text:
    Ralph Eugene DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 80-52.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.

      Jack 0. Johnson, Public Defender, Michael S. Becker, Asst. Public Defender, and Geoffrey A. Foster, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula T. Mason, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Ralph Eugene Davis appeals from a judgment and sentence for attempted sexual battery under Section 794.011(4)(e), Florida Statutes (1979). He also appeals the order revoking his probation on the basis of the judgment. We find no merit to Davis’ argument that the judgment was not supported by the evidence. The trial court erred, however, in imposing a sentence of five years imprisonment and twenty years probation. The maximum sentence for attempted sexual battery, a second degree felony, is fifteen years. §§ 775.082(3)(c), 777.04(4)(b), Fla.Stat. (1979). Thus, the total time in prison and on probation could not exceed fifteen years. State v. Holmes, 360 So.2d 380 (Fla.1978); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976).

Accordingly, we affirm the judgment and order but remand for the trial court to impose a new term of probation not exceeding ten years.

BOARDMAN, Acting C. J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Anthony Wesley HOSTZCLAW, Appellee.
    Nos. 78-370, 78-371.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Jim Smith, Atty.' Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellant.
    J. Michael Burman of Montgomery, Ly-tal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Appellee’s motion for attorney’s fees is hereby granted and the cause is remanded to the trial court for determination of the amount.

LETTS, C. J., and DOWNEY and HERSEY, JJ., concur.


text:
    Robert S. OLNICK, Sylvia Olnick, Leonard Steiner, Leonard Boxer, Individually and as General Partners, d/b/a Fairways of Inverrary Associates, Appellants, v. ROBERT MYERS PAINTING, INC., Snead Construction Corporation, Lawrence-Irwin Chartered Architects and The Stuyvesant Insurance Company, Appellees.
    No. 78-1989.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.

      Chad P. Pugatch of Houston, Faircloth, Cooper, Easthope & Kelley, Fort Lauder-dale, for appellants.
    Michael L. Berry of Rentz & Haggard, P. A., Miami, and L. Edward McClellan, Jr. of Pattillo, MacKay & McKeever, P. A., Ocala, for appellees, Lawrence-Irwin Chartered Architects and Stuyvesant Ins. Co.
   PER CURIAM.

We reverse the Summary Final Judgment rendered in favor of third-party defendants, appellees here.

In order for appellant to prevail on his indemnity claim the pleadings must allege and the proof must support the fact that appellant’s liability, if any, would be solely vicarious, constructive, derivative, or technical, and based upon the actual wrongdoing or breach of contract of appellees. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979).

It seems to us the appellee’s position, simplistically stated, is that the allegations in the third-party complaint are insufficient to state a cause of action for indemnity. However, as indicated in Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977):

The test of whether allegations stating a cause of action in indemnity are sufficient should not be determined on a Motion for Summary Judgment.

Finally, the record discloses the existence of genuine issues of fact which must, of necessity, be addressed on the merits and not in summary fashion.

For the foregoing reasons we reverse the Summary Final Judgment and remand for such further proceedings as may be appropriate.

REVERSED AND REMANDED.

ANSTEAD and HERSEY, JJ„ and OSEE R. FAGAN, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Vincenzo ARMETTA et al., Intervenors, Group I, Appellants, v. CLEVETRUST REALTY INVESTORS et al., Appellees.
    No. 79-96.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.

      Alan S. Becker of Becker, Poliakoff & Streitfeld, P.A., Miami Beach, for appellants.
    Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellees.
   DOWNEY, Judge.

This is a plenary appeal from a final judgment dismissing Count XVI of appellants’ counterclaim with prejudice. We have previously considered other counts of the same counterclaim and affirmed the trial court’s action in dismissing them. See: Armetta v. Clevetrust Realty Investors, 359 So.2d 540 (Fla. 4th DCA 1978), cert. denied 366 So.2d 879 (Fla.1978).

Appellee, as the construction lender, is the plaintiff in the trial court seeking to foreclose its mortgage on a proposed, albeit incomplete, condominium complex. Appellants are intervenors who as contract purchasers paid approximately $1,500,000 in deposits toward the purchase of condominium units.

Count XVI of appellants’ counterclaim sought the imposition of an equitable lien on the property in question and a determination that this lien had priority over appel-lee’s mortgage. The thrust of appellants’ claim in Count XVI is that appellee’s mortgage lien should be held inferior to appellants’ claims because of general considerations of right and justice; that the application of the doctrine of equitable estoppel to the circumstance of this case would entitle appellants to an equitable lien prior in dignity to appellee’s mortgage.

We believe this case is controlled by Rinker Materials Corp. v. Palmer First National Bank & Trust Co. of Sarasota, 361 So.2d 156 (Fla.1978), which requires that in order to state a cause of action for an equitable lien on the theory of equitable estoppel it is necessary to allege “fraud, misrepresentation, or other affirmative deception.” The allegations of Count XVI do not rise to that level.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

LETTS, C. J., and HURLEY, J., concur.


author: LETTS, Chief Judge.

text:
    Jerschel M. HAYS, Appellant, v. Mary C. HAYS, Appellee.
    No. 79-1583.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Robert A. Huth, Jr., Fort Lauderdale, for appellant.
    Lloyd C. Hawthorne, Live Oak, for appel-lee.
   LETTS, Chief Judge.

The appellant/husband seeks review of a portion of the final judgment which ordered the sale of the marital domicile and the award of lump sum alimony to the ap-pellee/wife.

Neither party prayed for partition of the property nor alleged the need for partition. Since the appellee/wife concedes that the trial court erred in ordering partition, this portion of the decree must be reversed. Kitchen v. Kitchen, 162 So.2d 539 (Fla.3d DCA 1964); Helsel v. Helsel, 138 So.2d 99 (Fla.3d DCA 1962); DiMartino v. DiMarti-no, 360 So.2d 1133 (Fla.3d DCA 1978).

As to the award of lump sum alimony to the appellee/wife, we affirm the trial court’s decision upon the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), Case No. 54,124, Opinion issued March 27, 1980.

AFFIRMED IN PART; REVERSED AND REMANDED FOR ENTRY OF A FINAL JUDGMENT IN ACCORDANCE HEREWITH.

ANSTEAD and HURLEY, JJ., concur.


text:
    Raymond FUSE, Appellant, v. STATE of Florida, Appellee.
    No. 79-1734.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Richard L. Jorandby, Public Defender, and Martin H. Colin, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Peterson v. State, 382 So.2d 701 (Fla.1980).

ANSTEAD, MOORE and HURLEY, JJ., concur.


text:
    Jose GONZALEZ, a/k/k Jose Cardenaz Gonzalez, Appellant, v. STATE of Florida, Appellee.
    No. 79-1788.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Richard L. Jorandby, Public Defender, and Polly M. Shull, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

The appellant was placed on probation. One condition of the probation was that the defendant serve three months in the county jail. Then, a notice of appeal was filed. Subsequently, the defendant petitioned the lower court to mitigate the sentence. Instead, the trial court ordered the defendant to serve four months in the county jail, but to be served only on weekends.

The filing of a notice of appeal vested exclusive jurisdiction in this appellate court, and accordingly, the trial court lost jurisdiction. Wells v. State, 362 So.2d 441 (Fla. 4th DCA 1978); Kelly v. State, 359 So.2d 493 (Fla. 1st DCA 1978).

The modification of sentence is, therefore, reversed and this cause is remanded to the trial court for a new hearing on the defendant’s motion to mitigate his sentence. Regarding the mitigation hearing, the trial judge may modify the sentence so as to mitigate the punishment, but he may not increase the penalty. An increase in penalty would subject the defendant to double punishment for the same offense, thus violating the Fifth Amendment of the Constitution. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Troupe v. Rowe, 283 So.2d 857 (Fla.1973). We confess that a four month sentence to be served only on weekends may be less onerous than three months of continuous incarceration. Yet the fact remains that it is an increase in the amount of total time to be served and therefore impermissible.

All other points on appeal are found to be without merit.

REVERSED. REMANDED UNLESS THE CAUSE IS MOOT.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Andrew GLOVER, Appellant, v. STATE of Florida, Appellee.
    No. 79-2048.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Affirmed. See State v. Hudson, 373 So.2d 666 (Fla.1979).

ANSTEAD, MOORE and HURLEY, JJ., concur.


text:
    Gilbert R. PANZER, M. D., Petitioner, v. Debra JOHNSON, as Mother and next friend of Jennifer Johnson, and Doctors Hospital of Lake Worth, and Florida Patient’s Compensation Fund, Respondents.
    No. 80-474.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.

      Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for petitioner.
    Paul Siegel of Sinclair, Louis, Siegel & Heath, Miami, for respondent, Debra Johnson.
   PER CURIAM.

This is an emergency petition for common law certiorari contesting discovery orders by the trial court. The petition and response have been considered on the merits. The issue is whether certain materials in the hands of a particular expert witness are subject to discovery by respondent who contends said materials are necessary for adequate cross-examination of the witness. Petitioner contends the materials are “work product” under Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), and immune from discovery.

We do not find that the trial court deviated from the essential requirements of law in ordering these documents made available in the event the witness is called at trial. Even though we find no error regarding discovery of the documents, we point out that the protective provisions of Rule of Civil Procedure 1.280(b)(2) apply and that in ordering discovery of trial preparation materials, the trial court is still required to protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney concerning the litigation. Insofar as the order in question may fail to so protect, it is considered to be over-broad and so modified in this respect.

The petition for writ of certiorari is denied except to the extent noted above.

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


author: ORFINGER, Judge.

text:
    In the Interest of D. P. P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 80-50.
    District Court of Appeal of Florida, Fifth District.
    June 4, 1980.
    James B. Gibson, Public Defender, James R. Wulchak, Asst. Public Defender and Christopher S. Quarles, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, for appellee.
   ORFINGER, Judge.

This is an appeal from an order of the trial court adjudicating the appellant a delinquent and committing him to the custody of the Department of Health and Rehabilitative Services. Appellant’s counsel has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 1, 1980, this court gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed the brief and the record herein and no reversible error appears. The motion of the appellant’s counsel to withdraw is hereby granted, and the order of the court below is hereby

AFFIRMED.

DAUKSCH, C. J., and CROSS, J., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Henry L. HOWELL, Appellee.
    No. 79-2078.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    David H. Bludworth, State’s Atty., and Debra E. Pole, Asst. State’s Atty., West Palm Beach, for appellant.
    Philip G. Butler, Jr. of Foley, Colton & Butler, West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by the State of the grant of a motion to suppress evidence seized from the defendant’s automobile. A gun, located in the console on the floor between the seats, and some marijuana, found in a briefcase in the trunk, were seized when the defendant was stopped for driving while intoxicated. We affirm as to the suppression of the marijuana, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 2594, 61 L.Ed.2d 235 (1979), but reverse as to the suppression of the gun.

The evidence is clear that probable cause existed to stop the defendant who was driving his automobile in a very erratic and reckless manner. Further, when the defendant got out of his car, he exhibited clear signs of intoxication, including slurred speech and staggering. We consider the gun search to have been proper under State v. Gustafson, 258 So.2d 1 (Fla.1972), affirmed, Gustafson v. State, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), and Rivera v. State, 373 So.2d 64 (Fla.3d DCA 1979). We conclude that the trial court committed error in suppressing the gun and reverse and remand the cause for further proceedings consistent herewith.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

GLICKSTEIN and HURLEY, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    PILOT ELECTRICAL CONSTRUCTION COMPANY, INC., a Florida Corporation, Appellant, v. Dean W. WATERS and Don M. Waters, Appellees.
    No.00-176.
    District Court of Appeal of Florida, First District.
    June 5, 1980.
    W.*K. Lally, Jacksonville, for appellant.
    Adam G. Adams, II of Adams & Adams, Jacksonville, for appellees.
   LARRY G. SMITH, Judge.

The trial court was correct in granting summary judgment denying appellant’s mechanics lien claim. All work on the project, and the contract under which appellant commenced the furnishing of labor and materials on the job, post-dated the amendment to Section 713.06, Florida Statutes, effective July 1, 1978. As amended, that section provides that the 45-day notice to the owner, required as a prerequisite to the perfecting of a lien by persons not in privity with the owner,

. must be served regardless of the method of payments by the owner, whether proper or improper, and shall not give to the lienor serving the notice any priority over other lienors in the same category, and the failure to serve the notice shall be a complete defense to payment by any person, except a person with whom the lienor failing to serve the notice has a contract. .

This amendment was a categorical rejection of the decision in Crane Co. v. Fine, 221 So.2d 145 (Fla.1969), which construed the former statute as establishing a “priority” category for lienors filing within the 45-day period, and allowing a “pro-rata” recovery for late filers to the extent of sums remaining due from the owner to the contractor. See Sarasota Commercial Refrigeration and Air Conditioning v. Schooley, 381 So.2d 1141 (Fla.2nd DCA 1980).

Appellant’s contention that its oral modification of the written agreement with the general contractor, after seventy percent of the work had been completed, started a new 45-day period running is without merit. The work was commenced and completed under three building permits, pursuant to a written contract. The mere fact that substantial changes were made in the actual installation of electrical service and equipment did not alter the time sequence required for serving notice to the owner. The work and materials were for essentiaHy the same project, at the same location, and it is undisputed that commencement of the work, the original agreement and the building permits authorizing same, commenced considerably more than 45 days prior to appellant’s service of the notice to the owner.

The statute is clear, and we find no genuine issue of material fact. The judgment, accordingly, is AFFIRMED.

MILLS, C. J., and SHIVERS, J., concur.


author: PATTERSON, Chief Justice,

text:
    Donald W. ALLEN v. Carol J. BLANKS.
    No. 51830.
    Supreme Court of Mississippi.
    May 7, 1980.

      Gene Brown, Meridian, for appellant.
    Eppes & Shannon, Walter W. Eppes, Jr., Meridian, for appellee.
    Before PATTERSON, C. J., SUGG and BROOM, JJ.
   PATTERSON, Chief Justice,

for the Court:

Donald Allen filed a declaration in the Circuit Court of Lauderdale County alleging that Carol Blanks negligently collided with his motorcycle at the intersection of Bounds and Pine Springs Roads in Meridian, injuring him. From a verdict for the defendant Allen appeals, contending the trial court erred in granting and refusing various jury instructions relating to intoxication, standard of care, and other issues. We reverse.

On June 17, 1978, at about 7:00 p. m., Allen, with a passenger, his girl friend, drove a 1972 Honda motorcycle in an easterly direction on Bounds Road in Meridian. Rick Hunnicutt, accompanied by his wife, drove his smaller Honda motorcycle alongside Allen at approximately the same rate of speed. As they approached Pine Springs Road intersection, they faced a stop sign as well as a flashing red light. Both motorcycle drivers responded to the warnings and stopped their vehicles. Hunnicutt then crossed the intersection and several seconds later, when Allen’s motorcycle was completely within the intersection, Blanks’ automobile struck it broadside.

A flashing yellow caution light and warning signs faced Blanks as she approached the intersection from the north on Pine Springs Road. At the time of the collision the weather was clear, the road dry, and visibility good. In the passenger area of Blanks’ car an officer investigating the accident discovered a gallon jug of wine which was at least half empty.

Allen testified that he heard neither horn nor squeal of tires before the impact. His passenger, now his wife, slapped him on the shoulder and exclaimed “watch it!” and instantaneously the car struck him, knocking his 650-pound motorcycle about 100 feet and catapulting him about 25 feet from the point of impact. Other witnesses estimated the impact propelled the motorcycle approximately 30 feet and their testimony also differed as to the speed of Blanks’ automobile.

Observing the roadway after the accident, Hunnicutt detected no visible skid marks. To the contrary, a passerby, James Hollis, who arrived shortly after the accident, testified he saw 50 feet of faint skid marks behind Blanks’ car, which suggested Blanks observed the hazard, attempted to stop and swerved into the left lane of traffic to avoid the motorcycle.

Billie Hunnicutt testified that Blanks wore a one-piece bathing suit, no shoes and no glasses, and smelled of alcohol immediately after the accident. Blanks testified in rebuttal that while she was driving, she wore, in addition to the bathing suit, “flip flops” on her feet, wore contact lenses to correct her nearsightedness, and had drunk wine, explaining, “I had — at 1:00 o’clock, between 1:00 and 2:00 — I had two cups, it was approximately eight ounces. They were full of ice. I would say I had four ounces out of each cup; and, between 4:00 and 5:00,1 had one more glass.” Nevertheless, the odor of alcohol was such that Rick Hunnicutt, his wife Billie, and police officer Taylor, as well as Allen himself, noticed it. Taylor required Blanks to take a breath analyzer test, the results of which were excluded from evidence as required by Mississippi Code Annotated section 63-11-43 (1972).

In sum, the evidence conflicted with respect to the position of the Allen motorcycle at the time it was struck by Blanks’ automobile. The evidence of Allen’s witnesses was that Allen, after stopping at the intersection, proceeded across it at approximately the same time as Hunnicutt, but stalled within Blanks’ lane of travel and in this position suffered the impact of the car driven by Blanks, who was speeding, drunk, shoeless, and without lenses to correct her nearsightedness. Blanks’ evidence was that Allen stalled at the stop sign and in a foolish effort to catch up with Hunnicutt sped into the intersection in an attempt to “beat the traffic.” According to Allen, speed, drunkenness and inattention prevented Blanks from avoiding the accident. According to Blanks, Allen’s inexcusable failure to yield the right-of-way constituted the sole cause of the accident, unavoidable notwithstanding her sobriety, braking, and driving into the opposite lane of travel to avoid the collision.

Without contradiction, Allen was severely injured in that his left leg was broken, eventually requiring amputation of most of his left foot through surgical procedures necessitating hospitalization for about three months.

By his first assignment of error, Allen attacks the refusal of the trial court to instruct the jury peremptorily on the issue of liability. In our opinion, this assignment lacks merit. Taken as a whole, the evidence, including reasonable inferences arising from it, when viewed in the light most favorable to Blanks, raises credibility issues appropriate for jury resolution upon proper instructions. See Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975).

Allen next attacks the refusal of the trial court to grant proffered instruction P-3, a standard of care instruction including the language, “the defendant had no lawful right to go forward under the assumption that it would be open and clear.” While language of this sort appears in the cases, see Tippit v. Hunter, 205 So.2d 267 (Miss.1967); Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226 (1962), defects in instructions do not require reversal where all the instructions taken together fairly announce the applicable law. Jackson Yellow Cab Co. v. Alexander, 246 Miss. 268, 148 So.2d 674 (1963). Blanks correctly observes that granted instruction P-2 aptly states Blank’s duty of care as she approached the intersection. We have held that trial courts need not grant duplicitous instructions simply to satisfy each party’s desire for emphasis. E. g., Mississippi State Highway Comm. v. Spencer, 209 So.2d 821 (Miss.1968). Instruction P-2 details the crucial point that the yellow light facing Blanks demanded caution, and that a finding of negligence would flow from her failure to yield the right-of-way to Allen if he lawfully entered the intersection as he claimed and stalled unexpectedly. See MCA §§ 63-3-311(1) and (2); 63-3-805 (1972).

By his third assignment of error, Allen attacks the trial court’s refusal to grant instruction P-4, which states in part, “The driver of a motor vehicle has a lawful duty to decrease his speed upon approaching an intersection.” The statute on the duty of care of a driver approaching a caution light, Mississippi Code Annotated section 63-3-311(2) (1972), states the driver “may proceed . . . only with caution.” P-4 is defective, because caution is a relative concept not necessarily entailing decrease in speed: The current speed may already be a cautious speed. See Richardson v. Adams, 223 So.2d 536, 538 (Miss.1969); Young v. Schwarz, 230 So.2d 583, 584-85 (Miss.1970).

Allen next challenges the refusal to grant instruction P-5. In essence it states that Blanks must be found negligent per se if she drove under the influence of alcohol. The instruction adds that a verdict for the plaintiff would follow from such finding of negligence if Blanks’ intoxication operated as a proximate cause of the accident. Blanks argues the instruction was properly refused, because the evidence raised only a speculative inference of driving under the influence and of proximate causation. She relies upon five cases: Alston v. Forsythe, 226 Md. 121, 145, 172 A.2d 474 (1961); Parton v. Weilnau, 169 Ohio St. 145, 158 N.E.2d 719 (1959); Bohnsack v. Kirkham, 72 Wash.2d 183, 432 P.2d 554 (1967); Fain v. Hughes, 262 Or. 137, 497 P.2d 198 (1972); and Fossi v. George, 191 Or. 113, 228 P.2d 798 (1951).

While it is true that the court in Alston declined to reverse where an intoxication instruction had not been given despite evidence indicating that “the defendant smelled slightly of beer,” the court based its decision on the fact that the proffered instruction “ignored the matter of any causal relation between the alleged driving while under the influence of intoxicating liquor and the happening of the accident.” 172 A.2d at 477-78. Everything else in the opinion about intoxication is dicta. This can be seen in the Alston court’s attempt to distinguish rather than overrule Singleton v. Roman, 195 Md. 241, 72 A.2d 705 (1950).

In Singleton the following language appears:

In determining whether or not a driver was under the influence of liquor in any degree, the jury should be left free to form their own judgment from the evidence. ... At the trial below, where there was testimony that there was a very slight odor of alcohol on the driver’s breath, but he did not seem to be intoxicated, it was the province of the jury to determine whether he was actually under the influence of intoxicating liquor in any degree, however slight, and if he was, whether the intoxication contributed to the accident.

(72 A.2d at 707)

In a later case, Walker v. Hall, 34 Md. App. 571, 369 A.2d 105 (1977), the Maryland Court of Special Appeals elaborated upon one factual basis for the Alston decision:

Appellant overlooks the significance of Trooper Myrick’s testimony that he smelled alcohol on Hall’s breath yet concluded that “I didn’t feel that he had enough to be charged with it. . A similar issue was before the Court of Appeals in Alston v. Forsythe, 226 Md. 121, 172 A.2d 474 (1961). In Alston, the court affirmed a judgment for the defendant despite the trial court’s actions in not instructing the jury concerning the provisions of the predecessor section of Art. 66V2, § 11-902, under circumstances where the defendant had admitted to drinking two beers prior to the accident. The investigating officer in Alston, as in the instant case, noted the defendant’s drinking yet failed to charge him with a violation.

(369 A.2d at 114)

In this case, in contrast, the investigating police officer who administered a breath test to Blanks did not testify as to whether any criminal proceedings had been initiated against Blanks as the result of the accident. Mississippi Code Annotated section 63-11-43 (1972) renders inadmissible in a civil case the results of any chemical test to determine the level of blood alcohol. Unlike Alston, we do not have in the record an affirmative statement by a police officer that there was no probable cause for believing the driver to have been under the influence. On the contrary, the officer in this case, finding a gallon jug of wine at least half empty in the car and smelling alcohol on Blanks’ breath, administered a breath analyzer test to verify his suspicion. Under these circumstances, Alston loses persuasiveness in Blanks’ argument for affirmance. Bohnsack, supra, falls within the same category for the same reasons. We note also that in Provins v. Bevis, 70 Wash.2d 131, 422 P.2d 505 (1967), the court displayed willingness to submit the issue of intoxication to the jury upon appropriate instructions.

Blanks next relies upon Parton v. Weilnau, 169 Ohio St. 145, 158 N.E.2d 719 (1959). There, the Supreme Court of Ohio expressed its dissatisfaction with admission of testimony concerning blood percentage of alcohol without “definite expert testimony to explain the significance of the percentage of alcohol.” 158 N.E.2d at 724. The court added, “Even assuming that decedent had been under the influence of alcohol ., it is difficult on the facts of this case to conceive of any reasonable basis for a finding of any proximate causal relationship between that fact and plaintiff’s injuries.”

Paragraph 1 of the Parton syllabus states the law of the case as follows: “Where upon the evidence reasonable minds cannot conclude that an automobile driver was under the influence of alcohol at the time of the collision ... an issue as to whether such driver was negligent in driving under the influence of alcohol should be withdrawn from consideration by the jury.” 158 N.E.2d at 721. In essence, this statement merely directs an inquiry to the facts of each case, stating the familiar rule that where reasonable minds cannot differ no factual question remains for the jury to decide.

Blanks next relies upon Fain, supra. In Fain the court stated that in the absence of evidence of any “perceptible effects of drinking” on the defendant’s driving, the court below properly removed the issue of intoxication from consideration by the jury. Again, however, an officer’s affirmative testimony that based on his observations at the scene of the accident the defendant was not under the influence of intoxicating liquor raises a distinguishing feature in the case which was not overcome by the defendant’s admission that earlier in the afternoon of the accident he had had “three or four beers.” 497 P.2d at 199. But Jenson v. Spencer, 269 Or. 411, 525 P.2d 153 (1974), construing Fain and Fossi, supra, the remaining case relied upon by Blanks, sharpens somewhat the meaning of “perceptible effect” in Oregon law regarding submission of the issue of intoxication to the jury. Like Fossi, Jenson involved the standard of gross negligence under the guest statute and proof of intoxication to raise an inference of gross negligence. The court found the evidence, which included testimony that the defendant smelled of alcohol, sufficient to warrant submission of the issue of intoxication to the jury.

In this case, the issue is one of simple, not gross, negligence, and the threshold of sufficiency of the evidence to submit the question to the jury should therefore be lower. Also, the Oregon court’s interest in Fain with the phrasing “perceptible effect” appears to us unsound. It is a fact capable of judicial notice that consumption of even small quantities of alcohol may significantly, albeit “imperceptibly,” impair reaction time. Where split seconds are critical, even a very slight impairment of reaction time may spell the difference between accident or no accident, between proximately contributing negligence or the lack of it.

In considering Blanks’ argument that the instruction on intoxication was properly refused, we note that the only consequence of giving the instruction is to call the jury’s attention to the relevant evidence as to whether the driver was intoxicated and further as to whether the intoxication, if any, proximately contributed to the accident. An instruction of the kind offered by Allen does not, as Blanks suggests, bind the jury to a finding of negligence. It simply indicates the legal effect of findings of intoxication and proximate cause, leaving entirely to the jury the factual question of whether such intoxication and proximate cause appears from the evidence presented. See gen. Gandy v. State, 373 So.2d 1042 (Miss.1979).

Four occurrence witnesses, including a police officer, stated that Blanks smelled of alcohol. The significance of the presence of a partially consumed gallon jug of wine in the car cannot be discounted. See Burkett v. Johnston, 39 Tenn.App. 276, 282 S.W.2d 647 (1955); see gen. Blashfield, Automobile Law and Practice (3d Ed. 1969) § 490.86.

In Freeze v. Taylor, 257 So.2d 509, 511 (Miss.1972), we stated, “[djriving an automobile on the highway under the influence of intoxicants ... is not only dangerous . . . it is per se negligence, and if such negligence contributed to the injury of the plaintiff, the defendant is liable in damages.” See also Hill v. Columbus Ice Cream & Creamery Co., 230 Miss. 634, 93 So.2d 634 (1957). We think the evidence in this case raises a factual question sufficient to warrant submission of the intoxication/negligence issue to the jury on instructions explaining the need for finding of proximate causal connection between the intoxication and the accident. We therefore are of the opinion the trial court erred in refusing instruction P-5.

By his fifth assignment of error, Allen attacks the trial court’s refusal of instruction P-11. P-11 charges the jury to disregard any evidence relating to Allen’s failure to procure a valid driver’s license.

The record reveals that Blanks’ attorney wafted into the jury box an unwarranted innuendo concerning Allen’s failure to procure a driver’s license. Blanks’ attorney first broached the subject on cross-examination of Allen:

Q. You have had a good bit of experience driving a motorcycle?
A. Yes, sir.
Q. Drive a car?
A. Yes, sir.
Q. Got your license with you?
A. No, sir.
Q. Got one?
BY MR. BROWN: I object to that line of questioning, your Honor. It has no relevance on the negligence.
BY THE COURT: Overruled; he’s on cross-examination.
BY MR. EPPES: Son, you never have had a driver’s license, have you?
BY MR. BROWN: Your Honor, I’m going to ask for a mistrial. That’s as inadmissible as has ever been admitted in a court of law.
BY MR. EPPES: I’ll withdraw it.

On redirect examination, Allen’s attorney did nothing more than explore the matter of driving experience, which Blanks’ attorney had opened on cross-examination. Then Blanks’ attorney interjected, “Your Honor, I think the door is now open.” The court responded, “Yes, sir.”

The prejudicial one-liner on recross examination follows:

Q. Have you got a license now and did you have a license when this accident happened, to be operating any kind of motor vehicle? Yes or no.
A. No, sir.
BY MR. BROWN: Your Honor, I’m going to move for a mistrial.
BY THE COURT: Overruled.

Blanks’ attorney then carefully watered the seed which he had planted first on cross-examination.

BY MR. EPPES: I’d like an answer from the witness as to v/hether or not on the occasion of this accident or before or since you have had a license to operate an automobile or motor vehicle in the state of Mississippi?
Q. No, sir.
BY MR. EPPES: That’s all.

The probative value of this testimony on the issue of negligence is exceedingly slight, its prejudicial impact and tendency to mislead immeasurably great. The clear majority, and, we think, better-reasoned position, which we now adopt, holds evidence of this kind inadmissible for the purpose of proving lack of due care. See, e. g., Hawkins v. United States, 395 A.2d 45 (D.C.App.1978); State v. Davis, 196 N.W.2d 885, 894 (Iowa 1972); Giles v. Gardner, 287 Ala. 166, 249 So.2d 824 (1971); Mills v. Park, 67 Wash.2d 717, 409 P.2d 646 (1966); Wilson v. Hobrock, 344 Ill.App. 147, 100 N.E.2d 412 (1951); Blashfield, Automobile Law and Practice (3d Ed. 1969) § 421.1; Prosser, Torts (4th Ed. 1971) § 36, p. 193, et seq.

We reject Blanks’ argument that Allen’s attorney waived his previous objection by examining his client with respect to driving experience. Blanks' attorney first mentioned driving experience in connection with his examination of Allen concerning licensing. When Allen’s attorney objected, the court declared, “overruled,” erroneously suggesting that evidence of this sort had some legal effect. Prom that point on, Allen’s attorney attempted to mitigate the prejudicial effect. The trial judge then punished that attempt, the only route open to Allen’s attorney to rehabilitate his client, by ruling that he had “opened the door” to further prejudicial questions on recross-examination.

As for Blanks’ argument that the error was harmless, the sharp conflict in the testimony of the witnesses demonstrates the case is factually close on the liability issue, particularly in view of the application of comparative negligence. Under these circumstances, even slight prejudice must be assumed to have been outcome-determinative. See Bradley v. Holmes, 248 Miss. 44, 157 So.2d 801 (1963); Myrick v. Holifield, 240 Miss. 106, 126 So.2d 508 (1961).

We conclude that Allen’s motion for a new trial should have been sustained inasmuch as the trial court refused the instruction, P-11, proffered to alleviate the prejudicial effect of the improper evidence relating to Allen’s failure to procure a driver’s license.

Our disposition of the foregoing issues renders unnecessary any discussion of Allen’s remaining assignments of error.

REVERSED AND REMANDED.

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


author: SMITH, Presiding Justice,

text:
    SEARS, ROEBUCK & COMPANY v. Mrs. Harvey YOUNG.
    No. 51842.
    Supreme Court of Mississippi.
    May 21, 1980.

      Mitchell, McNutt, Bush, Lagrone & Sams, Thomas D. Murry, F. M. Bush, III, Tupelo, for appellant.
    Parker, Averill & Butts, David 0. Butts, Tupelo, for appellee.
    Before SMITH, P. J., and BROOM and COFER, JJ.
   SMITH, Presiding Justice,

for the Court.

Sears, Roebuck And Company appeals from a judgment entered against it by the Circuit Court of Lee County in favor of Mrs. Harvey Young. The circumstances which gave rise to Mrs. Young’s suit may be summarized as follows. Mrs. Young purchased a dress at the Sears store in Tupelo. She paid for the dress and her receipt was put in a Sears bag with the dress. In packaging the garment, the sales clerk overlooked removing the inventory control tag. This oversight brought about the incident upon which the suit was based.

As Mrs. Young left the store with her bag, a buzzer, activated by the tag, sounded. A Sears employee called to Mrs. Young and in a brief conversation explained to Mrs. Young that in order to remove the control tag it would be necessary to go back to the dress department where a tool was available for that purpose. Although the control tag and buzzer were parts of a system designed to prevent shoplifting, since the dress was in a Sears bag Mrs. Young was not suspected or accused of having stolen it. It is undisputed that the employees of Sears were in all respects courteous and there was no accusation of wrongdoing of any kind made against Mrs. Young. The two women walked back to the dress department and the tag was removed. Mrs. Young testified that she knew the inventory device was on the dress when she “laid it on the counter” but turned away to look at another dress and assumed it had been removed.

A few weeks later Mrs. Young filed a declaration charging that as a result of the acts of Sears employees she had suffered “great humiliation and embarrassment and was thereby damaged in her reputation, and she suffered great shock to her nervous system.” She alleged that the clerk had negligently failed to remove the inventory tag and that the clerk who had spoken to her as she left the store had acted willfully, maliciously and in wanton disregard of her rights. She demanded actual and punitive damages in the amount of $9,999.00.

In its answer, Sears admitted that its clerk had inadvertently failed to remove the tag and that this set off a buzzer as Mrs. Young left the store. Sears denied that Mrs. Young had been detained against her will or that its clerk had acted willfully, maliciously or in wanton disregard of Mrs. Young’s rights. Sears asserted that its clerk noticed Mrs. Young had a Sears shopping bag and realized immediately that the clerk had forgotten to remove the tag. The clerk then courteously offered to have the tag removed and took the dress to a station for that purpose. All of this was accomplished in a courteous and congenial manner without harassment or embarrassment to Mrs. Young.

After both sides rested the court directed a verdict on the basis of negligence on the part of the sales clerk who failed to remove the tag but refused to instruct the jury that it might return punitive damages. The court pointed out that there was no medical proof of Mrs. Young's “injuries”, that Mrs. Young had a long standing prior nervous condition, but felt that her testimony made a jury issue as to damages. Therefore, the court refused Sears’ request for a peremptory instruction. The jury returned a verdict of $5,000.00 and Sears appealed. There was no cross-appeal by Mrs. Young.

On appeal Sears assigns as error the following:

(1) The lower court erred in refusing to grant a peremptory instruction;
(2) The lower court erred in giving Instructions P-5 and P-9; and
(3) The verdict was against the overwhelming weight of the evidence and the amount of the verdict was so excessive as to indicate bias and prejudice on the part of the jury.

Sears contends, and the authorities support the view, that to be entitled to damages for mental distress resulting from mere negligence there must be satisfactory proof that the mental distress was accompanied by or resulted in physical injury or genuine physical consequences. Appellee Young has cited no case in Mississippi (or from any other jurisdiction) in which recovery has been allowed for purely mental disturbance, absent a showing of either willful wrong or gross negligence or of “objectively observable physical consequences." An annotation on the subject can be found in 64 A.L.R.2d 100 (1959).

In Daniels v. Adkins Protective Service, Inc., 247 So.2d 710 (Miss.1971), this Court stated the rule:

The rule in this State is that there can be no recovery for mental pain and suffering from the mere negligent act of another unaccompanied by physical or bodily injury. However, damages are recoverable for mental pain and anguish by a willful, wanton, malicious or intentional wrong even though no bodily injury was sustained. Lyons v. Zale Jewelry Co., 246 Miss. 139, 150 So.2d 154 (1963); Saenger Theatres Inc. v. Herndon, 180 Miss. 791, 178 So. 86 (1938); and Arnold v. Spears [217 Miss. 209, 63 So.2d 850], supra.
Since appellant [plaintiff] suffered no bodily injury or trauma, the burden was upon her to prove that the improper embalming of her husband’s body was done maliciously, intentionally, or with such gross negligence or recklessness to show an utter indifference to the consequence. The question then is, does the proof on her behalf, when taken as true, with all reasonable inferences that may be drawn therefrom, show such negligence?

The Court went on to conclude in Adkins:

It [Defendant] was guilty of simple negligence in'so doing. Its conduct was not such from which the jury could infer malice, and under these circumstances no recovery can be had for mental pain and anguish unaccompanied by physical or bodily injury.
(247 So.2d at 711-712).

In Johnson v. Ford Motor Company, 354 F.Supp. 645 (N.D.Miss.1973), the Court stated:

The Mississippi Supreme Court, on many occasions, has considered the award of damages for mental pain and suffering not accompanied by distinct physical injury, and has adopted the rule that such are allowable when occasioned by a willful, wanton, intentional or malicious wrong. See Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86, Daniels v. Adkins Protective Service, Inc., 247 So.2d 710 (Miss.1971), Lyons v. Zale Jewelry Co. 246 Miss. 139, 150 So.2d 154 (1963), T. G. Blackwell Chevrolet Co. v. Eshee 261 So.2d 481 (Miss.1972), Doherty v. Mississippi Power Co., 178 Miss. 204, 173 So. 287 (1937) ....
(354 F.Supp. at 648).

Appellee Young relies principally upon this Court’s decision in First National Bank v. Langley, 314 So.2d 324 (Miss.1975). The facts in Langley bear no substantial resemblance to those in the present case. Langley had been a long time employee of A & P Stores and was manager at one of its stores. He had made the night deposit of receipts in the usual manner in the night depository of First National Bank. The bank notified A & P that the deposit had not been received. Repeated assertions by Langley that he had in fact made the deposit and denials by the bank that it had been received created a gross suspicion of Langley’s honesty and a profound disbelief of his statement that he had in fact made the deposit. The result was that Langley was compelled by A & P to go on a two weeks vacation, which amounted to a forced suspension from his job of twenty-two years. This situation was continued over a considerable period. At long last the deposit was discovered in the bank’s night depository where Langley had placed it just as he had said he had done and where it might have been discovered immediately by a proper search which Langley continued to request.

Appellee Young asserts, however, that Langley is applicable to the facts here and by implication overruled the prior Mississippi cases in which the principle was laid down that, in the absence of gross negligence, willful wrong or malice, no recovery may be had for mental anguish in the absence of physical trauma unless there is “definite’ and objective physical injury produced as a result of the emotional stress wrongfully caused.

In Aldridge v. Johnson, 318 So.2d 870 (Miss.1975), decided after Langley, this Court said:

There must necessarily be, in lieu of impact, some requirement of satisfactory proof, and at least in the absence of knowledge of the plaintiff’s unusual susceptibility, there should be no recovery for hypersensitive mental disturbance where a normal individual would not be affected under the circumstances.
(318 So.2d at 873).

An annotation on the subject appears in 64 A.L.R.2d 100 (1959).

The significant factor in the rule is that where a defendant has been guilty of simple negligence, as was the case here, “there can be no recovery for mental pain and suffering from the mere negligent act of another unaccompanied by physical bodily injury.”

In Langley, this Court dealt with a case in which negligence of the bank virtually destroyed Langley, physically and mentally. He sustained, as the result of the mental distress brought about by the negligence of the bank, identifiable and genuine grievous physical injuries which were proved by both medical and lay testimony. In addition he suffered a loss of wages and incurred substantial medical expenses. This Court set out in its opinion the actual physical injuries sustained by Langley.

In the meantime, the plaintiff had suffered physical and mental pain as a result of his worrying about the missing deposit. He had been referred to a psychiatrist, Dr. W. L. Waldron, who testified that the physical and mental problems of the plaintiff continued even after the deposit was found. He stated that the plaintiff suffered from anxiety neurosis, with depression, and with paranoia, causing over-breathing, muscular tension, shaking, excessive sweating, and acute response to sudden noises. He also suffered from angioneurotic edema, which resulted in the swelling of the lower lip, the tongue, and the upper lip. The swelling was so severe on occasions that the plaintiff had difficulty breathing and consequently had to be rushed to the hospital emergency room. He and his wife, Mrs. Joyce Langley, testified that the plaintiff had severe nightmares, and would wake up in the middle of the night and vomit. Mrs. Langley stated that since the deposit was lost, the plaintiff became “an entirely different person.”

Dr. Waldron testified that the plaintiff’s reaction was caused by the following:

“[I]t was caused by the fact that he was under suspicion of stealing a deposit of some $2300, and through that suspicion losing a position that he had worked for a good many years to attain, and by not being in a position to prove his innocence, and feeling a threat to his future security through reduced pay; and a further sense of frustration in being trapped in that he had 23 years of seniority with this particular company, along with retirement rights accumulation; a sense of inadequacy because of limited education, and this thing having arrived at a period of life in which it would be extremely difficult for him to go out and find similar work or to train for a new job; and the knowledge that even though he was ultimately found not to have stolen the property that the word more or less had gotten about as far as he was concerned. And so he felt he had a strike against him on that score.”
(314 So.2d at 328).

In Langley, the Court concluded:

We, therefore, abandon the “impact doctrine” heretofore followed by this Court, so that hereafter genuine cases of injury growing out of, the negligent acts of another — which are reasonably foreseeable as in other negligent cases — will not be dismissed simply because there was no trauma nor impact on the body of the injured claimant.

We are of the opinion that the facts in the instant case established a genuine claim which was subject to the determination of the jury and that the judgment of the trial court based on the verdict of the jury should be affirmed. (Emphasis added)

(314 So.2d at 339).

Langley was not a case such as that now before us. It did not involve a situation of simple negligence not followed by “satisfactory proof” (as set out in Aldridge, supra), of a “genuine case of physical injury” (Langley, supra), resulting from it. A reading of the rather lengthy opinion in Langley reflects that the decision was limited to the facts of that case, a case in which there was “satisfactory proof” not only of terrible mental anguish but also of genuine physical injury and pecuniary loss. No such evidence exists in this case.

Mrs. Young offered no “satisfactory proof” of any “genuine physical injury” or pecuniary loss sustained as a result of the incident. Unless “shock to her nervous system” may be so regarded, no physical injury was even alleged. Although she consulted a doctor a day or two after the episode occurred, she was not even sure that she mentioned it to him. In any event he was not called upon to testify. She had been taking medicine for “nervousness” (not otherwise identified) for some ten years and there is no proof that she was compelled to change or increase medication afterwards. Her son said that she had been nervous for years and after the incident at Sears he thought that she was more nervous but “not much but some” and that it was “not any great deal.”

In Langley, the Court was at considerable pains to draw the distinction between the situation in Langley, where, although there had been no physical trauma, there was clear and satisfactory evidence of genuine physical injury and financial loss and to limit the scope of the decision to that type of case. It left intact the existing rule that there can be no recovery for mental anguish unaccompanied by physical injury in the absence of malice, willfulness or gross negligence.

We are compelled to conclude that Mrs. Young failed to allege or provide “satisfactory proof” that she sustained a genuine physical injury as the result of the incident at Sears. The judgment appealed from will be reversed and judgment entered here for Sears.

REVERSED AND JUDGMENT ENTERED HERE FOR SEARS, ROEBUCK & COMPANY.

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


author: COFER, Justice,

text:
    Rodney Martinez DAVIS v. STATE of Mississippi.
    No. 51899.
    Supreme Court of Mississippi.
    May 28, 1980.

      Morris & Fair, Eugene L. Fair, Hatties-burg, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, BROOM and COFER, JJ.
   COFER, Justice,

for the Court:

The appellant, Rodney Martinez Davis, was convicted of armed robbery in the Circuit Court of Forrest County, on which conviction he received an imprisonment sentence of twenty-five years.

On appeal, he has assigned four errors which he contends are sufficient to require a reversal of the conviction and sentence. We disagree, affirming the lower court.

The assignments are (1) refusal of appellant’s request that his mother be permitted to sit with him at counsel table during his trial; (2) admission of a lineup identification of appellant; (3) the twenty-five year sentence, without parole, was cruel and unusual punishment; and (4) the court’s refusal to grant him a cautionary instruction.

At the trial, appellant invoked the rule requiring witnesses to remain out of the hearing, and then promptly requested that his mother, though intended to be used, and used, as an alibi witness on his behalf, be excused from the exclusion rule. He offered to make advance record of what her testimony would be to insure that her evidence would not be influenced by what she would hear at her son’s side.

In pressing the assignments, appellant has cited and relies upon the decision of this Court in Kennedy v. State, 278 So.2d 404, 406 (Miss.1973). In that case, it was said that “[w]hen an accused is being tried for a serious offense, he is at least entitled to have the adult members of his family with him at the trial if they so desire . . We do not at all agree that it was intended by that decision that a member of “the adult members of his family,” sit with the accused at counsel table.

Appellant’s youth, a “mere twenty years old,” is argued in support of his assertion. We consider that a young man, at twenty years of age, may be young, average, or advanced for his years. Appellant, as well said by the state in its brief, was not a newcomer to the bar of justice, having previous convictions for aggravated assault, forgery and burglary.

At best in appellant’s favor, the request addressed itself to the discretion of the court, and we cannot say that the court’s action was erroneous.

We have examined the other assignments of error, and find them to be without merit, also.

The conviction and sentence are affirmed.

AFFIRMED.

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


author: SUGG, Justice,

text:
    Sheldon GOOCH v. STATE of Mississippi.
    No. 51850.
    Supreme Court of Mississippi.
    May 28, 1980.

      Helen J. McDade, DeKalb, for appellant.
    Bill Allain, Atty. Gen., by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

This appeal is from the Circuit Court of Newton County wherein Sheldon Gooch was indicted, tried and convicted for armed robbery and sentenced to life imprisonment.

The sole assignment of error is:

The lower court committed reversible error in not continuing this cause under Section 11-1-9 of the Mississippi Code of 1972, as amended, where counsel was a Legislator in session during the Court term.

Defendant was indicted and arraigned on Wednesday, March 21, 1979, for armed robbery committed on Sunday, March 4, 1979. The court appointed an attorney to represent defendant on March 22 and the case was set for trial on the following Monday, March 26. The court appointed attorney filed a motion to examine physical evidence and obtain statements or copies of documents and other evidence and also a motion for a severance. The motions were filed on March 23.

When the case came on for hearing on March 26 the court appointed attorney filed a motion requesting that he be discharged from further representation of the defendant because defendant had employed Miss Helen J. McDade as his attorney on March 25, 1979. Defendant’s attorney filed a motion for continuance under section 11-1-9 Mississippi Code Annotated (Supp.1979) asserting that defendant was entitled to a continuance until the next regular term of court. The court entered an order denying the continuance until the next term of court but continued the case for trial on Monday, April 2, 1979. In its order the court noted that the defendant was brought before the court on Thursday, March 22 and stated he was attempting to employ an attorney. The court appointed an attorney for the defendant and before defendant was arraigned an associate of the appointed attorney announced to the court that the parents of defendant were conferring with Miss Helen J. McDade, in an effort to have her represent the defendant. Miss McDade was a member of the House of Representatives of the Mississippi Legislature representing the twenty-fourth district at that time. Section 11-1-9 Mississippi Code Annotated (Supp.1979) provides:

In any cause now pending or which shall hereafter be pending before any court of this state or before any administrative board, agency or commission of this state or before any court or administrative agency or any county or municipality of this state in which an application for continuance is properly made, predicated upon the ground that the counsel for the party making said application is a member of the Mississippi legislature and if said application is made at a time when the legislature is in session, either regular or extraordinary, or if said legislature will be in session at the time that said cause would be triable, then the continuance shall be granted in all cases.

The statute does not require that a continuance granted thereunder shall be to a subsequent term of court and does not require a continuance of any definite duration. In the absence of controlling statutory provisions, the length of time for which a continuance may be granted rests within the sound discretion of the trial court. 22A C.J.S. Criminal Law ¶ 522 (1961).

The trial judge continued the case to the day following the adjournment of the legislature, and we hold that this did not violate the statute because defendant was not entitled to a continuance to the next term of court.

The constitutionality of the statute was not questioned, so we express no opinion whether it is an unwarranted invasion of the judicial power which is separate under our Constitution. Article 1, Sections 1 and 2, Mississippi Constitution of 1890.

Defendant also argues under his assignment of error that the trial court abused its discretion in refusing a continuance past April 2 because his attorney did not have sufficient time to prepare the trial of the case. After the first motion for continuance was overruled, defendant filed a second motion for continuance on March 29 on the ground that he was entitled to a continuance under section 11-1-9 Mississippi Code Annotated (Supp.1979) and also that his attorney had not had adequate time to prepare his case because his attorney was a member of the Mississippi Legislature which would not adjourn until April 1,1979. The House Journal shows that the Mississippi Legislature adjourned sine die at 6:00 o’clock p.m. on April 1, 1979.

Mississippi Supreme Court Rule 6 requires defendants to set out specifically and particularly each error asserted and provides that: “No error not distinctly assigned shall be argued by counsel, except upon request of the Court, but the Court may, at its option, notice a plain error not assigned or distinctly specified.”

We decline to notice this argument as a plain error because the proof in the case is overwhelming of the guilt of the defendant.

AFFIRMED.

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


author: ROBERTSON, Presiding Justice,

text:
    Rezette TERRY and James Coleman v. STATE of Mississippi.
    No. 51779.
    Supreme Court of Mississippi.
    May 28, 1980.

      Halat & Pisarich, Keith Pisarich, Biloxi, Harold J. DeMetz, Gulfport, for appellants.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

On February 13, 1976, a joint indictment against Rezette Terry and James Coleman was returned by the grand jury in the Circuit Court of the Second Judicial District of Harrison County, charging them with the murder of Ellis Hertfield on July 5, 1975. After a joint trial, the jury returned this verdict: “WE, THE JURY, FIND THE DEFENDANTS GUILTY OF MURDER.” The court sentenced both defendants to life imprisonment in the state penitentiary.

The assignments of error are:

I.The court erred in not terminating the trial because of a hearing impairment suffered by Terry’s counsel.

II.The court erred in not ordering the trials to be severed.

III. The court erred in permitting cross-examination and impeachment of appellant Coleman by using his wife’s statements at an extradition hearing.

IV. The court erred in permitting cross-examination of appellant Terry about statements made to his attorney during a recess.

V.The court erred in refusing a directed verdict.

Terry and Coleman, residents of Chicago, Illinois, on July 2, 1975, drove to Biloxi, Mississippi, in Terry’s 1974 Cadillac to visit L. C. Archie, a mutual friend who had formerly lived in Chicago but was now living in Biloxi. They met Ellis Hertfield their first night in Biloxi, and talked with him on July 3rd and 4th. Hertfield was a known heroin and drug dealer.

On Saturday morning, July 5,1975, Terry and Coleman left L. C. Archie’s house in Terry’s 1974 Cadillac. According to Coleman, he was driving and Terry was sitting on the passenger side of the front seat. They picked up Benjamin Reddix and Joe Louis Archie, a brother of L. C. Archie, and proceeded to Hertfield’s house.

At the trial, Reddix testified that Terry said he wanted to get his money from Hert-field. Reddix further testified that at Hertfield’s house Terry got out and talked with a woman in the yard, then came back to the car, and they drove around the corner, where Reddix and Joe Louis Archie got out. According to Reddix, the defendants picked them up again, drove to an adjacent street, they all went through Hertfield’s neighbor’s yard, and jumped the fence behind Hertfield’s house. The defendants tried the front, side and back doors to Hert-field’s house, while Reddix and Archie waited at the back corner of the house. Defendants told Reddix and Archie to go ahead, so they climbed back over the fence and were walking down a nearby street when they heard a shot from the direction of Hertfield’s house. A few minutes later, the defendants drove up in Terry’s Cadillac, Terry handed Archie a .22 caliber pistol, “and told us to go on about our business.”

Reddix and Archie examined the pistol, found that it was loaded and had one spent shell. Reddix threw the pistol in a drainage ditch and later told police where to find it.

Irma Williams Ricks, who lived with Hertfield for four years, testified that Terry and a man who looked like Coleman had gone by Hertfield’s house on July 4th and talked with Hertfield. On Saturday, July 5th, she was in the front yard when they came up, put a gun to her head, forced her to go into Hertfield’s home and demanded of her where Hertfield kept his money. At that time Hertfield came in and Terry demanded his money. They argued, Terry hit Hertfield several times, then shot him one time and fled the scene.

It was stipulated that Dr. Irwin Joffe, a pathologist, performed a post-mortem examination on Hertfield and that he died as a result of a single small caliber gunshot wound in the upper left shoulder area.

Marzine Sims, who lived in the neighborhood, testified that he was driving down a street beside Hertfield’s house on July 5th when he saw Terry and Coleman hastily go to their car, get in, and take off at a rapid rate of speed. His identification of Terry and Coleman was positive and unequivocal.

Both defendants, Terry and Coleman, testified and each corroborated the other’s testimony. They both admitted seeing Hert-field several times during their stay in Biloxi. Both claimed that Reddix and Joe Louis Archie were at L. C. Archie’s house on July 5th when they woke up. Both testified that L. C. Archie suggested that they go by Hertfield’s house to tell him goodbye before they returned to Chicago. Coleman testified that he was driving Terry’s car when they dropped off Reddix and Joe Louis Archie on the way to Hertfield’s house. Both Terry and Coleman then testified that they drove on to Hertfield’s house and that Terry got out and knocked on the door. Terry testified on direct examination by his retained counsel that no one answered the door but that he heard people talking in the house and heard noises like they were cursing or fighting, so he came back to his car and told Coleman and they then drove away. Both testified that after getting some food they left Biloxi, with Coleman driving, and returned directly to Chicago.

Coleman testified that, although he had planned to visit his father in Louisiana, he and Terry drove from Biloxi directly to Chicago.

Terry’s appellate counsel, appointed by the court, assigned as his first error that the trial court erred in not terminating the trial because of a hearing impairment suffered by Terry’s trial counsel. Terry and Coleman both retained Honorable Howard McDonnell, a thoroughly capable and experienced criminal defense lawyer. McDonnell suggested that Honorable Peter Halat be employed to represent Coleman, and Ha-lat was retained as additional defense counsel. McDonnell did have a known hearing problem, but remedied his condition by using hearing aids. A careful examination of the record reveals that McDonnell was vigorous and resourceful in his defense of Terry; that McDonnell and Halat made common battle for their clients; and that both Halat and the trial judge were diligent in their efforts to assure that McDonnell heard the testimony and all of the other proceedings. There is no merit in this assignment of error.

The next assignment of error is that the trial court erred in not ordering a severance. No motion for a severance was made by either defendant, and this alleged error was not preserved for appeal. Even if a severance had been requested, the trial court would not have been in error in overruling such a motion. The state’s evidence against both defendants was identical; their defenses were identical. Under these circumstances, the trial judge was not in error in failing to grant a severance on his own motion.

The third assignment of error is that the court erred in permitting cross-examination for impeachment purposes of Appellant Coleman about his wife’s sworn statements at Coleman’s extradition hearing in Chicago. At his trial in Biloxi, Coleman testified that he travelled from Chicago to Biloxi with Rezette Terry, was with Terry the whole time they were in Biloxi from July 2nd through July 5th, 1975, that he was with Terry and in fact drove his car to Hertfield’s house on the morning of July 5, 1975, and then returned with Terry to Chicago on July 5th. At his extradition hearing in Chicago, Coleman and his attorney were present when Coleman’s wife testified that he was in Chicago on July 5, 1975, and not in Biloxi. It should be here noted that the principal inquiry at an extradition hearing is whether the person sought to be extradited was in the state where the crime was committed on the date that it was committed. In Sartain v. State, 311 So.2d 343 (Miss. 1975), this Court said:

“However, what appellant overlooks in this case is that the three inconsistent oral statements were admissible for a purpose other than impeachment. They had substantive effect as tending to show a consciousness of guilt on the part of appellant. The rule is stated in 22A C.J.S. Criminal Law § 738 at 1094-1095 (1961), where it is said:
Self-serving statements made by or for accused out of court, explaining suspicious circumstances, may be proved against him, and their falsity may then be shown. The fact of their falsity admits them as indicating an attempt to explain away incriminating circumstances by falsehoods. Where accused testifies, his self-serving statements contradicting his testimony, may be shown. It may be shown also that accused made two or more conflicting statements out of court in reference to an incriminating fact; and this right is not affected by the fact that accused does not become a witness. Inconsistent statements relevant to the crime charged are not limited to use for impeachment purposes; they have sub stantive effect as tending to show a consciousness of guilt.” 311 So.2d at 345. (Emphasis added).

Coleman and his attorney were present at the extradition hearing, and remained silent while Mrs. Coleman testified that he was in Chicago on July 5th in an obvious attempt to defeat extradition.

In dealing with a similar situation, the Supreme Court of Louisiana, in State v. Graves, 301 So.2d 864 (La. 1974), said:

“The close relation demonstrated between this accused and his wife convinces us that, though the evidence of her attempt to induce an alibi witness to lie is prejudicial, it is admissible as revealing consciousness of guilt on the part of the accused.” 301 So.2d at 866.

There is no merit in this assignment of error.

The fourth assignment of error was that the court erred in permitting cross-examination of Appellant Terry about a conversation in the courtroom with his attorney during a recess. The assistant district attorney questioned Terry about whether his lawyer instructed him to say that he had only been convicted of a traffic violation and not another felony. Terry denied any such instruction from his attorney and the prosecution did not pursue this matter any further. If there were error in admitting this brief colloquy, such an error would be harmless.

The last assignment of error is that the court erred in not directing a verdict for each defendant. There is no merit in this assignment of error. The testimony of the state’s witnesses and that of the defendants was in hopeless conflict. It was up to the jury to weigh the conflicting testimony and to decide what weight would be given to each witness’ testimony. As this Court held in Nicholson v. State, 254 So.2d 881 (Miss. 1971):

“In the face of conflicting testimony, the jurors may accept the testimony of some witnesses and refuse that of others, and may accept in part and reject in part the evidence on behalf of the state and on behalf of the accused. Cobb v. State, 235 Miss. 57, 108 So.2d 719 (1959). The jury accepted the testimony on behalf of the state and it was ample to support their verdict of guilty.” 254 So.2d at 883.

The conviction and sentence of each defendant are affirmed.

AFFIRMED.

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


text:
    Fred TURNER v. STATE of Mississippi.
    No. 51970.
    Supreme Court of Mississippi.
    May 28, 1980.
    Milford A. Weaver, William T. Bailey, Lucedale, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and BROOM and COFER, JJ.
   AFFIRMED.


text:
    TRUSTEES OF ST. MARK’S METHODIST CHURCH et al. v. Mrs. A. J. ROBERTS et al.
    No. 51980.
    Supreme Court of Mississippi.
    May 28, 1980.
    J. Hal Ross, Brandon, for appellants.
    Taylor, Covington, Smith & Matrick, William C. Smith, Jr., James E. Lambert, Jackson, for appellees.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

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

AFFIRMED.


text:
    Herbert TRICE v. STATE of Mississippi.
    No. 51918.
    Supreme Court of Mississippi.
    May 28, 1980.
    Leonard McClellan, Oxford, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Lee County; L. T. Senter, Jr., Judge.

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

AFFIRMED.


text:
    Charlie McRAE et al. v. Alexander BELENCHIA et al.
    No. 51910.
    Supreme Court of Mississippi.
    May 28, 1980.
    Jacobs, Griffith, Pearson, Eddins & Po-vall, Benjamin E. Griffith, Cleveland, Lynda C. Robinson, Jackson, for appellants.
    Luckett, Luckett, Luckett & Thompson, Clarksdale, G. Rives Neblett, Shelby, Jack Bobo, Shelby, Walter W. Thompson, Clarks-dale, for appellees.
   Appeal from Chancery Court, Bolivar County; William H. Bizzell, Chancelor.

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

AFFIRMED.


text:
    Mary K. BUSKIRK, as Executrix of Estate of Paul Melvin Buskirk, Deceased, et al. v. James Larry CURRIE and Shelton M. Holifield.
    No. 51933.
    Supreme Court of Mississippi.
    May 28, 1980.
    Raymond C. Swartzfager, Jr., Jon A. Swartzfager, Laurel, for appellant.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Heidelberg, Woodliff & Franks, Sam E. Scott, Jackson, for appellee.

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

AFFIRMED.


text:
    A. D. BLOUNT v. Mrs. Mattie Lou Bray ROPER.
    No. 51954.
    Supreme Court of Mississippi.
    May 28, 1980.
    Farese, Farese & Farese, John Booth Farese, Ashland, for appellant.
    Yancy, Easley & Cooper, Cliff R. Easley, Jr., Bruce, for appellee.
   Appeal from Circuit Court, Calhoun County; William R. Lamb and W. W. Brown, Judges.

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

AFFIRMED.


text:
    ROBINSON INDUSTRIES, INC. v. James D. BLACKWELL.
    No. 51988.
    Supreme Court of Mississippi.
    May 28, 1980.
    Young, Scanlon & Sessums, Kenneth G. Stamps, Jackson, for appellant.
    Howard C. Ross, Jr., Jackson, for appel-lee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

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

REVERSED AND REMANDED.

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


author: SHORES, Justice. SHORES, Justice.

text:
    JIM SHORT FORD SALES, INC. and James E. Short v. Robert L. WASHINGTON. Robert L. WASHINGTON v. FORD MOTOR CREDIT COMPANY, INC.
    78-645, 78-664.
    Supreme Court of Alabama.
    March 28, 1980.
    Rehearing Denied in 78-664 May 30, 1980.

      Orrin R. Ford of Najjar & Najjar, C. Stephen Trimmier and Stephen F. Springfield, of Trimmier & Hartman, Birmingham, for appellants Jim Short Ford Sales, Inc. and James E. Short.
    Grover S. McLeod, Birmingham, for ap-pellee/appellant Robert L. Washington.
    Charles Cleveland, of Gordon, Cleveland & Gordon, Birmingham, for appellee Ford Motor Credit Co.
   SHORES, Justice.

These cases involve an attempt by a victim of an admitted insurance fraud to recover punitive and compensatory damages. The complaint, as finally amended, alleged that defendants James E. (Jim) Short, Norman Smoake and Jim Short Ford Sales, Inc., conspired to defraud the plaintiff, Robert Washington, and the Ford Motor Credit Company knew or should have known of the conspiracy and fraudulently suppressed the information from the plaintiff. The action against Ford Motor Credit Company (hereinafter referred to as FMCC) was severed from the action against the other defendants and tried separately. Plaintiff received a jury verdict of $5,000.00 compensatory damages (subsequently remitted to $750.00) and $150,000.00 punitive damages in his suit against Jim Short, Jim Short Ford Sales, and Norman Smoake. FMCC obtained a directed verdict at the close of plaintiff’s case against it. Both verdicts were appealed and consolidated for purposes of oral argument before this Court, and will be discussed together in this opinion.

On January 7, 1974, Robert Washington, a serviceman stationed at Fort Campbell, Kentucky, purchased a Pontiac Ventura automobile from Jim Short Ford Sales, Inc., in Birmingham. He financed the purchase of the automobile and of a 30-month collision insurance policy on it through the Ford Motor Credit Company. The $520 insurance premium covered the full period of the finance contract and was required by the lender. Washington was informed at the time of purchase by Harry Ort, finance and insurance representative of Jim Short Ford, that his insurance would be placed through the Norman Smoake Agency, a reputable insurance broker. He then returned with the car to his base in Kentucky.

On January 8, 1974, Norman Smoake received the full amount of the premium from FMCC, although his insurance license had expired on December 31, 1973, and was not renewed by the Department of Insurance. Smoake then placed an application for insurance for one year, rather than 30 months, with Special Risk Covers, Inc., but no insurance was ever issued for Mr. Washington.

A month after making his purchase, plaintiff returned to Birmingham to determine why no policy had been issued him. He was unable to contact Norman Smoake, who had gone out of business. He did speak to someone at Ford Motor Credit Company, where he was informed that he had no coverage, and would have to obtain some immediately, although FMCC declined to reimburse him for the premium already paid. He subsequently purchased a one-year policy from Allstate Insurance Company for $170.

These facts are undisputed, and establish no more than a breach of a contractual obligation. Facts from which a jury could find the existence of a conspiracy to defraud and knowledge of that conspiracy by FMCC are as follows:

Norman Smoake testified that he had agreements with both Jim Short and Harry Ort whereby each of them would receive a certain amount of money for every insurance transaction sent Smoake’s way. Ort was provided with a bogus rate sheet, which, it is alleged, contained rates much in excess of those actually charged by the insurers, and which were not approved by the Department of Insurance. Smoake also provided Ort with so-called “binders” to be used as proof of insurance for the lender’s purposes. Both Ort and Jim Short testified that they were unaware that Smoake was not actually placing insurance on many of the deals. However, Ort testified that there were daily complaints from people who discovered they were not covered by insurance, and Jim Short testified that he had his body shop do $17,000.00 worth of work on these uninsured cars, which he charged off as a bad business debt. Ort further testified that, beginning in 1973, at least one lending institution, Birmingham Trust National Bank, refused to accept loans insured by Norman Smoake.

Smoake further testified that he had kept detailed records of all transactions with Ort, Jim Short, and other dealers with whom he had similar arrangements. Each entry in his record book included the amounts kicked-back to his partners. According to this book, Ort received $116 of the $520 premium which plaintiff had financed with FMCC, and Jim Short received $50. Over the course of their dealings, Ort received at least $60,000 from Smoake, and Short $25,000.

In September of 1973, the State Department of Insurance began an investigation of Norman Smoake’s activities, during the course of which investigators made numerous visits to Jim Short Ford Sales and FMCC. Personnel at both those businesses were notified that the “binder” used by Norman Smoake did not, in fact, bind anyone and was not proof of insurance. Michael Debellis, an investigator for the Department of Insurance, testified that he informed Harry Ort that the rate sheet Smoake had given him was not approved by the Department of Insurance and was excessive. This interview was conducted in the presence of Jim Short. Debellis also testified that, in going through files at FMCC, he found evidence of systematic, massive overcharges on insurance placed by Norman Smoake, as well as instances where no insurance had been placed at all. The manager, Ralph Cochran, was informed of this but took no action to terminate FMCC’s dealings with Smoake.

Cochran himself testified that FMCC required insurance to be placed on all cars which it financed. He further testified that, although FMCC did not have a lender’s license, so that loans were arranged solely between the purchaser and the dealer, it provided the loan forms used by the dealer and approved the terms of the transaction and the buyer’s credit by telephone prior to the closing of each deal. This procedure was followed in Mr. Washington’s case.

As a result of the Department of Insurance’s investigation, Norman Smoake and Harry Ort eventually pleaded guilty to criminal charges. Jim Short pleaded guilty to charges of income tax evasion.

I.

Jim Short Ford Sales, Inc., et al. v. Robert L. Washington

Appellants in this action contend that the trial court erred in refusing to grant a new trial after counsel for plaintiff alluded in closing argument to the wealth of the defendants, the delay before the case was brought to trial, and other frauds allegedly perpetrated by defendants. We have carefully examined the record and conclude that any prejudice aroused by these remarks was cured by the trial court’s admonitions to the jury. In the matter of closing argument, much is left to the trial court’s judgment and its rulings are presumed to have been sufficient to remove any opprobrium unless the record reveals substantial prejudice. State Farm Mutual Automobile Insurance Co. v. Boyer, 357 So.2d 958 (Ala.1978), Old Southern Life Insurance Co. v. Woodall, 348 So.2d 1377 (Ala.1977).

Appellants also contend that it was error to submit a verdict form to the jury which allowed it to assess the same amount of punitive damages as against all defendants, because all the defendants were not joint tortfeasors. Appellants cite no authority in support of this proposition, and we are unable to find any ourselves. We, therefore, decline to disturb the trial court’s ruling, and leave the verdict form to its discretion.

Appellant Jim Short contends that he was entitled to a directed verdict in his favor because no evidence was introduced to tie him in with the conspiracy, and because there existed no proximate cause between the charge of conspiracy and the damages alleged (lack of insurance). Once again, we must agree with the trial court’s ruling. Our review of the record indicates that there was sufficient evidence on these issues to send them to the jury.

In short, in reviewing these and other issues raised, we are constrained by the familiar rule that every presumption is to be indulged in favor of the trial court, and its findings and decrees will not be disturbed unless palpably wrong. Hicks v. Hicks, 348 So.2d 1368 (Ala.1977), Myers v. Parker, 349 So.2d 1136 (Ala.1977). We find no such palpable abuse, and affirm the judgment rendered below.

II.

Robert L. Washington v. Ford Motor Credit Company, Inc.

Plaintiff brought suit against FMCC under Code 1975, § 6-5-102, which reads:

Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case. [Emphasis added.]

The trial court granted defendant’s motion for a directed verdict at the close of plaintiff’s case, apparently on the grounds that no relationship existed between the parties which would require disclosure. For the reasons discussed herein, we reverse.

Code 1975, § 6-5-102, is a codification of the common law. Metropolitan Life Insurance Co. v. James, 238 Ala. 337, 191 So. 352 (1939). It embodies one of several judicially created exceptions to the ancient rule that no action will lie for tacit nondisclosure. The common law rule expressed the spirit of the caveat emptor doctrine, and has become riddled with exceptions as that doctrine has proved increasingly unsuited to modern commercial conditions. See, generally, Prosser, Torts (4th Ed. 1971), Chap. 18, § 106. See Mudd v. Lanier, 247 Ala. 363, 24 So.2d 550 (1945), for a local expression of this general rule. One such exception is that which places an affirmative duty of disclosure upon those occupying a confidential or fiduciary position vis-a-vis the plaintiff. Additionally, Prosser notes that

. there has been a rather amorphous tendency on the part of most courts to find a duty of disclosure in cases where defendant has special knowledge or means of knowledge not open to the plaintiff and is aware that the plaintiff is acting under a misapprehension as to facts which would be of importance to him and would probably affect his decision. [Prosser, supra, p. 697]

Our own statute recognizes that situations other than those involving fiduciary relationships may give rise to a duty to disclose by providing that the “obligation to communicate may arise . . . from the particular circumstances of the case.” Our case law has construed such circumstances to exist where parties were not dealing at arm’s length, Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286 (1926), and where plaintiff entered into a contract with an insolvent after communicating with defendant, who knew of such insolvency, but did not reveal it, Chapman v. Rivers Construction Company, 284 Ala. 633, 227 So.2d 403 (1969). A duty to speak depends upon the relation of the parties, the value of the particular fact, the relative knowledge of the parties, and other circumstances. Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970). He who joins in the consummation of a transaction, known to have been negotiated by fraud, becomes a party to the fraud. Williams v. Bedenbaugh, supra. The U. S. Court of Appeals for the Fifth Circuit, applying Alabama law in discussing this issue, has remarked:

[T]he types of relationships wherein a duty to disclose has been found indicate that the Alabama courts give little attention to the designation of the relationship, such as vendor-vendee, etc., but instead look to the relative bargaining positions of the parties. [Citations omitted.] Where one party has some particular knowledge or expertise not shared by the plaintiff a duty to disclose has been recognized. Cf. Collier v. Brown, 285 Ala. 40, 228 So.2d 800 (1969).

First Virginia Bankshares v. Benson, 559 F.2d 1307 (5th Cir. 1977). Thus, each case must be individually examined to determine whether a duty of disclosure exists; a rigid approach is impossible, and, indeed, the words of the statute itself counsel flexibility.

In the instant case, there is evidence which indicates that (1) FMCC required insurance on automobiles which it financed and was aware that the insurance on many, if not all, installment sales contracts which it purchased from Jim Short Ford was written by Norman Smoake, (2) the manager of FMCC knew that Smoake was under investigation by the Department of Insurance and was provided with evidence that Smoake was not only grossly overcharging clients but, in some cases, actually writing no insurance on them at all; (3) while not directly participating in plaintiff’s sales and insurance transaction, FMCC made it possible by financing the purchase, providing the forms, and approving the transaction by telephone before its completion. We hold that this evidence is sufficient to create a jury question as to the existence of a duty to disclose on FMCC’s part. If we accept FMCC’s contention that no such duty exists as a matter of law, we accept the proposition that a finance company could knowingly issue loans for the purchase of non-existent insurance. Surely this is the type of situation which Code 1975, § 6-5-102, was intended to prevent. For this reason, we hold that the trial court, erred in directing a verdict in favor of FMCC.

The judgment in favor of FMCC appealed by plaintiff Washington is reversed and remanded. The judgment in favor of plaintiff Washington appealed by Jim Short Ford Sales, Inc., et al. is affirmed.

CASE NO. 78-645 AFFIRMED.

CASE NO. 78-664 REVERSED AND REMANDED.

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

ON APPLICATION FOR REHEARING

SHORES, Justice.

On application for rehearing, Ford Motor Credit Company contends that this Court has confused the records of the two cases which were consolidated for argument on appeal, but which were tried separately, and that the record in its case, considered separately from that of its companion case, Robert L. Washington v. Jim Short Ford Sales, Inc., et al., presents no evidence from which a jury could conclude that it had any duty of disclosure to the plaintiff. In an excess of caution, we have returned to that record, and re-examined it in the light of appellant’s contentions. We conclude that the facts enumerated in the opinion as supporting such a finding are well-supported by the record. Applicant’s point is not well taken.

OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

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

      . . . . [0]ur cases seem to hold that when both parties are intelligent and fully capable of taking care of themselves and dealing at arms’ length, with no confidential relations, that no duty to disclose exists when information is not requested, and that mere silence is then not a fraud. There must be active concealment or misrepresentation. [247 Ala. at 377, 24 So.2d at 562]


text:
    Sara Jo DANIEL v. Claude R. EVANS and Charlotte M. Evans. David J. GLOVER v. Claude R. EVANS and Charlotte M. Evans.
    79-131, 79-219.
    Supreme Court of Alabama.
    May 2, 1980.
    Rehearing Denied May 30, 1980.
    John V. Duck of Duck & Kopesky, Fair-hope, and Daniel G. Sayers of Reynolds & Sayers, Mobile, for appellants.
    Samuel N. Crosby of Stone, Partin & Granade, Bay Minette, for appellees.
   PER CURIAM.

Affirmed on the authority of § 35-2-51, Code 1975; Turner v. Massee, 250 Ala. 134, 33 So.2d 258 (1947); Stack v. Tennessee Land Company, 209 Ala. 449, 96 So. 355 (1923), and East Birmingham Realty Co. v. Birmingham Machine & Foundry Company, 160 Ala. 461, 49 So. 448 (1909). See, also, Gwin v. Bristol Steel & Iron Works, Inc., 366 So.2d 692 (Ala. 1978).

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Alma S. WHITTEN v. Isador FERSTER; and Patricia and Ronald La Grange, husband and wife.
    78-851.
    Supreme Court of Alabama.
    May 30, 1980.
    W. Borden Strickland and Thomas E. Bryant, Jr., Mobile, for appellant.
    Joel F. Danley of Holberg, Tully, Holberg & Danley, Mobile, for appellees.
   BEATTY, Justice.

Plaintiff appeals from a decree holding that an alleyway in Mobile had been irrevocably dedicated to the public and enjoining her from interfering with defendants’ use of the alley. We affirm.

Initially we note that the defendants have filed a motion to dismiss the appeal on the ground that the plaintiff has failed to specify any issue presenting an alleged error below. We need not address that issue for the reasons which follow.

The record reveals that the alleyway in question, which runs between plaintiff’s property and that owned by defendants, lies in an area originally zoned residential. Defendants’ property is zoned for neighborhood shopping, and they sought to use the alley in conjunction with their interior design shop. Plaintiff, whose land is zoned residential, has for years utilized the alley in connection with her sewing business; it is alleged that her use of the alley for business purposes was principally a non-conforming use. The evidence indicates that at some point, plaintiff erected a fence and maintained a ditch alongside the alleyway to prevent the public’s use of the alley. While negotiating for the purchase of their lot from a Mr. Ferster, defendants expressed concern that the fence blocked their access to the alley. When Ferster removed the fence, plaintiff filed suit against him, claiming possessory rights to the alleyway and damages for the removal of the fence. Defendants, as the owners of the Ferster property, were permitted to intervene in the litigation as defendants. They counterclaimed against the plaintiff, seeking a declaration that the alley was a public alleyway and an injunction to prevent plaintiff from interfering with their use of the alley for ingress to, and egress from, their property. After hearing the evidence without a jury, the trial court ruled in favor of defendants on their counterclaim and denied plaintiff all relief. Plaintiff then filed this appeal.

It appears to be without dispute that the land in question here was designated as an alley in the original plat of the land, which was duly filed in the Mobile County Probate Court by the developer of the subdivision. It is also clear from the record that lots in the subdivision were sold with reference to the recorded plat which contained the alleyway. On the basis of those facts, the judgment of the trial court must be affirmed under Talley v. Wallace, 252 Ala. 96, 97, 39 So.2d 672 (1949), wherein it was said:

It is well settled by the decisions of this court that where a person plats land and lays off lots according to such plat and makes sale of one or more of such lots with reference thereto, he irrevocably dedicates the land designated thereon as streets, alleys, avenues, and highways to the public for public uses. .

See also Hebert v. Trinity Presbyterian Church, 289 Ala. 455, 268 So.2d 736 (1972), and Gwin v. Bristol Steel & Iron Works, Ala., 366 So.2d 692 (1978).

Because it does not appear that the decree entered by the trial court after hearing the evidence ore tenus was “plainly and palpably wrong” in any respect, the judgment is affirmed.

AFFIRMED.

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