author: BOWLING, Justice, SMITH, Presiding Justice, WALKER, Justice,

text:
    Robert KNAPP v. James B. STANFORD.
    No. 51749.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    Rehearing Denied Jan. 21, 1981.
    C. R. McRae, Pascagoula, for appellant.
    Bryan, Nelson, Allen, Schroeder & Back-strom, John W. Chapman, Pascagoula, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant appeals from an adverse jury verdict and judgment in the Circuit Court of Jackson County. His declaration alleged that he sustained serious personal injuries in a motor vehicle accident that occurred on the night of December 31,1977. He assigns several errors in requesting a reversal of the cause. We find that only one alleged error has merit and this error requires a reversal for a new trial. The lower court erred in granting what has commonly been known as a “sudden emergency” instruction.

We stop here and caution those who might hurriedly read the first part of this opinion and overlook the final part that the Court by its inherent power is hereby abolishing the so-called doctrine of “sudden emergency” as it applies to negligence actions.

At about eleven o’clock P.M., on the night in question, appellant was a passenger in the rear seat of a vehicle known as a “Blazer” owned and operated by appellee. The vehicle was being driven in a westerly direction on U.S. Highway 90, a few miles west of the City of Pascagoula, Mississippi. The accident occurred as the highway was beginning to make “a long' sweeping left directional curve.” Admittedly, the right wheels of the vehicle first went off the right edge of the hard surface part of the highway and when it came back onto the highway the vehicle turned over two or three times and landed in the ditch on the left side of the highway.

The testimony regarding the occurrence, including the speed, was conflicting so that the true facts were for the jury to determine. Appellee testified that he was operating his vehicle on the proper side of the road at a reasonable speed when a vehicle being operated from the opposite direction began coming over on appellee’s side of the roadway; that it was necessary for him to turn his vehicle to the right, which caused the right wheels to be driven onto the highway shoulder and down the shoulder. He further testified that when he attempted to drive the vehicle completely back onto the hard surface that the raised part of the hard surfaced road caused him to lose control of his vehicle, resulting in its turning over as hereinbefore stated.

Appellant testified that the vehicle was being operated at a high rate of speed; that a few seconds before the accident occurred appellee stated that he was traveling approximately 90 or 95 miles per hour. Appellant stated that he did not see another vehicle on the roadway at any time.

Under the above general statement of the facts, appellee requested and was granted what is commonly known as the “sudden emergency” instruction. This instruction reads as follows:

The court instructs the jury that under the law when a person is confronted with a sudden emergency not of his own making and is by reason thereof placed in a position of peril to himself without sufficient time in which to determine with certainty the best thing to do, he is not held to the same accuracy of judgment as is required of him under ordinary circumstances, and in this case if you believe from a preponderance of the evidence, that James B. Stanford, immediately pri- or to the accident in question was driving his vehicle on his right side of the road, at a reasonable rate of speed and he was suddenly, without warning, confronted with the vehicle driven by persons unknown within James Standford’s lane of traffic and that the presence of the other vehicle constituted a sudden emergency which was not of a making of the defendant, James B. Stanford, and if you further find from a preponderance of the evidence that after having been confronted with such sudden emergency, if any, the defendant, James B. Stanford, used the same degree of care that a reasonably prudent automobile driver would have used under the same or similar unusual circumstances, if any, but was unable to avoid the accident giving rise to this lawsuit, then the defendant, James B. Stanford, was not guilty of negligence which proximately caused the collision in question, and in that event, it would be your sworn duty to return a verdict for the defendant, James B. Stanford.

We hold that even assuming the truthfulness of appellee’s testimony, the granting of this instruction to the jury was error. According to appellee, the “sudden emergency” existed when an approaching vehicle in Stanford’s lane of travel caused him to drive the right wheels of his “Blazer” off the road surface. This resulted in the right wheels of the vehicle traveling down the shoulder of the roadway. Appel-lee was positive in his testimony that the cause of the vehicle overturning was the manner in which the vehicle returned to the hard surface part of the roadway. Admittedly, appellee at no time applied his brakes. A photograph introduced in evidence clearly showed that the road surface had recently been repaved. Appellee contended that this newly paved surface raised the road level some six or eight inches above the level of the road shoulder, and that this condition caused him to lose control of his vehicle.

The distance the vehicle traveled with the right wheels on the shoulder before appel-lee’s attempt to return to the hard surface is disputed. Regardless of this, it is clear that the “sudden emergency” was over and. that another factor caused the driver to lose control of the vehicle. As stated above, it is undisputed that the sole cause of the accident was either the manner in which appel-lee attempted to drive back onto the road surface, the speed of the vehicle, or the fact that the right wheel or wheels caught on the raised road surface causing the vehicle to overturn.

The testimony is positive that the lights of the vehicle were burning and the appellee was looking ahead prior to his attempt to return to the roadway. As stated above, he contends that the edge of the blacktop was six or eight inches higher than the roadway shoulder. If this was true, the situation clearly was seen, or should have been seen, by appellee prior to his attempt to return to the highway without applying his brakes. The principle of law is clear and has been repeated a number of times that a person is charged with seeing that which he should have seen and that which is in plain view, open and apparent. Campbell v. Schmidt, 195 So.2d 87 (Miss.1967); Stewart v. White, 220 So.2d 271 (Miss.1969); Tippit v. Hunter, 205 So.2d 267 (Miss.1967); Layton v. Cook, 248 Miss. 690, 160 So.2d 685 (1969); Shideler v. Taylor, 292 So.2d 155 (Miss.1974).

It is inescapable, therefore, that there was a jury question as to whether the ap-pellee saw, or should have seen, the alleged dangerous condition within the range of his headlights prior to attempting to return to the hard surface, and was negligent in the action he took.

For all the above stated reasons, we hold that the “sudden emergency” instruction did not apply to the undisputed facts in this case, and it is necessary to reverse the case for that reason.

THE DOCTRINE OF SUDDEN EMERGENCY IN NEGLIGENCE CASES IS HEREBY ABOLISHED PROSPECTIVELY

Over the years we have cautioned trial attorneys in a large number of cases regarding the danger of requesting and securing the so-called “sudden emergency” instruction. During the past twenty-five years, this Court has considered approximately twenty-seven cases on appeal involving the propriety of the instruction either in its language or applicability and out of those cases approximately twenty have been reversed because the instruction was erroneous in some manner. As was recently said in Gates Rubber Co. v. Duke, 367 So.2d 910 (Miss.1979):

Sudden emergency instructions have been granted frequently in automobile accident cases. In most situations they are doubtful when requested and dangerous to a party’s cause when given.

The hazard of relying on the doctrine of “sudden emergency” is the tendency to elevate its principles above what is required to be proven in a negligence action. Even the wording of a well-drawn instruction intimates that ordinary rules of negligence do not apply to the circumstances constituting the claimed “sudden emergency.” Also it tends to confuse the principle of comparative negligence that is well ingrained in the jurisprudence of this State. The fallacy is pointed out in the instruction itself when after seemingly commenting on the evidence, the court instructs that the defendant should have “used the same degree of care that a reasonably prudent automobile driver would have used under the same or similar unusual circumstances.” In this Court’s opinion, the same rules of negligence should apply to all circumstances in a negligence action and these rules of procedure adequately provide for instructions on negligence. This Court indicated its disfavor of the “sudden emergency” doctrine as early as 1951 in the case of Jones v. Dixie Greyhound Lines, 50 So.2d 902 (Miss.1951), where it was said:

The emergency rule is not an exception to the general rule requiring reasonable care. The existence of an emergency is simply one of the circumstances contemplated by the normal standard of care, in seeking to ascertain whether the defendant acted as an ordinarily prudent and careful person would have done under the same circumstances. 5 Am.Jur., Automobiles, Sec. 171. Where an actor is confronted with a sudden emergency, the law does not require of him more than it is reasonable to expect of him under the circumstances which confront him. Although the actor cannot be held to the same standard of conduct as one who has had an opportunity to reflect, this does not mean that any different standard is to be applied in an emergency. The conduct required is still that which is reasonable under the circumstances.

The Supreme Court of Oregon has analyzed the fallacy of attempting to promulgate sepárate negligence principles under a “circumstance” called a “sudden emergency” in the case of Harkins v. Doyle, 271 Or. 664, 533 P.2d 785 (1975); Jones v. Mitchell Brothers Truck Line, 266 Ore. 513, 511 P.2d 347 (1973); and Evans v. General Telephone Co., 251 Ore. 460, 479 P.2d 747 (1971). In Jones, the Oregon Court said:

In the Evans case we pointed out that the usual instructions on negligence sufficiently covered “what a reasonably prudent person would do under all circumstances, including those of a sudden emergency.

In a well written article appearing in the Mississippi Law Journal, Vol. 36 at page 392 (1965), by Virgil G. Gillespie, the principle we are discussing was set out as follows:

The standard of care in actions based upon negligence is ordinarily measured in terms of the proverbial question: What would a reasonably prudent person have done under the same or similar circumstances? The emergency doctrine provides no exception to this general rule. The test is still the same. The existence of an emergency is simply one of the circumstances in the light of which the actor’s conduct must be judged. The rule requiring reasonable care is sufficient to take into consideration the excitement and confusion which normally accompany the emergency situation. While it is said that one confronted with a sudden emergency is not held to the same degree of care as one who had an opportunity to deliberate, this does not mean that any different standard is to be applied than in negligence cases generally. Some courts have spoken in terms of the application of a lower or diminished standard of care in emergencies. However, it is clear that they are not referring to the standard itself, but rather to the amount of care required because of the unusual circumstances.

We conclude, therefore, that the orderly disposal of negligence cases would be best served by applying uniform principles of negligence under all circumstances. The test is whether the actor being charged with negligence in any circumstance acted as a reasonable and prudent person would have acted under the same or similar circumstances. We do not mean to imply that abstract instructions on negligence should be granted by the trial court. As in the negligence instructions in all cases, the alleged negligent act should be tied to the evidence presented on that particular issue or circumstance.

This case was considered en banc and in the opinion of a majority of the judges, the act of abolishing the so-called “doctrine of sudden emergency” and its corresponding instruction on “sudden emergency” shall take effect and apply to all cases tried after the date this opinion is issued.

REVERSED AND REMANDED.

PATTERSON, C. J., and SUGG, BROOM and LEE, JJ., concur.

SMITH and ROBERTSON, P. JJ., and WALKER and COFER, JJ., dissent.

SMITH, Presiding Justice,

dissenting:

With deference to the views of the majority, I join Justice Walker in his dissent.

In the past, the making of declaratory or anticipatory decisions has been avoided by this Court, which has limited itself heretofore to deciding questions essential to the determination of issues presented by the case under consideration on appeal. Statements of opinion writers in discussing questions not presented by a case being reviewed uniformly have been regarded as dicta, not controlling in future cases in which such issues actually may arise. I have grave doubt that we should declare a rule in this case, in which, it is asserted, there is no question of sudden emergency, which will anticipate and control future cases, the facts of which we “know not of.” We cannot now know whether the present action, which will deprive future litigants of the right to sudden emergency instructions in cases in which such an instruction is appropriate and compatible with the facts in evidence, will not work a substantial denial of justice when such a case actually does arise. The drafting of a proper sudden emergency instruction requires only an examination of the decisions of this Court on the subject, and this should not be regarded as imposing an insuperable burden upon members of the Bar. I have considerable doubt as to the necessity or desirability of the declaratory or anticipatory features of the decision undertaking to preclude the granting of sudden emergency instructions in proper cases which may come before us at some future date, no matter what the circumstances may be.

WALKER and COFER, JJ., join in this dissent.

WALKER, Justice,

dissenting:

I respectfully dissent from the majority opinion of my colleagues. They state, “. . . it is clear that the ‘sudden emergency’ was over” when the appellant’s car was forced from the road, and hold it was error to give a “sudden emergency" instruction. In my opinion such reasoning defies logic. The emergency situation was only beginning at that point.

The testimony was conflicting on many key points. However, in determining whether a sudden emergency instruction is warranted by the evidence, the testimony must be viewed in the light most favorable to the party invoking the doctrine. Viewed in this light the evidence clearly warranted the giving of the instruction. At the very least the evidence presented a classic question for the jury.

The evidence shows that this accident occurred on a newly repaved portion of old Highway 90. It was late at night, dark, and photographs of the area show no street lights or other lights in the vicinity. The road surface was blacktop, and there were no painted lines or other markings on the road to indicate where the pavement ended and the shoulder began. The road surface was much higher than the shoulder, perhaps as much as six or eight inches higher in places, and Mr. Stanford was unaware of this fact. In addition, there was loose dirt on the side of the road, presumably left there by the road crew that paved the road. The shoulder was bumpy, and it was more like a ditch in some places. Also, Mr. Stanford was aware that he was approaching a railroad trestle although the trestle had not yet come into his view.

Stanford stated he was forced off the side of the road by a truck approaching from the opposite direction. He stated he was driving his vehicle in the proper lane at a reasonable speed at this time. The initial action he took to avoid a head-on collision was to veer to the right so that the two wheels on the passenger side dropped onto the shoulder of the road. He took his foot off the accelerator and coasted, with the two wheels off the road, for two, three or four seconds. During these few seconds the vehicle was tilting at an angle toward what testimony indicates to be a ditch on the right side of the road. Mr. Stanford then made the unfortunate decision to attempt to steer his vehicle back onto the level road. As he was doing so, the tires caught on the edge of the pavement and the vehicle went into a spin, flipping over into a ditch on the left side of the highway.

The plaintiff was a passenger in the rear seat of Mr. Stanford’s Blazer. His own testimony indicates he was “scared” while the vehicle was off the side of the road, and it appeared to him that Mr. Stanford also had “got scared.”

Given these facts it is clear to me that a proper sudden emergency instruction was appropriate. In Peel v. Gulf Transport Co., 252 Miss. 797, 174 So.2d 377 (1965), we stated:

The doctrine of sudden emergency is a legal defense to an alleged failure to use due care. It is in the nature of a confession and avoidance. It is the rule of expedient action under compulsion and stress of impending danger. It is a confession of having done acts, or having failed to perform a duty, which, under ordinary circumstances, would have constituted negligence, but which done or omitted under the stress of sudden peril were in fact acts or omissions of a reasonably prudent man acting under the same or similar circumstances. In order to invoke the doctrine of sudden emergency, it must appear that there was a time after the discovery of the impending peril, in which the party charged might have made a choice as to his course of action, and if having chosen one of two alternatives, although his ‘snap judgment’ or instant decision, may not have been proper had the party had time to carefully consider and deliberate upon a proper course to pursue; nevertheless, if he af-terwards pursues the course a reasonably prudent person would have pursued under a similar danger, he would not be held to the same strict accountability legally required under ordinary circumstances. This is true because the decision and course pursued was made under excitement, fear and bewilderment engendered by the impending danger, so as to have affected his judgment. (252 Miss. at 815-816, 174 So.2d at 385).

In the instant case the decision to swerve off the road was undoubtedly made under the excitement engendered by the situation. This excitement did not immediately abate once the initial action was taken, but most likely increased and peaked during the few seconds the vehicle was half-way on the shoulder, tilting toward the ditch on the right and bouncing along the shoulder. During this excitement and confusion Mr. Stanford made the decision to return to the safety of the highway. Under ordinary circumstances this would not be wise, given the fact that the driver failed to apply his brakes to reduce the vehicle’s speed so that the maneuver could be accomplished in relative safety. But these were no ordinary circumstances. The driver did not choose to be on the shoulder of the road, he did not and could not foresee the unusual condition of the shoulder, and he could not see that the paved surface was six to eight inches higher than the shoulder. His act may have been an error of judgment, but whether it was negligence was a question for the jury under our long-established law dealing with sudden emergencies.

I also find it particularly troublesome that the majority of the Court feels compelled to abolish the doctrine of sudden emergency. An annotation on the subject of sudden emergency instructions indicates at least 47 states have considered these instructions. See Annot., 80 A.L.R.2d 5 (1961 and Supp.1979). Although many courts, ours included, have stated that these instructions should be avoided when possible, no other court, to my knowledge, has advocated a total abolishment of the doctrine. To do so would be a meaningless exercise in semantics, since what test is left is the same as before — what a reasonably prudent man might have done when faced with the same or similar circumstances, i. e., a sudden emergency. Over a period of approximately fifty years, we have adopted reasonably simple and easy-to-follow rules dealing with the subject of a sudden emergency. In all these years, only 20 cases have been reversed because of error in or the giving of the instruction. When compared to appeals dealing with other principles of law, this, to me, speaks well of the rule and the understanding of it by the bench and bar, for surely hundreds of cases involving this theory must have been tried in the lower courts over these many years. To abolish the doctrine now will only create more uncertainty in this area of the law than now exists. The lawyers and judges will be left in the dark trying to devise new instructions with new wording based on new theories which will in my judgment cause more errors and more appeals than we have had in the past. We have successfully dealt with the problem of sudden emergencies and should not now “monkey” with the law. “Sudden emergencies” are not going away — they will always be around. They must, in some manner, be given the special treatment they deserve. To abolish the doctrine now will create chaos out of what is presently a little confusion. In my opinion, the majority are doing a disservice to the bench, the bar, and the litigants by abolishing this long-established principle of law.

In my judgment, this is a classic case for the granting of a “sudden emergency” instruction. However, the instruction itself was erroneous in that it was not sufficiently tied to the evidence and consequently did not provide a proper guideline for the jury to use in deciding the question.

The case should be reversed and remanded for a new trial.

SMITH and ROBERTSON, P. JJ., and COFER, J., join this dissent.

      . See 36 Mississippi Law Journal 407 (1965). “The very heart of the sudden emergency doctrine, assuming all other elements are present, is concerned with the reaction of the actor after the emergency arose. It must be remembered that even though the doctrine will excuse a mistaken or unwise choice in many instances, it will not automatically do so. In evaluating the actor’s conduct after the emergency arose, the question whether he exercised such care as a reasonably prudent and careful person would have used under the unusual circumstances is peculiarly one for the jury. Only in exceptional cases, where there is no conflict in the evidence, is this issue withheld from the jury. Obviously, an instruction which leaves out this third requirement does not properly submit the issue to the jury and is clearly misleading. Otherwise, the person who invokes the aid of the doctrine would only have to prove that he was faced with a sudden emergency which was not proximately caused by his own tortious conduct.”
      “Due to the importance of this feature of the sudden emergency instruction, care should be taken to phrase this requirement, as nearly as possible, in the same language as used by the court in the Withers decision. Stating that after the emergency arose the actor ‘did everything within his power to avoid the collision’ is not sufficient to satisfy this requirement. The omission of this requirement cannot be cured by the giving of general instructions which define negligence and set out the general standard of care.”

      . See 86 Mississippi Law Journal 407, 408 (1965). “The basic elements of the sudden emergency doctrine and the limitations thereon can be easily stated in a few short sentences. It is equally easy to quickly grasp a general understanding of the doctrine and the purpose it serves. There exists no great schism among the courts as to its application. No one is ' advocating the abolition of the doctrine or even a slight alteration, and there are no noticeable trends to interpret. Perhaps this manifest simplicity and lack of fertile soil to provide a battleground upon which great legal minds can engage in verbal conflict are the reasons that little has been written in this area of tort law. It is only in the area of instructions that a problem seems to have entered the picture. As mentioned, in Mississippi this problem has manifested itself in two ways — the erroneous granting of sudden emergency instructions where, as a matter of law, the doctrine does not apply, and the granting of instructions which fail to incorporate the applicable law. The problem does not seem to be confined to Mississippi. A recent and very extensive annotation on sudden emergency instructions in American Law Reports verifies the fact the other jurisdictions have also experienced difficulty in this area. If the doctrine is so simple, why have such a great volume of cases invoiv- ' ing the doctrine appeared in the appellate courts across the nation? It seems that proper instructions would necessarily follow if practicing attorneys were well informed as to the basic fundamentals of the doctrine. The requirements set forth in the Withers case should eliminate much of the problem as far as Mississippi is concerned.” (Emphasis added).

      . The first case involving the sudden emergency doctrine was reported over 200 years ago. Scott v. Shepard, 2 W.B.1. 892, 96 Eng.Rep. 525 (K.B.1773).
      The doctrine was first reported in our Federal system 140 years ago. Stokes v. Saltonstall, 38 U.S. (13 Pet.) 161, 10 L.Ed. 115 (1839).
      The doctrine has been a part of Mississippi’s jurisprudence since 1933. Vann v. Tankersly, 164 Miss. 748, 145 So. 642 (1933).


source: Caselaw Access Project

author: SUGG, Justice,

license: Public Domain

text:
    Joe BROADUS v. STATE of Mississippi.
    No. 52273.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    Rehearing Denied Dec. 10, 1980.
    Jon A. Swartzfager, Laurel, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

Defendant was convicted in the Circuit Court of the Second Judicial District of Jones County for the sale of marihuana and sentenced to 10 years imprisonment with 2 years suspended, provided a fine of $5,000 was paid within one year from date of sentencing. Defendant assigns as error the refusal of the trial court to give the following instruction requested by him:

The Court instructs the jury that if you believe that the defendant did not know what the package he delivered to Earl Plymale contained, then it is your sworn duty to find the defendant not guilty.

The state’s evidence that defendant sold marihuana was elicited from Earl Ply-male who testified that he bought marihuana from the defendant and paid $100 to the defendant for the marihuana. The defendant denied that he sold marihuana to Ply-male, and his defense was that Plymale asked him to obtain a package which Ply-male had hidden behind an air conditioning unit at defendant’s home and deliver it to Plymale. Defendant denied that he received any money from Plymale and stated that he did not know what the package contained but merely delivered it as requested by Plymale. The requested instruction was the only instruction which would have presented this defense to the jury.

In McVeay v. State, Miss., 355 So.2d 1389 (1978) we held one of the essential elements of the offense of selling marihuana was that the defendant had knowledge of the contents of the package which was sold. We reversed and discharged McVeay because there was no evidence that McVeay knew that marihuana had been sold to an undercover narcotics agent. McVeay was present when one Moore handed an undercover agent a package of marihuana for which he received $15 whereupon Moore handed the money to McVeay with the statement: “Here is your money.” There was no evidence that McVeay knew that the package contained marihuana.

In Applegate v. State, 301 So.2d 853 (Miss.1974), Applegate was convicted for delivering and transferring marihuana. Applegate visited his friend, Melvin Cook, at jail, and in Applegate’s presence Melvin Cook asked his wife to get him a package of Kool cigarettes and a can of Prince Albert. In about 30 minutes Cook’s wife returned to the jail with the cigarettes and a can of Prince Albert in a small paper bag and requested Applegate to hand the bag through the back window to a trusty for delivery to her husband. The testimony showed that it was customary to hand articles through the window to a trusty for delivery to a prisoner when the jailer was off duty. Applegate did not open either the package of Kool cigarettes or the Prince Albert tobacco can. We reversed the conviction holding that the testimony was not sufficient to prove directly or inferentially beyond a reasonable doubt that Applegate intended to deliver marihuana to the jail trusty. We further held that an essential element of the crime of delivery was that Applegate have knowledge that he was delivering a controlled substance.

The defendant was entitled to an instruction presenting his defense of lack of knowledge of the contents of the package to the jury for its consideration. The instruction should have been given because it dealt with a question of fact in the case; namely, did defendant know what the package contained? We therefore reverse and remand for a new trial because the trial court refused the instruction.

Defendant also argues that his demurrer to the indictment should have been sustained. The indictment charges the defendant as follows:

Joe Brodus on the 8th day of March, 1979 in the County and District aforesaid did wilfully, unlawfully, feloniously and knowingly sell to Earl Plymale for good and lawful money of the United States of America, a controlled substance, to wit; a quantity of Cannabis sativa L., commonly known as Marihuana, contrary to and in violation of the Uniform Controlled Substances law of 1971, Mississippi Code of 1972, Annotated, as Amended, this being against the peace and dignity of the State of Mississippi.

In his demurrer, defendant stated:

That the Uniformed Controlled Substance Law of 1971 has been amended in that on July 1,1977 the Laws of the State of Mississippi provide for two (2) separate offenses of sale of marihuana. Section 41-29-139(c)(2)(A) states that it is unlawful to sell one (1) kilogram or more of marihuana, and Section 41-29-139(c)(2)(E) states that it is unlawful to sell less than one (1) kilogram of marihuana, and that these two sections of the code constitute separate offenses, as shown through the interpretations of said statutes by the Mississippi Supreme Court.
That these two (2) separate offenses call for different penalties and that the Defendant is unable to ascertain what penalty might be prescribed upon conviction.
That the indictment is defective by a failure to show the Defendant of what crime he is charged.

The trial court overruled the demurrer holding that the indictment properly charged the defendant with the unlawful sale of marihuana, but since the indictment did not specify the amount of marihuana sold, punishment would be imposed under section 41-29-139(c)(2)(B) Mississippi Code Annotated (Supp.1977) which provides for a lesser penalty than section 41-29-139(c)(2)(A) Mississippi Code Annotated (Supp.1977). Section 41-29-139(c)(2)(B) prescribes the penalty for the sale of less than one kilogram of marihuana, and section 41-29-139(c)(2)(A) prescribes the penalty for the sale of one kilogram, or more, of marihuana. In White v. State, 374 So.2d 225 (Miss.1979) we held that when the facts which constitute a criminal offense may fall under either of two statutes, the statute which imposes the lesser punishment will apply. Accord. Grillis v. State, 196 Miss. 576, 17 So.2d 525 (1944).

The indictment did not specify the amount of marihuana that defendant was charged with selling, so the trial court properly held that if defendant was convicted he would be sentenced under the statute which imposed the lesser punishment. We hold the trial court did not err in overruling the demurrer.

Defendant also assigns as error the failure of the state to furnish him with a complete record of the convictions of a witness for the state. In response to a motion of the defendant and order of the court, the state furnished the defendant with a list of four convictions of the witness in municipal court. The list did not include three convictions of the witness before the witness attained the age of 18 years. The trial judge held that the convictions before the witness attained the age of 18 years could not be used for impeachment purposes. The state argues this was proper under our decision in Hamburg v. State, 248 So.2d 430, 431 (Miss.1971) and in the United States Supreme Court decision in the case of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Both the Hamburg and Davis cases dealt with proceedings in youth court and have no application to convictions of a juvenile in municipal court. On retrial defendant should be permitted to show all the convictions of the witness regardless of the age of the witness at the time of the convictions.

The other assignments of error of the defendant have been carefully noted but merit no comment. We reverse and remand because of the failure of the trial court to give the instruction requested by the defendant heretofore set forth in this opinion.

REVERSED AND REMANDED.

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

      . The instruction is technically incorrect. The jury should be instructed, “.. . that if you believe from the evidence ...” instead of “. .. that if you believe ...”

      . This reference is obviously erroneous because there is no Section 41-29-139(c)(2)(£) in Mississippi Code annotated (Supp.1977). The (E) should be (B).


author: BROOM, Justice,

text:
    Homer ATKINSON v. STATE of Mississippi.
    No. 52227.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    Rehearing Denied Jan. 21, 1981.

      Morris C. Phillips, Jr., A. R. Wright, Jr., Carthage, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   BROOM, Justice,

for the Court:

Manslaughter conviction and sentence of twenty years imprisonment resulted from Homer Atkinson’s (defendant’s) trial in the Circuit Court of Leake County. On appeal he argues that (1) the indictment was insufficient for failure to have accompanying it the grand jury foreman’s affidavit that it was concurred in by twelve members when fifteen grand jurors were present, (2) the evidence was insufficient, (3) he was not granted a speedy trial, and (4) the prosecutor’s jury argument contained erroneous remarks. We affirm.

Culpable negligence in the operation of a motor vehicle is the gist of the indictment at issue. Mississippi Code Annotated § 97-3-47 (1972). Facts established by the evidence are as follows: On March 17,1978, at night, the defendant was driving a pick-up truck North on Highway 35, a two-lane state highway. He drove his truck out into the South-bound lane to pass another vehicle and, in so doing, collided head-on with a South-bound Toyota in which Patricia Wooten was riding. As a result of injuries suffered in the collision, Patricia died. Scene of the collision was at a place where the highway was virtually a flat straight-a-way for about a mile. The highway patrolman who investigated the accident found no skid marks that would indicate application of brakes. Tire tracks observed by the officer were on the shoulder off the West side of the South-bound lane and veered off the highway where the two vehicles came to rest nose-to-nose. The Toyota was almost off the paved portion of the highway. Other facts and testimony will be set forth as needful in this opinion.

The argument that the indictment is defective for its failure to be accompanied by the foreman’s affidavit lacks persuasion. In a number of instances we have held that the foreman’s endorsement upon the indictment along with the filing data of the clerk is sufficient to withstand demurrer. McCormick v. State, 377 So.2d 1070 (Miss.1980); Shaw v. State, 378 So.2d 631 (Miss.1979); Stewart v. State, 377 So.2d 1067 (Miss.1979); Jackson v. State, 377 So.2d 1060 (Miss.1979).

Next legal proposition argued relates to the sufficiency of the evidence. Pertinent here is the testimony of a Mr. Vowell who was travelling South on the highway immediately behind the Toyota in which Patricia Wooten was riding. According to Vowell there were two sets of headlights approaching in the lane for Northbound traffic when suddenly one set of the headlights pulled out to pass and that car collided with the Toyota in the Southbound lane. To the same effect was the testimony of Mrs. Vowell, and her testimony established that the passing vehicle (the defendant’s pick-up truck) never overtook the vehicle that he was attempting to pass although, according to her, he could have moved back over into the lane behind the car he was attempting to pass. We think the testimony establishes, and the jury must have found, that the defendant remained on a collision course for several seconds when he had an opportunity and sufficient time to leave the collision course and go back into his own proper and legal traffic lane. Under these circumstances, the defendant’s failure to make any attempt to go back into his proper Northbound lane or take some other steps in order to avoid the tragic collision was sufficient to sustain the conviction for culpable negligence. This is especially true but even more so when considered together with the doctor’s testimony that in the hospital examining room the defendant smelled of alcohol and had a slurred speech. In addition to this is the testimony of Dr. Hume who analyzed the defendant’s blood sample and found .083% alcoholic content.

According to Dr. Hume’s testimony a detrimental causal effect on mental and physical capabilities of an operator of an automobile results from an alcoholic content of .08%. Dr. Hume testified, “It has been established that .08% does affect a driver of a vehicle in that it does act on the central nervous system, the brain slowing down, reflexes affecting judgment, and sometimes even vision at .08% is affected.” It is noteworthy here that defendant’s blood sample was not obtained until over two hours after the accident. Scarborough v. State, 261 So.2d 475, 477 (Miss.1972).

Because the defendant’s wife and child were with him when the accident occurred, he says that it is unreasonable to believe that he would willfully injure his wife and child, much less the victim. Of course the defendant is not charged with willful manslaughter; the charge under the statute is that he slayed the victim by culpable negligence. The jury rejected his argument. Another contention of the defendant is that there was no direct evidence establishing that he was operating the pick-up truck when the accident occurred. The jury had before it the evidence of Officer Stokes who testified that shortly after the accident occurred, he found the defendant’s boot lodged under either the brake or clutch pedal. Other testimony established that the occupants of the pick-up truck were pulled from the passenger side of the pickup as follows: “They got the woman out first, and then they got the little girl out, and then they got the man out.” These facts would justify the jury to infer that the driver was the appellant and that the only other person capable of driving was seated next to the passenger door. Simmons v. State, 301 So.2d 565, 568 (Miss.1974); Campbell v. State, 278 So.2d 420 (Miss.1973); McLelland v. State, 204 So.2d 158 (Miss.1967).

It is true that the testimony of Mr. Vo-well was somewhat impeached when it was revealed that he had been convicted of a crime which he had denied on the witness stand. Nevertheless, the jury’s function was to pass upon the credibility of this witness as well as the others, and our review of the record establishes that the evidence was sufficient to sustain the defendant’s conviction of manslaughter.

Another proposition argued is that the trial court committed error in overruling the defendant’s motion to be dismissed from the charge because more than 270 days had passed since the defendant had been arraigned. Mississippi Code Annotated § 99-17-1 (Supp.1976). There is no merit to this argument because the defendant’s first trial took place within the time limit of § 99-17-1 and during the same term of his indictment and arraignment. His arraignment and first trial were in April of 1978 at which time he was convicted and appealed. We reversed on June 22, 1979, and then on November 19, 1979, he was again convicted at his second trial. As has been held specifically in other jurisdictions the right to a speedy trial does not extend to the appeal. State v. Lee, 343 So.2d 1060 (La.1977); State v. Rhodes, 308 So.2d 770 (La.1975); State v. Lane, 302 So.2d 880 (La.1974). There cannot be any merit to the argument that the delay here was not for a good cause when the delay came about on account of the appeal of the defendant and clearly the delay inured to his benefit. Smith v. State, 220 So.2d 313 (Miss.1969).

Lastly, the appellant argues that he is entitled to reversal on account of improper and inflammatory arguments made by the prosecutor to the jury. Our review of the record in this respect does not reveal that the prosecutor’s remarks fall within any of the classes of cases for which reversal had been ordered in our past decisions. Upon the evidence presented it is not reasonable that any jury upon hearing the evidence in this case could have reached any other verdict than that which was rendered. The defendant’s driving in the wrong lane of traffic obviously, as the jury found, caused a head-on collision at a place where there were no skid marks or any indication at all that he made any attempt to reduce his speed or get back in the proper lane of traffic. His actions were clearly culpable negligence within the purview of § 97-3-47, supra, and affirmance must be ordered.

AFFIRMED.

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

      . Atkinson’s previous conviction was reversed because a juror failed to properly respond to a question during her voir dire examination. Atkinson v. State, 371 So.2d 869 (Miss.1979).


author: SMITH, Presiding Justice,

text:
    DEPOSIT GUARANTY NATIONAL BANK v. E. Q. SMITH PLUMBING & HEATING, INC. et al.
    No. 52198.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    Rehearing Denied Jan. 21, 1981.
    Robert C. Cannada, Stephen W. Rosen-blatt, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellant.

      William J. Johnson, Jerry L. Mills, Johnson & Mills, Clinton, for appellees.
    Before SMITH, SUGG and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

Deposit Guaranty National Bank has appealed from a judgment of the Circuit Court of Hinds County of the First Judicial District, (which affirmed the judgment of the county court) in which the lien of certain materialmen was declared to be paramount to the lien of the deed of trust held by appellant bank securing construction funds advanced by it to finance the project in which the subject material had been used.

The Circuit Court Judge rendered a clear, detailed and comprehensive opinion in which all of the material facts are set forth. This opinion is quoted in full in the brief filed on behalf of appellees, followed by this statement: “The opinion of the Court sets out the essential facts in this matter. The facts are undisputed.”

The opinion, with the court’s conclusions, is as follows:

1.

Prior to November 17, 1978, Deposit Guaranty National Bank (“the Bank”) agreed with Gannon Construction Company (“Gannon”) to provide financing to Gannon in connection with the purchase of Lot 196, Brookhollow Place, Part 5, a subdivision in the First Judicial District of Hinds County, Mississippi and the construction of a dwelling thereon (“Lot 196”), provided the Bank would have as security therefor a first Deed of Trust on said lot and the improvements to be constructed thereon.

2.

Accordingly, on November 17, 1978, Gan-non executed a Promissory Note to the Bank in the amount of $45,600.00, which was eighty percent (80%) of the estimated completed value of the house and lot, based on the plans and specifications. Gannon also executed a Deed of Trust in favor of the Bank on Lot 196 and all buildings and improvements to be erected thereon to secure said Note. This Deed of Trust was duly filed in the office of the Chancery Clerk of the First Judicial District of Hinds County, Jackson, Mississippi.

3.

Beginning on November 17, 1978, the Bank made periodic advances to Gannon under the aforesaid Promissory Note and Deed of Trust as hereinafter described. All construction loan advances were not disbursed directly by the Bank, but were disbursed by the law firm (“the disbursing agent”) for Mississippi Valley Title Insurance Company (“the Title Company”) which had issued its title policy to the Bank on this construction loan. The Bank’s initial advance was by a cashier’s check payable jointly to Gannon and the Title Company, and all subsequent advances were made by direct deposit by the Bank to the disbursing agent’s checking account.

4.

On the initial advance and on each subsequent deposit to the disbursing agent’s checking account with the Bank, the Bank duly noted that the advance was for Lot 196. The disbursing agent disbursed the entire amount of $42,732.00 advanced by the Bank on this loan for the purchase of Lot 196 and the construction of the building and improvements thereon. No disbursements from the funds deposited to this account were made for any projects other than Lot 196.

5.

Before each disbursement, the disbursing agent would have a bring-to-date title search performed on Lot 196 to verify that title to Lot 196 was clear and that no notices of construction liens or any other liens were of record at the time of the disbursement.

6.

Before each disbursement, Gannon also executed and delivered to the disbursing agent a sworn affidavit to the effect that no indebtedness was due for any materials or labor for the construction of any improvements to or on Lot 196 at the time of each disbursement. After being furnished such affidavit, the disbursing agent disbursed the funds and the Title Company issued an endorsement to its policy increasing the amount thereof to include the total amount of all disbursements.

7.

No disbursements were made by the disbursing agent directly to any laborers or materialmen of Gannon on Lot 196.

8.

The Bank, as construction lender, acting through the disbursing agent as aforesaid, used reasonable diligence in making advances to Gannon and therefore had a first lien on said property in the amount of $42,-732.00 plus accrued interest.

9.

The Court finds that E. Q. Smith Plumbing & Heating, Inc., furnished labor and materials to Gannon for improvements to or on Lot 196 in the amount of $1,200.00; that Southwestern Materials Company furnished materials to Gannon for improvements to or on Lot 196 in the amount of $1,035.83; that Guy Green Lighting and Building Supply, Inc. furnished materials to Gannon for improvements to or on Lot 196 in the amount of $2,180.20; and that W. E. Alexander furnished labor and materials to Gannon for improvements to or on Lot 196 in the amount of $720.20.

10.

Gannon failed to pay the materialmen the amount it was indebted to them as stated in the preceding paragraph, and thereafter each of the materialmen duly filed its notice of construction liens for the amounts set forth in the preceding paragraph in the office of the Chancery Clerk of the First Judicial District of Hinds County, Jackson, Mississippi.

11.

All of the foregoing notice of construction liens were filed after the last advance made by the Bank and after the last disbursement to Gannon by the disbursing agent.

12.

When Gannon defaulted on the above-described Promissory Note, the Bank instituted foreclosure proceedings on Lot 196 under its Deed of Trust. The foreclosure sale was duly held and conducted on July 3, 1979, and Lot 196 was sold at the foreclosure sale for $38,000.00.

13.

The day before the foreclosure sale, on July 2, 1979, the plaintiff, E. Q. Smith Plumbing & Heating, Inc., filed its Declaration and Petition to Enforce Lien in this Court, and filed its lis pendens notice in the office of the Chancery Clerk of the First Judicial District of Hinds County, Mississippi. No other materialmen filed suit or joined in the foregoing suit as third party plaintiffs prior to the foreclosure sale.

14.

The Court finds that this case is controlled by the recent decision of the Mississippi Supreme Court in Guaranty Mortgage Company of Nashville v. Seitz, 367 So.2d 438 (Miss.1979). Applying the principles of that case, the Court finds that all material-men who filed suit or joined in as third party plaintiffs before the foreclosure proceeding are entitled to a valid and enforceable lien against the subject property, notwithstanding the duly held foreclosure sale. Therefore, when the Bank became the purchaser at the Trustee’s sale, it took title subject to the lien of E. Q. Smith Plumbing & Heating, Inc. All other materialmen’s liens on Lot 196, however, are subject to being extinguished by a foreclosure of the Deed of Trust and, by virtue of the valid foreclosure sale, consequently were extinguished insofar as being liens on Lot 196 and were transferred to the proceeds of the sale, if any, in excess of the amount of the indebtedness of Gannon to the Bank. Because the $38,000.00 realized from the foreclosure sale was less than the indebtedness to the Bak [sic] of $42,732.00, there was no surplus to which any of the aforesaid mate-rialmen’s liens could attach. Consequently, such materialmen’s liens were extinguished by the foreclosure sale, and should be can-celled of record.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the plaintiff, E. Q. Smith Plumbing and Heating, Inc., is entitled to judgment against Gannon Construction Company in the amount of $1,200.00 and that the plaintiff, E. Q. Smith Plumbing & Heating, Inc., has a valid and enforceable lien for such amount against Lot 196, Brook-hollow Place, Part 5, Hinds County, Mississippi, which lien was not extinguished by the foreclosure sale. Accordingly, unless the aforesaid $1,200.00 is paid to the plaintiff within 30 days from the date of this Final Judgment, a judicial sale of Lot 196 will be held in accordance with the requirements of the statutes and that the proceeds from such sale be used to satisfy the lien of Bank in the sum of $42,732.00 plus accrued interest as provided in the note from Gan-non Construction Company from the date of disbursement to date of sale and expenses incurred, then in satisfaction of the lien of E. Q. Smith Plumbing and Heating Co., Inc. in the sum of $1,200.00 plus interest from July 2, 1979, and any balance remaining to Gannon Construction Company.

IT IS FURTHER ORDERED AND ADJUDGED that judgment be entered against Gannon Construction Company as follows: in favor of Southwestern Materials Company in the amount of $1,035.83; in favor of Guy Green Lighting and Building Supply, Inc. in the amount of $2,180.20; and in favor of W. E. Alexander in the amount of $720.20.

IT IS FURTHER ORDERED AND ADJUDGED that the construction liens of all materialmen and laborers other than E. Q. Smith Plumbing & Heating, Inc. were subject to being extinguished by a foreclosure of the Bank’s Deed of Trust, and because no surplus of funds resulted from the Trustee’s sale, such construction liens filed against the subject property be, and the same hereby are, cancelled of record and held for naught.

A great many cases decided by this Court are cited by counsel for the respective parties, but we believe that the decisions in Wortman & Mann, Inc. v. Frierson Building Supply Co., 184 So.2d 857 (Miss.1966) and Guaranty Mortgage Co. of Nashville v. Seitz, 367 So.2d 438 (Miss.1979), (and particularly in the latter) contain a sufficient collation of the relevant authorities to make it unnecessary to bring them all forward again in this opinion.

In Wortman & Mann, this Court said:

We are of the opinion that the true rule is expressed by this Court in the case of Southern Life Insurance Company v. Pollard Appliance Company, supra, wherein we said:
“A lender advancing construction funds must use reasonable diligence to see that these funds áre actually used in payment for materials or other cost of construction. Such a construction mortgagee has preference over materialmen and laborers only to the extent that its funds actually go into the construction.” (Emphasis supplied.) 247 Miss. [211] at 221, 150 So.2d [416] at 420.

And the Court said further:

Under the facts in the present case, we are of the opinion that the appellant Loan Company used reasonable diligence to see that the funds they advanced were actually used in payment for materials or other costs of construction. The attorneys representing the title insurance company required the Contractor to give them a statement in the form of an affidavit that he did not owe for materials and labor at the time they delivered to him the money lent under the terms of the deed of trust. Moreover, the attorneys made regular trips to the office of the chancery clerk to observe and check the records in an effort to determine whether or not materialmen or laborers had perfected their claim as materialmen under the terms of Mississippi Code Annotated section 356 (Supp.1964), as amended. The materialmen failed to give any notice to the encumbrancer Wortman & Mann, Inc., and failed to file their notice of lien in the “Notice of Construction Liens” in the office of the chancery clerk, and failed to give notice or to record their claim in the lis pendens record, or to file suit prior to the time when the Loan Company had advanced funds under its trust deed liens. They therefore failed to establish their lien as materialmen under section 356, supra, and consequently the appellants [the construction lenders] were prior lienholders for a valuable consideration without notice. (Emphasis added).

It is now argued that this Court in Guaranty Mortgage, supra, changed the rule enunciated in Wortman & Mann. In Guaranty Mortgage this Court said:

Our cases construing the rights of laborers or materialmen under the above statute and the rights of a lender advancing funds for a construction loan may be summarized as follows: The lien of a deed of trust securing a construction loan has priority over mechanics’ and materi-almen’s liens only to the extent that; (a) the funds disbursed actually went into the construction, or (b) to the extent that the construction lender used reasonable diligence in disbursing the construction loan. See Weiss, Dreyfous Seiferth, Inc. v. Natchez Inv. Co., Inc., 166 Miss. 253, 140 So. 736 (1932), 80 A.L.R.2d 179, 247 (1961); First National Bank of Greenville v. Virden, 208 Miss. 679, 45 So.2d 268 (1950), 80 A.L.R.2d 248 (1961); Deposit Guaranty Bank & Trust Co. v. J. F. Weaver Lbr. Co., 215 Miss. 183, 60 So.2d 598 (1952); Southern Life Insurance Co. v. Pollard Appliance Co., 247 Miss. 211, 150 So.2d 416 (1963); Wortman and Mann, Inc. v. Frierson Bldg. & Supply Co., 184 So.2d 857 (Miss.1966); North American Mortgage Investors v. Miss. Hardware Co., Inc., 360 So.2d 1203 (Miss.1978). [367 So.2d at 441]. [Emphasis added].

There is no dispute in the case now before the Court that the construction lender, Deposit Guaranty National Bank, “used reasonable diligence in disbursing the construction loan” and also, that the funds disbursed actually went into the construction.

In Guaranty Mortgage this Court said of the lender in that case:

Our holding may be summarized as follows: Guaranty Mortgage did not use reasonable diligence in disbursing the construction loan to Watkins Investments for the construction of the Starkville Shopping Center and was entitled to a lien superior to the materialmen only in the amount that went into the construction of the project. (Emphasis added) (367 So.2d at 444).

The present record makes it clear that the measures followed by Deposit Guaranty National Bank were patterned upon those set forth in Wortman & Mann, and also fully compiled with the requirements of the rule stated in Guaranty Mortgage.

We see no inconsistency between the rule applied by this Court in Guaranty Mortgage and that enunciated in Wortman & Mann. There is no dispute in the present case that Deposit Guaranty National Bank fully complied with the requirements set forth in those cases as being necessary to preserve the priority of its construction loan trust deed. It was error to award priority to appellee, E. Q. Smith Plumbing & Heating, Inc. As to that, the judgment appealed from will be reversed and judgment will be entered here for appellant. In all other respects the judgment appealed from is affirmed.

THE JUDGMENT APPEALED FROM GRANTING PRIORITY TO THE LIEN OF E. Q. SMITH PLUMBING & HEATING, INC. IS REVERSED AND JUDGMENT IS ENTERED HERE FOR DEPOSIT GUARANTY NATIONAL BANK. IN ALL OTHER RESPECTS THE JUDGMENT IS AFFIRMED.

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


author: LEE, Justice:

text:
    Gene N. SHAW v. Mrs. Georgia Ann RICHARDSON.
    No. 52299.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    Thomas W. Tyner, Tyner & McMahan, Hattiesburg, for appellant.
    David O. McCormick, Cumbest, Cumbest & Hunter, Pascagoula, for appellee.

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

Mrs. Georgia Ann Richardson filed suit in the Circuit Court of Jackson County, Honorable Robert A. Prichard, presiding, against Gene N. Shaw, seeking damages for personal injuries sustained in a collision between an automobile driven by Shaw and one in which Mrs. Richardson was riding. The jury returned a verdict in the sum of forty-five hundred dollars ($4,500), judgment was entered in such amount for Mrs. Richardson, and Shaw has appealed to this Court, assigning three (3) errors in the trial below.

I.

Did the lower court err in overruling appellant’s motion in limine for the exclusion of certain evidence?

On June 18, 1978, appellee was riding in an automobile driven south by her husband on six-lane Market Street in Pascagoula. As the vehicle, traveling in a middle lane, approached the intersection of Market Street and westbound Peter Street, an automobile driven by appellant in a southerly direction proceeded to make a left-hand turn onto Peter Street across the southbound lanes of Market Street, colliding with the Richardson vehicle. Appellee sustained injuries consisting of a blow to her head, cuts, a bruised shoulder, and pain in her chest, arms and shoulders. She was approximately nine (9) months pregnant at the time and was delivered of a child the next day. Appellant testified that her doctor bill at Singing River Hospital was thirty-seven dollars fifty cents ($37.50) and that ambulance charges amounted to fifty dollars ($50.00). She lost one day of work as a result of the accident.

Appellant filed a motion in limine requesting that the appellee be prohibited from showing on trial, or producing proof of (1) the premature birth of the child, (2) any permanent or partial disability she suffered as a result of the accident, (3) any loss of wages or future wages, (4) any future mental pain and anguish, (5) any damages for loss of the vehicle, and (6) drug bills. The trial judge overruled the motion.

No medical evidence was offered by either party, although appellee waived the physician-client privilege. Evidence was proper to show appellee’s condition of pregnancy at the time of the accident. There was no attempt to show that such condition was aggravated by, or that the baby was injured in, the collision. Partial disability was shown by appellee as a result of the accident. No evidence of permanent disability was offered. Lost wages of one day were shown by the evidence and there was proof of appellee’s suffering headaches from the time of the accident until trial. No effort was made to show damages for loss of the vehicle or drug bills.

From the above, it is apparent that the trial judge acted properly in overruling the motion in limine. Appellant cites McCay v. Jones, 354 So.2d 1095 (Miss.1978) but that case is not authority for his position here. In the event appellee attempted to develop facts at trial which were objectionable, specific objections could be dealt with in the trial more efficiently than attempting to separate whole blocks of evidence. Haver v. Hinson, 385 So.2d 605 (Miss.1980).

II.

Did the lower court err in declining to grant Instruction D-15 requested by appellant?

Instruction D-15 follows:

“The Court instructs the jury that Mr. Richardson, Plaintiff’s husband, was under a duty to slow his vehicle while approaching the intersection of Market Street and St. Peter; that if you find from a preponderance of the evidence that Mr. Richardson failed to discharge this duty, then as a matter of law, he was negligent in the operation of his vehicle.
The Court further instructs the jury that if you find from a preponderance of the evidence that Mr. Richardson was guilty of negligence in failing to slow his vehicle while approaching the aforesaid intersection and that such negligence was the sole, proximate and only cause of the accident which occurred, then your verdict shall be in favor of the Defendant, Gene N. Shaw.”

Mr. Richardson testified that he decreased speed as he approached the intersection with Peter Street, which was not contradicted, although appellant testified that Richardson was exceeding the speed limit. Appellant was given other instructions (D-10 and D-12), which told the jury that “The operator of a motor vehicle is required to keep a due and proper lookout for other vehicles,” and “It is the duty of the driver of an automobile to drive carefully and keep a lookout ahead and to keep hís automobile under control in order to avoid colliding with objects in front of him.” Speed and control complement each other. Considering all instructions for appellant and appellee as a whole, we are of the opinion that the jury was properly instructed and that refusal of D-15, if error, was harmless.

III.

Did the lower court err in declining to enter a remittitur or, in the alternative, to grant a new trial on the ground that the verdict was so excessive as to evince bias and prejudice against appellant on the part of the jury?

As stated, appellee testified that she sustained bruises to her shoulder, a bump and cuts on her hand, pain in her chest, arms and shoulders, and from the accident until the time of trial, had recurring headaches and pain in her chest, arms and shoulders. That testimony is uncontradicted and may be taken as true.

In Mississippi Power Co. v. Russell, 377 So.2d 595 (Miss.1979), we said:

“In Walton v. Scott, 365 So.2d 630 (Miss.1978), we restated the principle involved in the present case and said:
‘In reviewing the action of the trial judge who enters an additur or remitti-tur on motion for a new trial, the Court looks to whether or not the trial judge manifestly abused his discretion in so doing. Dorris v. Carr, 330 So.2d 872 (Miss.1976). However, in determining whether or not the trial judge abused his discretion it is necessary for this Court to look beyond his action and apply the rule stated in Biloxi Electric Co. v. Thorn, supra [264 So.2d 404 (Miss.1972)]; Standard Products Inc. v. Patterson, supra [317 So.2d 376 (Miss.1975)]; and other cited cases on the question.’ 365 So.2d at 632.” 377 So.2d at 596-597.

The same principle applies when the trial judge declines to enter an additur or remit-titur on motion for a new trial.

In Ross & Co., Inc. v. McWhirter, 216 Miss. 658, 63 So.2d 38 (1953), the plaintiff obtained a verdict of three thousand dollars ($3,000) for personal injuries and damage to his automobile. The court affirmed with a remittitur of seven hundred fifty dollars ($750.00). The evidence relating to plaintiff’s injury was stated in the opinion as follows:

“But the defendant further contends, as set forth in his motion for a new trial, that the verdict is grossly excessive as to actual damages to the automobile and to the person of the plaintiff. The testimony disclosed a cost of $280.15 for the repair of the automobile, and further disclosed that the plaintiff did not receive any bruise, cut or other injury to his person than the resulting nervousness that was occasioned by reason of the collision. He was a graduate student at Mississippi State College, alongside the campus of which the highway ran on which the collision occurred. We are impressed that he endeavored to truthfully state the extent of his injuries, and without exaggeration. He did not lose a day from school on account of the accident, did not consult a physician until a few weeks thereafter, and incurred no medical or hospital expense. He does not claim that any lameness resulted to him on account of the accident, or that he had suffered any pain other than the discomfort of nervousness, but did claim that he had been unable to make as good grades as a student following the accident as he was able to make prior thereto.
The physician who examined him at the time above stated was of the opinion that he was extremely nervous and that from the history of the case this condition was the proximate result of the accident. He testified as a witness that the nervousness may last for several weeks longer after the trial, and it appears that a period of a few months had intervened between the date of the accident and the time of the trial.” 216 Miss. at 663, 63 So.2d at 38.

After the remittitur in Ross, the judgment for personal injury damages stood at two thousand dollars ($2,000). By comparison, with inflation rampant, such damages in 1953 amount to more than $4,500 in 1980. Appellee’s injuries were more serious than McWhirter sustained. We cannot say that the trial judge abused his discretion here in not entering a remitti-tur or granting a new trial on the issue of damages, or that the jury was biased or prejudiced in returning the verdict in such amount, or that the verdict was against the overwhelming weight of the evidence.

The judgment of the lower court is affirmed.

AFFIRMED.

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


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    Henry P. FORD v. ALABAMA BY-PRODUCTS CORPORATION.
    79-360.
    Supreme Court of Alabama.
    Dec. 19, 1980.
    M. Clay Alspaugh, of Hogan, Smith & Alspaugh, and J. Mark White of Smith, White & Hynds, Birmingham, for appellant.
    Lyman H. Harris and William R. Myers of Lorant, Harris & Yearout, Birmingham, for appellee.
   EMBRY, Justice.

Henry P. Ford appeals from a final judgment, entered after an ore tenus hearing, which denied him a temporary restraining order and preliminary and permanent injunction against Alabama By-Products Corporation to prohibit and prevent it from relocating a road, alleged to be a public one by Ford, and to require Alabama By-Products to maintain the road known as Ford Road, and which judgment also denied him other relief, including a declaration that Ford Road was a public road. We affirm.

Facts

Henry P. Ford owns farm land in western Jefferson County located within a horseshoe bend of the Locust Fork Branch of the Warrior River. North of Mr. Ford’s property, at the open end of the horseshoe, Alabama By-Products Corporation owns land which separates Mr. Ford’s property from the nearest public road, Gobbler’s Knob Road. A road called Ford Road originates at Gobbler’s Knob Road and runs in a southerly direction across Alabama ByProducts’ land and the Ford farm all the way to the river. The sketch attached as an appendix depicts the location of the properties of the parties and the roads.

Ford Road was originally a narrow wagon trail or logging road by which numerous individuals traveled during the last 60 years to fish and swim at the river, log and hunt in the surrounding woods, or to farm the Ford land in the bend of the river. Several of the witnesses who had traveled the road testified they had never been prohibited from traveling the road nor had they ever seen posted a no trespassing sign. Mr. Ford, himself, had used the road since 1933.

Jefferson County improved the road and worked it from 1966 to 1971. Prior to 1966 the county considered it an impassable dirt road. In 1971 the county discontinued maintenance of the road because there was only one house at the end of the road and the county had not established prescriptive rights in the road, and apparently did not wish to accept it by dedication or otherwise, with the resulting obligation of maintenance.

The Alabama By-Products land through which Ford Road runs was heavily wooded and not developed prior to strip mining operations which commenced in 1969. Alabama By-Products owns significant coal reserves under Ford Road which it plans to strip mine. It constructed a road as an alternate means of access to the Ford farm while the Ford Road site is being strip-mined.

The trial court found Ford Road not to be a prescriptive easement or a public road. Instead, it found that use of Ford Road over lands of Alabama By-Products was permissive and the relocated road was a reasonable alternative access to the Ford property.

Issues

(1) Whether Ford Road became a public road by prescription?

(2) Whether Henry P. Ford acquired a prescriptive easement over Alabama ByProducts’ land by his use of Ford Road?

Mindful that this is an ore tenus case, every presumption will be indulged in favor of the trial court and its findings will not be disturbed unless palpably wrong.

We first consider whether the trial court erred in finding Ford Road not to be a public one.

A public road may be established by common law dedication, statutory proceeding, or by prescription. Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972). An open, defined roadway, through reclaimed land, in continuous use by the public as a highway without let or hindrance for a period of twenty years becomes a public road by prescription. When such circumstances are shown, a presumption of dedication or other appropriation to a public use arises. The burden is then on the landowner to show the user was permissive only, in recognition of his title and right to reclaim the possession. Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95 (1954).

In Benson v. Pickens County, 260 Ala. 436, 70 So.2d 647 (1954), it was noted that the above principles were not applicable to wooded or unimproved lands or lands which, though once reclaimed, had been “turned out” or left open and unused. Instead, where the road runs over unimproved or “turned out” lands there is no presumption of dedication by mere use; rather there is a presumption of permissive use and the user must establish his use as adverse to that of the owner. This principle is grounded on sound policy. Otherwise, an owner with no present use for the land over which a road runs would be required to suffer the expense of taking affirmative action to prevent travel over his unused land to avoid having a public road established on that land.

In light of the record, and the trial court’s findings, we must conclude that the land over which Ford Road ran was unimproved or “turned out” land and that the use of the road by the public was permissive. It follows, therefore, that the trial court did not err in holding that Ford Road was not a public one.

We now consider whether Ford acquired a private prescriptive easement in Ford Road.

“A private easement is not established merely by the use of the lands of another for a period of twenty years or more. Such use must have been adverse to the owner of the premises over which the easement is claimed, under claim of right, exclusive, continuous and uninterrupted, with actual or presumptive knowledge of the owner.” West v. West, 252 Ala. 296, 40 So.2d 873 (1949). There is a presumption that the user is permissive rather than adverse unless shown otherwise. Also, such a permissive use does not ripen into a prescriptive or adverse use unless there has been such a repudiation of the permissive use as to afford notice of an adverse claim. Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974).

Under the facts of this case we cannot conclude that the trial court erred in finding that Ford acquired no easement in the existing Ford Road. The judgment below is due to be and is hereby affirmed.

AFFIRMED.

MADDOX, FAULKNER, ALMON, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., and JONES and ADAMS, JJ., concur specially.

TORBERT, Chief Justice

(concurring specially).

In determining whether an easement has been acquired by prescription over unimproved or “turned out” land, the presumption is that the use by the public was permissive, Benson v. Pickens County, 260 Ala. 436, 70 So.2d 647 (1954), and the burden of proof to overcome the presumption is on the plaintiff. Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974). I would not reverse the trial court on the basis that plaintiff overcame this presumption, since there is no clear showing in the record that he did so.

JONES and ADAMS, JJ., concur.

APPENDIX


author: HOLMES, Judge.

text:
    ABELL-HOWE COMPANY v. The INDUSTRIAL DEVELOPMENT BOARD OF The CITY OF IRONDALE and Vulcan Metal Products Company, Inc.
    Civ. 2391.
    Court of Civil Appeals of Alabama.
    Dec. 3, 1980.
    Rehearing Denied Dec. 24, 1980.

      Sydney Lavender, John D. Quenelle, and David P. Whiteside, Jr., of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellant.
    Irvine C. Porter, Birmingham, for appel-lee The Industrial Development Bd. of the City of Irondale.
    Kenneth Perrine, Birmingham, for appel-lee Vulcan Metal Products Co., Inc.
   HOLMES, Judge.

This is an appeal from the denial of judgment for Abell-Howe Company (hereinafter Abell-Howe) under the materialman’s lien law, §§ 35-11-210 and 35-11-218, Code of Ala. 1975, and the granting of judgment for Vulcan Metal Products Company, Inc. (hereinafter Vulcan Metal) on its malicious prosecution action.)

We affirm the trial court’s denial of judgment for Abell-Howe on the lien claim and reverse its judgment for Vulcan Metal on the malicious prosecution claim.

Viewing the record with all due presumptions, the following is revealed: Abell-Howe instituted its action to enforce a ma-terialman’s lien against the defendants, The Industrial Development Board of The City of Irondale (hereinafter the Board) and Vulcan Metal.

Prior to the institution of this action, Vulcan Metal owned several adjacent parcels of land at the same address. Vulcan Metal later conveyed one parcel to the Board, which promptly leased it back to Vulcan Metal, with an option to buy for a nominal fee at the end of the lease.

R & G Engineering Company (hereinafter R & G), which is not a party to this action, contracted with the Board to provide the Board with four jib cranes, which were to be attached to a concrete foundation or a concrete column. R & G then contracted with Abell-Howe to provide the cranes. R & G requested that Abell-Howe deliver the cranes to the Board in care of Vulcan Metal at the street address of Vulcan Metal.

Abell-Howe delivered the cranes, but R & G went bankrupt before paying for them. There was evidence introduced at trial that the Board had paid R & G for the cranes before R & G went bankrupt.

In an attempt to recover payment for the cranes, counsel for Abell-Howe began proceedings to establish a materialman’s lien under § 35-11-210 of the Code.

The lien created by the statute attaches to the land to which the materials are affixed. Abell-Howe was unable to determine whether the cranes had been attached to the property owned by the Board or that owned by Vulcan Metal. Abell-Howe therefore notified both the Board and Vulcan Metal of its intention to claim a lien on the property to which the cranes had been affixed. In reply, Vulcan Metal denied that Vulcan Metal was indebted to Abell-Howe and refused to inform Abell-Howe whether the cranes had been attached to Vulcan Metal’s property.

In order to protect the rights granted it by the materialman’s lien statute, Abell-Howe filed verified statements of lien as to both parcels of property. Abell-Howe then filed a complaint to enforce the liens. In its complaint, Abell-Howe noted that one parcel was owned by the Board and one was owned by Vulcan Metal but that Abell-Howe only claimed a lien on the property to which the cranes had been affixed.

Vulcan Metal filed a counterclaim, contending that the suit instituted by Abell-Howe constituted malicious prosecution. Vulcan Metal alleged that Abell-Howe was aware that the cranes had not been affixed to Vulcan Metal’s property and that Vulcan Metal was not indebted to Abell-Howe. It was further alleged that Abell-Howe wrongfully and maliciously filed a lien on Vulcan Metal’s property and that its reputation in the business community was damaged as a result of such action.

There are three issues on appeal. First, is property owned by an industrial development board subject to the establishment of a materialman’s lien under § 35-11-210 of the Code of Alabama 1975? Second, did the trial court err as a matter of law in denying judgment for Abell-Howe on its material-man’s lien claim? Third, did the trial court err as a matter of law in granting judgment for the defendants on their malicious prosecution claim?

The first issue on appeal is whether a materialman’s lien may attach to property owned by an industrial development board.

Counsel for Abell-Howe contends such property is subject to the materialman’s lien statute, § 35-11-210, Code of Ala.1975. We agree.

It is a well established rule of law that a materialman’s lien will not attach to the public property of a municipal corporation. Scruggs & Echols v. Decatur, 155 Ala. 616, 46 So. 989 (1908); Nunnally v. Dorand, 110 Ala. 539, 18 So. 5 (1895). However, an industrial development board organized pursuant to §§ 11-54-80 et seq., Code of Ala.1975, is not a municipal corporation nor is it a subdivision or agency of a municipal corporation. Opinion of the Justices, 254 Ala. 506, 49 So.2d 175 (1950). Further, an industrial development board is not the state, a county, or a subdivision or agency of either. Such a board is a separate and independent corporate entity. George A. Fuller Co., Inc. v. Vulcan Materials Co., S. E. Div., 293 Ala. 199, 301 So.2d 74 (1974); Opinion of the Justices, supra.

We also note an industrial development board under § 11-54-87, Code of Ala.1975, has the power to acquire, hold, and dispose of real property in its own name. Further, § 11-54-94, Code of Ala.1975, provides that upon the dissolution of an industrial development board, title to all property owned by the board shall vest in the municipality. Under these Code sections, title to industrial development board property is not in a municipal corporation. It is in the board, a distinct corporate entity.

In addition to the above, we note that it is the policy the Alabama legislature to provide some form of protection for materi-almen. This policy is evidenced by the ma-terialman’s lien statute, § 35-11-210, Code of Ala.1975, and the public works bonding statute, § 39-1-1, Code of Ala.1975.

As indicated above, a materialman’s lien will not attach to property owned by the state, a county, or a municipal corporation. Scruggs & Echols v. Decatur, supra; Nunnally v. Dorand, supra. Under the public works bonding statute, a contractor who is to perform work upon the property of the state, a county, or a municipal corporation must first execute a performance bond to insure the satisfaction of materialman’s claims. § 39-1-1, Code of Ala.1975. The performance bond serves as a substitute for the unavailable materialman’s lien. Headley v. Housing Authority of Prattville, Ala.Civ.App., 347 So.2d 532 (1977).

In George A. Fuller Co., Inc. v. Vulcan Materials Co., S. E. Div., supra, the Supreme Court of Alabama, after finding industrial development boards to be separate and independent corporate entities, held the public works bonding statute to be inapplicable to contractors performing work on industrial development board property. Put another way, materialmen supplying goods to these contractors are not protected by the public works bonding statute.

If § 35-11-210 were held inapplicable to property owned by an industrial development board, materialmen furnishing material for improvements on board land would be denied the protection of both the public works bonding statute and the material-man’s lien statute. We do not believe our supreme court intended this to be the result of its ruling in George A. Fuller Co., Inc. v. Vulcan Materials Co., S. E. Div., supra, nor do we feel such a holding would further our legislature’s policy of protecting material-men.

For the above indicated reasons, we find that the materialman’s lien created by § 35-11-210 may attach to real property owned by an industrial development board.

The next issue is whether the trial court erred as a matter of law in denying judgment for Abell-Howe on its claim for a statutory lien under § 35-11-210.

The purpose of § 35-11-210 is to protect one who supplies labor or materials for any building or improvement on land when he does so at the request of a contractor or subcontractor, rather than the owner of land. To guarantee that the supplier is paid for his services or labor, this statute allows him to establish a lien on the improvements and the land.

Section 35-11-210 provides for two types of liens; (1) a lien for the full price of the materials furnished and (2) a lien for the amount of the unpaid balance due the contractor from the owner.

The full price lien can arise by virtue of either an express or implied contract between the supplier and the owner. Clearly, in this case there was no express contract between Abell-Howe and the Board.

For an implied contract to arise, the supplier must send written notice to the owner of the land prior to delivery of the materials that he plans to supply specified materials at specified prices. A lien will then arise as specified in the notice unless the owner objects. § 35-11-210, Code of Ala. 1975.

The notice requirement of § 35-11-210 was enacted for the protection of the owner. Covington Co. v. R. J. Allen & Assoc., 462 F.Supp. 413 (M.D.Ala.1977). It is designed to inform the owner that the claimant intends to place an encumbrance on the owner’s land; the owner then has an opportunity to effect a settlement between himself, the contractor and the supplier pri- or to any such encumbrancing. Harper v. J & C Trucking & Excavating Co., Inc., Ala.Civ.App., 374 So.2d 886 (1978), writ quashed, 374 So.2d 893 (Ala.1979). Because the statute is in derogation of the common law, its requirements must be strictly complied with. McClesky v. Finney, 272 Ala. 194, 130 So.2d 183 (1961).

In the instant case the evidence supports a finding that Abell-Howe did not strictly comply with the notice requirement for a full price lien. In fact, Abell-Howe sent no notice to either defendant until long after the cranes had been delivered. Regardless of whether the defendants had actual knowledge that the cranes supplied were in fact from Abell-Howe, the statutory notice requirements were not met. Consequently, the trial judge did not err in denying Abell-Howe’s claim for a full price lien.

As for the unpaid balance lien, which is also included in § 35-11-210, a supplier who was not the original contractor, such as we have here, must give the owner notice of his intent to claim a lien on the owner’s property before filing a verified statement claiming a lien. § 35-11-218, Code of Ala.1975. Where there is no unpaid balance due or to become due to the contractor, no lien can attach. Baker Sand & Gravel Co. v. Rogers Plumbing & Heating Co., 228 Ala. 612, 154 So. 591 (1934).

In the instant case, there is evidence to support a finding that there was no unpaid balance due R & G from the Board. Therefore, the trial judge did not err in denying Abell-Howe’s claim for an unpaid balance lien.

The third and final issue on appeal is whether the trial judge erred as a matter of law in granting judgment for the defendants on the malicious prosecution claim.

As stated above, this suit arose from actions taken by Abell-Howe to obtain and enforce a lien on the property to which the Abell-Howe cranes had been affixed. Because Abell-Howe was unable to determine upon which parcel the cranes were attached, it filed verified statements of lien as to both the property owned by the Board and that owned by Vulcan Metal. An action was then filed to enforce the liens.

In response, Vulcan Metal counterclaimed, denying that it owed Abell-Howe and alleging that Abell-Howe’s actions in seeking to obtain and enforce a lien on Vulcan Metal’s property constituted malicious prosecution. Abell-Howe moved to dismiss the counterclaim on the ground that there had been no final determination in favor of Vulcan Metal on Abell-Howe’s lien action. The trial court denied Abell-Howe’s motion to dismiss. Both actions were then tried simultaneously.

Because termination of a prior proceeding in favor of the plaintiff in the malicious prosecution action is a prerequisite for recovery in that action, Wilson v. Brooks, Ala., 369 So.2d 1221 (1979), a claim for malicious prosecution may not be pursued as a counterclaim in the first proceeding. King v. Sikora, Ala., 368 So.2d 10 (1979).

Because of the trial court’s failure to grant Abell-Howe’s motion to dismiss the counterclaim, we have no alternative but to reverse that portion of the trial court’s decree relating to the malicious prosecution counterclaim.

In view of the above, other issues raised by Abell-Howe relating to the malicious prosecution claim are pretermitted.

We therefore reverse and remand for proceedings not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

ON REHEARING

In brief, in support of its application for rehearing, Vulcan Metal contends that this court incorrectly stated that the lien action and the malicious prosecution counterclaim were tried simultaneously. If “simultaneously” is taken to mean that evidence on both the lien claim and the counterclaim was introduced simultaneously, then this court, as charged, incorrectly stated the facts.

However, a hearing on both claims was held on March 24, 1980. As Vulcan Metal itself points out in its application for rehearing and as the record clearly reflects at pages 484-488, when Abell-Howe rested its “lien action”, Vulcan Metal, without the benefit of a final determination on the lien action, immediately presented evidence on its malicious prosecution counterclaim. Consequently, for the reason stated in our original opinion, the trial court erred to reversal.

OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

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

      . “Unpaid balance” means the unpaid balance which the owner of the land owes the original contractor; it does not mean the unpaid bal-anee which the original contractor owes the subcontractor (or supplier). Nunnally v. Dorand, 110 Ala. 539, 18 So. 5 (1895).


author: BRADLEY, Judge.

text:
    Vernon C. MARSHALL v. Roy MARSHALL.
    Civ. 2307.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.
    Louis B. Lusk of Lusk & Lusk, Gunters-ville, for appellant.
    Jere C. Trent and James H. Fry, Athens, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The wife appeals, contending the trial court abused its discretion in the division of property, award of alimony in gross, and the failure to award periodic alimony. We affirm.

The parties were married in 1961. They were divorced on February 22, 1980. Mr. Marshall is forty-three years old and Mrs. Marshall is forty-four years old. One son, age seventeen at the time of the divorce, was born to the parties. Mrs. Marshall has a daughter, age twenty-one, by a prior marriage. The father has agreed to support the son and provide for his college education. The daughter appears to be independent and will soon be married. There is no issue as to custody or child support.

Mr. Marshall is president of the Bank of Arab, Alabama. His income is about $50,-000 annually. Mr. Marshall also is furnished with a car by the bank and the bank pays for all its necessities.

Mrs. Marshall worked only a short time following the marriage. Prior to the marriage she worked one year as an airline stewardess and a short while as a file clerk. Mrs. Marshall has primarily been a homemaker since the marriage to Mr. Marshall. She has no independent source of income, no separate property, and very little if any marketable skills.

The Marshalls’ family life, certainly in the later years, appears to have been an unhappy one. The record shows that Mrs. Marshall used vulgar and profane language regularly in communicating with her husband, daughter and son. She exhibited no love, affection or concern for her husband or her children. Most especially she heaped abuse on her husband at every opportunity. Mrs. Marshall did, however, maintain the house in excellent condition.

During the marriage the parties have acquired a fairly sizable estate. The estate (as calculated using the decree) is valued at approximately $388,000.00. Mr. Marshall received approximately $268,000.00, or sixty-nine percent of the estate, and Mrs. Marshall received approximately $120,000.00, or thirty-one percent of the estate.

Mrs. Marshall contends that the division of property and award of alimony in gross by the trial court is inequitable and constitutes an abuse of discretion. We disagree.

As this court stated in Horsley v. Horsley, 50 Ala.App. 445, 280 So.2d 150 (1973):

A division of an estate in a divorce proceeding is an adjustment of property rights and equities between the parties as shall seem just by the trial court. Such a division does not require an equal division of the estate, but one graduated according to the nature of the case.

We view the decree of the trial court with a presumption of correctness and will reverse only when that decree is deemed to be clearly and palpably wrong. Based on the evidence in this case we cannot say that the trial court was clearly and palpably wrong in the division of property. Body v. Body, 47 Ala.App. 443, 256 So.2d 184 (1971).

Furthermore, the award is clearly not inequitable, for Mrs. Marshall received approximately one-third of the estate. Sides v. Sides, 284 Ala. 39, 221 So.2d 677 (1969).

As noted above, the trial court did not award the wife periodic alimony and she contends this was error. We disagree.

The award of alimony is within the sound discretion of the trial court and, where the testimony is heard orally by the court, its judgment is presumed correct. Tyler v. Tyler, 52 Ala.App. 430, 293 So.2d 856 (1974).

Each case must be determined upon its own facts; however, in making that determination, the court may consider, among other factors, the fault of the parties. Miller v. Miller, Ala.Civ.App., 361 So.2d 577 (1978). We say further that the fault of the parties may be considered in the award of alimony even though the divorce is granted for incompatibility. Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71 (1973).

It is readily apparent from the record before us that the trial court could have concluded that the wife contributed substantially to the breakdown of the marriage, and, if it did so conclude, the court could properly consider such conduct on the part of the wife as limiting her claim to alimony. Tyler v. Tyler, supra.

Based on the evidence set out in the record and the presumptions favoring the judgment, we cannot say that the trial court has abused its discretion in refusing to award the wife periodic alimony.

AFFIRMED.

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


text:
    Katherine W. BRANTLEY v. Joel B. BRANTLEY.
    Civ. 2316.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.
    Julia Smeds of Nettles, Cox & Barker, Birmingham, for appellant.
    Horace N. Lynn of Piel & Lynn, Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties; awarded custody of the children to the wife; required the husband to pay child support; and made a division of property. The wife appeals, contending the trial court erred in the amount of child support and in the division of property. We find the trial court did err to reversal.

The record in pertinent part reveals the following:

The parties were married for twelve years. Two children were born of the union. The children are eight and four years of age. The husband earns approximately $1,000 per month from his regular employment. In addition, the husband has earned extra income from fixing trucks. The wife is employed and earns approximately $550 per month.

There is evidence that from the outset the union was not a happy marriage. There is evidence that the wife had sexual relations with someone other than the husband. This event occurred during the marriage difficulties. There is also evidence the husband had sexual relations outside the marriage. In any event, after these occurrences the parties, at least, if not in fact, attempted to reconcilíate. They sought marriage counseling.

With the above in mind, the trial court, as indicated, divorced the parties. The grounds for the divorce are not stated in the decree. Custody of the two minor children was awarded to the wife and the husband was required to pay $230 per month as child support. In addition, the husband was required to provide medical insurance on the children and to pay up to $500 of the children’s prescription drugs. The decree further stated the husband was to claim the children as dependents for income tax purposes.

The only asset, of any significance, that the parties owned was the homeplace. This home was purchased in 1978 for approximately $34,000. The parties paid $4,500 as a down payment. The approximate value at the time of trial was $40,000. The mortgage payments on the house are approximately $250 per month.

The learned trial judge awarded the wife the occupancy of the home. The wife was required by the decree to make the mortgage payments. The decree further provided that upon the wife’s remarriage or the expiration of thirty-six months, whichever event occurs first, the wife must either purchase the husband’s equity (the equity at the time of sale) or place the home for sale. In the event of sale the proceeds from the sale of the home were to be equally divided.

It is the trial court’s action regarding the homeplace, coupled with the award of child support, that the wife contends is reversible error.

We cannot distinguish the instant appeal from Shires v. Shires, Ala.Civ.App., 368 So.2d 291 (1979). In Shires this court reversed the trial court on facts and conclusions strikingly similar to this appeal. We do not deem it necessary or .prudent to set out in detail what we said in Shires. However, the following from Shires, authored by Presiding Judge Wright is equally appropriate in the instant appeal:

With these burdens and obligations, she does not have the right to claim the children as dependents on her tax return. In making the mortgage payments she will be paying property taxes, insurance and maintenance costs to protect the vested interest of the husband.... We do find it erroneous because when taken in its entirety, it is so unfair to the wife as to become a palpable abuse of the discretion of the trial court. It is for that reason we reverse the judgment as to child support and division of property and remand with positive suggestions for change.
It is the placing of the large and heavy burden of making the mortgage payments on the wife that we perceive as the root of inequity in the judgment. That payment protects the interest of the husband as well as the wife. She must also pay the taxes, insurance and maintenance to protect the husband’s vested interest as well as her own....

368 So.2d at 293.

In view of the above, we have no alternative but to remand with a positive suggestion for the learned trial judge. As a minimum, the husband should be required to pay one-half of the mortgage payments on the home prior to the sale of the asset.

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

REVERSED AND REMANDED.

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