text:
    LOUISIANA AND SOUTHERN LIFE INSURANCE COMPANY v. The Trustees under the Terms of the NEW ORLEANS STEAMSHIP ASSOCIATION, INTERNATIONAL LONGSHOREMEN’S ASSOCIATION (AF OF L-CIO) WELFARE PLAN et al.
    No. 11082.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Samuel 0. Buckley, III, New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, Eugene R. Preaus and Virginia N. Roddy, New Orleans, for defendant-appellee, Fidelity & Deposit Company of Maryland.
    Before SAMUEL, REDMANN and SAR-TAIN, JJ.
   SARTAIN, Judge.

The plaintiff, Louisiana and Southern Life Insurance Company, appeals from a judgment of the district court which dismissed its suit insofar as it pertained to Fidelity and Deposit Company of Maryland following the latter’s exception of no right of action. Plaintiff alternatively contends that the trial judge also erred in failing to permit it to amend its petition so as to set forth a cause of action under the theory of unjust enrichment. We affirm in part.

Louisiana and Southern had previously issued a policy of health and accident insurance to New Orleans Steamship Association, International Longshoremen’s Association, AFL-CIO Welfare Plan (Welfare Plan), to be administered by designated Trustees, covering members of the union and their dependents.

Under this self-administered plan it developed that numerous payments were made on fraudulent and fictitious claims. As a result of numerous acts of fraud various employees of the Association, Trustees of the Plan, and other third parties were indicted and convicted of sundry federal offenses. A number of these convicted persons were ordered to make restitution. All funds thus collected by the Clerk of the Federal District Court were forwarded to the Welfare Plan.

In its initial and first supplemental and amending petitions, Louisiana and Southern named the following defendants: the Welfare Plan, its Trustees, and Underwriters of Lloyd’s, London, as the liability insurer of designated Trustees and fiduciaries of the Welfare Plan.

The present controversy arose as a result of Louisiana and Southern’s second supplemental and amending petition against Fidelity and Deposit. The petition alleges, inter alia, that Fidelity and Deposit had issued a commercial blanket bond in favor of the Welfare Fund, “covering the fraudulent and dishonest acts of the employees, trustees, and fiduciaries of the Trust,” and that Fidelity and Deposit is liable to plaintiff “as a third party beneficiary of the bond” for the dishonest acts of the employees of the Welfare Fund. It is undisputed that the only insured named in the blanket bond is the Welfare Fund.

The bond in pertinent part provides:

“The Underwriter, in consideration of the payment of the premium, and subject to the Declarations made a part hereof, the General Agreements, Conditions and Limitations, and other terms of this Bond, agrees to indemnify the Insured against any loss of money or other property which the Insured shall sustain through any fraudulent or dishonest acts committed by any of the employees, acting alone or in collusion with others, to an amount not exceeding in the aggregate the amount stated in Item 3 of the Declarations.”

R.S. 22:6 of the Louisiana Insurance Code defines and classifies the various types of insurance that are permitted in the state. Subsection 8, thereof, relates to fidelity and surety bonds and in particular to blanket bonds of the type issued herein by Fidelity and Deposit. The last sentence of the section states: “Such obligations shall be known and treated as suretyship obligations and such business shall be known as surety business.” R.S. 22:6(8). (Emphasis ours.)

C.C. art. 3035 defines suretyship as “an accessory promise by which a person binds himself for another already bound and agrees with the creditor to satisfy the obligation, if the debtor does not.” “Surety-ship can not be presumed; it ought to be expressed, and is to be restrained within the limits intended by the contract.” C.C. art. 3039.

Notwithstanding the fact that the obligation of the surety under a blanket bond is contingent upon a delictual act (theft, etc.) of an employee of the insured, the courts have consistently refused to extend rights to a third person not a party to the contract. In Tyler v. Walt, 184 La. 659, 167 So. 182, 183 (1936) the court stated:

“The bond here involved is what is generally known as a ‘Banker’s Blanket Bond.’ For an agreed premium the bond specifically insured the Hibernia Bank & Trust Company and several of its affiliate and subsidiary corporations against the direct loss of any money or securities, or both, ‘in which the Insured has a pecuniary interest, or held by the Insured as collateral, or as bailee, trustee or agent, and whether or not the Insured is liable therefor.’ Plaintiff was not a party to the bond, nor named therein as obligee or indemnitee, nor did he pay any consideration or premium therefor. The bond, read as a whole, negatives the idea that it was made for the benefit of any one except the designated obligees or indem-nitees.
“We think it would be contrary to common sense and violative of the purpose of the bond for us to include among the obligees or indemnitees a party who was neither privy to the contract nor to the consideration, and to sanction a suit by such third party against the surety company, as obligor, where no such result was intended by the contracting parties.”

In Victory Electric Works, Inc. v. Maryland Cas. Co., 230 So.2d 287 (La.App. 4th Cir. 1970), writ refused April 3,1970, recovery was sought against the bank and the underwriter of its blanket bond for charges against a depositor’s account based on forged signatures and checks to fictitious payees. The bank was released on other grounds, but as to the right of the depositor vis a vis the obligation of the underwriter, this court said:

“Tyler v. Walt, 184 La. 659, 167 So. 182 (1936), was decided prior to La.Acts 1948, No. 195, sec. 1.06(8), the source of the quoted language of R.S. 22:6(8). But Tyler’s reasoning is unaffected by the statutory language, and obliges us to reject plaintiff’s argument that the underwriter’s obligation as surety is in favor of plaintiff. The Supreme Court there pointed out that the bond insures the bank against covered losses, and does not purport to be made for the benefit of any third person. Our reading of the bond here brings us to the same conclusion (with the irrelevant exception of customers losing property in their own possession during, e. g., a robbery in the bank). “The underwriter is the surety of any employee who might become obliged towards the bank to refund embezzled funds; it is the surety of a forger who becomes obliged towards the bank to restore the bank’s money paid out on the forged signature. The underwriter’s promise is to hold the bank harmless: in suretyship terms, the underwriter agrees with the bank to satisfy the restitution obligation of the embezzler (or forger), if the embezzler (or forger) does not; see LSA-C.C. art. 3035.
“But the underwriter did not agree to become the surety or guarantor of the bank’s obligation to return its customers’ deposits (or pay them on the customers’ orders only).
“Nor does the bond make the underwriter the bank’s tort liability insurer.” 230 So.2d 287, 290.

While the distinction between a blanket bond and the typical liability policy may appear to be an overly technical one as they relate to third parties not privy to the contract, there is, in our opinion, some justification for the distinction. The blanket bond does not contain the usual language that is found in the typical liability policy, namely, the obligation to defend the insured, the omnibus clause, or any language extending third party rights. However, the most significant reason for the distinction is that created by the legislature itself in its declaration that such contracts are to be treated as “suretyship obligations”.

Louisiana and Southern doesn’t claim rights under suretyship but urges that it is entitled to benefits under the bond as third party beneficiary under the provisions of C.C. art. 1890. The article, in part, provides:

“A person may also, in his own name, make some advantage of a third person the condition or consideration of a commutative contract, or onerous donation;

A stipulation pour autrui requires intent on the part of the party creating the benefit. Where that party is not privy to the contract such intent may be determined from the factual relationship of the parties. Smith, Third Party Beneficiaries in Louisiana: The Stipulation Pour Autrui, 11 Tul.L. Rev. 18 (1936); Allen & Currey Mfg. Co. v. Shreveport Waterworks Co., 113 La. 1091, 37 So. 980 (1905).

In the instant matter the bond, under which plaintiff claims a beneficiary right, was issued to the Welfare Fund in 1963. The initial policy of health and accident insurance issued by Louisiana and Southern was not written until 1966, some three years later. It can hardly be said that under these circumstances a stipulation pour autrui was intended.

Lastly, plaintiff contends that the trial judge erred in his refusal to permit it to amend its petition so as state a cause of action for unjust enrichment.

C.C.P. art. 934 provides:

“When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.” (Emphasis ours.)

As a general rule the “shall” in the above article requires that the adverse party be given an opportunity to amend where there is a conceivable possibility that cause or right of action may be stated. Hodges v. LaSalle Parish Police Jury, 368 So.2d 1117 (La.App. 3rd Cir. 1979). However, the right to amend is not so absolute as to permit the same when such amendment would constitute a vain and useless act. Perkins v. Desrochers, 359 So.2d 323 (La.App. 4th Cir. 1978).

Louisiana and Southern contends that it is equitably wrong for the Welfare Fund to transmit the funds it is receiving as restitution from the convicted parties to Fidelity and Deposit and that given the opportunity to amend it could state a cause of action against Fidelity and Deposit on the basis of unjust enrichment.

On the other hand, Fidelity and Deposit states that the monies it is receiving from the Welfare Fund are under subrogation rights granted to it following payments it made to the Welfare Fund under the bond.

The five requisites for an action for unjust enrichment are (1) an enrichment, (2) an impoverishment, (3) a connection between the enrichment and the resulting impoverishment, (4) an absence of “justification” or “cause” for the enrichment or impoverishment, and (5) the absence of any other remedy at law. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (La.1967).

We need only to reject Louisiana and Southern’s request based on the absence of (1) above, namely, the averred enrichment of Fidelity and Deposit. Fidelity and Deposit is not being enriched in the sense that they are receiving funds to which they are not entitled. In essence, Louisiana .and Southern is objecting to any distribution of the restitution funds until “an equitable distribution” thereto can be determined. This is an effort to do indirectly that which cannot be done directly. The trial judge so found and we agree.

An insurer from whom money was stolen by fraudulent claims under a group policy (but who did not recover the stolen amounts by premium adjustments) has a cause of action against the thieves and anyone vicariously liable for their acts. It may therefore be that plaintiff insurer has a cause of action against the Welfare Plan (for its employees’ thefts from plaintiff in the course and scope of their employment). And that may mean that the Welfare Plan (once made liable for its employees’ thefts from another) could have a cause of action against its thieving employees and their “surety” on the Indemnity Bond (who is defendant here). But it does not mean that the insurer has a cause of action against the surety.

Moreover, that either the thieves or the Welfare Plan should pay the wrong party (the surety) may create a cause of action against their erroneous payee for restitution, but the only person who has the requisite interest to institute suit for restitution—the only person with a right of action, C.C.P. 927(5)—is the person “from whom [the erroneous payee] has unduly received it.” C.C. 2301. Ordinarily, a payment by a debtor to the wrong person does not impoverish the creditor at all because the creditor’s credit is not in any way diminished by the debtor’s mistaken payment.

One might conceive circumstances such as a preferential payment by an insolvent that could produce some cause of action in plaintiff’s favor or give plaintiff the right to exercise the Welfare Plan’s or its employees’ cause of action. But plaintiff makes no suggestion that it desires to make such an amendment to its petition.

For the above reasons, the judgment of the trial court sustaining the exception of no right of action and denying Fidelity and Deposit’s request to amend is affirmed.

All costs relating to this appeal are assessed against Louisiana and Southern. All other costs are to await a final determination on the merits.

AFFIRMED.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Agnes Burcker LETULLE, Plaintiff-Appellee, v. S & E OIL COMPANY, Defendant-Appellant.
    No. 7332.
    Court of Appeal of Louisiana, Third Circuit.
    May 15, 1980.

      Showers & Guidry, Randall L. Guidry, Lafayette, for defendant-appellant.
    Cline, Miller, Richard & Miller, James M. Miller, Jr., Rayne, for plaintiff-appellee.
    Before CUTRER, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

MOTION TO DISMISS

The plaintiff-appellee, Agnes Burcker Le-tulle moves to dismiss the suspensive appeal of the defendant-appellant, S & E Oil Company on the grounds that the suspensive appeal was not timely perfected.

The suspensive appeal was filed by S & E Oil Company from a money judgment rendered against it and signed on May 2, 1979.

Under the terms of LSA-C.C.P. Article 2123, a suspensive appeal may be taken and the required security furnished only within 30 days of the expiration of the delay for applying for a new trial, if no application for a new trial is filed. LSA-C.C.P. Article 1974 states that the delay for applying for a new trial is seven days.

In the case at bar, no new trial was applied for, therefore, under LSA-C.C.P. Article 1974, the appellant’s time to apply for a new trial began to run on May 3 and expired on May 11. Under LSA-C.C.P. Article 2123, appellant had until June 11 (June 10 being a Sunday, appellant had until the next clear day) to perfect its appeal. Defendant’s applied for a suspensive appeal on June 11, but did not furnish the required security until June 12, and therefore, failed to timely perfect the appeal.

However, the appeal was timely as devolutive appeal. LSA-C.C.P. Article 2087. When a suspensive appeal is not timely filed the appellant’s appeal is considered as devolutive if the requirements for a devolutive appeal are satisfied. This is notwithstanding the fact that the motion and order of appeal failed to mention a devolutive appeal, Gwatney v. Miller, 365 So.2d 1133 (La.App. 3rd Cir. 1978).

For the above and foregoing reasons, appellant’s suspensive appeal is dismissed, the devolutive appeal is maintained.

SUSPENSIVE APPEAL DISMISSED; DEVOLUTIVE APPEAL MAINTAINED.


author: LEE, Justice, for the Court.

text:
    Cecil AUSTIN v. STATE of Mississippi.
    No. 51870.
    Supreme Court of Mississippi.
    May 21, 1980.
    Louis Fondren, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   LEE, Justice, for the Court.

Cecil Austin was convicted in the Circuit Court of Jackson County of rape, was sentenced to life in the Mississippi State Penitentiary, and has appealed here.

The victim was sixty-seven (67) years old, lived in Pascagoula, Mississippi, and, at the time of the offense, had two (2) renters in her house. In the early morning of December 29,1978, she went to the bathroom and, upon returning to her bedroom, someone sprang upon her from behind. She began screaming, the assailant threw her on the bed, began smothering her, tore off her gown, and raped her. The victim recognized her attacker as 32-year-old Cecil Austin, one of the roomers in her home.

After the assault, the appellant made the victim get dressed. He stated that he was going to pack his clothes and leave. Appellant told her that, if she made a sound, she would be shot, and he forced her into her own vehicle and drove away. Later, he stopped, put the clothes he had packed on the side of the road, then (apparently changing his mind) told the victim to get the bag and bring it to him. She refused, fearing that she would be shot. Appellant assured her that she would not be shot, whereupon, she got the bag and returned it to the car. Appellant then drove off, leaving the victim standing on the side of the road. She went to a nearby house and telephoned her son, who took her to the police station, and to the hospital.

Examination of the prosecutrix by Dr. Clarence Whigham at Singing River Hospital disclosed that she was bruised on her upper right chest and about both breasts, and that there was a tearing in and around her vagina. The test for sperm was positive. It was the doctor’s opinion that she had been sexually assaulted.

Without detailing the evidence, it was overwhelming that appellant forcibly raped the victim on the morning of December 29, 1978.

The sole assignment of error presents the question of whether or not the trial court erred in failing to sustain appellant’s motion for a new trial due to the prosecutor’s comment upon appellant’s right to remain silent.

In his argument, defense counsel stated, “Here and now is the first time that anyone has heard his side of this case,” and “I ask you, as the only people who have ever heard his side of the ease and the only people probably that ever will hear his side of the case . . . ” In response to that statement, the district attorney, in closing argument, said, “And, if he was not guilty, why didn’t he tell the law enforcement officers that. I asked him, did he give a statement. No.”

An accused has the right to remain silent, guaranteed by the Fifth Amendment to the United States Constitution. Appellant argues that the prosecution may not use at trial the fact that the accused claimed his privilege to remain silent in the face of such accusation. Evidence of post-arrest silence is improper, because it violates the accused’s right against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See also Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), wherein the United States Supreme Court held that the use of a defendant’s silence at the time of his arrest and after receipt of Miranda warnings violated the Due Process Clause of the Fourteenth Amendment.

When the prosecuting attorney made the statement in his closing argument, appellant’s counsel entered a general objection, without specifying the reason for same. It was sustained by the trial judge. Counsel neither asked the court to instruct the jury to disregard the statement, nor moved for a mistrial. This Court has held that in order to take advantage of improper argument on the part of a prosecuting attorney, objection must be interposed at the time the statement is made, and the point will not be considered on appeal unless motion for a mistrial is timely made. Griffin v. State, 292 So.2d 159 (Miss. 1974); Stevenson v. State, 244 So.2d 30 (Miss. 1971).

Although in response to argument of appellant’s counsel, the statement of the prosecuting attorney was improper and should not have been made. The objection was not specific and the error was not properly preserved by the appellant for presenting the question to this Court on appeal. However, we have carefully considered the entire record, and, in view of the overwhelming evidence of appellant’s guilt beyond reasonable doubt, we hold the error was harmless. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

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.

      . In Doyle, supra, the State did not contend that the error committed was harmless.


author: PATTERSON, Chief Justice,

text:
    PONTOTOC WIRE PRODUCTS COMPANY v. Billy Ray FERGUSON.
    No. 51875.
    Supreme Court of Mississippi.
    May 21, 1980.

      Daniel, Coker, Horton, Bell & Dukes, Robert S. Addison, Jackson, for appellant.
    John D. Sibley, Okolona, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court.

An administrative law judge, followed by the three-member Mississippi Workmen’s Compensation Commission, and the Circuit Court of Pontotoc County, found that Billy Ray Ferguson developed a work-related respiratory ailment resulting in permanent partial disability. Ferguson’s employer, the Pontotoc Wire Products Company, appeals the award of the three forums below, contending that no substantial evidence in the record supports a finding of impaired earning capacity “in the same or other employment" within the meaning of Mississippi Code Annotated section 71 — 3—3(i) (1972). Pontotoc argues that Ferguson failed to make out a prima facie case of disability by presenting insufficient evidence of reasonable efforts to obtain other employment. We affirm.

The claimant is a 39-year-old married male with two dependent children. Unemployed since mid-1976, he worked the ten preceding years for the Pontotoc Wire Products Company, ultimately securing a supervisory position with responsibility over twenty-five to thirty plant workers. He has only a high school education. Before going to work for the Pontotoc Wire Products Company, he worked in a furniture manufactory in Houston, Mississippi. His work experience includes a stint as an assembly-line man for a tractor company in Illinois as well as a furniture inspector position at Dean Industries and sales work for Bingham Donaldson in Pontotoc.

The medical experts agreed that Ferguson’s respiratory ailment resulted from inhalation of noxious fumes in the Pontotoc plant. Dr. Potter, a treating physician, testified that he placed no restrictions on Ferguson’s activity other than removing him from the industrial environment. He did not advise Ferguson to quit working altogether. Dr. Myers indicated that Ferguson’s condition permitted him to perform light and sedentary tasks requiring little exertion. A practical description of Ferguson’s medical condition would be shortness of breath, Dr. Potter having testified that Ferguson had the lung capacity of an 80-year-old man, preventing heavy manual labor with or without exposure to fumes, but permitting office work without exposure to fumes. Relevant portions of the record relating to Ferguson’s attempts to find “other” substantial gainful employment which would not exacerbate his ailment follow:

Q. Now, since you were terminated have you made any effort to try to obtain gainful employment?
******
A. Yes, sir. I filled out an application in Pontotoc here at Ram Golf, and also applied for a job with the State of Mississippi.
Q. Were you successful in obtaining employment at either one of these places?
A. No, sir.
******
Q. You filed an application with the State. What department?
A. I didn’t file an application. I was talking to Senator and Representative from this county and this area, and I was trying to get
Q. What job were you attempting to get?
A. At this time this was meat inspection.
******
Q. Did he [Mr. Stephen of Pontotoc Wire] offer you any other job?
A. Yes, sir, there was another place mentioned.
Q. Was that in Memphis?
A. Yes, sir, a warehouse. I understand it was a warehouse, but no money was mentioned.
Q. Did you inquire as to the money, or the work, or have you explored the possibility of that job?
A. I did not.
Q. Why not?
A. Well, it wasn’t really explained to me like it was at Jena, and I didn’t feel like in a warehouse that it would be the same money, even if I was able to work in the plant.
******
Q. And you had been with the company ten years.
A. Yes, sir.
Q. And had Mr. Stephen not shown an inclination to help you get a transfer to a place where you could continue with the company?
A. Yes, sir, he did.
Q. But you didn’t explore the possibility of the Memphis position at all.
A. No, sir.
Q. . Mr. Ferguson, do you recall having gotten a letter from Mr. Stephen after you told him that you would not be interested in working at Jena?
A. Yes, sir, I remember getting some kind of a letter.
Q. I show you a copy of a letter. Do you recall having received that letter?
A. Yes, sir.
******
Q. . Now, following receipt of this letter, Mr. Ferguson, did you, as a matter of fact, avail yourself of Mr. Stephen’s offer to be of assistance to you in locating employment?
A. No, sir.

The question we must now decide is whether there exist in the locality jobs suited to Ferguson’s condition in light of his age, education, and work experience. If a claimant makes a prima facie showing of reasonable efforts indicating there are not suitable jobs, the burden then shifts to the employer or insurer to show otherwise. Thompson v. Wells-Lamont Corp., 362 So.2d 638 (Miss.1978). Keeping foremost the principle that our Workmen’s Compensation Law should be construed generously to advance its underlying remedial aims, Speed Mechanical, Inc. v. Taylor, 342 So.2d 317 (Miss.1977), we uphold the findings of the three forums below that Ferguson made a prima facie showing of reasonable efforts which the insurer failed to rebut in any degree through evidence suggesting the availability of suitable employment in the locality.

In reaching this decision we consider four cases construing the provision of the Workmen’s Compensation law defining “disability” as “incapacity ... to earn the wages ... in the same or other employment” (emphasis supplied): Sardis Luggage Co. v. Wilson, 374 So.2d 826 (Miss.1979); Thompson v. Wells-Lamont Corp., supra; Compere’s Nursing Home v. Biddy, 243 So.2d 412 (Miss.1971); and Coulter v. Harvey, 190 So.2d 894 (Miss.1966). The factual details of each of these must be examined, because “we cannot . . . delineate any hard and fast rule as to how many or exactly what type efforts a claimant must make in every case in order to establish ‘disability’ within the purview of § 71-3-3(i).” 362 So.2d at 641.

This Court in Coulter denied workmen’s compensation benefits to an illiterate laborer nearly seventy years of age because the laborer produced no evidence whatsoever indicating that he had attempted to find other employment when a work-related disability beset him. In Compere’s Nursing Home, we reversed a finding of disability on a record showing that the claimant, a nurse’s aide suffering from a work-related vertebral problem preventing her from lifting, stated she had applied for only one position, that having been as a nurse’s aide. Noting that this was not “other employment,” we held the claimant failed to make out a prima facie case of disability.

The claimant in Thompson v. Wells-Lamont Corp. did a great deal more, and was rewarded with a finding of disability by this Court on appeal. There, substantial evidence supported the findings that the claimant:

1. Went into a garment factory and immediately experienced allergic reaction (burning of her eyes, nose, and throat.)

2. Sought training for a secretarial job under a government sponsored program but was turned down.

3. Sought assistance of the State Employment Commission office, which referred her to a school for a job as a teacher’s aide.

4. Applied for a job at the Webster County Library.

5. Sought aid of the State Employment Commission office in order to find a job, and her application there is still on file.

Finally, in Sardis Luggage Co., this Court, reaffirming its position that the “claimant must also prove that she made reasonable efforts to obtain employment in another or different trade after the disability subsided,” reversed an award of permanent partial disability, stating “there is nothing in the record that even alludes to the appellee seeking other employment after her alleged disability.” 374 So.2d at 828.

Certainly Ferguson introduced less evidence relating to his efforts to find substitute employment than did the claimant in Thompson v. Wells-Lamont Corp., supra. But clearly he presented more evidence on this issue than did the claimant in Sardis Luggage Co., supra.

When we consider Ferguson’s trip to Jena, Louisiana, seeking suitable employment, his application to Ram Golf, his effort to obtain a position as a state meat inspector, as well as his age, education, work experience, and extent of physical impairment, we are impelled to conclude that he established a prima facie case of disability. The employer could readily have rebutted the prima facie case with evidence from such sources as employment agencies clearly showing the local accessibility of substantial gainful employment suited to Ferguson’s unfortunate medical condition, had such evidence been available. But because the employer failed to present such evidence, we can only conclude none was available. It follows that the employer failed to rebut Ferguson’s prima facie case of disability.

AFFIRMED.

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


author: ROBERTSON, Presiding Justice,

text:
    J. C. ALLEN and William D. Chamblee v. STATE of Mississippi.
    No. 51901.
    Supreme Court of Mississippi.
    May 28, 1980.
    J. 0. Hollis, Morris C. Phillips, Jr., Carthage, for appellants.
    Bill Allain, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court.

J. C. Allen and William D. (Sonny) Cham-blee, males, appeal their conviction in the Leake County Circuit Court of the crime of attempted rape of a female under the age of 12 years. Allen and Chamblee were jointly indicted and jointly tried. The jury found both defendants guilty and fixed their punishment at 15 years in the Mississippi State penitentiary.

The four assignments of error are:

I. The court erred in overruling the demurrer to an indictment which did not state an overt act constituting an attempt.

II.The court erred in overruling a motion for new trial as the verdict was against the weight of the evidence.

III. The court erred in permitting the state to ask its chief witness leading questions.

IV. The court erred in questioning a state’s witness in chambers outside the presence of appellants or their attorneys to determine her competency to testify.

The state’s principal witnesses were a 15-year-old boy, Percy Hamilton, a 9-year-old girl, Margie Prince, who was allowed to testify as a rebuttal witness, and Mrs. Sylvia Sanders, a social worker with the welfare department, who also testified in rebuttal.

The principal witnesses for the defense were Carol Ann Jones, the 11-year-old alleged victim (who denied that the defendants had attempted to rape her), and her mother, Mrs. Ethel Mae Jones, who testified that Sonny Chamblee came into the kitchen for a cup of coffee and then was in the living room at 7:30 a. m., December 11, 1978, when the attempted rape was allegedly taking place.

Mississippi Code Annotated section 97-1-7 (1972) defines an attempt to commit an offense in this way:

“Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same,

The indictment charges:

“[D]id wilfully, unlawfully, feloniously and forcibly, by the use of physical violence to the person of Carol Ann Jones, attempt to rape, ravish and carnally know her, the said Carol Ann Jones, a female child of previous chaste character under the age of 12 years, being prevented from completing said attempt by being discovered by Percy Hamilton, . . . ”

While the indictment could have been more specific, we are of the opinion that the overt act was sufficiently charged in this language of the indictment: “by the use of physical violence to the person of Carol Ann Jones, . . . ” '

The indictment in the case at bar was more specific than the indictment in Maxie v. State, 330 So.2d 277 (Miss.1976). The indictment here is similar to the one in Hawkins v. State, 222 Miss. 753, 77 So.2d 263 (1955), which we found sufficiently stated an overt act toward the commission of an attempted rape.

There is no merit in this first assignment of error.

Defendants next contend that the verdicts are against the weight of the evidence. The evidence was conflicting, three witnesses testifying for the prosecution, and three for the defense. It was up to the jury to decide how much and what parts of each witness’s testimony they would believe and how much and what parts of each witness’s testimony they would not believe. There was sufficient credible evidence' in the record to sustain the jury’s verdict of guilty against each defendant and the court was correct in overruling the motions for directed verdicts and the motion for a new trial.

The third assignment of error that the court erred in permitting the state to ask Percy Hamilton leading questions is not meritorious. Hamilton was a 15-year-old witness who was reluctant to testify as to the sordid details. He was also afraid of both defendants. Some of the questions complained of were not leading questions. Also, the trial judge has wide authority and broad discretion in passing on the form of questions asked minors, and unless there is a clear abuse of discretion resulting in prejudice to the complaining party, the asking of leading questions to minors has been held by us not to be reversible error. Seals v. St. Regis Paper Company, 236 So.2d 388 (Miss.1970); Thomas v. State, 217 So.2d 287 (Miss.1969).

The last assignment of error is that:

“The court committed error by questioning 9-year-old Margie Prince in chambers outside the presence of the appellants and/or their attorneys and without the knowledge of the appellants and/or their attorneys.”

When the prosecution offered Margie Prince as a rebuttal witness, defense counsel objected and asked that the jury be retired. Defense counsel then made this statement:

“If the Court, please, this young lady took the witness stand a few days ago in another case of the same type, wherein these Defendants were charged with attempted rape of her. She failed to qualify as a witness on that occasion, and I submit to the Court that if she was not qualified as a witness on that occasion, that, likewise, she is not qualified as a witness in this case. The Court is familiar with the reasons she was not qualified. If the Court wants me to spell them out, I will.”

In response to defense counsel’s objection, the court answered:

“I have today in Chambers questioned this young lady in the presence of a Deputy Sheriff and Mrs. Sanders of the Welfare Department with reference to her ability to testify, and more particularly with reference to her understanding of the sordid mess we have here. She is nine years old, but with reference to what we have been talking about all day, sex, of adults and children, and sex among children, I feel that she has been overly educated in that field, and that she understands more than a child of her age should understand. ... I feel in my examination the other week combined with the examination I conducted today, and I had the unpleasant experience of questioning this young lady in Chambers on her knowledge of sex, not on her knowledge as you ordinarily do on knowing the difference between right and wrong, and things she should know. It was my unpleasant task to determine if she really understood what she saw. As I say, I feel like she has had an over-education in that field. I am going to permit her to testify.”

The testimony of this 9-year-old girl was very damaging to the defendants and could very well have been the testimony that most influenced the jury in finding the defendants guilty. She testified as to the overt act necessary to prove an attempt, and also the transfer from one defendant to the other of an open pocketknife used to threaten both girls.

The disclosure by the trial judge of this in-chambers interrogation of this 9-year-old girl took defense counsel completely by surprise. Neither defense counsel nor the defendants knew anything about it until they were informed by the trial judge that he had conducted such an interrogation, and was going to relax the rule and let Margie Prince testify, even though he had refused to let her testify in a similar case the week before.

In our opinion the examination of this 9-year-old to determine her competency to testify was a crucial stage of the trial for the defendants.

In Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562, 572 (1975), the United States Supreme Court stated:

“[A]n accused has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.”

The Supreme Court of Minnesota in State v. Grey, 256 N.W.2d 74, 76 (Minn.1977), expressed itself on a similar question in this way:

“Due process requires defendant ‘to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.’ Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 678 (1934). In addition to having a Fourteenth Amendment right to be present, every criminal defendant has a Sixth Amendment right to confront and cross-examine adverse witnesses. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).”

This Court has not been called on before to rule on this exact question, but we did reverse a murder conviction in Myers v. State, 254 So.2d 891 (Miss.1971), because the defendant was not present in the judge’s chambers when his court-appointed attorney moved for permission to withdraw as counsel. We held that the trial judge should not have heard this motion outside the presence of the defendant.

In Hill v. Commonwealth, 474 S.W.2d 95 (Ky.App.1971), the trial court conducted a “court of inquiry”, without the defendant or his counsel being present, to hear testimony on whether to grant a motion for a new trial. The facts learned by the court during this inquiry were used to justify its opinion overruling a motion for a new trial. The Kentucky Court of Appeals held:

“Passing for the time being the question of whether a circuit court has jurisdiction to call a court of inquiry, we are of the opinion that this institution cannot be used as a vehicle for a trial court in the course of its proceedings to gather evidence upon its own to use in a pending case before it. To permit its use in the manner in which it has here been utilized would be to deprive a party of the right to be heard by himself and his counsel in all proceedings and to meet the witnesses face to face and to cross-examine. We believe the procedure as used here violates the rights of the accused set out in Section 11 of the Constitution of Kentucky. Anytime a trial court conducts an evidentiary hearing for the purpose of ascertaining facts upon which it is to base a ruling, certainly all parties have the fundamental right to be present and to cross-examine the witnesses. For these reasons, we believe the trial court abused its discretion when it used evidence gleaned in the court of inquiry proceeding to overrule defendant’s motion and grounds for a new trial.” 474 S.W.2d at 99.

Here, as in Hill, the trial court conducted an evidentiary hearing for the purpose of ascertaining facts upon which it could base a ruling. On the basis of this in-chambers testimony, it overruled the defense counsel’s objections to the competency of Margie Prince to testify. Certainly the defendants and their counsel had the right to be informed of this hearing and to be present and to cross-examine Margie Prince.

A good rule of thumb for a trial court to follow, in deciding whether a defendant should be present at some stage of the trial, is found in Tisdale v. State, 41 Md.App. 149, 396 A.2d 289, 292 (1979):

“By way of short preface, we caution the trial courts that a defendant’s right of presence is a fundamental one, not to be trifled with; and, if there is the slightest doubt as to whether a particular matter or event arising during the course of a trial is a ‘stage of the trial’ requiring the defendant’s presence, the doubt should, wherever possible, be resolved in his favor; i. e., mandating his presence. This is simply a matter of exercising abundant care to assure that the trial is not only fair in fact, but also in appearance.” (Emphasis added).

Because the trial court conducted an in-chambers interrogation of this 9-year-old witness to determine her competency to testify without informing defendants or their counsel and without giving them a chance to be present at the interrogation or to knowingly and voluntarily waive their right to be present, it is necessary for this Court to reverse the judgment of the trial court and to remand this case for a new trial.

REVERSED AND REMANDED.

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


text:
    Bernice C. HUGHES v. Steven Rodney MILLER.
    No. 51943.
    Supreme Court of Mississippi.
    May 28, 1980.

      Mounger & Mounger, Breed O. Mounger, Sr., Tylertown, for appellant.
    Richard E. Stratton, III, Brookhaven, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Bernice C. Hughes appeals from a decree of the Chancery Court of Amite County, dismissing her bill of complaint. She had complained that an option she had given to Steven Rodney Miller to buy 39 acres of her land violated the rule against perpetuities, and had prayed for its cancellation.

On April 28, 1977, Miller purchased 20 acres of land from Mrs. Hughes for $500 per acre. On the same date by separate instrument she granted Miller:

“[T]he option to purchase the hereinafter described real estate under the following terms and conditions.
40 acres, more or less, less and except my home and one acre immediately surrounding the home to be determined by survey, Section 26, Township 1 North, Range 6 East, Amite County, Mississippi.
It is understood and agreed that the Grantor may or may not sell the above described property during her lifetime, but at her death or if she decides to sell, the property will be offered to the Grantee, his heirs or assigns at $500.00 per acre less oil, gas and other minerals therein, thereon or thereunder.
It is the purpose of this document to assure the Grantee that he will be able to purchase the above described property at the above mentioned terms.” (Emphasis added).

Mrs. Hughes assigns as error:

I. The Chancellor erred in holding the option did not violate the rule against perpetuities.

II. The Chancellor erred in dismissing the complaint because it alleged a perpetuities violation and the answer admitted the option was perpetual.

In 61 Am.Jur.2d, Perpetuities and Restraints on Alienation (1972), § 6, p. 10, we find this definition of the Rule against Per-petuities:

“The rule against perpetuities prohibits the creation of future interests or estates which by possibility may not become vested within a life or lives in being at the time of the testator’s death or the effective date of the instrument creating the future interest, and 21 years thereafter,

In Pace v. Culpepper, 347 So.2d 1313 (Miss.1977), we held that the rule against perpetuities applied to options to sell and purchase real estate. The option executed by Mrs. Hughes to Miller does not violate the rule against perpetuities. It is limited in its duration to the lifetime of Mrs. Hughes. It expressly provides:

“[A]t her death . . the property will be offered to the Grantee, his heirs or assigns at $500.00 per acre less oil, gas and other minerals therein, thereon or thereunder.” (Emphasis added).

If Mrs. Hughes had not decided to sell during her lifetime, it was mandatory at her death for her heirs or legal representatives to offer the land to Miller, his heirs or assigns at $500.00 per acre. The future interest, if Miller exercised the option offered and elected to buy the land, would thus become vested within a short time after the death of the optioner.

The appellant also argues that, if Miller predeceased her, the option by its terms would be extended to “his heirs or assigns” and would violate the rule against perpetu-ities because the future interest or estate would not vest within 21 years of a life in being. The complete answer to this argument is that the measuring life is Mrs. Hughes’ life, not Miller’s. In Maudsley, Measuring Lives under a System of Wait-and-See, 86 L.Q.Rev., 357, 359 (1970), we find this language:

“As Morris and Leach put it, the lives in being must be either specified in the instrument or ‘necessarily involved in the limitations contained therein'.”

Mrs. Hughes’ life is specified in the option in question. She has the right to elect to sell during her lifetime, but when she passes away, the express language of the option instrument provides that the property be offered to Miller, if he is alive, but if he be dead then the offer to sell must be made to “his heirs or assigns.” Whether Miller survives or predeceases Mrs. Hughes makes not one particle of difference, since hers is “the life in being” specified in the option, and thus the measuring life applicable to the rule against perpetuities.

There is no merit in the assignment of error that Miller admitted in his answer that the option granted a perpetual right. That admission was merely a conclusion of the pleader.

In Shearron v. Shearron, 219 Miss. 27, 68 So.2d 71 (1954), this Court said:

“[T]he admissions are not conclusive on the party and the court is not precluded from a consideration of all of the evidence.” 219 Miss, at 39, 68 So.2d at 75.

In the case at bar, the trial court and this Court were entitled to hear and consider all of the evidence, both oral and documentary, before deciding whether the option in question violated the rule against perpetuities.

Our conclusion is that the option did not violate the rule and that the judgment of the trial court, being correct, must be affirmed.

AFFIRMED.

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


author: LEE, Justice,

text:
    Donna Gail Purvis THOMAS v. Alvin L. PURVIS.
    No. 51974.
    Supreme Court of Mississippi.
    June 4, 1980.

      Laurel G. Weir, Philadelphia, Charles M. Little, Tupelo, for appellant.
    Harold W. Davidson, A. R. Wright, Jr., Carthage, for appellee.
    Before ROBERTSON, P. J., and PATTERSON and LEE, JJ.
   LEE, Justice,

for the Court.

Donna Gail Purvis Thomas filed a petition in the Chancery Court of Leake County, Honorable G. M. Case, presiding, against Alvin L. Purvis, Sr., et ux., and Alvin L. Purvis, Jr., to modify a final divorce decree wherein she sought permanent custody of two (2) minor children. The chancellor, although granting partial relief, dismissed the petition and Mrs. Thomas has appealed.

The question presented is whether or not the chancellor erred in dismissing the petition and in declining to grant appellant permanent custody of the minor children.

On July 12, 1978, the Chancery Court of Leake County, Honorable E. G. Cortright, presiding, entered a final decree divorcing appellant from Alvin L. Purvis, Jr., and granting custody of Shanon Delynn Purvis, born April 14, 1973, and Heather Sheree Purvis, born November 9, 1974, to their paternal grandparents, Alvin L. Purvis, Sr., and Loutishey Purvis, with the right of their maternal grandparent, Mrs. Ruby E. Thornton, to have custody of said children from May 25 to August 25 in each year, and with certain visitation rights to the parents of said children. The decree recited that on April 21, 1978, the court had previously ordered that said children be placed in the temporary custody of the Leake County Welfare Department and that both parents of the children were unfit to have their custody.

The record indicates that two (2) days after entry of the decree, appellant married Thomas, her present husband, and that they have been residing in a mobile trailer, that she spends her entire time as a housewife, that her present husband is employed with an off-shore drilling company and is away from home approximately fifty percent (50%) of the time, and that appellant has reformed and has settled down. Mrs. Ruby E. Thornton, the maternal grandparent, has been ill, and, during the three-month summertime period, when she had custody rights, appellant has exercised that privilege. The children have been well cared for and are satisfied and happy in the Purvis home. Their father, Alvin L. Purvis, Jr., resides approximately one hundred (100) yards from the Purvis, Sr. home, and his visitation with the children is facilitated by that fact.

After hearing all testimony on the petition to modify the final decree, the chancellor remarked that the paternal grandparents did not take the children from the natural parents, but they were willing to accept the responsibility of the children to prevent them from being reared in a foster home by persons not related to them and that they were being properly reared and loved by those grandparents. He said that there was no doubt a mother would rear her children in a manner which could not be duplicated by any other person who might try to fulfill her role, even including grandparents. The chancellor commended appellant for her change in conduct and for her desire to have custody of the children. He stated that she should not be forever denied the opportunity to have the children and that she should not interpret his findings as a permanent bar to relief at some future date when circumstances might more appropriately warrant same.

The chancellor decreed that the proof did not sustain the allegations of the petition to modify the decree and that appellant failed to establish and prove a change of circumstances had occurred which materially affects the children’s welfare adversely, and he dismissed the petition for modification. However, he did modify the decree of July 12, 1978, by providing that, thereafter, appellant have custody of the children for the three-month period previously provided for the maternal grandmother.

The appellees rely upon the principle stated many times that a court will not modify custody provisions of a decree unless there has been a material change of circumstances which adversely affect the child’s welfare. Bowden v. Fayard, 355 So.2d 662 (Miss.1978); O’Neal v. Warden, 345 So.2d 610 (Miss.1977). Also, they call attention to the rule that a chancellor will not be reversed on a finding of fact unless he is manifestly wrong. Smith v. Smith, 380 So.2d 1267 (Miss.1980).

Appellant cites Rodgers v. Rodgers, 274 So.2d 671 (Miss.1973) which involved a contest between the natural mother of a child and the paternal grandparents, wherein the Court said:

“[I]t is presumed that the best interest of the child will be preserved by it remaining with its parents or parent. In order to overcome this presumption there must be a clear showing that the parent has (1) abandoned the child, or (2) the conduct of the parent is so immoral to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child. . . . ” 274 So.2d at 673.

In Pace v. Barrett, 205 So.2d 647 (Miss.1968), paternal grandparents had custody of a minor child. The child’s father died, the mother filed a petition to modify the decree in order to obtain custody of said child, and the lower court dismissed the petition. On appeal, this Court said:

“The paternal grandparents have no right to the custody of their grandson, as against the mother, until they have charged and proved that she has forfeited her natural right to the custody of her minor son by abandonment or by immoral conduct, or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another. . . . The burden of proof is squarely on their shoulders and they have not met this burden in this case.” 205 So.2d at 649.

See also Naveda v. Ahumada, 381 So.2d 147 (Miss.1980).

Morris v. Morris, 245 So.2d 22 (Miss.1971), involved a petition to modify a final divorce decree awarding custody of four (4) minor children to the paternal grandparents. The Court found that the father and mother were presently unfit to have the permanent custody of the minor children and the temporary custody was granted to the paternal grandparents. The Court held that the primary concern was the best interest of the children.

The principle that there must be a material change of circumstances which adversely affects a child’s welfare before a custody decree may be modified only applies between parents of the child. The correct application of the law as between grandparents (also other persons) and parents is stated in Rodgers v. Rodgers, supra, viz, the parent is entitled to custody of the child unless he/she has abandoned the child or is unfit to have custody, keeping in mind the best interest of the child. The best interest of a child does not mean a bigger home, a finer automobile, a color television or more money.

In Wansley v. Schmidt, 186 So.2d 462 (Miss.1966), a divorce was granted to Wans-ley from Gertrude Wansley (Schmidt) and custody of the children was granted to the maternal grandparents. The decree recited that it was contemplated the mother of said children would reside in the home of the grandparents and would assist in the care of the children. Wansley filed a petition to modify the decree, seeking custody of the children. The suit, for all purposes, was between the mother and father of the children, and, while the lower court, affirmed by this Court, declined to change custody of the children, under the circumstances of that case, the decision did not violate the principle stated above.

The chancellor here erred in declining to modify the custody decree on the ground that appellant failed to prove a change of circumstances had occurred which materially affects the children’s welfare adversely, and in dismissing the petition for that reason. The fact that he granted three (3) months’ custody of the children to the mother (appellant) indicates that he was satisfied she was a fit person to have their custody.

The original divorce decree ordered that Alvin L. Purvis, Jr., father of said children, pay two hundred forty-six dollars ($246.00) per month to the grandparents for the children’s support. The judgment of the lower court is reversed and the cause is remanded for that court to determine the present fitness of the appellant to have custody of the children, and, if she is presently a fit person, the court will grant custody to her, and will determine the support to be paid by the father.

REVERSED AND REMANDED.

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

      . Alvin L. Purvis, Jr., the father, did not seek custody.


text:
    Dorothy S. JOHNSON v. U-HAUL COMPANY, INC., et al.
    No. 52021.
    Supreme Court of Mississippi.
    June 4, 1980.
    Melvin & Melvin, Leonard B. Melvin, Jr., Laurel, Cumbest & Cumbest, John L. Hunter, Pascagoula, Sarah L. Entrekin, Laurel, for appellant.
    Greaves, Terry & Sheely, Jerry 0. Terry, Bryant & Stennis, Sue Esther Dulin, Gulf-port, for appellees.
   Appeal from Chancery Court, Jackson County; Rex Gordon, Chancellor.

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

AFFIRMED.


text:
    Charles Kermit DUFRENE and John C. Lambert v. STATE of Mississippi.
    No. 51972.
    Supreme Court of Mississippi.
    June 4, 1980.
    Richard E. Stratton, III, Brookhaven, for appellants.
   Appeal from Circuit Court, Amite County; Lenox L. Forman, Judge.

Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

AFFIRMED.


text:
    LUCKY STAR INDUSTRIES, INC., et al. v. Mildred J. EASTERLING.
    No. 51737.
    Supreme Court of Mississippi.
    June 4, 1980.
    Lumpkin, Holland, Ray & Upchurch, W. Reed Hillen, Tupelo, for appellants.
    John L. Long, Tupelo, for appellee.
   Appeal from Circuit Court, Lee County; Fred Wicker, Judge.

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

AFFIRMED.


text:
    C. L. SMITH v. Celia AINSWORTH et al.
    No. 51960.
    Supreme Court of Mississippi.
    June 4, 1980.
    B. R. Hardin, W. D. Kendall, Jackson, for appellant.
    Williamson & Smith, William H. Smith, III, Mendenhall, for appellees.
   Appeal from Chancery Court, Simpson County; Billy Joe Landrum, Special Chancellor.

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

AFFIRMED.


text:
    W. H. FANNING & ASSOCIATES, LTD., et al. v. John J. ABDOU.
    No. 51893.
    Supreme Court of Mississippi.
    June 4, 1980.
    Heidelberg, Woodliff & Franks, Sam E. Scott, John B. MacNeill, Jackson, for appellants.
    Butler, Snow, O’Mara, Stevens & Canna-da, Rhesa H. Barksdale, Fred Krutz, III, Jackson, for appellee.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

Before PATTERSON, C. J., ROBERTSON, P. J., and LEE, J.

AFFIRMED.


text:
    Robert Earl HOWARD v. STATE of Mississippi.
    No. 51986.
    Supreme Court of Mississippi.
    June 4, 1980.
    Robert Earl Howard, pro se.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Pike County; Joe N. Pigott, Judge.

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

AFFIRMED.


text:
    Donnie D. WILSON v. STATE of Mississippi.
    No. 51888.
    Supreme Court of Mississippi.
    June 11, 1980.
    R. W. Boydstun, Jr., Louisville, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

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

Affirmed.

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


author: TORBERT, Chief Justice. FAULKNER, Justice

text:
    CENTENNIAL ASSOCIATES, LTD., et al. v. Henry J. CLARK, Jr.
    78-360.
    Supreme Court of Alabama.
    April 11, 1980.
    Rehearing Denied June 6, 1980.
    D. H. Markstein, Jr. and Curtis O. Liles, III, of Markstein & Morris, Birmingham, for appellants.
    William B. Hairston of Engel, Hairston, Moses & Johnson, Birmingham, for appel-lee.
   TORBERT, Chief Justice.

This is an appeal from the final decree of the Jefferson County Circuit Court granting Henry J. Clark, Jr., damages and declaratory relief on a real estate mortgage note executed in his favor by Centennial Associates Ltd., Gary E. Smith, R. J. McClure, Jr., and Phillip A. Watts. Upon a consideration of the terms of the note and mortgage, and under the facts, the trial court held that acceleration of the note was proper. The trial court further held that the interest provisions and the note and mortgage were not usurious under Code 1975, §§ 8-8-1 and 8-8 — 2. Based on these two holdings, the trial court awarded Henry J. Clark, Jr., a money judgment in the sum of $22,000. We affirm.

On June 7, 1973, Centennial, Smith, McClure and Watts, individually, borrowed $20,000 from Henry Clark, and executed the note in favor of Clark for $20,000 bearing interest at the rate of 10% per annum, and payable at $204.25 per month on the first of each month. To secure the note, Centennial executed a real estate mortgage on certain property, including the LaSalle or University Tower Apartments. This note provided: “In the event any installment shall remain unpaid for as much as ten days after the same becomes due the holder, thereof, shall have the right and option to declare the entire indebtedness secured hereby to be at once due and payable.” The parties agreed that each of the required monthly payments was made on time through December 1977. The January, 1978, through April, 1978, payments were not received by Clark on the due dates. On April 26, 1978, Centennial received a letter from Clark’s attorneys accelerating the entire debt and returning the four checks. On June 28, 1978, Centennial, Smith, Watts and McClure filed the complaint which gave rise to this action, requesting a declaration that Clark had no right to accelerate the note, and that the interest rate charged on the note was usurious. Clark answered and counter-claimed for a money judgment on the note, which he asserted was in default.

The issue of whether acceleration was proper is primarily one of fact, and the decision of the trial court judge, who heard the evidence ore tenus, will not be disturbed on appeal unless clearly erroneous. Hall v. Polk, 363 So.2d 300 (Ala.1978); African Methodist Episcopal Church v. St. Paul Methodist Church of Selmont, 362 So.2d 868 (Ala.1978).

The trial court’s holding, that the Clark note is not usurious under Code 1975, §§ 8-8-1 and 8-8-2, because the Mini-Code maximum rate section, Code 1975, § 5-19-3(a), applies to the note, is a question of statutory construction. Accordingly, this holding is not accorded the same presumption of correctness as the trial court’s holding on the issue of fact.

ISSUE:

Whether the maximum finance charge section of the Mini-Code, Code 1975, § 5-19-3(a), applies only to creditors who regularly extend credit.

It is important to understand that although § 5-19-3 establishes “maximum finance charges,” that section has reference to the maximum yield or return which a creditor may charge for the use of his money. The term “finance charge” is broader than the term “interest,” and includes such things as time price differential, points, carrying charges or other charges however denominated. The legislature chose the term “finance charge” instead of the term “interest” so as to regulate abuses in the credit industry where additional charges were made by the lender and paid by the borrower, which were outside the common concept of “interest.” Additionally, “maximum finance charges” in the Mini-Code are expressed in “add-on” terminology (/. e., these charges, $8.00 per $100, may be aggregated for the term of the loan, and added to the principal and then divided by the number of installment payments) as distinguished from the “simple interest” characterization, where an interest percentage is computed on the principal balance from time to time outstanding, for the period of time that the debtor has the use of the principal amount between installment payments. The note at issue provides for interest at a rate of 10% simple interest per annum. This rate of interest is prima facie usurious under Code 1975, § 8-8-1.

Except as otherwise provided by law, the maximum rate of interest upon the loan or forbearance of money, goods or things in action, except by written contract is $6.00 upon $100.00 for one year, and the rate of interest by written contract is not to exceed $8.00 upon $100.00 for one year and at that rate for a greater or less sum or for a longer or shorter time.

Code 1975, § 8-8-1 (emphasis added).

It is significant that the predecessor of the above usury statute, Code 1940, Tit. 9, § 60, does not contain the modifying clause, “Except as otherwise provided by law.” This clause, which was added to the 1975 codification, apparently recognized the subsequent enactment of the Mini-Code, which does provide otherwise. In the instant case the 10% simple interest rate, though it exceeds the permissible 8% rate of § 8-8-1, is less than the permissible maximum yield computed on an 8% add-on basis, as authorized in § 5-19-3. The determinative question is: Which statute controls?

The appellant argues, and the dissent states, that the maximum finance charge section applies only to creditors who regularly extend credit. We do not agree. We must assume that in enacting Code 1975, § 5-19-3(a), the legislature was aware of § 252 of Article XIII of the Constitution of Alabama of 1901.

The court accordingly is entitled to look, in its effort to arrive at the intention of the Legislature, to other provisions of the same act, to consider its relation to other statutory and constitutional requirements, to view its history and the purposes sought to be accomplished thereby, and critically to examine the results that will flow from giving the language in question the meaning it might have if none of these things were considered.

Abramson v. Hard, 229 Ala. 2, 155 So. 590 (1934).

Section 252 of the Constitution of Alabama of 1901 provides:

No bank shall receive, directly or indirectly, a greater rate of interest than shall be allowed by law to individuals for lending money.

Constitution of Alabama of 1901, Art. XIII, § 252. The construction of § 5-19-3(a) espoused in the dissent would have the effect of allowing banks, because they are creditors as defined in § 5-19-1(3), to charge a higher rate of interest than individuals who are not creditors under the Act.

We recognize that the definition of “creditor” states: “The provisions of this chapter apply to any such creditor irrespective of his or its status as a natural person or any type of organization.” Code 1975 § 5-19-1(3). This acknowledgment does not alter the fact that the effect of § 5-19-3(a), as construed by the dissent, would be to allow banks a higher return on money they loan than is allowed by law to those individuals who do not regularly extend credit; this result would be in violation of § 252 of the Constitution of Alabama of 1901. The legislature is presumed to intend that its acts shall not violate the Constitution. Pruett v. Patton, 288 Ala. 710, 265 So.2d 130 (1972). “When an act is susceptible of two constructions, one of which would render it offensive to the Constitution and the other would not, the construction most favorable to the Constitution should be given though the less natural one.” J. Blach & Sons v. Hawkins, 238 Ala. 172, 189 So. 726 (1939); James v. Todd, 267 Ala. 495, 103 So.2d 19 (1957); State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968).

If the legislature had intended to limit the application of the rate section to creditors who regularly extend credit, the statute would have so provided. The statute on its face provides that it applies to “any loan or forbearance and for any credit sale,” not to any loan by one who regularly extends credit. The significance which this Court gives to the term “any” in the statute is set forth in detail in Fuller v. Associates Commercial Corporation, [Ms. April 11, 1980], released the same day as this opinion. The dissent uses the definition of “finance charge,” which term does appear in § 5-19-3(a), to bootstrap into that section the definition of “creditor,” which term does not appear in § 5-19-3(a). It is significant to note that §§ 5-19^(a), 5-19-6, 5-19-11, and 5-19-15, all specifically use the word “creditor,” thus limiting the application of those sections to creditors who regularly extend credit. It is also significant that the word “creditor” is conspicuously missing from § 5-19-3(a). The intention of the legislature in enacting Code 1975, § 5-19-3(a), cannot be arrived at by according no meaning to the word “any,” which appears in the section, and bootstrapping into the section through the definition of “finance charge” the limited definition of the word “creditor,” which term does not appear in § 5-19-3(a).

The dissent argues that our holding allows “an individual lender [who is not a creditor under the Act] to have his cake, and eat it too, because he is not subject to any of the penalties or sanctions of a creditor as set out in § 15 of the Act [§ 5-19-19].” (Footnote omitted). We admit that this is the effect of our holding and justify it by pointing out that in enacting the Mini-Code the legislature sought to protect individual debtors from those dominant in the field of lending (creditors who regularly extend credit), but found it unnecessary to protect individual debtors borrowing from individual lenders on a casual basis. Based on the language of the statute (/. e., “any”), we hold that the legislature intended the maximum rate section to apply to lenders who do not regularly extend credit as well as to those who do, and we affirm the holding of the trial court.

AFFIRMED.

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

FAULKNER, J., with whom BLOOD-WORTH and EMBRY, JJ., concur, dissents.

FAULKNER, Justice

(dissenting).

I dissent. Respectfully, I say that the majority’s definitions of “creditor,” “finance charge” and “consumer” make about as much sense as someone defining “illegal” to mean a “sick bird.”

Section 5-19-3 provides that the maximum finance charge for any loan “. may not exceed the greater of the following

Section 5-19-1 defines “finance charge:”

“(1) FINANCE CHARGE. Such term shall include all charges payable directly or indirectly by the debtor and imposed directly or indirectly by the creditor as an incident to the extension of credit, including interest, time price differential, points or discount paid directly by the debtor, service, carrying or other charge however denominated, loan fee credit or investigation fee, but not including permissible default or deferral charges, permissible attorney’s fees, court costs, and official fees and taxes, points or discount paid by someone other than the debtor or premiums for permissible insurance as provided by this chapter. For the purpose of determining the permissible finance charge, any discount or point paid by debtor in connection with a mortgage loan on real estate, even though paid at one time, shall be spread over the stated term of the loan or forbearance or credit sale.” (Emphasis added.)

Therefore, § 5-19-3 sets maximum finance charges — not interest. By its definition, “finance charge” includes more than interest. Moreover, the definition of “finance charge” says that it shall “include all charges . . . imposed ... by the creditor . . . .” (Emphasis added.) A “creditor” in turn is only a lender who “regularly extend[s] or arrange[s] for the extension of credit for which the payment of a finance charge is required.” So, a “finance charge” cannot be charged unless one is a “creditor,” within the meaning of the Mini-Code.

Next, this Court has narrowly defined “interest.” For example, “time-price differential” is not interest. See Commercial Credit Co. v. Tarwater, 215 Ala. 123, 110 So. 39 (1926); Pryor v. Associates Discount Corp., 43 Ala.App. 394, 191 So.2d 234 (1966). And the term “time-price differential” is specifically stated in the definition of finance charge. Thus, finance charge and interest are not one and the same. It is significant to note that the Legislature did not repeal § 8-8-1 or § 8-8-2 in the 1975 Code.

In view of the fact that the Legislature did not repeal these sections, what field of operation do they now have? If they have any, then we have an equal protection question. It appears to me that these sections cannot be said to have been repealed by implication, when the Legislature left them in the 1975 Code. It is true that § 8-8-1 begins with this proviso, “Except as otherwise provided by law . . . .” Apparently, they, with this proviso, had in mind Fletcher v. Tuscaloosa Federal Savings and Loan Association, 294 Ala. 173, 314 So.2d 51 (1975). But, Fletcher’s holding was restricted to real estate mortgage loans, and that § 8-8-1 was repealed by implication if it involved that type of consumer transactions by a qualified lending institution.

The reasoning of the majority permits an individual lender to have his cake, and eat it too, because he is not subject to any of the penalties or sanctions of a creditor as set out in § 15 of the Act. Moreover, the majority would permit the individual lender to bring suit for collection of his claim in direct violation of § 7. That section has to be complied with before a creditor may sue the debtor.

Additionally, § 1(b) defining “consumer” strengthens Centennial’s contention that Clark cannot come within the provisions of the Mini-Code. The loan, here, to Centennial was not a loan for a personal, family, household, or agricultural purpose. It was a business loan for a business purpose. It was not a consumer loan within the meaning of the Act.

The majority has ignored discussion of “Consumer” here, but held in Fuller v. Associates Commercial Corporation, [Ms. April 11, 1980], that a consumer under the terms of the Act, and a non-consumer are one and the same when a loan is made regardless of its purpose. Again, the majority here and in Fuller have painted with a broad brush in their strained construction of the word “any.”

Finally, the majority say they assume the Legislature was aware of § 252, Article XIII, Constitution 1901. Whether or not it was aware of the Constitution begs the question. Of course, a bank may not constitutionally charge more rent on its loan than an individual engaged in the business of lending money. But, the Legislature has the power to create classifications. And, an individual who qualifies with the administrator may legally charge the Mini-Code rates. If he is not qualified, in my opinion, he cannot. Otherwise, why did the Legislature enact § 18 providing that “[n]o creditor shall engage in the business of making consumer loans . . . without first having obtained a license . . . from the Administrator,” except banks, insurance companies, trust companies, savings and loan associations, credit unions, and federal agencies? The majority have used the word “any” as their justification for permitting an individual creditor to charge Mini-Code rates of interest. By their interpretation, they have painted themselves into a corner. If “any” means what they say it means, what does “no” mean under § 18, since they have abolished the distinction between consumer and non-consumer in Fuller ? What is their answer to that provision? Well, as was said in “Alice’s Adventure in Wonderland,” things get curiouser and curiouser.

I would reverse the trial court.

BLOODWORTH and EMBRY, JJ., concur.

      . Section 15. Any creditor charging a finance charge in excess of the amount authorized herein except as the result of an accidental and bona fide error in computation, shall forfeit his right to any finance charge and shall refund to the debtor the total amount of the finance charge, which may be done by reducing the amount of the debtor’s principal obligation. If the debtor is entitled to a refund and the creditor refuses to refund within a reasonable time after written demand, the debtor may recover a penalty of either twice the finance charge or ten times the amount of the excess charge, whichever is greater, but in any event not less than $100, together with a reasonable attorney’s fee. If the creditor has made an excess finance charge in deliberate violation of or in reckless disregard for this Act, the creditor shall have no right to receive or retain the principal or any finance charge whatsoever and the transaction shall be void. No action under this section may be brought more than one year after due date of the last scheduled payment of the agreement pursuant to which the charge was made or in the case of open end credit plans, one year after the excess charge is made.

      . Section 7. No creditor under this act shall bring suit on any debt for collection, and no judgment by default or otherwise shall be rendered until the creditor shall file an affidavit stating that (a) there has not been a violation of provisions of this Act, and (b) that the debtor (if a resident of this state) on information and belief of creditor is a resident of the county in which the suit is filed. If such violation exists or if the debtor is not a resident of the county in which suit is filed, the suit shall be abated.

      . Section 1. Definitions—
      As used in this Act:
      * # * * * *
      (b) The term “Consumer”, used as an adjective with reference to a credit transaction, characterizes the transaction as one in which the party to whom credit is extended by loan, sale of property or services, lease, or otherwise is a natural person, and the money, property or services which are the subject of the transaction are primarily for personal, family, household or agricultural purposes.


author: PER CURIAM. EMBRY, Justice

text:
    Gladys NANCE v. Todd Anthony JONES, a Minor. Lorene Scott McKINNEY v. Todd Anthony JONES, a Minor. Mary JONES v. Todd Anthony JONES, a Minor. James D. JONES v. Todd Anthony JONES, a Minor.
    78-630 to 78-632 and 79-48.
    Supreme Court of Alabama.
    June 6, 1980.
    J. E. Sawyer, Jr., of Rowe, Rowe and Sawyer, Enterprise, for appellants.
    William L. Lee, III, and William C. Carn, III, of Lee & Mclnish, Dothan, for appellee.
   PER CURIAM.

These four appeals by plaintiffs, Gladys Nance, Lorene Scott McKinney, Mary Jones and James D. Jones, are from judgments in favor of defendant, Todd Anthony Jones, in three personal injury actions and one loss of consortium action, all consolidated for trial. We reverse and remand.

Issue

Did the trial Court err to reversal in this case by giving a charge concerning imputation of an automobile driver’s negligence to the passengers in that automobile?

Facts

Plaintiffs Gladys Nance, Lorene McKinney and Mary Jones are women who were passengers in an automobile driven by Paul T. Jones which was struck by an automobile driven by Defendant Todd Jones. All three women sustained personal injuries. The other Plaintiff, James Jones, is the husband of Mary Jones. The three passengers filed actions for damages for injuries incurred in the collision, alleging their injuries were proximately caused by Todd Jones’s negligent operation of his automobile. James Jones’s action against Todd is for loss of services and consortium.

The collision occurred in the roadway on Grubbs Street in the city of Enterprise, referred to as “thrill hill.” At the time, the women passengers were in an automobile stopped on the wrong side of the road in order for Lorene McKinney to disembark. While stopped, that automobile was struck by an automobile driven by Todd Jones. The evidence indicates that, at the time of the collision, there was insufficient space for Todd to swerve around the other automobile. The evidence discloses that, because it was raining at the time, there were no skid marks on the road.

Paul Jones testified he took the passenger Plaintiffs to and from work each day and they shared gasoline expenses with him. He further testified: He was in the process of taking the women home when the accident occurred; he had stopped on the wrong side of the road because he had to allow Lorene McKinney to disembark; and there were already three cars parked in front of her house. He also admitted that Todd Jones’s car could not have passed his, Paul’s, car.

The evidence is in conflict regarding the speed Todd Jones’s automobile was traveling immediately before the impact. Because no skid marks were left on the road, the investigating police officer could not give an estimate regarding the speed. It is important to note that the vehicle occupied by the women plaintiffs was parked or stopped at the bottom of a steep hill and Todd could not have seen Paul Jones’s vehicle until he reached the top of that hill, approximately 215 feet from Paul’s car. In any event, Todd and a passenger in his car testified that they were traveling at approximately thirty miles per hour when they saw the automobile driven by Paul Jones. Paul Jones, however, testified he estimated Todd’s automobile was going fifty miles per hour when it topped the hill. One of the plaintiffs also estimated that Todd’s car was going fifty miles per hour when it topped the hill; however, she had estimated forty miles per hour when deposed before trial.

The evidence discloses that Todd applied his brakes when he reached the top of the hill. There was also evidence that Todd did not try to jump the curb of the road to avoid the collision because certain trees were located in close proximity to the road.

All four cases were submitted to the jury. It returned a verdict for the defendant in each case. Plaintiffs filed motions for new trial which were denied. These appeals followed.

Decision

The only contention urged by plaintiffs which has merit concerns the following written instruction given the jury:

“Now, ladies and gentlemen, a person riding in an automobile driven by another, even though not chargeable with the driver’s negligence, is not absolved for all care for his or her own safety, but is under the duty to exercise reasonable or ordinary care to avoid injury. To create the imputation of negligence of the driver to a passenger of an automobile, that passenger must have assumed control and direction of the vehicle or must have some right to a voice in the control, management, or direction of the vehicle.” (Emphasis added.)

Plaintiffs argue that it was error to give this instruction. We agree that the charge should not have been given in this case. While the instruction is a correct abstract statement of the imputation of negligence rule, there was no evidence here that indicates any of the passengers in the car being driven by Paul Jones had any right to a voice in the control, management or direction of the vehicle, nor was there any evidence indicating any of the passengers had assumed control. An instruction based partly or entirely on a state of facts not appearing in the evidence has been held to be abstract. Coulter v. Holder, 287 Ala. 642, 254 So.2d 420 (1971).

Reversal, however, insists the Appellee, does not result from the giving of an abstract charge unless it appears from the whole record that the charge did in fact mislead the jury to Appellant’s prejudice. This is a correct statement of the applicable harmless error rule. Coulter, supra. In the current posture of this case, the issue may be rephrased as follows: Was there sufficient evidence to support a jury verdict favorable to Plaintiffs, and would the verdict have survived a motion for new trial?

Our careful review of the entire record does not convince us that the trial Court erred in submitting the case to the jury; nor can we say that a plaintiff’s verdict based upon the evidence of record would not have withstood a motion for a new trial. In other words, a jury issue is presented by the evidence; and, thus, we are unable to conclude, as a matter of law, that the giving of an abstract, inappropriate charge was harmless error.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, MADDOX, JONES, ALMON and SHORES, JJ., concur.

EMBRY, J., dissents with opinion.

FAULKNER and BEATTY, JJ., concur with EMBRY, J.

EMBRY, Justice

(dissenting):

I respectfully dissent. An instruction based partly or entirely on a state of facts not appearing in the evidence has been held to be abstract. Coulter v. Holder, 287 Ala. 642, 254 So.2d 420 (1971). Reversal, however, does not result from the giving of an abstract charge unless it appears from the whole record that the charge did in fact mislead the jury to appellants’ prejudice. Coulter, supra. It does not so appear from the record in this case, in my opinion.

After close scrutiny of the entire record, I have determined that the jury was not misled by the abstract charge; therefore, the plaintiffs were not prejudiced and any error resulting was harmless. See Rule 61, ARCP; Rule 45, ARAP. In fact, close scrutiny of the record indicates, that, although there was a scintilla of evidence to allow the case to go to the jury, there was insufficient evidence to support a jury verdict favorable to plaintiffs and the verdict would not have survived a motion for new trial. See Liberty Motors v. Haynes, 36 Ala.App. 600, 61 So.2d 135 (1952); Koonce v. Craft, 234 Ala. 278, 174 So. 478 (1937). This being the case, the judgment below is due to be affirmed.

FAULKNER, J., concurs.

BEATTY, J., concurs in the result.

      . See, Gardner v. Dorsey, 331 So.2d 634 (Ala.1976); Williams v. Pope, 281 Ala. 382, 203 So.2d 105 (1967); Johnson v. Battles, 255 Ala. 624, 52 So.2d 702 (1951); Whiddon v. Malone, 220 Ala. 220, 124 So. 516 (1929); and Crescent Motor Co. v. Stone, 211 Ala. 516, 101 So. 49 (1924).


author: HARRIS, Presiding Judge.

text:
    Mike HAYES, alias v. STATE.
    6 Div. 960.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.

      Robert F. Prince of Prince & Land, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., Samuel J. Clenney, III, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was indicted and convicted of assault with intent to murder. The trial court set sentence at twenty years in the penitentiary. Appellant was properly arraigned in the presence of his attorney and interposed a plea of not guilty and not guilty by reason of insanity. The special plea of not guilty by reason of insanity was subsequently withdrawn. After sentence was imposed, appellant gave notice of appeal and was furnished a free transcript. Trial counsel represents him on appeal.

The evidence presented by the state made out a clear-cut case of assault with intent to murder. Appellant did not testify but offered alibi evidence by several witnesses. The state presented one witness on rebuttal and it is the testimony of this rebuttal witness which forms the basis of this appeal. The facts are not complicated and we see no need to set them out in great detail.

Briefly, the appellant met Miss Dena Fair, the victum of his would-be murderous assault, at the Supermarket disco lounge in Tuscaloosa between 11:30 and 12:00 the night of April 28, 1978. Miss Fair, twenty-five years of age, had traveled to the Supermarket with friends and was ready to return home when appellant asked her to stay a while longer. Forty-five minutes to one hour later, after Miss Fair had danced and had conversation with appellant, she left alone with him in his car to ride to the Racket Club. Discovering that the Racket Club was closed, the couple drove to the apartment of Carol Cooley and Rickey Kelley where several of their friends had gathered. They left the apartment together at 3:00 a. m. on April 29.

Appellant drove Miss Fair to her car at the Supermarket, kissed her good night and made plans to see her the next day. When they got to the Supermarket a police car was parked there and appellant did not stop. He returned later and the police car was still there and appellant kept driving. When he returned the police car was gone and Miss Fair got in her car and started driving to her home. Unrequested, appellant followed her home; he pulled in behind her and turned his lights off, but left the motor running. Appellant walked Miss Fair to the back door and told her he just wanted to make sure she made it home all right. Miss Fair thanked appellant and unlocked the door. While the two were standing at the door appellant asked if he could have a good night kiss. Miss Fair testified that as “he was kissing me good night . I started . . walking back . and the next thing I knew he was holding my back real tight and the next thing I knew his hands were on my neck, and I couldn’t breathe or anything and I started kicking him ... He put me down on the ground, I don’t remember falling or anything but he put me down on the ground and I couldn’t move my legs and I couldn’t kick him. , . . [H]is eyes were staring right in my eyes, they were real wide and I was screaming, I was screaming the whole time but nothing was coming out ... I guess I finally realized my hands were free and I reached back and there was an aluminum folding chair there and I grabbed the chair and I started shaking it to make some noise (When) Mike moved one of his hands from my neck and grabbed my hand, I screamed . [W]hen I screamed Mike jumped and ran to his car . . . Mother had heard me scream, my brother and sister heard me scream and they all met there in the living room ... I said Mike Hayes just tried to strangle me, I said he tried to kill me . .” Neither Miss Fair’s mother nor her brother or sister who were home that night saw appellant, but her sister heard someone running.

Miss Fair had red marks on her neck and her neck was swollen. She was taken to a local hospital where her neck was x-rayed. She was given pain relieving medication and stayed in bed the next day.

The mother called the police department and an officer arrived a short time later. He observed the red marks on Miss Fair’s neck and suggested she be taken to the hospital for x-rays.

The state’s rebuttal witness, Miss Sherry Rumsey, twenty-eight years of age, testified that she received a telephone call from the appellant in the early morning hours on May 6,1978. Appellant came to her apartment approximately ten minutes after calling, around 3:00 a. m. Unknown to appellant Miss Rumsey’s boyfriend was in her bedroom when appellant arrived. Miss Rumsey stated that appellant sat on the couch and she sat in a chair beside him. “[H]e proceeded to tell me what was wrong . Mike had always been a friend of mine whenever he had any kind of problems he always came to talk to me like a big sister.”

After Miss Rumsey had talked with him twenty-five to thirty minutes she “got up, led him to the door ... I reached for the doorknob, told Mike I would talk to him tomorrow, he took my hand from the doorknob, grabbed me around the back not hard, just put his hands around my back I pushed him back and I said Mike, go on home ... He grabbed me again . . [o]n my back, moving up toward my shoulders . . . His hands got on my shoulders and I pushed him back and when I did, he got a wild look in his eyes, his hands came back and grabbed me around the throat and proceeded to choke . . . We struggled, I went around in a circle, I fell on my back and Mike came down on all fours over me . His legs were over me and both hands were on my neck and with all his strength he was pushing on my neck . I couldn’t breathe, I didn’t know anything to do.”

Miss Rumsey’s boyfriend heard the disturbance from the bedroom. She stated that “[h]e headed straight for Mike . He began to pound him . . . Mike was still choking with all his power.” He was finally successful in pulling appellant off Miss Rumsey and managed to hold him until the police arrived.

Appellant contends that the trial court committed reversible error in allowing Miss Rumsey’s testimony because it was evidence of a separate and distinct crime. Appellant maintains his motion to suppress Miss Rum-sey’s testimony should have been granted. We do not agree.

As a general rule, in a prosecution for a particular crime, evidence of other acts which of themselves constitute distinct and independent offenses is not admissible. Ex parte Williams, Ala., 350 So.2d 708; Lucy v. State, Ala.Cr.App., 340 So.2d 840, cert. denied, Ala., 340 So.2d 847. See also C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (3rd ed. 1977). However, this well established principle of criminal evidence is subject to several equally well-established exceptions. Mason v. State, 259 Ala. 438, 66 So.2d 557; Scott v. State, Ala. Cr.App., 353 So.2d 36, cert. denied, Ala., 353 So.2d 40; Wilkins v. State, 29 Ala.App. 349, 197 So. 75. These recognized exceptions have developed into general categories, and are listed in Wharton’s Criminal Evidence, Section 31, as follows:

“(1) Relevancy as part of the res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scien-ter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes.”

We hold that Miss Rumsey’s testimony was properly admitted under two of the above exceptions: relevancy to prove identity and relevancy to prove intent. These exceptions are thus explained.

First, as to the relevancy of Miss Rumsey’s testimony to prove identity, the appellant’s identity as Miss Fair’s attacker was in issue. Although Miss Fair gave a detailed eyewitness account of her assault, no one else witnessed the attack. The defense in this case, unlike the defense in Ex parte Williams, supra, presented alibi witnesses who testified in substance that the appellant was at some other place at the time of the assault, and that drugs had been used at the apartment of Carol Cooley and Rickey Kelley, the inference of the alibi testimony being that Miss Fair did not know who assaulted her, that it could not have been appellant. On rebuttal the state properly showed that the appellant assaulted Miss Rumsey in the same peculiar manner as he had Miss Fair. Miss Rumsey made a positive identification of appellant as her assailant. Thus, under the identity exception alone, Miss Rumsey’s testimony would have been admissible. Johnson v. State, 242 Ala. 278, 5 So.2d 632; Humphrey v. State, 54 Ala.App. 62, 304 So.2d 617. See C. Gamble, McElroy’s Alabama Evidence, § 69.01(8) (3rd ed. 1977) and cases cited therein for a full discussion on this exception.

Secondly, Miss Rumsey’s testimony was relevant to prove intent. If the accused is charged with a crime that requires a prerequisite intent, then prior or subsequent criminal acts are admissible to show that he had the necessary intent when he committed the now charged crime. McElroy’s Alabama Evidence, §§ 69.01(5), 70.01(2). See Fikes v. State, 263 Ala. 89, 81 So.2d 303; McKenzie v. State, 250 Ala. 178, 33 So.2d 488; Hogue v. State, 54 Ala.App. 682, 312 So.2d 86; Wilkins v. State, supra, cert. denied, 240 Ala. 52, 197 So. 81.

Appellant’s modus operandi was peculiarly and substantially similar in both attacks. Both attacks occurred around 3 o’clock on Saturday mornings one week apart. Both victims were single women in their mid-twenties and knew the appellant. Both victims were in a one-to-one encounter with appellant when the attacks occurred. The attacks occurred at the victims’ homes near the door. Appellant’s ploy of attack on the victim was practically the same in both instances. Also, in both cases appellant did not release his stranglehold until an intervening agency occurred; Miss Fair’s scream which awakened her family, and Miss Rum-sey’s boyfriend who was also awakened by the disturbances.

We hold that the admission of Miss Rum-sey’s testimony clears up any doubt which the jury may have had that appellant’s intent toward Miss Fair was an intent to murder, and not some other intent, such as intent to maim or intent to rob. Wilkins, supra. Thus, the intent exception is satisfied.

Since Sherry Rumsey’s testimony was properly admitted, no error occurred when the district attorney referred to her testimony in closing argument. Simply put, statements based on facts admissible in evidence are proper. Henley v. State, Ala.Cr. App., 361 So.2d 1148, cert. denied, Ala., 361 So.2d 1152; Kirkland v. State, Ala.Cr.App., 340 So.2d 1139, cert. denied, Ala., 340 So.2d 1140.

The trial court made it plain to the jury that the accused was charged with assault with intent to murder Dena Fair, which charge included assault and battery. He further charged the jury that he allowed into evidence other matters “for the purposes of aiding you in determining whether or not there is pattern or motive or design or scheme or intent or identity of the defendant as regards this crime and that is there for that limited purpose for your consideration.”

At the conclusion of the oral charge defense counsel stated: “The defense says the oral charge is fine, Your Honor, we have no objections.”

The record reflects that prior to the instant case appellant pleaded guilty to another indictment charging assault with intent to murder and was sentenced to twenty years in the penitentiary. A murder charge was also pending against him.

We have examined each issue raised in brief. In addition, we have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte James Michael HAYES. (In re Mike Hayes, Alias v. State of Alabama).
    No. 79-341.
    Supreme Court of Alabama.
    June 6, 1980.
    Robert F. Prince of Prince & Land, Tuscaloosa, for petitioner.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for respondent.
   MADDOX, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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

JONES and ALMON, JJ., dissent.