author: LOBRANO, Judge.

text:
    Ralph R. ALEXIS v. Florence Linder, wife of/and Joseph PACACCIO, Jr.
    No. 12484.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Porteous, Toledano, Hainkel & Johnson, Ralph R. Alexis, III., New Orleans, for plaintiff-appellant.
    Manard, Schoenberger & Ryan, Kevin C. Schoenberger, New Orleans, for defendants-appellees.
    Before LOBRANO, BARRY and KLEES, JJ.
   LOBRANO, Judge.

This suit was filed by Ralph Alexis, Jr., appellant, against Florence and Joseph Pa-caccio, Jr., appellees, seeking $10,654.23, the balance allegedly due on an invoice submitted by Alexis for his services in the renovation of the Pacaccio’s home in Claiborne Hills Estate. The amount sought by Alexis was determined by adding the following amounts: (1) the cost of materials and supplies not previously invoiced; (2) the fees due for drafting services rendered; and, (3) the “standard” overhead and profit due a contractor.

The Pacaecios maintained that they had never entered into an agreement with Ralph Alexis to hire him as a contractor, but rather employed him only to draw plans. Thus, they maintain, he is not entitled to a 15% overhead on all costs of the job, plus a 10% profit. The trial judge held that there was no agreement between the parties indicating that Alexis was to be a general contractor, but awarded him $570.40 calculated in the following manner.

$1,008.00 representing 126 hrs. at $8.00 per hr. for plaintiff’s drafting work.
1,562.40 representing invoices 5 and 6 for materials and supplies purchased by _ plaintiff
$2,570.40
-2,000.00 representing the draw taken by plain-_ tiff during the job
$ 570.40

In this case, as in the case of all contracts, there must be consent by both parties as to all aspects of the subject of the contract. “Consent results from a free and deliberate exercise of the will of each party where the intent has been mutually communicated or implied, La.C.C. Art. 1819, and accepted by the party to whom a proposal is made. La.C.C. Arts. 1798, 1800.” Illinois Central Gulf Railroad Company v. International Harvester Company, 368 So.2d 1009 (La.1979) at p. 1011.

The consent necessary to form a contract may be either expressed or implied. La.C.C. Arts. 1780, 1811. Those cases in which consent is implied are particularly determined by law. La.C.C Art. 1781.

* # # * # *
“Implied, when it is manifested by actions, even by silence or by inaction, in cases in which they can from circumstances be supposed to mean or by legal presumption are directed to be considered as evidence of an assent.” La.C.C. Art. 1811
“Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract....” La.C.C. Art. 1816

All parties agree that there was no written contract or agreement indicating that appellant was to act as contractor. Instead, Alexis attempted to prove that a contract was in existence because of the “implied” consent of the defendants. He testified that he had acted as contractor for these same defendants some years earlier in the construction of their New Orleans home. He also testified that he was a licensed contractor and that the Pacaccios knew him as such.

On the other hand, Mrs. Pacaccio testified that she never had any intention to hire any contractor for the renovation work and planned to perform that duty herself. Diane Ramey, a witness called by the defendants, testified that she was told by Mrs. Pacaccio that Alexis should not be hired by her (Ramey) as a contractor, but only hire him to draw plans. This conversation took place at a Labor Day barbecue, about the same time Alexis began to work for the defendants.

“In cases where the law does not expressly create a legal presumption of consent from certain facts, it is left to the discretion of the judge to determine if consent is to be implied from particular circumstances of the case.” Illinois Central Railroad Co. v. International Harvester, id. at 1012.

Our review of the record convinces us that the trial court did not err when it concluded that there was no meeting of the minds or consent between Alexis and the Pacaccios. That being so, there was no contract between the parties.

In the absence of an agreement between the parties as to price, plaintiff is entitled to be paid for the work done by him under the principles of quantum meru-it, the source of which is La.C.C. Art. 1965. Skains v. White, 391 So.2d 1327 (La.App. 2nd Cir. 1980)

“Quantum meruit is an equitable doctrine, based on the concept that no one who benefits by the labor and materials of another should be unjustly enriched thereby. Under these circumstances, the law implies a promise to pay a reasonable amount for the labor and materials furnished, even in the absence of a specific contract therefor.” Swiftships, Inc. v. Burdin, 338 So.2d 1193 (La.App. 3rd Cir. 1976) at 1195.

The testimony at trial although contradictory indicates to us that during the months of September and October, plaintiff performed many tasks which accrued to the benefit of defendants. Mr. Alexis prepared numerous sketches, particularly of the bathroom and kitchen, helped secure the services of Henry Randle, a carpenter, and purchased numerous materials and supplies for the Pacaccios. He accompanied Mrs. Pacac-cio to the showroom of R. J. Marchand to assist in the selection of kitchen cabinets and was present on the job-site during much of the time in question.

Plaintiff’s services were terminated on or about November 1, 1978 at which time he submitted his final invoice to defendants which they refused to pay. At trial plaintiff introduced into evidence various receipts and a cash book which show the substantial amount of time and efforts expended by plaintiff on defendants’ behalf.

We hold that the trial court erred in not awarding Ralph Alexis additional compensation for the work he performed above and beyond the drafting of plans.

During the course of his employment, Ralph Alexis received $400.00 per week for 5 weeks which he considered a draw on his future profit as contractor and defendants, by their own testimony, considered as salary. Mrs. Pacaccio stated she expected to pay Alexis like an architect.

The trial court subtracted this $2,000.00 from their award of the fee for drawing and the unpaid invoice, thus arriving at the judgment of $570.40.

We hold that this was error and that Ralph Alexis was entitled to be paid the $1,008.00 for his drawings and $1,562.40 for the materials he purchased on behalf of the Pacaccios (invoices 5 and 6, Alexis Exhibit # 2) without deducting the $2,000.00 previously received. He earned that $2,000.00 during the course of the job.

For the foregoing reasons, the judgment of the trial court is amended by increasing the principal award in favor of plaintiff, Ralph Alexis, Jr. and against defendants, Florence and Joseph Pacaccio from $570.40 to $2,570.40. In all other respects the judgment of the trial court is affirmed.

Amended and as Amended Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. Terry MOLENAAR, widow of Arthur John Phillpott v. McGILL MANUFACTURING CO., INC., August J. Berner, Frederick W. Berner, all other Officers, Agents and/or Employees of Berner’s Inc., Sentry Insurance, a Mutual Company and/or Sentry Indemnity Company.
    No. 12568.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearing Denied March 19, 1982.

      Schaff & Currier, Val A. Schaff, III, George L. Wax, New Orleans, for plaintiff-appellant.
    Wood Brown, III, New Orleans, for defendant-appellee McGill Mfg. Co., Inc.
    Hulse, Nelson & Wanek, John I. Hulse, IV, New Orleans, for defendant-appellee August J. Berner, Frederick W. Berner and Sentry Ins., a Mut. Co.
    Before LOBRANO, BARRY and KLEES, JJ.
   LOBRANO, Judge.

Mrs. Terry Molenaar, widow of Arthur John Phillpott instituted these proceedings in the Civil District Court of Orleans seeking damages for the wrongful death of her husband, Arthur J. Phillpott. Decedent was a 22 year old air-conditioning mechanic employed by Berner’s Inc. He was initially employed in May of 1973 as a mechanic’s helper, and was promoted to air-conditioning mechanic around May 15, 1975. On June 2, 1975 while working on the installation of a central heating and air-conditioning system in the attic of the home of J.T. LaNasa located at 3611 Gentilly Boulevard, New Orleans he was electrocuted.

The evidence shows that on June 2, 1975, the decedent and his helper, Ronnie Ryals, arrived at the job site sometime in the early afternoon, whereupon Ryals began unloading tools from their service truck in order to start working. It was necessary that decedent work in the attic of the LaNasa home which had no electrical current flowing to it. In order to illuminate the working area, Ryals took a trouble light from the truck, plugged it into an extension cord that was lying on the floor of the living room and hung the light over a rafter in the attic. The cord on the trouble light was a three wire cord and required a three-wire socket to plug into. The extension cord used was a three-wire extension cord which had such a three-wire socket. However, the LaNasa home was an older home which had a two-wire system, and the receptacle supplying the electricity to the extension cord, and thence to the trouble light was a dual-slot type. In order to plug the three-wire extension cord into the two-slot receptacle, a three-pronged adapter had to be used. This adapter has a small green wire, commonly called a “pigtail”, which must be grounded in order to properly ground the entire circuit. The record indicates the “pigtail” was not connected or grounded in this particular case.

The decedent worked in the attic for approximately 3 hours when he told his helper to gather their tools and prepare the daily report as he would soon be ready to leave. The testimony shows that the temperature in the attic was in excess of 100 degrees, and that decedent was perspiring profusely throughout the afternoon. As Ryals was preparing the daily report, he realized that approximately 20 to 30 minutes had elapsed since decedent told him to gather the tools. Ryals went back in the attic and found decedent slumped over the central heating and air-conditioning unit. Immediately Ryals called to LaNasa, and a friend, Danny McCune, to help get decedent out of the attic. Their first impression was that Mr. Phillpott had fainted from heat. However it was later learned that he died from electric shock. The evidence was overwhelming at trial that decedent was electrocuted, and the cause of the electric shock is the real issue of this case.

The plaintiff sued McGill Manufacturing Co., Inc., alleging that their product, the trouble light, was manufactured, designed and/or constructed defectively. In addition, August J. Berner and Frederick W. Berner were sued as executive officers of Berner’s Inc.

This matter was tried before a jury, and after eight days of testimony their verdict was as follows:

1) The trouble light was involved in the accident which caused Phillpott’s death.
2) The trouble light was not in normal use at the time of the accident.
3) The trouble light was not defective in its design, manufacture or construction at the time it left the manufacturer.
There was negligence involved in the assembly of the light, and that it did contribute to the accident. 4)
5) Decedent did not negligently assemble the light.
6) Neither Frederick nor August Berner breached any personal duty owed to decedent.
7) Peppo (the field supervisor) was delegated the duty of care owed to decedent, but he did not breach same.
8) Decedent was negligent in failing to use the grounding cable, adapter pigtail, ohmmeter or other devices to ground the trouble light and in knowingly using the ungrounded light when he was wet with perspiration.

As a result of that verdict, plaintiff perfected this appeal alleging 14 specifications of error. Those can be summarized or categorized as follows. Specifications 1 and 2 deal with the charges or lack thereof given on products liability. Specifications 3, 4 and 5 deal with the charges or lack thereof given on executive officer responsibilities and duties. Specifications 6, 7, 8, 9 and 10 deal with the charges or lack thereof given on contributory negligence. Specification 11 merely alleges that the jury verdict was manifestly erroneous. Specifications 12, 13 and 14 allege error by the trial court for excluding and including certain evidence during the course of the trial.

Before this Court immerses itself into the literary canyons of products liability and executive officer responsibilities, we feel compelled to set forth our duty as an appellate court since all parties have thoroughly briefed this point. The often cited case of Canter v. Koehring, 283 So.2d 716, (La.S.Ct.1973) and subsequent cases, particularly Arceneaux v. Domingue, 365 So.2d 1330 (La.S.Ct.1978), set forth the standard which we are to follow. That standard requires that this Court not disturb the factual findings of the trial court (whether judge or jury) in the absence of manifest error. We also understand that our duty is to review the entire record to determine if there is manifest error in the ultimate conclusion reached by the trial court.

“Therefore, the appellate review of fact is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (Manifestly erroneous).” Arceneaux v. Domingue, id. at p. 1334.

We will not substitute our own evaluations or preferences for that of the fact trier unless those of the fact trier are clearly wrong.

Product Liability (Specifications 1 and 2)

The evidence reveals that Berners purchased the subject trouble light in a disassembled condition. That is, the light was not connected to a cord and apparently it is sold by McGill with or without such a cord. Although the testimony fails to reveal who made the connection of the light to its cord, we are satisfied that someone at Berner’s did so. Plaintiff alleges that the light was defective for a variety of reasons, including, a failure on the part of McGill to provide proper instructions for installation and proper “danger” warnings.

The Louisiana Supreme Court in Weber v. Fidelity and Casualty Co., 259 La. 599, 250 So.2d 754 (1971), as well as the subsequent jurisprudence has well defined the guidelines to be applied in the present case. In order for a plaintiff to prevail he must prove that the product was in normal use, that the product was defective in design or manufacture, and that the defect was the cause of the accident or injuries. In Weber, supra, the Supreme Court said:

“A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff, claiming injury has the burden of proving that the product was defective, i.e. reasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.” Weber v. Fidelity and Casualty Co., id. at p. 755.

The latest expression by the Supreme Court in this area appears in Hebert v. Brazzel, 403 So.2d 1242 (La.1981) wherein the principles of Weber are reaffirmed, with the following additional comment:

“A manufacturer must give warning of any danger inherent in this product’s normal use which is not within the knowledge of an ordinary user.” Hebert v. Brazzel, id. at p. 1245.

Appellant complains that the trial judge was in error in failing to charge the jury in accordance with the language of Penn v. Inferno Manufacturing Corporation, 199 So.2d 210. We have reviewed the trial court’s jury instruction and have found them proper when considering all of the evidence presented at trial. The lower court gave a clear and concise recital of the Weber case standards, and we find no error in its charges in that regard.

Turning to the basic factual issues on the alleged defective light, the Court makes the following observations. Plaintiff’s expert Dr. Leonard Adams testified that the spacing between the uninsulated live parts and accessible metal did not conform to acceptable standards. Because of the closeness of the spacing, moisture could bridge the “space gap” and cause an electrical short. Particularly, he stated that the spacing between the convience outlet and the ground connection was defective and was the probable cause of Phillpott’s electrocution. Defendant, McGill, however, pointed out that the light was designed in accordance with the National Electrical Code. This was even admitted by plaintiff’s expert, although he felt the code should be rewritten on this aspect. It was also brought out that Dr. Adams did not examine the “trouble-light” until approximately three years after the accident. Many of the witnesses testified that the light had been handled quite often, and appeared to be materially altered since their initial viewing of same.

Appellant also argues that the light was defective because of the use of a bone fiber paper between the convience outlet and the “on/off” switch and that said fiber was not moisture proof. Dr. Adams suggests that perspiration from the decedent could have penetrated the light causing the bone fiber paper to become a conductor of electricity, thus causing current to flow through the protective cage around the light bulb, and ultimately through decedent’s body. Dr. Adams described in detail the tests he performed, and explained their results. Mr. John Mass, defendant’s expert, and vice president of McGill testified that he had been involved in the design and manufacture of this type of implement since 1965. That the light was designed in accordance with the National Electrical Code, was in complete compliance with the Underwriters’ Laboratories standards and that this was the very first time there had been an accident with this type of light.

As a last argument, appellant contends that defendant, McGill failed to provide the consumer with proper instructions for installation, and failed to warn of the danger in the use of the light. The document submitted in evidence which purports to be the assembly instructions has been approved by the National Electrical Code and Underwriters’ Laboratories. We find they are clear and concise, and were viewed by the jury.

Applying the evidence to the law as cited in the Weber case, and subsequent cases, the jury found that the light was not defective in its design or manufacture at the time it left McGill, and further that it was not in normal use at the time of the injury. The evidence was overwhelming that the light was not properly grounded at the time of the accident, and thus we conclude there was no error in that finding. Further, we find no manifest error in their finding of no defect. Even if the jury had found a defect in the light, the obvious fact that it was not being used properly would have precluded recovery. The trouble-light is designed and manufactured for use with a three wire grounding system, the purpose of which is to prevent electrical shock should a short circuit occur. If the grounding system is not used as intended, certainly that is supportive of the conclusion that it was not in normal use. The jury reached its verdict in this regard after hearing all of the testimony, and reviewing all the evidence presented. We see no reason to change its conclusion.

Executive Officer Liability (Specifications 3, 4 and 5)

As previously stated August Berner and Frederick Berner, as executive officers of Berner’s Inc. were sued on the grounds that they failed to have a safety program in effect, and failed to furnish decedent with a safe place to work. Berner’s Inc. was originally started by Fred and August Berner sometime in 1947. They specialize in heating and air-conditioning sales, service and installation. In June of 1975, August Ber-ner was President and General Manager of the Company. Fred Berner was only involved in the sales and appliance part of the company and had no dealings with construction or installation. At the time of the accident Berner’s had approximately 100 employees, approximately 15 of which were mechanics. The chain of command appeared to be August Berner, President and General Manager, then Walter Bott, treasurer, Richard Laudun, construction service manager and Joe Peppo, field supervisor.

The testimony of August Berner reveals that as of June 1975, he had delegated to Richard Laudun the duty to provide training and safety sessions to the mechanics and helpers. It is clear that these meetings did not specifically deal with safety, but all features of service and installation. Basic electricity was necessarily a part of these meetings, as well as safety. As stated by August Berner, Richard Laudun and Octave (Joe) Peppo, safety was a day to day occasion at Berner’s. August Berner also testified that putting together the trouble-lights was the job of the parts manager, Jake Kunzlies. However several other former mechanics, as well as Peppo and Laudun, testified that it would not be unusual for a mechanic to put a light together himself. Berner and his supervisors were well aware that each mechanic had enough knowledge about basic electricity from their practical experience to competently put such a light together.

Richard T. Laudun testified that Joe Pep-po was designated the safety man in the field, and that most of the safety at Ber-ners was taught on the job site. Peppo acknowledges that this responsibility was delegated to him, and testified that safety was emphasized on a day to day basis. Peppo’s background and qualifications, as well as his years of practical experience made him the logical choice by Laudun. Appellant strenuously raises the issue that Berner’s had no person designated as “safety manager" per se, nor did they have any special safety classes. Peppo testified that he held training classes, which included safety and basic electricity, every 2nd Tuesday from 5 to 7 in the evenings. In addition the helper trainees received training on a day to day basis from the mechanics that they were working under. As confirmed by Peppo, it would have been impossible to check each and every piece of equipment on a daily basis. The training and experience of the mechanics was such that a certain responsibility in that regard had to rest on their shoulders. More particularly, the testimony of Mark Aucoin, Milton Flemming and John Kain, all former mechanics at Berner’s indicates that their training and experience prior to becoming mechanics included basic safety techniques. John Kain testified that he installed the duct work and insulation in the LaNasa attic a day or so prior to decedent working there. He grounded all of the power tools he used, including his trouble light, to the sewer-vent pipe. This, he says, was good electrical practice, and his prior experience and training told him to do this.

Prior to the enactment of Act 147 of 1976, amending La.R.S. 23:1032, which now precludes such actions, an officer, agent or employee or principal could be liable to a third person (including a co-employee) when injuries caused to such third persons resulted from a breach of a duty imposed by his principal or employer upon the officer, agent or employee. The most typical breach of duty is the one to provide a safe place to work. The criteria which must be satisfied before individual liability will be imposed on executive officers is set forth in Canter v. Koehving, 283 So.2d 716 (La.S.Ct. 1973).

“1. The principal or employee owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
2. This duty is delegated by the principal or employer to the defendant.
3. The defendant officer, agent or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk of others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or malperformance and has nevertheless failed to cure the risk of harm.” Canter v. Koehring, id. at 721.

Specifically, in order to find an executive officer liable, there must be a breach of “personal fault” as opposed to vicarious fault. If the defendant’s general responsibility has been delegated to a subordinate who is responsible, and qualified, then he cannot be held personally liable for the negligent performance of this responsibility “. .. unless he personally knows or personally should know of its nonperformance or mal-performance and has nevertheless failed to cure the risk of harm.” Canter v. Koehring, id. at 721.

We do not disagree with the contention of appellant that Berner’s Inc., as decedent’s employer, had a duty to provide him with a safe place to work. However, we disagree with the allegation that August or Frederick Berner or any other supervisor or agent of Berner’s is responsible. The evidence is clear that August Berner delegated responsibility to Richard Laudun to oversee training and safety. Laudun in turn, delegated field safety to Octave (Joe) Peppo. Both of these men were more than qualified to handle these responsibilities, and we find they were carried out. There is no evidence that either Frederick or August Berner had any constructive or personal knowledge of any fault with the trouble light. We agree with the finding of the jury in this regard.

Contributory Negligence (Specifications 6, 7, 8, 9 and 10)

Since we have reached the conclusion that there was no breach of duty by an executive officer, agent or employee at Ber-ner’s Inc., the question of contributory negligence is moot. However, we must agree with the jury’s findings that decedent was contributorily negligent. All of the experts testified that the accident would probably not have happened had the trouble-light been grounded. Decedent had enough basic electrical knowledge to know this.

For the foregoing reasons, the judgment of the lower court is hereby affirmed.

ON REHEARING

Appellant argues on rehearing that the electrocution of decedent resulted from the negligence of a co-employee. However, assuming arguendo there was negligence on the part of a co-employee, that negligence is not attributed to Frederick or August J. Berner under a vicarious liability theory. Appellant must prove that those executive officers breached a duty owed to decedent. The jury found that there was no breach of duty.

Rehearing denied.

      . The LaNasa home was undergoing extensive renovations and the extension cord was apparently left there by other persons working on the home.


text:
    Bernard L. LACOUR v. Dorthy McNair LACOUR.
    No. 53309.
    Supreme Court of Mississippi.
    Feb. 24, 1981.
    Fred T. Rucker, Scales & Scales, Jackson, for appellant.
    Jack G. Moss, Keyes, Moss & Piazza, Raymond, for appellee.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

Before SMITH, P. J., and WALKER and DAN M. LEE, JJ.

Affirmed.


text:
    Owen JORDAN, d/b/a Jordan Tile Company v. Marilyn M. MENDOZA.
    No. 53009.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    Rehearing Denied March 24, 1982.
    Roberts & Easterling, S. Wayne Easter-ling, Hattiesburg, for appellant.
    Bryan, Nelson, Allen, Schroeder & Randolph, Michael K. Randolph, Hattiesburg, for appellee.
   Appeal from Chancery Court, Forrest County; Howard L. Patterson, Jr., Chancellor.

Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.


author: SUGG, Presiding Justice,

text:
    Gartha Lee LOVELACE v. STATE of Mississippi.
    No. 53327.
    Supreme Court of Mississippi.
    Feb. 17, 1982.
    Thomas L. Kesler, Columbus, for appellant.

      Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before SUGG, P. J., and WALKER and HAWKINS, JJ.
   SUGG, Presiding Justice,

for the Court:

Gartha Lee Lovelace was tried and convicted in the Circuit Court of Lowndes County for the crime of armed robbery, and sentenced to serve a term of fifteen years.

The only assignment of error is:

The Court erred in overruling the defendant’s numerous and continuing objections and motion for mistrial on the basis of improper impeachment of the defendant by prior convictions.

The assignment of error is divisible into three issues. First, whether evidence of a prior conviction may be introduced to impeach a witness who does not deny the previous conviction, but testifies he does not remember it. Second, whether the introduction of an abstract of court record im-permissibly placed before the jury details, i.e., punishment for the previous crime. Third, whether the abstract of court record was competent evidence of the prior criminal conviction of the appellant.

Section 13-1-13 Mississippi Code Annotated (1972) provides:

Any witness may be examined touching his interest in the cause or his conviction of any crime, and his answers may be contradicted, and his interest or his conviction of a crime established by other evidence. A witness shall not be excused from answering any material and relevant question, unless the answer would expose him to criminal prosecution or penalty.

In Matthews v. State, 243 Miss. 568, 139 So.2d 386 (1962) we stated:

This Court has clearly pointed out, however, that evidence cannot be introduced to contradict a witness with reference to his convictions unless the witness denies these convictions. (243 Miss. at 573, 139 So.2d at 389)

See also, Wells v. State, 288 So.2d 860 (Miss.1974); Berry v. State, 212 Miss. 164, 54 So.2d 222 (1951); Powers v. State, 156 Miss. 316, 126 So. 12 (1930); Alabama and V. R. Company v. Thornhill, 106 Miss. 387, 63 So. 674 (1913); Cook v. State, 85 Miss. 738, 38 So. 110 (1904).

Appellant contends that he did not deny his prior conviction for petit larceny and argues the following questions and answers during trial support his contention.

Q. I’ll ask you whether or not you’ve ever been convicted of anything else in Judge Younger’s court?
A. Never; that’s the only thing I ever been convicted in Judge Younger’s court.
Q. I’ll ask you whether or not you’ve ever been convicted in Judge Younger’s court on July 23, 1979, for petit larceny?
A. No, not that I can recall.
Q. Then you have not been convicted in his court of simple assault with a deadly weapon or petit larceny?
A. Well, maybe that’s something now I have simple assault; I know what you’re talking about now on my—
Q. Now you know that you have been convicted of simple assault?
A. Yeah.
Q. And the petit larceny though you don’t remember that one?
A. I don’t remember that one.

When appellant was asked if he had been convicted of petit larceny on July 23, 1979, he did not deny the conviction, but stated that he could not recall it and that he did not remember “that one.” Appellant argues that proof of a prior conviction can be introduced to contradict a witness by showing a prior conviction only if the witness denies the conviction. Building on this premise, he then argues that if a witness does not deny a former conviction but merely states he has no recollection of the conviction, no evidence of such conviction may be introduced.

We do not agree with this argument and hold that if a witness does not deny a previous conviction but states that he cannot recall the conviction, evidence of the prior conviction may be introduced under section 13-1-13 Mississippi Code Annotated (1972); otherwise, the purpose of the statute would be defeated.

In interpreting section 13-1-13, we held: The answers of a witness who is being examined in reference to his conviction of crime may be contradicted and his conviction established by other evidence, this does not permit the details of the crime to be shown, and such examination should be held within the limits necessary to call attention to and identify the conviction being inquired about. [Walker v. State, 151 Miss. 862, 874, 119 So. 796, 799 (1929)]

This case simply holds that, if a witness admits a conviction of a previous crime, he may not then be interrogated to show the punishment inflicted. However, appellant argues that the admission of an abstract of the justice court docket showing his previous conviction of petit larceny including the punishment inflicted is thus contrary to our holding in Hartfield v. State, 186 Miss. 75, 189 So. 530 (1939) wherein we stated:

If the appellant, Hartfield, had offered himself as a witness, which he did not do, then proof of the fact that he had been previously convicted of a crime (but not the extent of the punishment imposed) would, ... have been competent to affect his credibility as a witness. (186 Miss, at 92, 189 So. at 533).

Hartfield did not testify in his own defense so the words enclosed in parenthesis were not dispositive of any issue in that case. When a witness does not admit a previous conviction, the only way the witness can be impeached as to a previous conviction is by introduction of evidence of such previous conviction. The witness should not then be heard to complain that the punishment inflicted was included in the copy of the record of the prior conviction because, by denying or refusing to admit a prior conviction, the witness (in this case, appellant) has forced the opposite party to introduce a record of the prior conviction to impeach his testimony. We therefore decline to follow the dictum in Hart-field.

Appellant also argues that the abstract of the court record showing his prior conviction was not competent evidence. Section 13-1-77 Mississippi Code Annotated (1972) provides:

All public officers in this state having the charge or custody of any public books, records, papers, or writings, are authorized to certify copies of the same, which copies shall be received in evidence in all cases where the original or a sworn copy would be evidence.

In Vincent v. State, 200 Miss. 423, 27 So.2d 556 (1956) appellant was convicted of the unlawful possession of intoxicating liquors and was punished for a second violation under section 2613, Code of 1942. His principal contention was that the record did not sufficiently show that he had been convicted of a first offense. When the case was tried, the justice of the peace before whom the first conviction was held was ill and a copy of his docket entries covering the first conviction was certified by him under section 1725, Code of 1942 and was introduced over the objection of appellant.

In disposing of appellant’s argument, the Court stated:

In brief, the argument of appellant is that in order to make the requisite showing of a conviction of the first offense, the record thereof must be as fully introduced by a complete transcript thereof as if an appeal were being taken from the said first conviction.
In this appellant is mistaken, for the issue as to the first conviction is not whether appellant was therein properly convicted but whether as an affirmative matter he was finally convicted; and the record as introduced was sufficient to show that, and as already stated it was properly authenticated, as allowed under Section 1725, Code 1942. (200 Miss. at 427, 428, 27 So.2d at 557)

The abstract of court record introduced in the case at bar was duly certified by Justice Court Judge C. Younger as being a true copy of his court records. Therefore, under the authority of Vincent, supra, we hold that the abstract of record was competent evidence of the fact of appellant’s prior conviction of petit larceny.

AFFIRMED.

SMITH, P. J., and WALKER, BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PATTERSON, C. J., took no part.

      . Now section 13-1-77 Mississippi Code Annotated (1972).


text:
    Aretha NICKELSON v. GOODWILL INDUSTRIES OF MISSISSIPPI and Liberty Mutual Insurance Company.
    No. 53275.
    Supreme Court of Mississippi.
    Feb. 24, 1982.
    Jack A. Travis, Jr., Faye Murphree, Jackson, for appellant.
    Charles W. Witt, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before SUGG, P. J., and WALKER and HAWKINS, JJ.

AFFIRMED.


text:
    James Ronney MOONEY v. Diane Price MOONEY.
    No. 53060.
    Supreme Court of Mississippi.
    Feb. 24, 1982.
    James R. Mooney, pro se.
    J. A. Jennings, Richard T. Starrett, Gerald, Brand, Watters, Cox & Hemleben, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before SUGG, P. J., and WALKER and HAWKINS, JJ.

Affirmed.


author: WALKER, Justice,

text:
    CENTRAL GRAIN & SUPPLY COMPANY, INC. v. JESCO, INC.
    No. 53038.
    Supreme Court of Mississippi.
    March 3, 1982.

      Cothren, Pittman & Ferrell, James P. Co-thren, Jackson, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, L. F. Sams, Jr., Tupelo, for appellee.
    Before SUGG, P. J., and WALKER and HAWKINS, JJ.
   WALKER, Justice,

for the Court:

Appellee, Jesco, Inc., instituted the proceedings in this case by filing a bill of complaint for discovery and other relief in the Chancery Court of Scott County seeking a money judgment against appellant, Central Grain & Supply Company, Inc., and seeking to establish and enforce a claim for a construction lien against the property of Central Grain upon which a grain receiving and shipping station had been built by Jes-co.

Jesco filed a notice of construction lien in the office of the Chancery Clerk of Scott County on the day suit was filed, December 1, 1976.

Appellant, Central Grain, answered Jes-co’s bill of complaint. Thereafter, discovery was begun and conducted by both Central Grain and appellee, Jesco.

On February 8, 1979, pursuant to Central Grain’s “motion to strike prayer to enforce construction lien or in the alternative to transfer cause to circuit court,” the chancellor transferred the cause to the Circuit Court of Scott County. On February 13, 1979, the Chancery Clerk of Scott County entered his clerk’s certificate of transfer, whereby he deposited the papers which had originally been filed in chancery court with the office of the circuit clerk. Discovery proceedings continued. However, no declaration was filed by Jesco within the thirty-day period required by Mississippi Code Annotated section 11-1-39 (1972).

Thereafter, appellant filed a motion to dismiss and plea in bar asking that the cause be dismissed, because nineteen months had passed since the cause was transferred and no declaration had been filed.

Approximately twenty months after this cause was transferred from chancery court to circuit court, Jesco filed its declaration within said cause in the Circuit Court of Scott County, seeking a judgment against appellant and seeking to enforce its claim for a construction lien against appellant’s property.

Central Grain continued to raise Jesco’s failure to file a declaration in the circuit court within thirty days after the cause was transferred to that court as well as Jesco’s failure to commence its suit to establish and enforce its claim for a construction lien against the property of Central Grain in the circuit court within twelve months after the time when the money claimed to be due by appellant came due and payable by way of plea in bar in its answer and by way of objections to the evidence, a motion for a directed verdict, a request for a peremptory instruction and motion for a new trial. All of said motions, objections and pleas were overruled.

A verdict was rendered against Central Grain in the amount of $22,815.47 and a materialman’s lien established on Central Grain’s property.

The trial court should have dismissed the cause when Jesco failed to file its declaration within thirty days as required by section 11-1-39. This is true even though the parties continued discovery and communicated by letter with one another after the cause was transferred from chancery court to circuit court. See Warren v. Smith-Vaniz, 382 So.2d 1088 (Miss.1980) and Commercial National Bank v. Fleetwood Homes, 398 So.2d 659 (Miss.1981).

However, since Jesco did in fact file its declaration and Central Grain answered it joining issue and continued to participate in the trial of the cause until judgment, the record covering four volumes and being 641 pages, we find that the judgment should be allowed to stand.

Central Grain suffered no prejudice during the course of the trial and does not raise on appeal any questions concerning the trial of the cause. No good purpose would be served by requiring these parties and the court to undergo another extensive trial, incurring large sums of additional expense and consuming valuable judicial time.

However, the materialman’s lien established by the circuit court on Central Grain’s properties must be set aside because Jesco’s declaration to establish the lien was not filed in the circuit court within one year after the indebtedness became due and payable as required by Mississippi Code Annotated section 85-7-141 (1972). Jesco’s declaration was not filed until October 6, 1980. This was approximately twenty months after the indebtedness became due and payable.

The judgment of the circuit court is reversed as to the imposition of a material-man’s lien on the properties of Central Grain. The judgment of the circuit court is affirmed as to its jury verdict ^jn the amount of $22,815.47.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

SMITH and SUGG, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PATTERSON, C. J., took no part.

      . When the papers have been deposited in the court to which the cause was transferred, all the parties to the proceeding shall take notice of the fact of the transfer; and the complainant or plaintiff shall file his declaration or bill in the court to which the cause was transferred within thirty days, unless the court, judge, or chancellor shall restrict the time or grant further time; and the defendant shall plead within thirty days thereafter, unless the time, by like means, be restricted or extended. And the cause shall be proceeded with as if it had been originally begun in that court, as of the date on which the cause was originally instituted.


text:
    Paul BRADFORD v. BERNHEIMER-TAYLOR INS. AGENCY, INC.
    No. 53363.
    Supreme Court of Mississippi.
    March 3, 1982.
    Loyacono & Price, Paul Kelly Loyacono, Vicksburg, for appellant.
    Varner & Parker, R. E. Parker, Jr., David M. Sessums, Vicksburg, for appellee.
   Appeal from Circuit Court, Claiborne County; John W. Prewitt, Sr., Judge.

Before SUGG, P. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Betty Jean GERAKINES v. STATE of Mississippi.
    No. 53354.
    Supreme Court of Mississippi.
    March 3, 1982.
    Lawrence D. Arrington, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Pearl River County; R. I. Prichard, III, Judge.

Before SMITH, P. J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED IN PART (VERDICT), REVERSED IN PART (SENTENCE). AND REMANDED FOR PROPER SENTENCE.

SUGG, P. J., and WALKER, BROOM, BOWLING and DAN M. LEE, JJ., concur.

PATTERSON, C. J., took no part.


text:
    Jake MULLINS v. STATE of Mississippi.
    No. 53232.
    Supreme Court of Mississippi.
    March 3, 1982.
    Robert B. Prather, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Lowndes County; Joe 0. Sams, Sr., Judge.

Before SUGG, P. J., and WALKER and HAWKINS, JJ.

AFFIRMED.

SMITH, P. J., and BROOM, ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., concur.

PATTERSON, C. J., took no part.


text:
    Jimmy Earl DEES v. STATE of Mississippi.
    No. 53280.
    Supreme Court of Mississippi.
    March 3, 1982.
    John E. Shaw, Koscuisko, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Niles McNeel, Judge.

Before SUGG, P. J., and WALKER and HAWKINS, JJ.

AFFIRMED.


text:
    Will GREEN and Robert Green v. T. E. McDONALD, INC.
    No. 53282.
    Supreme Court of Mississippi.
    March 3, 1982.
    Blackmon, Smith & Nichols, Edward Blackmon, Jr., Canton, for appellant.
    Taylor, Covington, Smith & Matrick, James E. Lambert, Don L. McLemore, Jackson, for appellee.
   Appeal from Circuit Court, Holmes County; Arthur B. Clark, Judge.

Before SUGG, P. J., and ROY NOBLE LEE, and HAWKINS, JJ.

AFFIRMED.


text:
    Gordon G. CLARK, Carl Clark and Mrs. Carl Clark v. Naif JORDAN.
    No. 53050.
    Supreme Court of Mississippi.
    March 3, 1982.
    Megehee, Brown, Williams & Mestayer, Michael J. McElhaney, Jr., Linda D. Bag-gett, Pascagoula, for appellant.
    Wiesenburg & Reed, William T. Reed, Pascagoula, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

Before SUGG, P. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    HINDS COUNTY BOARD OF SUPERVISORS v. S. W. JORDAN, Jr.
    No. 53366.
    Supreme Court of Mississippi.
    March 3, 1982.
    Mark W. Prewitt, Vicksburg, for appellant.
    Marc E. Brand, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

Before SMITH, P. J., and WALKER and DAN M. LEE, JJ.

AFFIRMED.


text:
    Ronnie E. MYERS v. Lyllis C. Myers VOGLE.
    No. 53093.
    Supreme Court of Mississippi.
    March 3, 1982.
    Akin & Harrison, Patricia Champagne Akin, Gulfport, for appellant.
    Jimmy D. McGuire, Gulfport, for appel-lee.
   Appeal from Chancery Court, Harrison County; William L. Stewart, Chancellor.

Before SUGG, P. J., and WALKER and HAWKINS, JJ.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

SMITH, P. J., and BROOM, ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., concur.

PATTERSON, C. J., took no part.


text:
    Carl GABLE v. Fannie GABLE, et al.
    No. 53340.
    Supreme Court of Mississippi.
    March 3, 1982.
    Larry E. Clark, Taylorsville, for appellant.
    R. K. Houston, Jr., Bay Springs, for ap-pellees.
   Appeal from Chancery Court, Smith County; J. W. Walker, Chancellor.

Before SMITH, P. J., and WALKER and DAN M. LEE, JJ.

AFFIRMED.


author: PER CURIAM. JONES, Justice

text:
    Myrtle Henley WATFORD v. Wilfred HALE, et al.
    80-718.
    Supreme Court of Alabama.
    Feb. 5, 1982.
    Rehearing Denied March 5, 1982.
    William M. Lyon, Jr. of McFadden, Riley & Parker, Mobile, for appellant.
    Thomas H. Boggs, Jr. of Lloyd, Dinning & Boggs, Demopolis, for appellees.
   PER CURIAM.

This is an appeal from a declaratory judgment, adjudging that the 1975 divorce decree which dissolved the marriage of James and Myrtle Hale also severed their joint tenancy with right of survivorship in certain real estate and created a tenancy in common between them in that property.

In April of 1970, while still husband and wife, James and Myrtle acquired 200 acres of land as joint tenants with right of sur-vivorship and a remainder in a one-half interest in the mineral rights of the property, also as joint tenants with right of sur-vivorship, which remainder vested in them during their marriage. Their divorce decree incorporated by reference the following property settlement agreement and ordered, in pertinent part, relative thereto:

“(c) The property owned jointly by the parties hereto and located in Marengo County, Alabama, containing 200 acres more or less, shall be sold upon the agreement of both parties. The proceeds of any sale of the above real estate shall be divided equally among said parties. Until such time as the above property is sold, plaintiff and defendant agree to each pay one-half of the mortgage payments to the State Bank of Sweetwater, Alabama, as the same become due. Each party also agrees to pay one-half of any other expense relating to said property, including but not limited to payments for taxes, insurance, and maintenance of said property.”

The court fixed alimony and support for the wife, saying it did so

“[i]n accordance with the agreement between the parties dated September 22, 1975 ... and filed in this action, which settle[d] all questions of alimony, disposition of property, payment of debts, and other related matters.”

In 1979, four years after their divorce, James died intestate, at which time neither he nor Myrtle had taken any action with regard to the subject property. Myrtle instituted a declaratory judgment action, claiming that, as survivor of the joint tenancy, she held the jointly-owned property in fee simple. James’s heirs-at-law and next of kin, two of whom are also the duly appointed administrators of James’s estate, are the defendants; and they claim that the divorce decree, incorporating the property settlement agreement, destroyed the joint tenancy with right of survivorship and converted the ownership of the property to a tenancy in common.

The circuit court held that the intention of Myrtle and James was to “divide the property and create a tenancy in common,” as indicated by their property settlement agreement made a part of the divorce decree and, therefore, that the joint tenancy with right of survivorship was terminated. That being so, consistent with the Hale heirs’ (defendants’) contention, the trial court held that defendants were the lawful holders of a one-half undivided interest in the property and an undivided one-fourth interest in the mineral rights thereto.

We affirm.

We agree with the trial court’s finding that it was the intention of the parties to destroy the joint tenancy created by the 1970 deed and such intention, as expressed in the settlement agreement, is governed by the rules stated in Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965). The parties agree that the Bernhard rule is the applicable one. The appellee, however, and we believe correctly so, contends that the rule stated in Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967), is also applicable.

We agree with the appellant that a divorce decree, silent with respect to property held jointly with right of survivorship does not automatically destroy the estate. Summerlin v. Bowden, 286 Ala. 391, 240 So.2d 356 (1970). However, it goes without question that the parties themselves, or the court with the parties before it, may terminate the estate and, when they do, as they did here, a tenancy in common is created in the property, without a right of survivor-ship in either party.

The Hale heirs correctly contend, and the trial court correctly held, that the property settlement, when read in conjunction with the divorce decree as a whole, acted to sever the joint tenancy with right of survivorship and converted that estate into a tenancy in common, with Hale’s one-half interest in the property descending to his heirs upon his death. The divorce decree adopted the settlement agreement as a final adjudication of all issues of “alimony, disposition of property, payment of debts, and other related matters.”

Although we have not had this exact issue before us, our recent case of Lawley v. Smith, 409 So.2d 809 (Ala.1982), is quite similar and the Colorado case of Mann v. Bradley, 188 Colo. 392, 535 P.2d 213 (1975), is strikingly so. We are in accord with the following statement made by that courts,

“The intent of the parties as shown in the proj)erty settlement agreement is central to the issue presented. This agreement provided for the ultimate sale of the property and the division of the proceeds, which evinces the intent to no longer hold the property in joint tenancy from the effective date of the agreement. The entire tenor of those provisions of the agreement pertaining to this property is inconsistent with any purpose of the parties to continue the right of survivorship, which is the sine qua non of joint tenancy.”

535 P.2d at 215.

The judgment appealed from is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, AL-MON, SHORES, EMBRY and BEATTY, JJ., concur.

FAULKNER, JONES and ADAMS, JJ., dissent.

JONES, Justice

(dissenting):

I respectfully dissent.

Briefs of counsel place great stress upon the chronology of the events leading to the instant dispute; i.e., whether the nondes-tructibility rule of Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965), or the destructibility rule of Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), controls the disposition of this case. Admittedly, if we agree with the trial court’s finding that it was the intention of the parties to destroy the joint tenancy created by the 1970 deed, such intention, as expressed in the settlement agreement, would be governed by the Bernhard rule. As to the prospective effect of Nunn, see Jackson v. Fillmore, 367 So.2d 948 (Ala.1979).

Because I disagree with the trial court’s interpretation of the effect of the divorce decree upon the joint tenancy, however, whether Bernhard or Nunn is controlling becomes immaterial. In other words, I would hold that the property settlement language incorporated into the decree, when not acted upon by the parties according to its terms, left unaffected the joint tenancy estate created by the 1970 deed; thus, under the facts of the instant case, the result would be the same, whichever of the two rules applies.

It has long been the rule in Alabama that a joint tenancy with right of survivorship— an estate historically disfavored because of its survivorship feature which excludes “heirs or next of kin of the deceased tenant” (Parsons v. Boyd, 20 Ala. 112 (1852)), and at one time statutorily abolished in Alabama — can be created only by a grant- or’s use of carefully chosen words of conveyance distinctly describing the characteristics of the estate and evidencing a single intent: the creation of a joint tenancy with an attendant right of survivorship.

Because of the exhaustive treatment accorded the subject of joint tenancies by our recent case law, repetition of the nature and characteristics of such estates is unnecessary. A brief review of several pertinent points will suffice. Such estates, statutorily recognized, are aptly summarized in Nunn v. Keith, 289 Ala. at 524, 268 So.2d at 792:

“[W]e hold that [§ 35^-7, Code 1975] recognizes joint tenancy, with right of survivorship, as a valid estate in realty or personalty, and that it differs from the common law estate of the same name only in so far as (1) the statutory requirement that the intention to have the right of survivorship must be clearly expressed in the instrument of the conveyance, and (2) elimination of the common law unity of time.”

In Summerlin v. Bowden, 286 Ala. 391, 393, 240 So.2d 356 (1970), this Court stated:

“Joint tenancies with the right of sur-vivorship in cases involving husbands and wives can present problems when the parties are divorced. However, the tenure under deeds [creating joint tenancy estates] does not arise from the relationship of the tenants, or status, but from the deed creating the estate, and, therefore, divorce does not affect the rights of the parties.”

Given, then, the “clearly expressed in the instrument of conveyance” statutory requisite of intention with which a joint tenancy with right of survivorship is created, I cannot say that the requisite intention to destroy that estate can be given legal effect with any less specificity.

That the parties, acting through their mutual assent, as well as the court, acting pursuant to the Owens exception, were authorized to sever the estate is beyond question. The question, then, is not could it be done, but was it done; and the answer to this ultimate issue is inherent in the answer to the primary inquiry — whether the divorce decree evidences an intention of the parties or the court to sever the estate when tested against the “clearly expressed” criterion.

The majority holds that the property settlement, when read in conjunction with the divorce decree as a whole, acted to sever the joint tenancy with right of survivorship and converted that estate into a tenancy in common, with James’s one-half interest in the property descending to his heirs upon his death. I disagree.

Turning, again, to the language of the divorce decree, we find that the parties agreed 1) to sell the property upon the agreement of both parties, and 2) until the property was sold, each would pay one-half of the mortgage payments and other expenses. The court’s order adopted the settlement agreement as a final adjudication of all issues of “alimony, disposition of property, payment of debts, and other related matters.”

I am mindful, of course, that this divorce decree was rendered by a court in Georgia, a State whose property law materially differs from ours; and that, had the parties fully understood their options, their respective counsel might very well have expressed their intentions differently. But where their mutual intention is clearly expressed upon the face of the instrument (here, the divorce decree), the Court is unauthorized to breathe into that instrument a contrary meaning.

The language of the property settlement, when interpreted within its four corners, neither instructs the joint tenants to sell the 200-acre tract nor states that its terms are based upon any express intention of the parties to sell the property at a future date. Rather, the agreement clearly provides for an orderly continued relationship between the parties as joint tenants of their realty.

Had James and Myrtle remained husband and wife and wished to divide the property in question (or convert it into a tenancy in common), under the Bernhard rule (the joint tenancy was created in 1970, prior to Nunn), they would have had to enter into an agreement which, in terms no less specific than those required to create the estate, indicated their mutual and unequivocal intent to destroy the joint tenancy with right of survivorship. Why, then, should their divorce decree and the incorporated property settlement agreement alter this procedure?

I can think of no valid reason. Indeed, the pertinent language of the divorce decree merely expresses the operative effect of the legal incidents of a joint tenancy with a right of survivorship. I would hold that such an estate cannot be destroyed or converted by implication. For cases from other jurisdictions in accord with these views, see Compton v. Compton, 624 P.2d 345 (Ariz.1981); and Gillette v. Nicolls, 121 Cal.App.2d 185, 262 P.2d 856 (1953). The majority cites two contrary holdings: Lawley v. Smith, 409 So.2d 809 (Ala.1982); and Mann v. Bradley, 188 Colo. 392, 535 P.2d 213 (1975). I view these cases as supportive of my position. In Lawley (with which I concurred), the trial court, pursuant to Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967), had ordered the jointly held property sold, which order predated the death of the former wife. In Mann, the agreement was materially different from the agreement in the instant case.

The parties in Mann agreed that the family residence should be sold and the proceeds equally divided upon the occurrence of any one of the three following events: 1) the remarriage of Mrs. Mann; 2) when their youngest child reached the age of 21; or 3) by mutual agreement of the parties. Clearly, the Mann agreement included an intention of the parties to treat their interest as belonging to them in common. Here, the agreement expressed an intention to dispose of the property only upon their mutual consent — the exact condition precedent to its disposition had they entered into no agreement at all. Therefore, the agreement merely expressed an intention to continue the pre-existing estate between the parties.

FAULKNER and ADAMS, JJ., concur.

      . Appellees do not contend otherwise. They insist, however (and correctly so, assuming the correctness of the trial court’s interpretation of the parties’ intent), that the “judicial property settlement” exception of Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967), is the applicable rule.


author: EMBRY, Justice.

text:
    David THOMAS v. Jack D. DAVIS, et al.
    80-506.
    Supreme Court of Alabama.
    Feb. 26, 1982.
    Joseph W. Smith of Smith, Smith & Morgan, Phenix City, for appellant.
    Sidney G. Landreau of Faulk & Lan-dreau, Phenix City, for appellees.
   EMBRY, Justice.

This is a boundary line dispute in which adverse possession is the fulcrum issue.

The complaint by which this action was instituted alleged that plaintiffs, the Davis-es, had, in 1977, purchased a certain tract of land in Russell County which was conveyed to them by warranty deed; that defendant, Thomas, was an adjoining landowner; and that a dispute had arisen between the parties regarding the true boundary line between their respective properties. One of the conclusions drawn by the trial court in its final judgment was:

“That the conveyances to the plaintiffs and defendant do not show a common or abutting line between them as the properties are described, but that the defendant is claiming by adverse possession.”

The basis of this conclusion is evident in Plaintiff’s Exhibit Six, a composite property map of certain portions of Section 35, Township 15 North, Range 30 East, in Russell County. The pertinent portion of that map has been reproduced as an appendix to this opinion.

In 1948, Thomas purchased land, conveyed by warranty deed, in the SE Vi of Section 35. The land described in Thomas’s deed is represented on the map by the shaded area labelled “THOMAS DEED”. It can be seen that no part of that tract is contiguous with any part of the land described in the Davises’ deed, represented by the shaded area labelled “DAVIS DEED”. However, Thomas also claims ownership by adverse possession of all land shown crossed by diagonal lines.

The southern boundary of the land deeded to the Davises is the east-west line dividing the N V2 of the SE Vi from the S xk of SE Vi, located by the arrow leading from the words “POINT OF BEGINNING”. Just north of and parallel to that line is a broken line indicating the northern boundary claimed by Thomas under his asserted adverse possession.

As is apparent, a small strip of the land which Thomas claims by adverse possession lies within the property deeded to the Da-vises. It is only that strip of land, lying between the broken line claimed by Thomas as his northern boundary and the east-west line described by the Davises’ deed as their southern boundary, to which both parties claim ownership in this action. However, the parties also attach significance to the remainder of the land which Thomas claims by adverse possession.

Although the Davises initially filed this action as a suit between coterminous landowners, they have taken the position at trial and on appeal, after learning of the description contained in Thomas’s deed, that this is a simple adverse possession case rather than a boundary line dispute involving a question of adverse possession. Thomas, on the other hand, claims to be a coterminous landowner by virtue of having adversely possessed land adjoining the southern boundary of the property deeded to the Davises.

The importance of the distinction between a case of simple adverse possession and a boundary line dispute involving adverse possession was treated in Kerlin v. Tensaw Land & Timber Company, Inc., 390 So.2d 616 (Ala., 1980), as follows:

“In Alabama there are basically two types of adverse possession, these two types being statutory adverse possession and adverse possession by prescription. Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years. See, Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. Code 1975, § 6-5-200. See, Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962).
“Boundary disputes are subject to a unique set of requirements that is a hybrid of the elements of adverse possession by prescription and statutory adverse possession. In the past there has been some confusion in this area, but the basic requirements are ascertainable from the applicable case law. In a boundary dispute, the coterminous landowners may alter the boundary line between their tracts of land by agreement plus possession for ten years, or by adverse possession for ten years. See, Reynolds v. Rutland, 365 So.2d 656 (Ala.1978); Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975); Smith v. Brown, 282 Ala. 528, 213 So.2d 374 (1968); Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964); Duke v. Wimberly, 245 Ala. 639, 18 So.2d 554 (1944); Smith v. Bachus, 201 Ala. 534, 78 So. 888 (1918). But see, Davis v. Grant, 173 Ala. 4, 55 So. 210 (1911). See also Code 1975, § 6-5-200(c). The rules governing this type of dispute are, in actuality, a form of statutory adverse possession. See Code 1975, § 6-5-200(c); Berry v. Guyton, 288 Ala. 475, 262 So.2d 593 (1972).”

Thomas also cites cases containing language to the effect that a coterminous landowner’s intent to adversely possess may originate with his mistaken belief regarding the true boundary line between his and another’s properties. Robertson v. Fincher, 348 So.2d 466 (Ala.1977); Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9 (1974).

We are of the opinion, however, that this distinction, with which these parties grapple, bears no significance to the outcome of this case. The trial court concluded that “the south line of the property owned by plaintiffs, Jack D. Davis and Audrey F. Davis, is that line described in the deed executed to them... and as shown and established in Plaintiff’s Exhibit Six . .. . ” It is implicit in this finding that Thomas failed to prove adverse possession of the disputed strip of land lying within the boundaries described by the Davises’ deed.

In arriving at its decision the trial court made no express finding as to whether or not Thomas proved ownership through adverse possession of any land lying south of the southern boundary described in the Da-vises’ deed, and thus established his status as coterminous landowner with the Davises. Neither do we consider it necessary to make that determination.

In the absence of specific findings of fact by the trial court, this court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous and against the great weight and preponderance of the evidence. O'Connor v. Rabren, 373 So.2d 302 (Ala.1979); Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975).

The record contains ample evidence to support the trial court’s judgment that Thomas did not prove adverse possession of the strip of land disputed in this action, even if it be assumed arguendo that Thomas established adverse possession of the remaining lands and was therefore entitled to contest ownership of the disputed strip under the more advantageous rules governing adverse possession by a coterminous landowner.

The acts which Thomas claims constituted adverse possession by him consisted of cutting and selling timber, planting cotton, and selling sand and gravel and rights-of-way to Central of Georgia Railroad, from the land he claims by adverse possession, and paying taxes on the same.

However, it is quite evident from the testimony and exhibits that the sand and gravel were sold only from that portion of the land claimed by Thomas which is not disputed in this action. (See Appendix for location of gravel pit.) Additionally, counsel for Thomas stipulated at trial that the tax assessments which Thomas had paid since 1948 covered only the property described in his deed (Shown on Appendix).

Examination of the evidence of the remaining acts offered to establish adverse possession shows that Thomas testified he cut and sold timber from the disputed strip of land on two occasions during the period of his claimed possession, dating from 1948 to the present. Such isolated incidents of timber cutting fail to establish the dominion over property necessary to establish adverse possession. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964).

“[B]ecause adverse possession divests title from the record titleholder, a very strict burden of proof rests upon the party claiming title by it.... Rare and widely separated acts do not satisfy this burden; they constitute mere transistory trespasses.”

Courtney v. Boykin, 356 So.2d 162 (Ala.1978).

Furthermore, the evidence presented by Thomas concerning timber cutting, crop planting and selling rights-of-way on the disputed strip was directly contradicted by the testimony of Jack Davis and two of his predecessors in title, Frank and Robert Howard, whose family had owned from 1850 to 1974, the property deeded to the Davises in 1977. The conflict in the testimony presented was a matter to be reconciled by the trier of fact, in this case the trial court taking evidence ore tenus.

Where the trial court has heard the evidence ore tenus, its findings of fact will not be disturbed on appeal unless clearly erroneous or manifestly unjust. Leslie v. Pine Crest Homes, Inc., 388 So.2d 178 (Ala1980); Gertz v. Allen, 376 So.2d 695 (Ala.1979). This rule is especially applicable in cases where the trial court makes its findings of fact after hearing conflicting evidence; every presumption is indulged in favor of the court’s findings of fact and those findings will not be disturbed unless palpably wrong. Leslie v. Pine Crest Homes, Inc., supra; Vance v. Alliance Community Center, 374 So.2d 312 (Ala.1979).

This is so because the trier of fact, the trial court without a jury, unlike an appellate court later reviewing the matter from a written record, occupies a position of peculiar advantage enabling it to see and hear firsthand the evidence as it is presented. From that vantage point the trier of fact can observe the demeanor of the witnesses, listen to the inflections and intonations of their voices during oral testimony, and study their eyes, facial expressions, and gestures — all of these sensory perceptions which play a critical role in the factfinder’s determination of which witnesses are to be afforded credibility when conflicting testimony is given. Consequently, this court will rarely disturb the judgment of the trial court in a boundary line dispute or adverse possession ease which turns on issues of disputed facts.

As no manifest error is apparent in the record, which contains ample evidence supporting the trial court’s final judgment, that judgment is due to be and is hereby affirmed.

AFFIRMED.

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

       For illustrative purposes only, we have added to the reproduction of Plaintiffs’ Exhibit Six diagonal lines representing the land which Thomas claims by adverse possession, a broken line representing the disputed boundary line claimed by Thomas, and a continuous meandering line which encloses an area representing a gravel pit. These additional lines have been added merely to assist the reader in understanding the nature of this suit, and should not be interpreted as representing the exact locations or scale of the areas which they depict.


author: WRIGHT, Presiding Judge.

text:
    In the Matter of Mary Ann (Matthews) KELLEY, Matthew Alan Shuttleworth, Father and Deborah Ann Kelley, Mother v. LICENSED FOSTER PARENTS et al.
    Civ. 2468.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1980.
    Rehearing Denied Jan. 21, 1981.
    William J. Baxley and Joel E. Dillard of Baxley, Stuart, Ward & Dillard, Birmingham, for appellants.
    G. Larry Morgan of Foley, Morgan & Rodenhauser, Huntsville, for appellees.
   WRIGHT, Presiding Judge.

This case comes before us on the denial of a Rule 60(b) motion from the Family Court of Jefferson County.

The record reveals the following:

A baby girl was born to Deborah Ann Kelley and Matthew Alan Shuttleworth on January 1, 1980. The mother and father were not at that time, nor have they ever been, married. Shuttleworth has never denied being the child’s father and, in fact, freely admits his paternity. Both mother and father are twenty-one years old.

Having been made aware in November 1979 that her pregnancy had progressed too far to obtain an abortion, the mother sought to place her soon-to-be-born child for adoption. It appears that the father was opposed to abortion or adoption from the outset.

The mother consulted a social worker, representing Catholic Social Services of Huntsville, concerning giving up of the child at birth for adoption. The father was not involved in these consultations. The mother signed a notarized statement giving consent to place the child for adoption. The case was begun pursuant to Rule 12, Alabama Rules of Juvenile Procedure, and a hearing was set pursuant to § 12-15-65, Code of Alabama (1975). The hearing was held on March 11, 1980, with the mother, but not the father, present. An order was entered finding the child dependent and terminating the parental rights of the mother. Hearing as to a disposition of the father’s parental rights was postponed until March 25,1980. The father did not appear. Judgment was entered terminating his parental rights.

The mother and father failed to appeal the judgments terminating their rights within forty-two days as provided by Rule 4, ARAP. Instead, they obtained counsel after time for appeal had run and jointly moved pursuant to Rule 60(b), ARCP, for relief from judgment on June 10, 1980.

The court heard more than four hundred pages of testimony upon the motion. We have reviewed the record carefully.

There were alleged as grounds in the motion that there was practiced upon the mother of the child fraud, undue influence, and misrepresentation to secure her relinquishment of parental rights to her child and consent to its adoption. We have carefully considered the record and find no basis for disagreement with the trial court’s factual conclusion that none of those allegations were supported by the evidence.

The motion further charged improper service of notice of the hearing of March 25, 1980, upon the father. The record reveals that notice of the hearing, together with an instrument prepared for his signature releasing his rights, was sent by certified mail, restricted delivery, to the father’s address. The record further reveals that the notice was delivered to that address and receipt therefor signed by the addressee’s father, as agent, on March 13, 1980.

Section 12-15-54, Code of Alabama (1975) provides that service of summons in such cases shall be pursuant to the rules of procedure adopted by the Supreme Court. Rule 13, Juvenile Rules provides that service of summons shall be as provided in Alabama Rules of Civil Procedure. Those rules provide for service by certified mail, restricted delivery. The comment to Rule 4.1(c)(2), ARCP states:

Restricted delivery provides a means by which a mailer may direct that delivery be made only to the addressee or to an agent of the addressee who has been specifically authorized in writing by the addressee to receive his mail.

There is no proof of written authority by the addressee, Shuttleworth, for his father to receive his mail. However, the son lived with and received his mail at his father’s home. It is undisputed, in fact admitted, that the letter was placed in his room and he noted that it was from the court. He subsequently carried it to the child’s mother and discussed with her his continued resolve not to give up his rights to his daughter. The father admitted that he, in fact, affixed his signature to the release form sent to him by the court. That signed form was taken by the mother to the social worker. It was filed in the case, though not until after the hearing on March 25. It appears in the. record.

We consider that the father, in fact, received the service from the court sufficient to satisfy all constitutional right to notice and due process. The discretion of the trial court that he not now be allowed to claim technical lack of service through a 60(b) motion will not be disturbed.

This court has carefully considered this matter in light of the presumption that the trial court properly exercised its discretion in denying the Rule 60(b) motion. Clark v. Clark, 356 So.2d 1208 (Ala.Civ.App.1978). We are impressed with the patient action of the trial court in permitting lengthy testimony and legal argument before ruling on the motion. We commend the court for doing so. We are further impressed with the careful consideration of the entire matter and the compassionate understanding of the primary issue, the welfare of the child, exemplified by the four-page judgment upon the motion. This court has great sympathy with the parents of this child, but we are unable to substitute our judgment for that of the trial court in this matter. We therefore affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.