and employer’s liability insurance; and the Court held that the surety was not liable for the premium on such insurance.

In Metropolitan Casualty Insurance Company v. Koelling, 57 So.2d 562 (Miss.1952), in setting out guidelines for the interpretation of surety agreements, the Court said:

The liability of a surety company is, of course, governed by the express terms and extent of its undertaking. If its service is gratuitous, it is favored by the law. National Union Fire Ins. Co. v. Currie, 180 Miss. 711, 178 So. 104. Such favoritism however does not extend to the compensated surety. While its liability may not be extended beyond the terms of the contract, if the contract is susceptible of two constructions, one of which will uphold and the other defeat the claim, in that event the construction favorable to the insured will be adopted. 50 Am.Jur., Suretyship par. 319, page 1114.

Now looking at the two contracts in question, that is, the contract between the Building Commission and each of the prime contractors, and the performance bond contract executed by Aetna, the interpretation of those obligations as charged in the original declaration of Hanberry appear to be clear. As heretofore pointed out, Aetna’s contract with Mechanical was a guarantee by Aetna that Mechanical “would truly and faithfully perform its duties and all the undertakings, covenants, conditions and agreements of said contract” between the Building Commission and Mechanical. The terms of the contract between the Building Commission and the contractor are clear as to the duties and agreements of Mechanical. The latter agreed that it would coordinate its operations with those of Hanberry, who charged in its declaration that it was damaged because Mechanical failed in its duties under its contract. Aetna issued its performance-payment bond knowing that Mechanical had the obligation to Hanberry. The allegations of the declaration come squarely within the duties expressly assumed by Mechanical. It therefore follows that the declaration stated a cause of action by Hanberry against Aetna and the demurrer should have been overruled.

We next consider the action of the lower court in sustaining plaintiff Hanber-ry’s demurrer to Aetna’s counterclaim. This counterclaim charged that after Mechanical defaulted in the work and was not able to proceed with its contractual duties, it was necessary for Aetna to assume completion of Mechanical’s contract. To do this it entered into an agreement with another mechanical contracting firm. It was alleged in the counterclaim that Hanberry breached its duties and obligations to the substituted prime contractor by not performing its work in a proper manner, thereby causing the new mechanical contractor delays in the completion of the mechanical work. It was further charged that Hanber-ry failed to coordinate with the other contractors and charged that by its actions, Hanberry knew, or should have known, that it was causing Aetna to pay sums over and beyond the contract price of the original contract between the Building Commission and Mechanical. It was charged, that Aet-na paid costs for the completion of the job that were excessive and that these costs were due to the failure of Hanberry to abide by its prime contractual agreement.

We have heretofore held that each of the three “co-prime” contractors having similar contracts with the Building Commission were under a contractual duty to coordinate each operation with those of the other contractors. Undoubtedly it was the duty of Aetna to complete the mechanical contract and it was attempting to fulfill this duty. We are forced to the conclusion that if the original declaration stated a cause of action against Aetna, who stepped into the shoes of Mechanical, then under the same principles the allegations of Aetna’s counterclaim came within the purview of the duty required of Hanberry. Aetna stated a cause of action in its counterclaim as a third party beneficiary under the prime contracts as hereinbefore discussed. Therefore, we hold that the demurrer of Hanberry to Aetna’s counterclaim should have been overruled by the lower court.

The final point to consider is the sustaining by the lower court of the demurrer to Hanberry’s cause of action alleged against the State Building Commission. The allegations of the declaration were based in part on Mississippi Code Annotated section 31-11-3 (1972), which provides in part:

The [State Building] Commission . shall have full power and authority to employ and compensate such architects or other employees necessary for the purpose of making inspections, preparing plans and specifications, supervising the erection of any buildings, and making any repairs or additions as may be determined by the Commission to be necéssary. Said commission shall have entire control and supervision of, and determine what, if any, buildings, additions, repairs or improvements are to be made under the provisions of this chapter. .

The declaration further charged that there was an implied in law duty on the part of the Building Commission to coordinate the work between the three prime contracts and that it breached its duty by failing to properly supervise the construction of the building in that regard.

As to the alleged statutory cause of action, it is seen by a reading of the statute that it merely authorizes the Commission to employ independent architects and supervisory persons to make inspections during erection of any state buildings. The contracts made a part of the pleadings in the case show that the Commission did in fact employ independent architects and engineers to look after the progress of the work. These independent agencies were not made parties to the suit. In our opinion, the statute on which Hanberry relies does not require that the Building Commission coordinate or supervise but merely authorizes it to employ independent contractors for that purpose under the contracts in this particular case. We do not intend to hold that the statute does not authorize the Commission to employ persons directly under its organization to perform supervisory duties. We only hold that the contracts included as a part of the declaration in this cause do not show that this was done.

In regard to the allegation of the declaration that the Building Commission had an “implied” contractual duty to coordinate the work of the three prime contractors and to see that the work of each was performed properly, we refer to the contract entered into with each contractor by the Commission. It plainly says that “all prime contractors and all subcontractors shall coordinate all work, one with the other, so as to facilitate the general progress of the work.” We find that this provision and all provisions of the contract taken together clearly show that the Building Commission correctly relied on the three prime contractors to coordinate between themselves. As herein-before stated, independent contractors, architects and engineers, were regularly inspecting the progress of the work, but, as shown by the contracts, they were acting as independent agents and are not parties to this cause. There had to be some reason for the Building Commission to handle this rather large construction job in the manner in which it was handled. Even though the entering into separate prime contracts might be questioned in the construction industry, this was the way it was done, and in so doing, the Building Commission relieved itself of responsibility. Therefore, we hold that the lower court was correct in sustaining the demurrer of the Building Commission to the declaration.

We affirm the sustaining of the demurrer of the State Building Commission but reverse the order of the trial court sustaining the demurrer of Aetna to Hanberry’s declaration, and the sustaining of Hanberry’s demurrer to Aetna’s counterclaim. This cause is remanded for a trial on the merits as to Hanberry and Aetna.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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

PATTERSON, C. J., took no part.


text:
    Cleo HAYES, III v. STATE of Mississippi.
    No. 52051.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Rehearing Denied Dec. 10, 1980.
    William O. Semmes, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Niles McNeel, Judge.

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

AFFIRMED.


text:
    Victor Marvin REID v. STATE of Mississippi.
    No. 52109.
    Supreme Court of Mississippi.
    Nov. 5, 1980.
    James H. Heidelberg, Fielding L. Wright, Wright & Heidelberg, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

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

AFFIRMED.


text:
    AFFILIATED HOSPITAL PRODUCTS, INC. & American Mutual Liability Ins. Co. v. Mike TUBBS.
    No. 52208.
    Supreme Court of Mississippi.
    Nov. 5, 1980.
    Larry R. Jennings, Corr, Carlson & Fleming, Sardis, for appellants.
    Briggs Smith, Smith & Phillips, Bates-ville, for appellee.
   Appeal from Circuit Court, Panola County; Andrew C. Baker, Judge.

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

AFFIRMED AND REMANDED TO THE WORKMEN’S COMPENSATION COMMISSION FOR FURTHER PROCEEDINGS.


text:
    Jerry Curtis LEWIS v. Lela Earline Penton (Lewis) MITCHELL et al.
    No. 52117.
    Supreme Court of Mississippi.
    Nov. 12, 1980.
    Rehearing Denied Dec. 3,1980.
    Cornelius J. Ladner, Bay St. Louis, for appellant.
    Delos H. Burks, Stewart, Burks & Pace, Picayune, for appellees.
   Appeal from Chancery Court, Pearl River County; Sebe Dale, Jr., Chancellor.

Before PATTERSON, P. J., and BROOM and LEE, JJ.

REVERSED IN PART AND AFFIRMED IN PART.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BOWLING and COFER, JJ., concur.


text:
    Oline F. LEFLORE et al. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 52121.
    Supreme Court of Mississippi.
    Nov. 12, 1980.
    Rehearing Denied Dec. 3, 1980.

      Charles J. Swayze, Jr., Whittington, Brock, Swayze, Dale & Calhoun, Greenwood, for appellants.
    John M. Sumner, Sumner & Sumner, Wi-nona, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   PATTERSON, Chief Justice, for the Court:

In the Carroll County Special Court of Eminent Domain,.the State Highway Commission condemned 20.16 acres of land owned by Oline F. Leflore, Carolyn Leflore Noel, and John L. Leflore, Jr. The jury found $37,850 as just compensation for the taking resulting from the four-lane development of U. S. Highway No. 82. The landowners appeal, contending (1) the trial court erred in not admitting evidence of a comparable sale of property which occurred approximately three months after the date of taking; (2) the jury verdict did not include severance damages; and (3) the verdict was against the overwhelming weight of the evidence evincing passion and prejudice.

The Mississippi State Highway Commission filed a petition for condemnation proceedings on May 29,1978, for the purpose of four-laning U. S. Highway No. 82 and 20.16 acres of the Leflores’ land. The land taken was flat delta land devoted primarily to agriculture and located in Sections 14 and 15, north of Highway No. 82, in Township 19 North, Range 2 East, Carroll County, Mississippi. Both parties filed statements of value summarized as follows:

Fair Market Value Damages Total Compensation

Highway Commission $35,465.00 $2,385.00 $37,850.00

(Elements of damages included severance damages for fencing and temporary easement.) Highest and Best Uses - pre-commercial and agricultural.

Leflore $93,100.00 $32,070.00 $125,170.00

(Elements of damages included severance damages for access, fencing and temporary easements.) Highest and Best Uses - commercial, residential, agricultural, and timberland.

Leflore’s witnesses at trial included a real estate appraiser, a local farmer, and a former appraiser for the highway department. Two of the witnesses testified as to the value of the property before and after taking, using comparable sales of similar property in the area upon which to base their opinion. The third witness testified to similar comparable sales but was not allowed to testify to the sale of 1.2 acres for $8500 in September 1978 because the sale was subsequent to the seizure date and was thus irrelevant. The Leflores objected to the suppression of this September sale which forms part of the basis for this appeal.

The highway commission’s witnesses at trial consisted of a project engineer and a real estate appraiser, both employed by the Mississippi State Highway Commission. The jury was also afforded a view of the property with the entire court in attendance.

Appraisal testimony for both parties on the issue of value and damages can best be illustrated by the following chart:

FOR APPELLANT BEFORE TAKING AFTER TAKING DAMAGE

Lester Howell $477,000.00 $393,670.00 $83,330.00

(including severance damages to 14 acres)

Sidney Branch $508,800.00 $430,180.00 $78,620.00

(including severance damages to 21.38 acres)

FOR APPELLEE

Gary Williams $591,100.00 $553,250.00 $37,850.00

(no severance damages incuded)

Turning to the first assignment of error that the trial court erroneously disallowed certain testimony relating to a sale of 1.2 acres for $8500 approximately three months after the date of taking on May 29, 1978, it is our opinion that this argument lacks merit even though our holding in Mississippi State Highway Comm’n. v. Stout, 242 Miss. 208, 134 So.2d 467 (1961), indicates otherwise. Appellants rely primarily on Stout for the proposition that even a comparable sale after date of taking is admissible if not too remote in time. Their reliance on Stout is misplaced for the general rule is “that damages are to be assessed and compensation determined as of the time of taking. General benefits and injuries resulting from the use to which the land is to be put that are shared by the general public should not be considered in awarding damages in eminent domain cases,” Stout, supra, at 470. To permit evidence of sales after the taking would be error, in our opinion, because these sales would reflect the enhanced value of the land caused by the advent of the four-lane highway in the area. Thus, the jury would be considering benefits or injuries resulting to the general public which is not an element of damage to which the private landowner is entitled. Justice Gillespie acknowledged this in the Stout opinion but allowed the evidence of the subsequent sale for two reasons: (1) the jury was properly instructed on the general rule as previously quoted; and (2) the Mississippi State Highway Commission could have proved the land value was enhanced so as to diminish the probative value of the evidence concerning the sale. We now think to hold such evidence admissible, even with a cautionary jury instruction or proof of enhancement value, is only to emasculate and confuse the general rule that damages are determined as of the time of taking and leads to a contradiction of the usual jury instruction concerning the before and after values for the assessment of damages. Mississippi State Highway Commission v. Stout, 242 Miss. 208, 134 So.2d 467 (1961), is therefore overruled insofar as it permits evidence concerning sales occurring subsequent to the date of the taking in eminent domain cases.

Appellants also urge reversal because the jury verdict reflected the State Highway Commission’s valuation which did not include severance damages to the remainder of the condemned property. At trial, Lester Howell, witness for appellants, testified that severance damages resulted to a 14-acre tract adjacent to the new highway because of a lack of access from both lanes of traffic. Another witness for appellants, Sidney Branch, testified to severance damage to 21.38 acres adjacent to the new westbound highway lane with elements of damages including a lack of access for development of the adjacent property for commercial purposes caused by the elevation of the highway which at one point is forty feet above ground level. Ralph Ellison, witness for appellee, stated no access problems would exist; and Gary Williams, appraiser for the highway commission, testified he found no severance damage to the property. Thus the jury was allowed to consider all the evidence concerning possible severance damages. Also, a jury instruction was given which properly stated the law as to severance damages and properly informed the jury that they could consider this as part of the just compensation. It was the prerogative and province of the jury, after viewing the property and hearing the testimony for both sides, to return a verdict excluding severance damages. Thus, it is our opinion no reversible error exists on this point.

In conclusion, appellants argue the jury verdict was against the overwhelming weight of the evidence and showed passion and prejudice on the jury’s part. This is without merit, in our opinion, for this Court stated in Great Atlantic & Pacific Tea Co. v. Davis, 177 Miss. 563, 567-568, 171 So. 550, 551 (1937), as follows:

There is substantial testimony in support of a verdict, delivered by sworn witnesses, leaving aside the view of the premises by the jury, and in such case, as was held in Kress & Company v. Sharp, 156 Miss. 693, 702, 126 So. 650, 68 A.L.R. 167, the view by the jury when taken together with the substantial testimony delivered by sworn witnesses will, as a general rule, preclude a review of the verdict as being contrary to the overwhelming weight of the evidence.

See Mississippi State Highway Comm’n. v. Ferguson, 190 So.2d 455 (Miss.1966).

Based on the jury view of the property and the substantial testimony for both parties, we conclude the jury verdict was not against the overwhelming weight of the evidence nor did it evince passion and prejudice.

AFFIRMED.

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


author: LEE, Justice,

text:
    Harry Jarvis JACKSON v. Carlton O. GRIFFIN and Farrish Gravel Company, Inc.
    No. 52163.
    Supreme Court of Mississippi.
    Nov. 12, 1980.

      H. L. Merideth, Jr., Robertshaw & Meri-deth, Greenville, Charles M. Deaton, Billy B. Bowman, Brewer, Deaton, Evans & Bowman, Greenwood, for appellant.
    Arnold F. Gwin, Lott, Sanders & Gwin, Greenwood, for appellees.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Harry Jarvis Jackson filed suit against Carlton 0. Griffin (Griffin) and Farrish Gravel Company, Inc. (Farrish) in the Circuit Court of the First Judicial District of Carroll County, seeking damages for the death of his wife, Sylvia Jackson, who was killed in a truck-car collision. The. declaration charged negligence against Griffin and Farrish, and sought actual and punitive damages. After a five-day trial, the jury returned a verdict in favor of the defendants. Jackson has appealed, assigning two (2) errors in the trial below.

I.

Was the verdict of the jury contrary to the overwhelming weight of the evidence?

The appellant contends, under this assignment of error, that the appellees were guilty of negligence which proximately caused the collision and that the jury verdict is contrary to, and contradicted by, the undisputed physical facts of the case. The appellant also requested a preemptory instruction on the issue of liability in the trial below, and, after verdict, filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial.

Appellant’s wife was a nurse at the Greenwood-Leflore Hospital, and, on October 23,1978, had worked the 11 p. m. to 7 a. m. shift. After she was picked up by her husband at the hospital shortly after 7 a. m., she drove him to his job in Greenwood, then drove toward their home, fourteen (14) miles away in rural Carroll County. Mrs. Jackson was proceeding in a northerly direction on a curvy, hilly, narrow gravel road and was approaching and meeting a tractor-trailer truck, owned by Farrish and driven by Griffin, its agent, in a southerly direction on said road. Griffin had been driving on the road for approximately ten (10) days, hauling gravel from a nearby pit. Mrs. Jackson routinely traveled the road to and from her place of work. The collision occurred a short distance north of a curve in the road and resulted in her instant death. There were no eyewitnesses to the collision except Griffin. He testified that he glimpsed the Jackson vehicle approaching; that it was on his side of the road; that he thought the vehicle would move over to its proper side; that he was as far over on the west side of the road as he could get without going in the ditch; that his tractor truck was on its proper side of the road; that the Jackson car was on the west side of the road in the truck lane when the accident occurred; and that just before the accident, when he became aware that the Jackson car was not moving over to its proper lane, he sounded his horn and applied the brakes. Some of the physical facts are in dispute; others are not.

Sheriff C. D. Whitfield, who arrived at the scene shortly after the collision, made measurements, assisted by his deputy, Kenneth McCrory. He testified that the road was twenty-four (24) feet wide at the point of impact, that marks made by the left wheel of the Jackson car were twelve (12) feet from the east edge of the road, and that the distance from that point to the west edge was twelve (12) feet, the width of the road totalling twenty-four feet.

Deputy McCrory testified that the measurements noted by Sheriff Whitfield in his accident report were inaccurate. Witnesses referred to photographs, which showed the imprint of the truck wheels in the west side of the road on the edge of the ditch, and they identified tire marks of the truck from the point of impact to the place where the truck came to a halt. The left front axle of the truck was broken by the impact, and it plowed a furrow down the west lane of the road for approximately one hundred twenty-five (125) feet. Sheriff Whitfield testified that the speed limit was fifty-five (55) miles per hour along the road. Griffin testified that the truck was in eighth gear at the time of the collision [it had twelve (12) forward gears] and a truck expert testified that the vehicle would not go more than thirty (30) miles per hour in eighth gear. There was also testimony to the effect that debris was in the middle of the road and four (4) or five (5) feet over on the west side of the road.

The appellant cites and relies upon Elsworth v. Glindmeyer, 234 So.2d 312 (Miss.1970) for the argument that debris and physical facts prove that the collision occurred in the deceased’s lane of travel. There, two vehicles collided head-on and were wedged into a “T.” All of the signs and physical facts showed without question that the impact occurred in the plaintiff’s proper lane of travel, while there was no indication that the vehicles collided in the defendant’s lane of travel. Under those undisputed facts, the Elsworth court held that the jury verdict for the defendant was contrary to the overwhelming weight of the evidence.

We have carefully considered the testimony of Griffin and other witnesses in the case, along with all the photographs and physical evidence. Here, the physical facts are in dispute. Griffin testified positively that he was driving the truck on its proper side of the road as far to the west edge as he could operate it, and that the Jackson vehicle drove into the west side of the road. The physical facts, at least in part, corroborated Griffin’s version of the collision. The jury is the sole judge of the weight of the evidence and the credibility of the witnesses. Conflicts in the evidence are to be resolved by the jury, and before a reviewing court can interfere with the verdict, testimony must so strongly preponderate that the court can safely say it was overwhelmingly in favor of the appellant. Powers v. Malley, 302 So.2d 262 (Miss.1974). We are of the opinion that there was a jury question as to whether or not appellee was guilty of negligence which proximately caused or contributed to the collision.

II.

Did the court err in refusing Instruction P-6 on the question of reasonably safe speed along the road in question?

Appellant contends that the court erroneously refused its requested Instruction P-6 which follows:

“The court instructs the jury that under the evidence in this case a reasonably safe speed for the operation of the motor vehicle over and along the road in question was not in excess of 30 miles per hour.
The court further instructs you if you believe from a preponderance of the evidence that the defendant, Carlton O. Griffin, was operating said truck immediately prior to the accident at a speed in excess of 30 miles per hour, then in that event, the defendant, Carlton O. Griffin, was negligent and if you further believe from a preponderance of the evidence that such negligence, if any, was a proximate cause of the collision and the death of the said Sylvia P. Jackson, then it is your sworn duty to return a verdict for the plaintiff.”

We note that the trial court granted Instruction P-7, which provided in part:

“The Court further instructs you that if you believe from a preponderance of the evidence that the Defendant, Carlton O. Griffin, prior to October 23, 1978, was thoroughly familiar with Valley Road and that said Defendant knew that the road in parts contained hills, curves and an uneven surface and that 30 miles per hour was a maximum, reasonably safe speed for the operation of a motor vehicle over and along said road.. . . ”

All jury instructions must be read as a whole to determine whether or not the jury was correctly instructed. Briscoe v. Jones, 233 So.2d 125 (Miss.1970). The fact that the court refused an instruction in different language from one given is not error. Appellant contends that appellees did not object to Instruction P-6, and, therefore, the instruction should have been granted. There is no merit to the argument that appellees did not object to the instruction. The court may deny or grant instructions of its own volition. Newell v. State, 308 So.2d 71 (Miss.1975).

Appellant argues that, since Sheriff Whitfield testified the speed limit on the road was fifty-five miles per hour (no objection made), the trial court should have permitted him to testify that speed in excess of thirty miles per hour was not a reasonably safe speed at the point of the collision. Also, appellant contends that since Russell Shipp, an employee of the Farrish Gravel Company, Inc., testified that he told his drivers not to exceed thirty (30) miles per hour because he considered that a reasonably safe speed, the instruction should have been granted. However, even though Shipp instructed his drivers not to drive in excess of thirty miles per hour, he did not indicate that speed in excess of thirty miles per hour was not reasonably safe. The trial court correctly sustained an objection to the sheriff’s testimony as to what was a reasonable speed. The jury had the duty and prerogative, under all the facts and circumstances, to determine whether or not Griffin was driving the truck at a reasonably safe speed and whether or not such speed proximately caused or contributed to the collision.

There being no reversible errors in the trial below, the judgment is affirmed.

AFFIRMED.

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


text:
    BIG YANK CORP. and Liberty Mutual Ins. Co. v. Audrey Faye JOSLIN.
    No. 52192.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    Wade H. Lagrone, Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, for appellant.
    Mary Ann Connell, Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Oxford, for appellee.
   Appeal from Circuit Court, Yalobusha County; Andrew C. Baker, Judge.

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

Affirmed.

COFER, J., took no part.


text:
    James A. GATES v. STATE of Mississippi.
    No. 52300.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    Kenneth M. Burns, Okolona, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Chickasaw County; W. W. Brown, Judge.

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

Affirmed.


text:
    David Lee HUGHES v. STATE of Mississippi.
    No. 52097.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    Robert B. Prather, Columbus, for appellant.
    Bill Allain, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

Before SMITH, P. J., and SUGG and LEE, JJ.

Affirmed.

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


text:
    Audrey Jean MILLER v. David Lapell MILLER.
    No. 52226.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    Rehearing Denied Dec. 10, 1980.
    Robert F. Drake, Hattiesburg, for appellant.
    Deborah Denárd, Hattiesburg, for appel-lee.
   Appeal from Chancery Court, Lamar County; Michael Sullivan, Chancellor.

Before SMITH, P. J., and SUGG and LEE, JJ.

REVERSED, RENDERED AND REMANDED.

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


author: PER CURIAM.

text:
    Joseph J. JASPER v. EMPLOYEES’ RETIREMENT SYSTEM BOARD OF CONTROL; Dr. David G. Bronner.
    79-740.
    Supreme Court of Alabama.
    Nov. 7, 1980.
    Charles J. Najjar and J. Gary Pate of Najjar & Najjar, Birmingham, for appellant.
    William T. Stephens, Legal Counsel, Employees’ Retirement System of Alabama, Montgomery, for appellees.
   PER CURIAM.

This appeal, authorized by § 12-18-2(c), Code 1975, and submitted on stipulation of facts and briefs of the parties, challenges the decision of the Board of Control of the Employees’ Retirement System, denying Appellate Judge Joseph J: Jasper credit toward retirement for the period November 27, 1974, to April 1, 1977.

A detailed recital of the facts would serve no purpose. Suffice it to say that for reasons unknown to the parties, but through obvious inadvertence, no payroll deductions were made from Judge Jasper’s salary and credited to his retirement from November 27, 1974-the date of his election to come under the provisions of the Judicial Retirement Act-to April 1, 1977-the date on which payroll deductions for contributions to the retirement system commenced. The latest date on which Judge Jasper could have elected to join the system was September 1, 1976.

Upon careful review of the stipulation of facts and the excellent briefs of able counsel for the parties, and after thoughtful deliberation, we affirm the decision of the Board of Control of the Employees’ Retirement System; provided, however, that within 60 days hereof, Judge Jasper may pay with interest an amount equal to the sum of the contributions due for the period November 27,1974, to April 1,1977, for full retirement credit for such period.

AFFIRMED WITH CONDITIONS.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.


author: HOLMES, Judge.

text:
    R. Lea HARRIS v. Marian C. HARRIS.
    Civ. 2055.
    Court of Civil Appeals of Alabama.
    Feb. 27, 1980.
    Rehearing Denied March 26, 1980.
    Harry H. Perdue, Jr., Montgomery, for appellant.
    George H. Wakefield, Jr., Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce case.

The issue on appeal is whether the trial court abused its discretion in the division of property. We find no such abuse and affirm.

It is not necessary nor prudent to set out in detail the facts as revealed by the record. Viewing the record with the attendant presumptions, the following is pertinent. The parties were married for approximately six and one-half years. The husband was over fifty years of age at the time of the marriage. The wife was approximately thirty-five years of age at the time of marriage. No children were born of the marriage. The husband is a lawyer; however, virtually his entire income is from rental property. His monthly income is approximately $3,000 per month. Additionally, the husband has other assets. Prior to the marriage, the husband owned his own home. The home is mortgage free. There is evidence the home is worth approximately $90,000.

The wife is a nurse. Additionally, the wife has a separate estate. There is evidence that after the marriage, the wife, using her own funds, spent over $20,000 repairing the home owned by the husband.

After an ore tenus hearing, the trial court awarded the wife over $20,000 “for her interest in the home.” The home was retained by the husband. The husband, through able counsel, contends the trial court erred in this award.

A division of property in a divorce decree, after consideration of the equities and contributions by the parties, is a matter for the discretion of the trial court and will not be disturbed on appeal except upon a showing of palpable abuse. See, Marks v. Marks, Ala.Civ.App., 365 So.2d 1231 (1979); 8 Ala.Digest Divorce @=>286(5).

In this instance, with particular emphasis on the fact that the wife spent over $20,000 of her own funds on the repair of the home and the husband retains the home, we cannot say the trial court so abused its discretion as to require reversal.

The wife has requested an attorney’s fee for representation on appeal. A fee of $500 is awarded.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Ex parte R. Lea HARRIS. (Re R. Lea HARRIS v. Marian C. HARRIS).
    79-502.
    Supreme Court of Alabama.
    Nov. 7, 1980.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, SHORES, EMBRY and BEATTY, JJ., concur.


text:
    Wilhelmina B. CARTER v. Benjamin F. CARTER.
    Civ. 2273.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1980.
    Douglass Culp, Birmingham, for appellant.
    William H. Fenn, Birmingham, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Jefferson County divorced the parties; awarded custody of the parties’ two minor children to the wife; required the husband to pay child support; and awarded the homeplace to the husband.

The wife appeals, contending the trial court erred in awarding the home to the husband. We find no error and affirm.

Viewing the record with the attendant presumption accorded the trial court’s decree, we find the following pertinent facts.

The parties were married in 1967. Two children were born of the union. In 1968 the parties executed a “lease sale contract” to purchase a home. In 1973 the wife left the husband and took the children to Chicago, Illinois. The wife and husband have lived separate and apart since the wife’s departure. The husband has resided in the house purchased under the “lease sale contract” since 1967. The husband, who is an hourly rate employee, has made all payments on the house. The wife has made no payments on the house. Apparently, the house is the only substantial asset acquired during the marriage.

With the above facts before it, the learned trial judge divorced the parties, awarded custody of the children to the wife, and required the husband to pay $200 per month child support. In addition, the husband was required to provide hospitalization insurance for the children and to name the children as beneficiaries of a life insurance policy.

The wife was divested of any interest in the home. The husband was to “hold the defendant harmless” from any claims or expenses in connection with the “lease sale contract.”

The wife contends the trial court erred in its action regarding the house. Put another way, the wife argues the trial court abused its discretion in the division of property. We find no merit in this contention.

The division of property pursuant to a divorce is a matter within the sound discretion of the trial court and will not be disturbed on appeal except upon a showing of plain and palpable abuse. Ray v. Ray, Ala. Civ.App., 379 So.2d 627 (1980); 8 Ala. Digest Divorce Key 286(5). See also, Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974), where the only asset owned by the parties was a home and this asset was awarded in its entirety to one of the parties.

Clearly, in this instance where the wife left the husband; where the husband has resided in the house since the wife’s departure; where the husband has in fact made all the payments on the house, the trial court did not abuse its discretion in awarding the house to the husband. In fact, this court cannot see how the learned trial court could have done otherwise.

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: WRIGHT, Presiding Judge.

text:
    Ronald David HALLFORD v. Mary Dianne HALLFORD.
    Civ. 2301.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1980.

      George E. Trawick, Ariton, for appellant.
    Joel M. Nomberg and Donald C. McCabe of Nomberg, McCabe & Fulford, P. A., Da-leville, for appellee.
   WRIGHT, Presiding Judge.

Father appeals from an order of the Circuit Court of Dale County denying his petition for modification of a child custody decree. We affirm.

The parties to this cause were divorced in July 1978 on the ground of incompatibility upon the complaint of the father. The decree, by agreement of the parties, awarded custody of the two minor children, ages six and three, to the mother and allowed the father visitation privileges. The husband was to pay monthly child support of $200 and neither parent was to remove the children from Alabama without the written consent of the other.

The mother remarried in March 1979. In December 1979 the mother informed the father by telephone that she, her second husband and the children were moving to Texas. They left Alabama on December 28, 1979. (Subsequently, the second husband left the mother and children and she has filed for divorce in the state of Texas.)

On January 16, 1980, the father filed a petition, in the court which rendered the divorce decree, calling on the mother to show cause why she should not be cited for contempt and seeking custody of the children by modification of the original decree. The trial court granted, ex parte, a temporary custody and restraining order on February 2, 1980, directing the mother to return the children to the court’s jurisdiction or deliver them to the father.

Before the mother received notice of this order, the father appeared in Texas and took the children without informing her. The mother subsequently filed an answer to the petition of the husband and her own petition for writ of habeas corpus.

The trial court set all the matters for hearing on April 8, 1980, and after an ore tenus hearing found that custody should continue in the mother, that the mother and children were no longer compelled to live in Alabama, and that all other aspects of the prior decree were to remain in effect. The father filed notice of appeal to this court.

At the outset, we note that in child custody proceedings it is well established that the judgment of the trial court, after testimony is taken ore tenus, is presumed correct and will not be disturbed unless plainly and palpably wrong and contrary to the great weight of the evidence. Blankenship v. Blankenship, 266 Ala. 182, 94 So.2d 743 (1957); Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210 (1975). The father, as the party seeking to modify the child custody decree, had the burden of proving a material change in circumstances since the last custody decree which has so affected the welfare and best interests of the children as to require a change in custody. Frazier v. Frazier, 342 So.2d 1320 (Ala.Civ.App.1977).

The father set out four allegations as grounds to support his petition for modification and order to show cause. It is not necessary for us to discuss the first three of these on this appeal. The testimony as to these three allegations was of the familiar charge-countercharge variety so often found in cases of this nature. The evidence produced by the father in support of these was at best conflicting and inconclusive and, at worst, nonexistent. Suffice it to say that the finding of the trial court was not contrary to the great weight of the evidence as to these allegations and will not be overturned.

The fourth allegation was supportive of the order to show cause and merits a brief discussion. It alleges that the mother violated the original decree by removing the children from the state without the written consent of the father. The final judgment of the court below not only refused to hold the mother in contempt for this action but, in fact, modified the original decree to allow her to reside in Texas with the children. After reviewing the record thoroughly, it is apparent to us that the court felt that, in light of the improved conditions existing for the children upon the move to Texas, any failure to obtain written consent was an insufficient act upon which to base a contempt action. It is also undisputed that the mother did notify the father of the move by telephone. It was for the court to determine if its decree had been violated to a sufficient extent to amount to contempt. Randolph v. Randolph, 45 Ala.App. 326, 229 So.2d 923 (1970).

It is apparent from the record and the decree itself that the court had the welfare of the children uppermost in mind in rendering its decision. The mother has found a stable, well-paying job in Texas. The children are near a school and have made new friends and acquaintances close by. The grandmother looks after them while the mother is at work or unavailable. Other members of the family are also close at hand. In addition, the mother has agreed to continue allowing the children to visit with their father during the summer and holidays, and has agreed to provide transportation for that purpose. The court’s decree allowing the move to Texas' was not an improper exercise of discretion regarding the welfare of the child. Hayes v. Hayes, 192 Ala. 280, 68 So. 351 (1915).

The trial court will continue to have the responsibility of supervising this case as necessary, and this court, in view of the record, finds no error in its judgment.

Appellee-mother in brief requests this court to grant her attorney a fee for his services on appeal. We hereby grant to appellee the sum of $500 for her attorney’s fee.

The decree of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Janie Hilton WIKLE v. Luther M. WIKLE.
    Civ. 2347.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1980.

      Walter E. Duffey, Huntsville, for appellant.
    James T. Baxter, III of Berry, Abies, Tatum, Little & Baxter, Huntsville, for ap-pellee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals, contending the trial judge abused his discretion in the division of property and in the award of periodic alimony.

We affirm all aspects of the learned trial judge’s decree with the exception of the two year limitation placed on the periodic alimony award.

This court has carefully perused the rather lengthy record in this appeal. We do not deem it necessary or prudent to set out in detail all the evidence. However, viewing the record with the attendant presumptions accorded the trial court’s decree, the following pertinent facts are revealed.

The parties have been married for approximately fifteen years. Both had been married previously. No children were born of the union. The wife is approximately fifty years of age. The husband is in the insurance business. His gross income for the year immediately prior to the divorce was approximately $80,000. The net worth of the husband is over $1,250,000. There is evidence that the husband’s net worth was substantially the same when the parties married, to wit, approximately $900,000. The wife has not been substantially employed since the marriage. She has no marketable skills. The wife has had back surgery and suffers with arthritis. A physician testified that in his opinion the wife was not capable of working.

There is ample evidence that the wife has a serious alcohol problem and possible drug problem. There was also some evidence that the husband was somewhat intemperate in his use of alcohol although not to the extent of the wife. There is also evidence that the husband attempted to get the wife to seek help with her alcohol and/or drug problem. The husband was unsuccessful in this effort.

With the above in mind, the trial court divorced the parties, made a division of property, and awarded the wife $1,000 per month periodic alimony for a period of twenty-four months or until the death or remarriage of the wife. In no event was the periodic alimony to exceed twenty-four months. The trial court specifically stated in its decree that the periodic alimony payments were for the purpose of allowing the wife to “readjust her life and become gainfully employed.” The trial court further found the wife’s conduct materially contributed to the breakdown of the marriage. The wife in the division of property was awarded a 1976 automobile, clothing, jewelry, and certain furniture. The wife received no real estate or income producing personal property.

As we perceive the wife’s contention in brief, she contends the trial court abused its discretion in the division of property. The division of property pursuant to a divorce is a matter within the sound discretion of the trial court and will not be disturbed on appeal except upon a showing of plain and palpable abuse. Ray v. Ray, Ala.Civ.App., 379 So.2d 627 (1980); 8 Ala. Digest Divorce Key 286(5).

With the facts as set out above in mind, with particular emphasis on the wife’s alcohol and/or drug problem and the fact the husband’s accumulation of wealth was in large measure accomplished prior to the marriage, we cannot say the trial court abused its discretion in the division of property. The division of property is affirmed.

As indicated above, the trial court limited the award of periodic alimony for a period not to exceed twenty-four months. The wife contends this is error and we agree.

An award of periodic alimony is a matter within the judicial discretion of the trial court. An exercise of that discretion will not be reversed except for palpable abuse. White v. White, Ala.Civ.App., 374 So.2d 335, writ denied, 374 So.2d 337 (1979); 8 Ala. Digest Divorce Keys 286(2), (3), and (5).

While there are no fixed standards for determining whether periodic alimony is to be granted, there are factors the trial court should consider. These include the future prospects of the parties, their ages, sex, health, station in life, and how long they were married. Kabaci v. Kabaci, Ala. Civ.App., 373 So.2d 1144 (1979); Shirley v. Shirley, Ala.Civ.App., 350 So.2d 1041, writ quashed, 350 So.2d 1045 (1977); White v. White, supra. These same factors should also be considered in determining the amount and duration of the award.

As indicated, the wife has virtually no separate estate. She has virtually no employment record. She is in ill health. She has been married to a millionaire for approximately fifteen years.

This court is fully cognizant of what the learned trial judge was attempting to accomplish. That is that the wife should rehabilitate herself. However, considering the husband’s earning capacity and his wealth, the uncertainty of the wife’s future prospects, and her alcohol or drug problem, we find the trial judge did abuse his discretion in limiting the award of periodic alimony to two years.

As indicated, we reverse the trial court’s decree only insofar as it relates to the limiting aspect of the award of periodic alimony. We would note that periodic alimony is, of course, under appropriate circumstances, subject to modification.

The wife has requested an attorney’s fee for representation on appeal. A fee of $500 is awarded.

The case is due to be affirmed in part, reversed in part, and remanded for entry of a judgment not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Jessie Mae STEELE v. James M. CARTER, Acting Director, Department of Industrial Relations and South Highlands Hospital.
    Civ. 2360.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1980.

      Douglass Culp, Birmingham, for appellant.
    George Coeoris, Gen. Counsel, and Frank D. Marsh and Harry A. Lyles, Asst. Gen. Counsel, State of Alabama Dept, of Industrial Relations, Montgomery, for appellee.
    Meade Whitaker, Jr. of North, Haskell, Slaughter, Young & Lewis, Birmingham, for South Highlands Hospital.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

After denial of her claim for benefits by the Appeals Referee and the Board of Appeals, claimant appealed to the Jefferson County Circuit Court pursuant to § 25-4-95, Code of Alabama 1975. After a de novo hearing, the circuit court denied benefits and the claimant appealed to this court. We affirm.

The claimant was discharged from her employment as a nursing assistant, pursuant to § 25-4-78(3)(b), for sleeping on the job after previous warnings. She was denied unemployment compensation benefits under that section.

The evidence at trial showed that claimant was found sleeping while at work on three different occasions within a seven-month period beginning in July 1977. Claimant knew that it was hospital policy not to sleep on the job and was made aware, after the second incident, that if caught again she would be terminated. The evidence against the claimant was in the form of testimony from the Director of Nursing Services at the hospital and exhibits introduced by way of that testimony. These exhibits were written reports of the claimant’s sleeping on the job which were made by her superiors in the normal course of the hospital’s business. The claimant testified on her own behalf, stating that she was not actually sleeping at the time of the first incident but was only “nodding,” and that she had no knowledge of the third incident. Claimant admitted the second incident. This testimony and the accompanying exhibits were essentially all the relevant evidence at the trial.

On appeal the claimant is arguing, as we understand her brief, that the court should have given less weight to the written reports of her misconduct in sleeping on the job than to her denial, and thus found in her favor. This argument is not well taken. There is no dispute that these reports were admissible and, indeed, were not objected to when offered at trial. Rule 44, ARCP. When evidence is before the court sitting as the trier of fact, it is for the court to determine the weight of and inferences to be drawn from it. 18A Ala.Dig., Trial, Key No. 382.

The ore tenus rule applies. When an unemployment compensation case is heard orally before the court sitting without a jury, the court’s findings are presumed correct unless shown to be clearly contrary to the great weight of the evidence. Davis v. Prestwood, 381 So.2d 85 (Ala.Civ.App.1980).

There was conflicting evidence. The judge was free to choose which he would believe. It was his duty to resolve the conflicts. Gann and Lewis Roofing Co., Inc. v. Sohol, 359 So.2d 815 (Ala.Civ.App.1978); Lowe’s of Dothan, Inc. v. Acme Drywall Co., 341 So.2d 166 (Ala.Civ.App.1976).

The court found the claimant was properly terminated after warning. We cannot say the great weight of the evidence was contrary to such finding. We therefore affirm the judgment of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ray NASH v. Robert VANN, Jr.
    Civ. 2381.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1980.

      Robert E. Willisson of Willisson & Tucker, Huntsville, for appellant.
    Macon L. Weaver of Weaver & Price, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The complaint sought damages for the breach of a contract to pay a real estate sales commission. Among other defenses not here pertinent, in his answer the defendant (Nash) pled a lack of consideration for the agreement. After a non-jury trial, a final judgment was rendered in favor of the plaintiff (Vann) for $2,000. The defendant’s motion for a new trial, which was overruled by the court, contained one ground, that the court erred in finding that the consideration was sufficient to support the contract. The defendant appeals, raising as the only issue the same matter as was contained in his new trial motion.

Because of the familiar presumption favoring the trial court’s findings, we will briefly state only portions of the evidence tending to uphold the judgment.

Mr. Vann has been a real estate broker since 1969, operating as Bob Vann Agency. A warehouse had become available for purchase from a bank, and Mr. Vann re-contacted his nephew, Mr. Nash, to ascertain if Mr. Nash was interested in joining him as a partner in purchasing the property, and he received an affirmative reply, but was asked what they would do with it. Mr. Vann stated that they could lease it, or he could place it with Bob Vann Agency and sell it.

On June 22, 1976 the bank and the partnership entered into a written sales contract regarding the purchase of the property; however the transaction was not closed until the bank executed a deed to them on August 20,1976. The two partners contributed equal sums of money towards the purchase price of the property and executed a mortgage to the bank for a balance due thereon.

The warehouse was placed for sale with Bob Vann Agency, who listed it with Multiple Listing Service. Mr. Brooks, another real estate broker, was contacted by Mr. Vann as to selling the warehouse. Hall’s Huntsville Wholesale Florists (Hall’s) inquired of Mr. Brooks about warehouse property, and, since he was ill, Mr. Brooks requested that Mr. Vann show the property to Hall’s. Mr. Vann testified as follows:

I went over to his office, picked the people up, and I guess I spent at least a day with them, maybe a day and a half with the people selling the property. Well, they were going to buy it, then when we got down to the last thing, they said they wanted to know if we would lease it to them with an option to buy. I said, “Well, I’m one of the owners, I can say for myself that I would, but I will have to ask Mr. Nash.” So I did call him and tell him what I had going and what the deal was on it and everything, and he said, “Well, you handle it, go ahead, it’s all right with me whatever you want to do.” So then I went with the Halls down to Mr. Michael Moore’s office and he made up a quick paper, other papers were to be made up at a later date, but just a form there to lease, or a lease agreement. And I signed those papers. I called him, he said, “Go ahead, we will sell it to them on that kind of deal.” I said, “Okay.” And everything was explained at that time about the whole transaction. I told him at that time we would have to pay Mr. Brooks and myself.

While there is evidence which indicates that the conversation occurred on or about October 6, 1976, it may be clearly inferred from the above quoted testimony that the agreement for the payment of a commission to the real estate brokers was verbally assented to by Mr. Nash prior to the execution of any instrument with Hall’s.

On August 16, 1976 Mr. Vann, on behalf of the partnership, and Hall’s signed an agreement to later execute a lease, which instrument also granted to Hall’s an option to purchase the warehouse. The final lease, with the same option to purchase, was executed by Hall’s and by both of the partners on October 6, 1976. On the same date Mr. Nash, Mr. Vann and Mr. Brooks each signed a two page written document, which, in short, provided that, in the event Hall’s exercised the option to purchase the property, Mr. Nash and Mr. Vann would pay to each of the brokers, Mr. Brooks and Mr. Vann, the sum of $4,000; and it included provisions for brokerage fees in the event the option was not exercised but Hall’s ultimately purchased the property after renegotiation.

Hall’s exercised the option to purchase the warehouse and a deed was executed to them by Mr. Nash and Mr. Vann on August 23, 1978. Mr. Nash paid over $1;800 towards Mr. Brook’s commission, but refused to pay any portion of Mr. Vann’s fee. Hence this litigation.

Although, generally, a partner is not entitled to any compensation for services rendered by him to the partnership, the partners may agree that a partner shall receive compensation, or such an agreement may be implied. Code of Alabama 1975, § 10-8 — 43(6); Murphy v. Dees, 293 Ala. 529, 307 So.2d 1 (1975); 68 C.J.S. Partnerships § 94. The existence or non-existence of such a contract, or of the sufficiency of the consideration therefor, was a question for the trial court to determine from the facts and circumstances of the case and reasonable inferences therefrom. The court could have determined that, before any binding agreement was made with Hall’s, the partners agreed that Mr. Vann, along with Mr. Brooks, would receive brokerage fees and that subsequently, on October 6, 1976, such agreement was merely reduced to writing and signed by the three parties concerned.

The written brokerage fee contract imports consideration by virtue of § 12-21-112 of the Code of Alabama 1975, which provides:

Every written contract, the foundation of the action, purporting to be executed by the party sought to be charged .... is evidence of the existence of the debt or that the party undertook to perform the duty for which it was given and that it was made on sufficient consideration, but may be impeached by answer, and, when so impeached, the burden of proof is on the defendant.

Lack of consideration is a matter that would constitute an avoidance or affirmative defense, and it is required to be especially pleaded under ARCP 8(c), as was done in this case. The burden of proof was upon Mr. Nash to reasonably satisfy the trier of the facts, the trial court, from the evidence that there was no legal consideration for the promise to pay the brokerage commission to Mr. Vann. It was within the unique province of the circuit court to determine whether such burden of proof had been met. Its decision was contrary to the defendant’s answer of no consideration. ■

Adequate consideration exists, or is implied, if it arises from any act of the plaintiff from which the defendant derived a pecuniary benefit (the profitable sale of the warehouse), if such act was performed by the plaintiff to the desired end, with the expressed or implied assent of the defendant (which the trial court must have ascertained from the evidence to have been given). That which creates and carries a benefit to the party promising, or causes trouble, injury, inconvenience, prejudice, or detriment to the other party, is sufficient consideration. Christie v. Durden, 205 Ala. 571, 88 So. 667 (1921). Conflicting evidence as to whether the consideration was adequate naturally creates a question of fact to be determined by the fact trier. Hyatt’s Supply Co. v. Lyle, 222 Ala. 460, 133 So. 3 (1931); Bush v. Russell, 180 Ala. 590, 61 So. 373 (1913).

Here, the evidence is such that it can be reasonably construed to support the judgment of the circuit court. For the reasons previously discussed, we cannot say that the trial court was clearly and palpably wrong with regard to there being adequate consideration to support the contract. The cases are too numerous to cite which hold that, on appeal, the findings of the trial court are presumed to be correct, if there is any evidence which supports its conclusion, unless it is clearly and palpably wrong. We must affirm.

The foregoing opinion was prepared by retired circuit judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.