author: CUTRER, Judge.

text:
    SOUTHERN COUNTY MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. Willard BRYANT et al., Defendants-Appellees.
    No. 7648.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Peters, Ward & Bright, J. Patrick Hennessy, Shreveport, for plaintiff-appellant.
    Kelly, Ware & Salim, Robert L. Salim, Natchitoches, for defendants-appellees.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is a suit to recover property damages sustained in an automobile accident. The Plaintiff, Southern County Mutual Insurance Company (Southern), brought suit as subrogee of its insureds, Robert and Patricia Whitehead. The defendants, Mark B. Bryant and Willard Bryant, reconvened for damages to the vehicle driven by Mark Bryant. After trial on the merits of the main and reconventional demands, the trial judge dismissed the demands of both parties. Plaintiff appeals the dismissal of the main demand. Defendants, as plaintiffs in reconvention, do not appeal. We affirm.

Only the two drivers, Patricia Whitehead and Mark Bryant, testified at the trial as to the occurrence of the accident. State Police Lt. George W. Gaskin testified regarding the authenticity of the accident report and the subsequent death of the investigating officer who made the report. The trial judge refused to allow the accident report to be admitted into evidence.

No transcript of the testimony or findings of fact, oral or written, were made. In lieu of a transcript of the testimony the counsel for plaintiff and defendants entered a stipulation for purposes of the appeal, setting forth the testimony and undisputed facts. This stipulation reflects that plaintiffs in reconvention presented no evidence of damages incurred by them.

The stipulation additionally sets forth the following facts and summary of testimony:

“The following facts are uncontrovert-ed. The accident occurred in the afternoon of March 3, 1977. Patricia Whitehead was operating the Whitehead vehicle in a Northerly direction on U. S. Highway No. 175. Her husband and her daughter were passengers in her vehicle. At the time of the trial, her husband was working offshore and consequently he did not testify. Mrs. Whitehead was driving a 1977 Chevrolet Pickup Truck owned by the community then existing between her and her husband. The Chevrolet pickup truck was only one month old. The accident occurred as Mrs. Whitehead was going into a curve to her left or to the West and as Bryant was coming out of the curve. Mark B. Bryant was operating a vehicle which was in his father’s name but was actually owned by him. The vehicle was a 1976 Chevrolet Camaro, approximately five months old with approximately 11,000 miles on it. Bryant was an 18 year old high school student at the time of the accident. It was raining on March 3, 1977, and the visibility was poor. Both Whitehead and Bryant had driven the road many times before.
“The point of impact of the Bryant vehicle and the Whitehead vehicle was the primary matter which was in dispute. Patricia Whitehead testified that as she entered the curve she observed the Bryant vehicle out of control coming towards her in her lane. Mrs. Whitehead said that the accident was unavoidable and that the point of impact was definitely in her lane of travel. Mark B. Bryant testified that he observed the Whitehead vehicle approximately 15 feet before the collision. He testified that the visibility was very bad but that he was absolutely sure that the Whitehead vehicle was in his lane when the impact occurred. He did not observe Mrs. Whitehead lose control of the vehicle. Neither Bryant nor Whitehead could estimate the speed of the other driver. After the accident, the Whitehead vehicle came to rest in the ditch on the East side of the highway and the Bryant vehicle came to rest in the ditch on the West side of the highway.”

The issues on appeal are: (1) Did the trial court err in refusing to admit the accident report made by the investigating state trooper; and (2) did the trial judge commit manifest error in dismissing plaintiff’s main demand.

ACCIDENT REPORT

The accident was investigated by Louisiana State Trooper Prank D. Bozeman who prepared the accident report. Unfortunately, Officer Bozeman died prior to the trial.

Plaintiff sought to introduce the accident report into evidence. On defendants' objection, the trial judge refused to admit the report.

The plaintiff contends that the trial judge erred in excluding the accident report as hearsay. The plaintiff argues that the report is admissible because (1) it is a business record; (2) it is a public record; and (3) the information is reliable and, under the circumstances, not available from another source.

I.

Plaintiff cites no Louisiana authority to support his position that a police accident report is admissible as a business record. Our research has revealed no such authority. The “business records” exception to the hearsay rule has been recognized as a jurisprudential rule following the common law concept as set forth in the case of State v. Monroe, 345 So.2d 1185 (La.1977), wherein the court stated that such hearsay exceptions exist where:

‘A permanent record made in the ordinary course of business, by a person unavailable for testimony, from personal knowledge of the facts recorded or from information furnished by one haviner a business duty to observe and report the facts, is admissible as proof of the facts recorded, in the absence of a strong motive to misrepresent, if the record is the first collected and recorded memorial’ (Emphasis supplied.)” (Underlined emphasis ours.)

To meet the criteria set forth above, the information in the accident report would have to be made from the personal knowledge of the officer or from information furnished to the officer by a person having a business duty to observe and report the facts. In this case, the copy of the report indicates that Officer Bozeman arrived at the scene of the accident 15 minutes after the occurrence. The report contains conclusions as to how the accident occurred, the position of the vehicles when the impact occurred and other information which could not be within the personal knowledge of the officer but was information that he obtained from the drivers or other witnesses at the scene. This information provided to the officer was not provided by persons “having a business duty to observe and report the facts" of the accident. Having not met the requirements of the business records law, the accident report is not admissible as an exception to the hearsay rule.

II.

The report is not admissible as a public record. This principle was clearly established in the case of Deville v. Aetna Insurance Company, 191 So.2d 324 (La.App. 3rd Cir. 1966), writs den., 250 La. 13, 193 So.2d 527 (1967). In Deville the court rejected the argument that a certified copy of an accident report was admissible. The court determined that the copy could not be admitted since the original was inadmissible. The court determined that the original was inadmissible stating:

“. . . [The report] is an out-of-court statement made by Officers Landry and Abshire, neither of whom is now in court, under oath, and available for cross-examination. This report, like many such reports, is particularly objectionable under the hearsay rule because it obviously contains conclusions and opinions of the officers formed from talking to other witnesses. This is hearsay compounded.”

III.

The third argument of the plaintiff is that the information in the accident report is reliable and, under the circumstances, not available from other sources. For these reasons plaintiff contends it is admissible as an exception to the hearsay rule. Plaintiff’s position is without merit.

The information provided in an accident report, largely based necessarily on important information provided by others, does not provide a circumstantial guaranty of trustworthiness required by exceptions to the hearsay rule. Persons involved in accidents and reporting what occurred would have a motive to falsify information. The circumstances do not indicate the required trustworthiness of such information.

Furthermore, the information concerning the occurrence of the accident was available from other sources. The drivers of the two vehicles were available and testified. Secondly, a passenger in the Whitehead vehicle, Mrs. Whitehead’s husband, was an eyewitness but was not called to testify.

We hold that the trial court was eminently correct in its refusal to admit the accident report into evidence.

BURDEN OF PROOF

It is well settled that in a suit of this nature, the plaintiff has the burden of proving his case by a preponderance of the evidence. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

Since the report was properly excluded, the only evidence before the trial court was the contradictory accounts by the opposing drivers. The narrative of facts in the record prepared jointly by counsel for plaintiff and defendants does not reveal that the trial judge was clearly wrong in rejecting plaintiff’s demands. No written or oral reasons were provided.

It appears that the trial judge rejected defendants’ reconventional demand since no evidence of damages was presented. No appeal was taken from that dismissal.

It would further appear that the trial judge did not accept the testimony of Mrs. Whitehead as to the occurrence of the accident. This position is supported by the fact that Mrs. Whitehead’s husband was not called to testify. He was a passenger in Mrs. Whitehead’s vehicle when the accident occurred. This creates a presumption that the husband’s testimony would have been unfavorable to Mrs. Whitehead. Morgan v. Matlack, Inc., 366 So.2d 1071 (La.App. 1st Cir. 1979), writs den., 369 So.2d 1352 (La. 1979).

The narrative of facts reflects that Mr. Whitehead was working offshore and was not present at trial. Counsel for plaintiff contends the presumption does not apply since a diligent but unsuccessful effort to secure his testimony was made and that the reason for the failure to call Mr. Whitehead was adduced at trial. The record, however, contains no evidence regarding any effort to produce the witness. The Court of Appeal is bound by what evidence is found in the record of the cases before it, and not by the facts alleged in briefs or oral arguments. Mexican Gulf Fisheries, Inc. v. Aetna Insurance Co., 220 So.2d 141 (La.App. 1st Cir. 1969).

Since the record does not explain the absence of Mr. Whitehead we roust presume that the testimony would have been unfavorable, thus strengthening the reasonableness of the result reached by the trial court.

It is well settled that the factual findings of the trial court are entitled to great weight and will not be disturbed on appeal when there is a conflict in testimony and the trial court draws reasonable inferences of fact. Arceneaux v. Adams, 366 So.2d 1025 (La.App. 1st Cir. 1978).

Our review of the record does not reveal that the conclusions drawn by the trial judge are clearly wrong. We therefore will affirm the judgment.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Foster LEE, Jr., Plaintiff-Appellant, v. CHIEF OF POLICE, Charles D. Ezernack and the City of Alexandria Through Mayor Carroll E. Lanier, Defendants-Appellees.
    No. 7651.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Samuel Thomas, Tallulah, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, H. B. Gist, Jr., Alexandria, for defendants-ap-pellees.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff, Foster Lee, Jr., brought this suit against the City of Alexandria and the City’s Chief of Police, Charles D. Ezernack, seeking his reinstatement to his former position of Sergeant of the Alexandria Police Department and damages. He alleged in his petition that he had been demoted without cause to the rank of Patrolman First Class and that he had suffered embarrassment and humiliation as a result of the publicity surrounding his demotion. He further alleged that he had been subjected to insults and cruel and inhumane treatment by Ezernack and other superior ranking officers, as a result of which he was forced to resign from the police department.

Defendant filed the dilatory exception of vagueness. The trial judge sustained the exception, giving plaintiff fifteen days to amend his petition to specify the acts complained of and the dates on which they occurred. Plaintiff amended his petition as ordered, and defendants filed the peremptory exception of prescription. The trial judge sustained the exception, dismissing plaintiff’s suit at his costs, and denied plaintiff’s motion for a new trial. Plaintiff appeals.

On appeal, plaintiff argues that the trial judge erred by (1) sustaining the exception of vagueness, (2) sustaining the exception of prescription, (3) denying his motion for a new trial, and (4) finding that he was not entitled to a decision from the Alexandria Fire & Police Civil Service Board on a complaint that he filed.

EXCEPTION OF VAGUENESS

The exception of vagueness is a device for requiring the plaintiff to put the defendant on notice of the nature of the facts sought to be proved so as to enable him generally to prepare his defense. It also serves the purpose of requiring the plaintiff to sufficiently identify his cause of action so as to bar its future re-litigation. Nicholson v. Holloway Planting Company, Inc., 284 So.2d 898 (La.1973); Washington v. Flenniken Construction Company, 188 So.2d 486 (La.App. 3rd Cir. 1966). After examining the allegations contained in plaintiff’s original petition in light of those purposes, we agree with the trial judge’s conclusion that they were insufficient. We therefore find no error in his sustaining of the exception of vagueness.

EXCEPTION OF PRESCRIPTION

Since all of the acts complained of in plaintiff’s original and amending petitions occurred more than one year prior to the filing of his suit, the trial judge concluded that his cause of action was prescribed under LSA-C.C. Art. 3536, which provides a one year prescriptive period for torts. Plaintiff contends that the applicable provision is LSA-C.C. Art. 3544, which provides a ten year prescriptive period for suits based on contracts. Thus, the resolution of this issue hinges on a determination of whether plaintiff’s cause of action sounds in contract or tort.

In his original petition, plaintiff alleged that he had been employed by the City of Alexandria as a police officer. That, of course, implied the existence of an employment contract. However, the terms of the contract were not specified, and there was no allegation of a breach of defendants’ obligations under it. He simply alleged that he had been demoted without cause, that his demotion was publicized, causing him embarrassment and humiliation, that he was exposed to insults and cruel and inhumane treatment by Ezernack and other officers of superior rank, and that the “illegal activities” of Ezernack and other superi- or officers had forced his resignation.

In his amending petition, plaintiff alleged that the Chief of Police had publicly accused him of having made an illegal arrest. He also alleged that he had been told in the presence of his fellow officers that he had made an illegal arrest and that in doing so, he had left the City of Alexandria unprotected. In Paragraph VIII(C) of his amending petition, he stated that “[t]he accusations made against Petitioner constituted an unwarranted, false, malicious, slanderous and libelous attack on his professional reputation.”

In view of those allegations, we conclude that plaintiff’s cause of action sounds in tort. Accordingly, we find that the judgment sustaining defendants’ exception of prescription, based on LSA-C.C. Art. 3536, was correct.

MOTION FOR A NEW TRIAL

Following the dismissal of his suit, plaintiff filed a motion for a new trial in which he alleged that subsequent to the trial, he had discovered evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial. He assigned the denial of that motion as an error. However, he did not address this issue in his arguments before this Court. Since we find no evidence in the record to support the allegation contained in his motion, we can only conclude that plaintiff has failed to show that the trial court erred in denying it.

CIVIL SERVICE COMPLAINT

Plaintiff alleged in his amending petition that he had filed a complaint with the Alexandria Fire and Police Civil Service Board, in which he had alleged that his demotion was illegal. He further alleged that the Board had not rendered a decision and that its failure to act was a denial of his right to due process of law under the 14th Amendment of the United States Constitution. In his brief, plaintiff states that the trial court found that he was not entitled to a decision by the Board, although the record does not reflect the fact that such a ruling was made.

Plaintiff did not request a decision by the Board in his pleadings. That would not affect his right to such relief, if he was entitled to it. LSA-C.C.P. Art. 862. However, we find that he was not entitled to such relief in this case, because the Board was not made a party to the suit. Clearly, it would be an indispensible party to a proceeding in which such relief was granted. LSA-C.C.P. Art. 927 provides that the nonjoinder of an indispensible party may be noticed by either the trial or appellate court of its own motion. We therefore find no error in the trial judge’s alleged finding that plaintiff was not entitled to a decision from the Board.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff-appellant.

AFFIRMED.


author: LEE, Justice,

text:
    FLORIDA GAS EXPLORATION COMPANY et al. v. J. C. SEARCY et al.
    No. 51821.
    Supreme Court of Mississippi.
    May 7, 1980.
    Rehearing Denied Aug. 6, 1980.
    Heidelberg, Woodliff & Franks, Luther M. Thompson, Kenneth I. Franks, Jackson, for appellants.
    Craig Castle, Jackson, Jos. Dale, Prentiss, for appellees.
    Before ROBERTSON, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

J. C. Searcy, Jr., Searcy Enterprises, and Montego Petroleum filed suit in the Chancery Court of Jefferson Davis County against Tomlinson Interests, Inc., Watson Oil Corporation, Florida Gas Exploration Company, and First Mississippi Corporation seeking to reform a warranty deed executed by W. C. McLeod to Vester Thompson, appellants’ predecessor in title, as to a one-fourth (Vi) mineral interest in an 80-acre tract of land in Jefferson Davis County, and to remove clouds on the title as to the said mineral interest. The trial court ordered the deed to be reformed to reflect that W. C. McLeod was vested with an undivided one-fourth (Vi) interest in said minerals, intended to be reserved in the deed instrument, and the defendants appeal.

The Federal Land Bank of New Orleans acquired title to the 80-acre tract involved, described as “the east half (Vi) of the northeast quarter of Section 10, Township 6 North, Range 17 West, Jefferson Davis County, Mississippi” on January 6, 1933 after foreclosing a deed of trust. At the time of the foreclosure, an undivided one-eighth (Vs,) mineral interest had been reserved by J. J. Newman Lumber Company, a previous owner, in the northeast quarter (NEVi) of the northeast quarter (NEVi) of said tract. Subsequently, the Federal Land Bank conveyed the 80-acre tract to W. C. McLeod, reserving an undivided one-half (Vi) of the minerals. In 1952, McLeod conveyed the 80-acre tract to Vester Thompson by warranty deed, which instrument contained the following reservation: “Vi interest in all minerals and oil is reserved to the grantor.”

The deed was prepared by the Mayor of the City of Bassfield, who was unskilled in drawing such instruments, and it was recorded on October 21, 1952.

Vester Thompson executed a deed of trust in January, 1957, to the Federal Land Bank, covering the 80-acre tract of land. The deed of trust recited that the instrument was subject to a reservation by W. C. McLeod of one-fourth (Vi) of all the minerals, subject to a reservation by the Federal Land Bank of one-half (Vi) of all the minerals and was subject to a reservation by J. J. Newman Lumber Company of Vs of all the minerals in he NEVi of the NEVi. That deed of trust was duly recorded and eventually was cancelled in March, 1972.

In May, 1957, one B. F. Banahan contacted Vester Thompson for the purpose of acquiring an oil, gas and mineral lease from him on the tract. Thompson told Banahan that he owned only an undivided one-fourth (Vi) mineral interest in the property. Bana-han again checked the records, and then returned and told Thompson that he (Thompson) owned a one-half (Vi) interest in the minerals and that the McLeod heirs did not own any interest therein. Thompson executed a ten-year oil, gas and mineral lease on the land in question, purportedly covering an undivided one-half (V2) mineral interest. Several days after the execution of the lease, Trudie Hawkins, a child and heir-at-law of W. C. McLeod, asked Thompson why the children of McLeod had not been approached about leasing the property and Thompson replied that he had been told by Banahan that he, Thompson, was the owner of a V2 interest in the minerals and that the McLeod heirs did not own any interest therein. Although there was some discussion about the matter involving the McLeod heirs, no action was taken to determine the ownership of the Vi mineral interest in question.

In 1971, Vester Thompson and his wife executed an oil, gas and mineral lease, covering the land, to R. H. Sims, The lease did not specify the particular interest owned by Thompson, and was subsequently assigned to the appellants, who claim through said instrument. Thompson executed a ratification and rental division order. In October, 1971 which provided for the payment of one dollar ($1.00) per acre per year under the lease, aggregating delayed rentals of forty dollars ($40.00) per year.

Appellee J. C. Searcy acquired oil, gas and mineral leases in 1974 from the heirs of W. C. McLeod on the 80-acre tract of land. Searcy and the appellees now claim all mineral interests owned by the heirs of McLeod.

Vester Thompson executed an instrument entitled “Agreement Amendment and Release” on June 3, 1974, for a consideration of six thousand dollars ($6,000), and conveyed an undivided one-fourth (Vi) mineral interest in the 80-acre tract to the heirs of McLeod. The instrument recited that it was executed to recognize the mutual mistake made in the September 18, 1952 deed from McLeod to Thompson, which did not properly reserve the undivided Vt interest in minerals, and it recited that when McLeod agreed to convey to Thompson the 80-acre tract, McLeod intended to reserve for himself an undivided Vi mineral interest in the property. The instrument recognized the reservation and was for the purpose of reforming the original deed to reflect that McLeod intended to reserve a Vi mineral interest over and above any interest previously reserved by the Federal Land Bank.

In June, 1974, the McLeod heirs executed an instrument styled “Conditional Assignment of Royalty Interest” in favor of appel-lee Searcy. The instrument conveyed the mineral interests acquired by them under the June 3, 1974 instrument executed by Thompson. It was executed in order to protect appellee Searcy in the event a competent court determined the leases he held on the property were not valid. After-wards, in 1976, by three separate mineral deeds, the McLeod heirs conveyed all mineral interests owned by them in the land to one Cummings, who thereafter conveyed the same to appellee Searcy. He, in turn, conveyed to the other appellees. They are the successors in interest of the McLeod heirs and this action arose against the successors in interest of Thompson.

I.

Should this Court overrule and change the opinion in Searcy et a 1. v. Tomlinson Interests, Inc., et al., 358 So.2d 373 (Miss.1978)?

When the bill of complaint was filed in this cause, a demurrer was interposed by the appellant and was sustained by the trial court. That bill of complaint was dismissed and the cause came to this Court under the above style and was reversed and remanded for trial on the merits. The principal question raised by the demurrer was a bar of the action by the statute of limitations.

The appellants argue that Searcy v. Tomlinson was palpably erroneous and that it should be overruled now, following Brewer v. Browning, 115 Miss. 358, 76 So. 267 (1917). The Brewer court stated:

“We think the rule of ‘the law of the case’ is a good rule of practice, and should be followed, except in rare cases where the decision is manifestly and palpably erroneous and to follow it would result in grave injustice being done.” 115 Miss, at 366, 76 So. at 270.

In Mississippi College v. May, 241 Miss. 359, 128 So.2d 557 (1961), the Court said:

“The doctrine of the law of the case is similar to that of former adjudication, relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the case. Whatever is once established as the controlling legal rule of decision, between the same parties in the same case, continues to be the law of the case, so long as there is a similarity of facts. This principle expresses the practice of courts generally to refuse to reopen what has previously been decided. It is founded on public policy and the interests of orderly and consistent judicial procedure. 21 C.J.S., Courts, Sec. 195; 30A Am.Jur., Judgments, Sec. 331; Goldsby v. State, 240 Miss. 647, 123 So.2d 429, 434 (1960).
Appellants seek on this appeal to reopen the same issues which the Court has already decided in the first appeal. This we refuse to do for two reasons, because the original decision was correct, and because it is the law of the case.” 241 Miss, at 366, 128 So. at 558.

See also Holcomb v. McClure, 217 Miss. 617, 64 So.2d 689 (1953).

We reject the argument of appellants on this question and decline to reopen the same issues which the Court decided on the first appeal of this case.

II.

Did the lower court err in reforming the McLeod-Thompson deed?

The appellants contend that (1) they are innocent purchasers for value without notice, (2) that the deed of trust containing the recitals to the effect that McLeod owned an undivided Vi interest in minerals is not in the chain of title and constitutes no notice, and is not an essential link in the chain of title, and (3) does not refer to a definite instrument at a specific book and page and constitutes no notice.

The deed of trust executed by Vester Thompson January 21, 1957, to the Federal Land Bank of New Orleans, wherein it was recited that McLeod owned an undivided Vi interest in the oil, gas and minerals on said tract, was in effect in 1971 when the lease under which appellants claim was obtained. The rule regarding notice was stated in Dead River Fishing & Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336 (1927):

“A purchaser of land is charged with notice not only of every statement of fact made in the various conveyances constituting his chain of title, but he is also bound to take notice of and to fully explore and investigate all facts to which his attention may be directed by recitals in said conveyance contained. The duty is also imposed on him to examine all deeds and conveyances previously executed and placed of record by his grantor — either immediately or remote — if such deeds or conveyances in any way affect his title. And if in any such deed or conveyance there is contained any recital sufficient to put a reasonably prudent man on inquiry as to the sufficiency of the title, then he is charged with notice of all those facts which could and would be disclosed by a diligent and careful investigation.” 147 Miss, at 395-396, 113 So. at 337-338.

See also Sun Oil Company v. Broadhead, 323 So.2d 95 (Miss.1975); Sunnybrook Children’s Home, Inc. v. Dahlem, 265 So.2d 921 (Miss.1972); and Smalley v. Rogers, 232 Miss. 705, 100 So.2d 118 (1958).

In Sunnybrook, this Court said:

“We have recognized the right to reform instruments not only against the original parties and their privies, but also against purchasers from them with notice of their rights. In Russell et al. v. Scarborough et al., 155 Miss. 508, 124 So. 648 (1929) this Court stated:
Reformation of a deed will be allowed not only as against the original parties and their privies, but also against purchasers from them with notice of their rights. 23 R.C.L. 339, 340, § 33. (155 Miss. at 511, 124 So. at 649.)” 265 So.2d at 925.

Arguments (2) and (3) herein are answered in Burkett v. Peoples Bank of Biloxi, 225 Miss. 291, 83 So.2d 185, 83 So.2d 763 (1955). There, a first and second deed of trust were given by Gulf Coast Manufacturing Co., Inc. one year apart. In both instruments the property was described incorrectly. However, the property was identified as being “known as building for the Gulf Coast Manufacturing Company, which business is engaged in the manufacture of caskets.” One year after the second deed of trust was executed, the casket company borrowed additional funds and gave a third deed of trust to one Andy Page, which correctly described the lands and contained a recital to the following effect:

“ ‘Subject, however, to those two certain deeds of trust executed by the grantor herein to the Peoples Bank of Biloxi, Mississippi, beneficiary, and of record in the office of the Chancery Clerk of Jackson County, Mississippi’.” 225 Miss. at 296, 83 So.2d at 187.

All three deeds of trust were acknowledged and recorded. The company property was sold under execution of a judgment and was purchased at the execution sale by Burkett. She claimed that she had no notice of the first two deeds of trust and that she bought free of liens arising therefrom. This Court noted that the description in the first two deeds of trust was defective, but that the whole description was such as to reasonably enable creditors of subsequent purchasers to find the land. As to the recitals in the third deed of trust, the Court said:

“When Mid-South Funeral Supply, Inc., obtained and enrolled its judgment, there was of record the deed of trust given by Gulf Coast Manufacturing Company, Inc., to Andy Page, and this deed of trust was regular in every respect and contained a perfect description of the property here involved. Creditors and subsequent purchasers had constructive notice of this deed of trust and all recitals therein contained, including the provision, ‘subject, however, to those two certain deeds of trust executed by the grantor herein to the Peoples Bank of Biloxi, Mississippi, beneficiary, and of record in the office of the Chancery Clerk of Jackson County, Mississippi.’ The two deeds of trust held by appellee were of record and the recital in the Page deed of trust gave notice that they were of record and readily available. We held in Dead River Fishing Club v. Stovall, 147 Miss. 385, 113 So. 336, that a purchaser of land is charged with notice of every statement made in the various conveyances constituting his chain of title, and all deeds and conveyances previously executed by his grantor, if such deeds or conveyances in any way affect his title; and if in any such deed or conveyance there is contained any recital sufficient to put a reasonably prudent man on inquiry as to the sufficiency of the title, then he is charged with notice of all those facts which could or would be disclosed by a diligent and careful investigation.
This was reaffirmed in Adams et ux. v. Hill et ux., 208 Miss. 341, 44 So.2d 457. We need not proceed to the limits of the rule laid down in the two cases just mentioned in order to hold that the recitals contained in the Andy Page deed of trust were sufficient to charge the judgment creditor in this case with constructive notice of appellee’s two deeds of trust. The recital in the Andy Page deed of trust was sufficient within itself to give notice of the existence of the deeds of trust held by appellee. The recital gave notice of the ultimate fact of the existence of ap-pellee’s deeds of trust without inquiry or investigation. The judgment creditor did not need to make further inquiry or investigation unless it was desired to learn the particulars of the deeds of trust referred to, which particulars were easily ascertainable from the deeds of trust themselves, which were of record, and to which record reference was made in the recital contained in the Andy Page deed of trust. We hold, therefore, that the recital in the Andy Page deed of trust was sufficient to charge Mid South Funeral Supply, Inc., with constructive notice of the existence of appellee’s two deeds of trust. It follows that the judgment lien was subject and inferior to the liens of the appellee’s deeds of trust.” 225 Miss, at 298-300, 83 So.2d at 188-189.

The recitals in the deed of trust from Yester Thompson to the Federal Land Bank follow:

“Subject to a reservation by W. C. McLeod of one-fourth of all minerals as shown by Book 61, Page 314;
Also subject to a reservation by the Federal Land Bank of one-half of all minerals as shown by Book 43, Page 308.
Subject, also, to a reservation by J. J. Newman Lumber Company of one-eighth of all minerals as shown by Book 9, Page 141 of the northeast quarter of northeast quarter.”

In addition to the documentary evidence, which serves as constructive notice to appellants of the true McLeod mineral interest, Thompson made the statement to Banahan that he only owned a Vi interest in minerals, and Thompson testified that the intention and agreement between him and McLeod was that McLeod would retain a one-fourth (Vi) mineral interest for himself and Thompson would receive a one-fourth (Vi) mineral interest in the property involved. He also testified that he had always recognized that McLeod owned a Vi mineral interest.

The chancellor found that appellants were not innocent purchasers for value and that the deed should be reformed to reflect the true mineral interest of McLeod. We cannot say that he was manifestly wrong.

III.

Did the trial court err in failing to find that Thompson, appellant’s predecessor in title, acquired ownership to the disputed one-fourth (Vi) mineral interest by adverse possession pursuant to Mississippi Code Annotated Section 15-1-13 (1972)?

Title by adverse possession requires hostile, actual, open, notorious, exclusive and continuous occupancy for the statutory period of ten (10) years. McCaughn v. Young, 85 Miss. 277, 37 So. 839 (1904). The evidence indicates that Thompson entered into possession of the 80-acre tract under the impression that he owned only Vi of the minerals, that he executed a security interest in 1957 which gave record notice of his admission against interest and his recognition of the McLeod Vi mineral interest, that he gave actual notice to Banahan in 1957 he owned only Vi interest in the minerals, and .that he admitted in the settlement agreement of 1974 a mutual mistake occurred in 1952 and he had never had actual or constructive possession of the McLeod Vi mineral interest. The chancellor correctly found that appellants failed to meet the burden of proving their affirmative defense of adverse possession.

We have carefully considered the remaining assignments of error and find that they are without merit. For the reasons stated, the judgment of the lower court is affirmed.

AFFIRMED.

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


author: PATTERSON, Chief Justice,

text:
    Jerry Lee NORMAN v. STATE of Mississippi.
    No. 51995.
    Supreme Court of Mississippi.
    May 21, 1980.
    Rehearing Denied Aug. 6, 1980.

      Laurel G. Weir, Philadelphia, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

In the Circuit Court of Newton County, Jerry Lee Norman’s trial on the charge of aggravated assault on a police officer ended in a verdict of guilty and a sentence of seventeen years. Norman appeals, arguing that (1) the state adduced insufficient evidence to support the verdict, (2) the court erred in refusing to grant a mistrial because of the admission of evidence of a drug purchase, a distinct offense, (3) erred in permitting amendment of the indictment to show correctly the date on which the offense was committed, (4) erred in refusing instruction D-4 on simple assault, (5) erred in refusing to grant a continuance, (6) erred in interrogating witnesses before the jury, (7) erred in admitting a photograph of a bullet-shattered window, (8) erred in granting instruction S-l relating to the essential elements of the offense, and (9) erred in “many other reasons apparent on the face of the record.”

The state built its case about the testimony of Sammy Ray Evans and Robert Cul-pepper, undercover agents for the Mississippi Bureau of Narcotics. According to them, a “buy bust” was staged in Room No. 8 at the Woodland Court Motel in Newton on May 17, 1979. At about 10:55 p. m. Evans met Norman and Earl Stribling outside Room No. 8, where the three discussed the purchase of drugs. They then entered Room No. 8 where Culpepper was waiting. Either Stribling or Norman then offered a tranquilizer for sale, and Culpepper and Evans responded by announcing that they were placing Stribling and Norman under arrest. Evans testified, “I ... placed my hands upon him and stated to him I was [a] state narcotics [agent].” Cul-pepper at the same time pursued Stribling, who escaped and has not since been found. Norman struggled, resisting arrest, and ran away. Following Norman, Evans saw him draw a handgun from his clothing, turn around, crouch and fire. The shot shattered a window of the motel but fortunately no one was injured.

On cross-examination, Evans acknowledged that neither he nor Culpepper wore any indicia of police officers because they were dressed in civilian clothing as undercover agents. Nevertheless, Culpepper testified that both he and Evans identified themselves to Norman as police officers intending to effect an arrest. Indeed, their identification as officers appears to have induced Stribling’s and Norman’s flight from the scene. Moreover, Norman acknowledged that “probably” Evans, prior to the alleged assault ordered, “freeze, Bureau of Narcotics.”

Norman contradicted Culpepper and Evans, although he admitted being at the scene on May 17, 1979, and implicated Stri-bling in the drug sale. Norman stated Stri-bling flagged him down and asked for a ride to a grocery store. Norman said the store was across the street from the motel and that Stribling suggested that they walk across the street to the motel to visit some relatives. According to Norman, he followed Stribling and became suspicious at the door of the motel room when one of the undercover agents asked Stribling, “Have you got the stuff?” Norman claimed he then turned around to leave when one of the officers seized him, but he broke away and fled to his mother’s home where he spent the night without reporting the incident to anyone. The following morning he “flagged down” a police car to report a burglary of his house and was arrested for assault. Norman denied knowledge that “any kind of officers” were present at the motel on the night before. He testified that he possessed no firearm and shot at no one.

Norman’s first assignment of error lacks merit. The evidence when viewed in the light most favorable to the state supports the jury’s verdict. Culpepper and Evans established every essential element of the offense. The jury believed their testimony, rejecting Norman’s, as was their right. Gathright v. State, 380 So.2d 1276 (Miss.1980); Murphree v. State, 228 So.2d 599 (Miss.1969).

Norman’s second assignment lacks merit. While it is fundamental that the state may not introduce prior specific instances of bad conduct for the purpose of raising the “forbidden inferential sequence,” Davis v. State, 377 So.2d 1076 (Miss.1979), specific instances—here, the sale of drugs—may come in to show motive. McGee v. State, 365 So.2d 302, 303 (Miss.1978); Carr v. State, 175 Miss. 102, 166 So. 363 (1936).

In this case, the jury would have had an unnecessarily restricted view of relevant facts if the court had not permitted witnesses to develop the “whole story” giving rise to the assault. The jury would have been left in ignorance of the purpose of the attempted arrest and the motive of the flight of the suspects.

By his third assignment, Norman attacks the sufficiency of the indictment, insofar as it erroneously indicates the date of the offense to have been June 1979 and fails to state affirmatively that Norman assaulted a known officer of the law. Norman preserved below his objection to the state’s amendment of the indictment to reflect May 17, 1979, as the date of the offense; however, he failed to preserve the remainder of his objection to the indictment.

As for the matter of time, the trial court in permitting the state to amend correctly relied on Deaton v. State, 242 So.2d 452 (Miss.1970), and Mississippi Code Annotated section 99-7-5 (1972), which states: “[A]n indictment for any offense shall not be insufficient . . . for stating the time imperfectly . In Deaton a larceny conviction was sustained although the offense occurred on August 16 and the indictment alleged it occurred on November 14, the Court reasoning the discrepancy did not show surprise or prejudice. In the present case, the trial judge specifically found absence of surprise or prejudice.

Norman’s objection to the indictment based upon the absence of a clear allegation that he knew his victim to be a police officer lacks merit, in our opinion. Norman failed to preserve this particular objection to the indictment, having nowhere mentioned it in the court below. But assuming it to be properly open to appellate review, it nonetheless fails on substantive grounds.

The indictment apprised Norman of the specific statute, Section 97-3-7(2), involved. It states facts clearly showing aggravated rather than simple assault, and indicates in unambiguous language that the victim was a police officer acting within the course of his employment. Any reading of the indictment clearly shows it is directed to the offense of a willful, aggravated assault upon a police officer. In Culberson v. State, 379 So.2d 499, 504 (Miss.1979), we stated the language of an indictment suffices when a fair construction of it gives the accused sufficient notice of the offense with which he is charged to enable him to prepare an appropriate defense, if he has one. It is true that knowledge of the victim’s status as a police officer is an essential element of the offense, Dotson v. State, 358 So.2d 1321 (Miss.1978), but the indictment states the victim of the offense “was a law enforcement officer . . . acting within the course and scope of his duty,” plainly giving Norman notice of the charge.

By his fourth assignment, Norman complains of the trial court’s refusal of instruction D-4 relating to simple assault. From Norman’s testimony, it is obvious, however, that he was guilty either of aggravated assault or of no crime at all. The evidence does not support a “middle ground” theory. Instructions unsupported by the evidence need not, and should not, be given. Murphy v. State, 226 So.2d 755 (Miss.1969); Cooper v. State, 218 So.2d 874 (Miss.1969). It follows the court properly declined to instruct on simple assault.

Norman’s fifth assignment of error lacks merit. By Section 99-15-29, the granting or denial of a continuance lies within the discretion of the trial judge. See also Dyer v. State, 300 So.2d 788 (Miss.1974); Saucier v. State, 259 So.2d 484 (Miss.1972); Ford v. State, 227 So.2d 454 (Miss.1969).

Our study of the record suggests that the court’s denial of a continuance to secure the attendance of Stribling as a witness for the defense did not constitute an abuse of discretion. On the motion, Norman testified Stribling was “hiding from the law,” leaving the distinct probability that he would be unavailable indefinitely and likely for an extended period of time. Under the circumstances, a continuance would have served little purpose except to enhance the probability that the occurrence witnesses’ memories of the event would grow weaker with the passage of time.

By his sixth assignment, Norman complains of the trial court’s interrogation of agent Evans, suggesting that this interrogation amounted to prejudicial comment by the judge upon the evidence. At the close of the state’s redirect examination of Evans, the court developed the following testimony:

BY THE COURT:
Q. Mr. Evans, the Court has a question. Why were you at this particular motel on this occasion?
A. Because on a prior day, we had arranged with the other individual, Mr. Stribling, to meet there and do the deal.
Q. Were you there in the exercise of your duties as a Mississippi Narcotics Agent?
A. Yes, sir.
Q. At the time?
A. Yes, sir.
Q. Were you doing so at the time of the shooting ?
A. Yes, sir.
BY THE COURT:

That is all I have. (Emphasis supplied).

The court then permitted Norman’s attorney recross examination, restricted to questions relating to those asked by the judge, excluding matters the defense had earlier neglected to develop on cross. While it is true that a trial judge’s comment upon the evidence in a jury trial constitutes reversible error, Young v. Anderson, 249 Miss. 539, 163 So.2d 253 (1964), interrogation of witnesses by the judge has not been viewed as “comment” where the judge takes care not to indicate his opinion as to the value of the witness’s testimony. Hannah v. State, 336 So.2d 1317, 1322 (Miss.1976); Jones v. State, 223 Miss. 812, 79 So.2d 273 (1955); Breland v. State, 180 Miss. 830, 178 So. 817 (1938); Griffin v. State, 171 Miss. 70, 156 So. 652 (1934); Cobb v. State, 23 So. 1015 (Miss. 1898); Gunn, Witnesses, 48 Miss. L.J. 1059, 1092 (1977).

We need not decide, however, whether the trial judge impermissibly “crossed the line between judging and advocacy,” see McCormick, Evidence, section 8 (1972), because Norman’s failure to object to the judge’s interrogation of the witness precludes appellate review. The point is argued by the appellant on appeal and has caused considerable concern whether we should raise the issue on our own motion in conjunction with the appellant’s belated contention in his brief so as to insure the defendant a fair trial.

The trial judge’s question, “Were you doing so at the time of the shooting?” was very likely to suggest to the jury that he had determined a shot in fact had been fired, when this was a crucial issue of disputed fact in the case. Though subtle, we think the suggestion had the likely effect of undermining to some extent the veracity of Norman’s later testimony denying that he fired a shot. Doubtless reversal would have followed if Norman’s counsel had objected to the judge’s question which assumed as true a critical disputed fact.

We nevertheless reluctantly conclude that we should not raise the issue in view of the circumstances of the case, including the unequivocal testimony of the officers, corroborated by a photograph of a bullet-shattered window in the line of fire. We think it well to emphasize, however, that a judge must never descend the bench to indulge in partisan aspects of a trial. His duty is to afford a fair trial to all litigants without becoming an advocate to secure a conviction and must question witnesses, if at all, with scrupulous neutrality.

Norman’s seventh assignment of error concerning the propriety of the admission of a photograph of a motel window shattered by his bullet lacks merit. As this Court stated in Gandy v. State, 373 So.2d 1042, 1047 (Miss.1979), “demonstrative evidence such as this adds clarity and interest to testimony and makes more understandable the facts to which the witness testifies. If ‘reasonably necessary and material,’ [meaning appropriate and relevant,] it may generally be admitted in the sound discretion of the trial court. Baggett v. State, 219 Miss. 583, 69 So.2d 389 (1954).” The photograph illustrates the testimony of Evans relating to the shot fired at him by Norman. Evans stated he discovered the shattered bathroom window when inspecting the line of fire. This laid a sufficient foundation for the introduction of the photograph, because it did have some eviden-tiary value. We therefore reject Norman’s contention that the photograph should not have been admitted into evidence.

Norman’s eighth assignment raises once more the issue of the sufficiency of the indictment, an issue disposed of in the discussion above, and additionally attacks the trial court’s granting of instruction S — 1. S — 1 assertedly omits in its definition of the essential elements of the offense the necessity of Norman’s knowledge that his victim was at the time of the assault an officer of the law acting within the course of his employment. However, instruction D-6, which was given, clearly cures the omission, if any. In determining whether error lies in the grant or refusal of various instructions, the instructions actually given must be read as a whole. If so read the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. See Knight v. State, 57 So.2d 161 (Miss.1952). It follows that this assignment of error lacks merit.

As for Norman’s nebulous ninth assignment of error stating that “the case must be reversed for many other reasons apparent on the face of the record,” Norman here fails to comply with Rule 6 of the Rules of the Mississippi Supreme Court because he does not designate with certainty the basis of error assigned. We therefore think this assignment of error is unavailing for reversal.

AFFIRMED.

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


text:
    BLUE CROSS & BLUE SHIELD OF MISSISSIPPI, INC. v. Morris L. PRITCHARD.
    No. 51998.
    Supreme Court of Mississippi.
    July 16, 1980.
    Hobbs & Dorsey, Sally McDavid, Jackson, for appellant.
    Bailey, Trusty & Cook, William L. Cook, Jr., Batesville, for appellee.
   Appeal from Circuit Court, Tallahatchie County; Andrew C. Baker, Judge.

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

AFFIRMED.


text:
    Joe Mack SPEIGHT v. STATE of Mississippi.
    No. 51884.
    Supreme Court of Mississippi.
    July 23, 1980.
    Kenneth D. Bridges, Louisville, for appellant.
    Bill Allain, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.

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


text:
    Marty Joe EASTER v. STATE of Mississippi.
    No. 51978.
    Supreme Court of Mississippi.
    July 23, 1980.
    Frank R. McCreary, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

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

AFFIRMED.


text:
    TRJ ENTERPRISES v. William Carroll BROOKSHIRE, Jr., Conservator of Estate of William Carroll Brookshire.
    No. 52047.
    Supreme Court of Mississippi.
    July 23, 1980.
    Deen, Cameron, Prichard & Young, Ralph E. Young, Jr., Jerome Kittrell, Meridian, for appellant.
    Gipson, Gipson & Williamson, James E. Williamson, Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

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

AFFIRMED.


text:
    Donnie WILSON v. STATE of Mississippi.
    No. 51887.
    Supreme Court of Mississippi.
    July 23, 1980.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

R. W. Boydstun, Jr., Louisville, for appellant.

Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.

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

Affirmed.


text:
    Thomas Ralph PANKO v. Donna Day PANKO.
    No. 51917.
    Supreme Court of Mississippi.
    July 23, 1980.
    Daniel R. Wise, Hattiesburg, for appellant.
    Milton A. Schlesinger, Hattiesburg, for appellee.
   Appeal from Chancery Court, Lamar County; Howard L. Patterson, Jr., Chancellor.

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

Affirmed.

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


text:
    W. H. HOPPER AND ASSOCIATES, INC., et al. v. C. E. McELROY, Tax Assessor, et al.
    No. 51932.
    Supreme Court of Mississippi.
    July 23, 1980.
    James W. Amos, Olive Branch, for appellants.
    Joel P. Walker, Jr., James E. Woods, Her-nando, for appellees.
   Appeal from Chancery Court, DeSoto County; Kermit Cofer, Chancellor.

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

Affirmed.

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

SUGG and COFER, JJ., take no part.


text:
    William Herbert BORDEN v. STATE of Mississippi.
    No. 51968.
    Supreme Court of Mississippi.
    July 23, 1980.
    Leon E. Provine, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Niles McNeel, Judge.

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

Affirmed.


text:
    Flossie B. Williams McMURRAY et al. v. Willie DOUGLAS et al.
    No. 52010.
    Supreme Court of Mississippi.
    July 23, 1980.
    Ross Barnett, Jr., Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.
    Shirley E. Payne, Hazlehurst, for appel-lee.
   Appeal from Chancery Court, Copiah County; Mike Carr, Chancellor.

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

Affirmed.


text:
    Paul ROBINSON and Rena Mae Robinson v. EMPIRE FINANCE CORPORATION, Eupora, Mississippi.
    No. 51981.
    Supreme Court of Mississippi.
    July 23, 1980.
    Butler & Butler, Jan R. Butler, Eupora, for appellant.
    No brief filed on behalf of appellee.
   Appeal from Circuit Court, Webster County; Clarence E. Morgan, Jr., Judge.

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

REVERSED AND REMANDED.

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


text:
    FORD MOTOR COMPANY and Bill Dalrymple Ford, Inc. v. Joe R. LEE.
    No. 51883.
    Supreme Court of Mississippi.
    July 23, 1980.
    Rehearing Denied Aug. 6, 1980.
    Thomas, Price, Alston, Jones & Davis, Thomas W. Tardy, III, Marita K. Pace, Shell, Buford, Bufkin, Callicutt & Perry, Cary E. Bufkin, Jackson, for appellants.
    Paul D. Snow, III, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

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

REVERSED AND RENDERED.

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


author: JONES, Justice.

text:
    The STATE BOARD OF HEALTH for the State of Alabama; Dr. Ira L. Myers, State Health Officer; Madison County Board of Health; Dr. Otis Gay, Madison County Health Officer v. ATNIP DESIGN AND SUPPLY CENTER, INC., a corp. and Jerry D. Atnip.
    No. 79-162.
    Supreme Court of Alabama.
    July 11, 1980.
    John R. Wible, Asst. Atty. Gen., Montgomery, Robert Sellers Smith of Smith, Huckaby & Graves, Huntsville, for appellants.
    L. Bruce Abies of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellees.
   JONES, Justice.

This case comes before the Court as an appeal from a writ of mandamus issued in circuit court requiring certain septic tank permits to be issued to Plaintiffs-Appellees. We affirm.

Plaintiffs filed suit against the State Board of Health seeking a declaratory judgment, a writ of mandamus, and other equitable relief, alleging that the denial by the Board of Health of applications by Atnip for tank permits for certain lots in Atnip’s subdivision, Northwood Acres, was unreasonable, discriminatory, a denial of due process of law, and a denial of equal protection of the law. The Board denied the allegations and pled the defenses of sovereign immunity and impropriety of the use of a writ of mandamus as a remedy in this case. The Board counterclaimed for injunction against Plaintiffs to prevent the further development of the subdivision until all areas to be developed were approved by the Board. The case was heard ore tenus; the Court determined that the then existing standards and regulations for septic tank permits had been met by Atnip; and it mandated that the permits be issued. The Board’s counterclaim was denied.

In order to resolve this case, we look first to the propriety of, and evidentiary support for, the writ of mandamus issued by the Court below. We find mandamus to be a proper remedy in this case. Defendants cannot successfully claim the defense of sovereign immunity against a complaint alleging abuse of official power and discretion and arbitrary or capricious exercise of discretion. McDowell-Purcell, Inc. v. Bass, 370 So.2d 942 (Ala.1979). One of the purposes of such a writ is to prevent the arbitrary and capricious exercise of these powers; to hold that State agencies are immune from such suits would nullify this purpose.

The evidence supports the trial Court’s finding that Plaintiffs were indeed treated in a manner outside normal Board practice and in an apparently capricious fashion by the Board’s inspector. Percolation and bore hole tests were conducted in the rain, which was not standard or accepted practice. Despite the fact that the Board’s established rainy season (their testing period for septic tank approvals) ran from December through April, Atnip’s request for retesting in April, 1978, was denied. Mr. Atnip was told that he would have to wait until December at which time he was to dig a hole with a backhoe and leave it open for approximately six weeks when inspection would take place. It appears that such delay and test procedure were outside the realm of the Board’s standard practice. No justification for the variance was presented by the Board. In addition, Mr. Atnip was told that percolation tests would not be run on his property until February, 1979.

In May, 1978, a month beyond the Board’s established inspection season, a subdivision approximately one and a half to two miles from Plaintiffs’ property was inspected and approved by the State Board. In December, 1978, Plaintiffs had percolation and bore tests run with representatives of the County Board of Health present who found the results to be within the required standards, provided two qualifications were agreed to: 1) That 1200-gallon rather than 1000-gallon tanks be used, and 2) that 400-foot rather than 300-foot field lines be used. Despite Plaintiffs’ willingness to comply with these additional requirements and the positive test results, the State Board refused to accept the results and issue the permits.

Having reviewed the entire record and considered each of Appellants’ contentions, we find the trial Court’s decision is amply supported by the evidence; thus, we affirm.

AFFIRMED.

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


text:
    W. A. DANIEL et al. v. O. F. RICHTER & SONS, INC.
    No. 79-302.
    Supreme Court of Alabama.
    July 11, 1980.

      William W. Cardwell, Jr., Gadsden, for appellants.
    No brief for appellee.
   JONES, Justice.

This suit is an action on a note. Appel-lee, the surety on the note, was called upon to pay the note due to a default by the remaining principals, W. A. Daniel, individually, and W. A. Daniel Construction, Co., Inc. Appellee secured a consent judgment against the corporate Defendant in the amount of $31,012.93 plus interest and attorneys’ fees. Appellee also secured a summary judgment against Daniel individually for a like amount. The judgment against the individual Defendant is the subject of this appeal. We affirm the decision of the Court below.

A series of four notes, three of which had attendant security agreements, is involved here. W. A. Daniel executed the first, second, and fourth notes in his individual capacity. On its face, each note, after the first one, indicates that it is a renewal of the preceding note in the series involved herein. Daniel clearly signed three of the four notes in his individual capacity, including the final one which was ultimately called in for payment.

Defendant contends that material alteration of the terms of the notes took place without his consent. The presence of his signature as an individual negates such a contention because all terms of the notes and security agreements were present on the face of each document he signed. No evidence of fraudulent alteration was offered.

The legal issues need not be belabored here. After having paid the indebtedness, and the note thus having been assigned to Plaintiff, Plaintiff obviously has a right of action on the note against Defendant, the principal on the note. §§ 7-3—401, 7-3-402, 7-3-407, 7-3-414, 7-3-415(1) and (5), Code of Alabama 1975.

Finally, Appellant Daniel raises for the first time on appeal the issue of Plaintiff’s capacity to sue, contending that Jacob Richter individually paid the debt, that O. F. Richter & Sons, Inc., offered no proof showing that it paid the note in question or in any manner became the owner or holder thereof; and, therefore, the corporation is without standing or capacity to sue. We cannot agree with this position. Defendant failed to reply to Plaintiff’s request for admission which included a statement that O. F. Richter & Sons, Inc., paid the indebtedness. Under Alabama Rules of Civil Procedure 36(a), Defendant’s failure to answer or to object to this request within thirty days constitutes an admission. Therefore, no factual issue on this point was before the trial Court. For a discussion of the standing/capacity dichotomy, see Alabama Power Company v. White, 377 So.2d 930, 931 (Ala.1979).

Our review of the record discloses no genuine issue of material fact; therefore, the judgment below is due to be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Dee PESEAU v. CIVIL SERVICE BOARD OF TUSCALOOSA COUNTY, Alabama.
    Civ. 2091.
    Court of Civil Appeals of Alabama.
    April 2, 1980.
    Rehearing Denied May 14, 1980.

      Jack Drake of Drake & Pierce, University, for appellant.
    Raymond E. Ward of Ray, Oliver & Ward, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

Since 1975, Dee Peseau had served as Chief Clerk in the Tuscaloosa County Probate Office. She was an employee of Tuscaloosa County with all of the rights and privileges accorded by Act 357, Acts of Alabama, Regular Session, 1949, which act established a civil service system for employees of Tuscaloosa County, Alabama.

A new probate judge, Hardy McCollum, was elected in Tuscaloosa County in November 1976 and installed in office on January 16, 1977. Judge McCollum dismissed Ms. Peseau in writing from her employment on May 18, 1977. Peseau appealed her dismissal to the Tuscaloosa County Civil Service Board under § 10 of Act No. 357.

A public hearing of her appeal was held by the Board as provided by the Act. Testimony was heard over several days. The transcript of the record is over 900 pages in length. The Board found Peseau guilty of two of the charges made against her. It refused to uphold her dismissal from employment, but instead ordered her demoted from chief clerk to clerk.

Peseau appealed the order of the Board to circuit court as provided by the act. The order of the Board was there affirmed. Peseau has appealed the order of the circuit court to this court for review as further provided by § 11 of the Act.

Section 10 of Act 357 provides that after dismissal of an employee subject to the Act, and an appeal to the Board, the Board shall order charges to be filed in writing and shall hold a de novo hearing on such charges. It also provides that no permanent employee shall be discharged or demoted except for cause.

We do not find in the record the written charges filed for hearing; however, the finding of the Board contains a listing of them. They are stated to be: “(a) difficulty in dealing with the public, (b) difficulty in dealing with co-workers, (c) failure to respect the office of Probate Judge of Tuscaloosa County, (d) loyalty to the retired probate judge.” The Board found no evidence to support charge (a) and stated it did not consider charge (d). The Board related specific findings of fact which it stated supported charges (b) and (c). We will refer to those subsequently.

The Act provides the standard for review of the decision of the Board by the circuit court. It provides in § 11 that,

[T]he court shall affirm the decision of the Board unless it finds that the substantial rights of the petitioner have been prejudiced because the final decision of the Board was: (1) unsupported by substantial evidence in the record submitted; (2) in excess of the authority conferred by this Act on the Board; (3) violative of constitutional provisions; (4) arbitrary or capricious; or (5) affected otherwise by substantial error or injustice.

In consonance with those standards, Pe-seau contended before the circuit court and here that, (1) there was no substantial evidence to support the removal or demotion of Peseau from her permanent classification of employment; (2) Peseau was denied due process; (3) the decision of the Board was otherwise affected by substantial error or injustice.

We will examine first the. issue of absence of substantial evidence.

Our supreme court has accepted as a definition of “substantial evidence” the following: “[Sjubstantial evidence is more than a scintilla and must do more than create a suspicion of the existence of a fact to be established. * * * ‘ “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” ’ ” Ex parte Morris, 263 Ala. 664, 83 So.2d 717 (1955).

Act 357, § 11 provides that no permanent employee may be removed or demoted except for “cause.” “Cause” when used in such context has been termed variously as follows: “The phrase ‘for cause’ . means reasons which the law and sound public policy recognize as sufficient warrant for removal, that is, legal cause, and not merely cause which the appointing power in the exercise of discretion may deem sufficient.” State ex rel. Doherty v. Finnegan, 206 A.2d 477, 25 Conn.Sup. 390 (1964).

“Cause” . . . means legal cause, and not any cause which the officer authorized to make such removal may deem sufficient. . . . The cause must be one which specifically relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. The cause must be one touching the qualifications of the officer or his performance of his duties, showing that he is not a fit or proper person to hold the office. State ex rel. Whalen v. Welliver, 104 P.2d 188, 60 Nev. 154 (1940).

We conclude that the terms “substantial evidence” and “cause” contained in the Act must be considered and applied together. The charges upon which an employee is discharged or demoted from civil service must constitute “cause,” as that term is construed, and must be supported at a hearing before the Board by “substantial evidence.” Act 357, Acts of Alabama, Regular Session, 1949.

The Board set out in detail its findings of fact and conclusions. It first found no evidence to support the charge of “difficulty in dealing with the public.” It next listed the second charge of “difficulty in dealing with co-workers.” It did not specifically find Peseau guilty of this charge but said as follows:

(1) The Board finds that testimony by both the Department Head and Mrs. Pe-seau showed a lack of communication, a lack of trust and a situation that we feel could not continue and the Probate Office serve the people.
(2) Testimony by Mrs. Peseau that the co-workers were divided, that she was in support of some employees and did not trust some others. This resulted in note passing by one side and going through trash cans after hours and taping notes together and giving to Chief Clerk on the other. It is hard for this Board to understand the action of both parties.
(3) The failure of the Chief Clerk to tell the Department Head where she obtained the notes, according to her testimony, when he requested it. (R. 5).

The findings (1) and (2) are made jointly as to Peseau and other employees including the probate judge. These findings represent a condition of the office not a finding of fault against Ms. Peseau. The finding that unpleasant personal differences existed in the office among the employees is supported by the evidence. However, there is not substantial evidence that Ms. Peseau was responsible for the condition. We have carefully read all 936 pages of the record and find the evidence substantially to the contrary. The evidence discloses that Ms. Peseau was promoted to the position of chief clerk by the former probate judge in 1975, despite the recommendation of another employee by the Civil Service Board. The judge who appointed her was defeated by Judge McCollum. Judge McCollum believed Ms. Peseau supported the incumbent judge. He knew that they were close friends and that the friendship continued after the election. Other employees had supported Judge McCollum. Immediately upon assuming office, Judge McCollum removed from Peseau the duties of personnel supervision which had previously been assigned to her as chief clerk. He removed her from the duty of assisting the judge in commitment hearings. He directed the other employees to report directly to him and informed them that they were no longer to be subject to checks by Ms. Peseau as to their work or in their work schedule. The only prerogatives left to her as chief clerk were those granted to her by statute. § 12-13-14, Code of Alabama (1975).

From the first day of Judge McCollum’s entry in office, certain other employees began to write notes to one another which were derogatory to Ms. Peseau and an employee supportive of her and which indicated knowledge that she was going to be removed by the judge from the position of chief clerk and assigned to the record room.

Other employees collected some of such notes from the trash and gave them to Peseau. As a result of knowledge of the notes, Peseau began to secure statements from attorneys as to her competency. Within a few days after Judge McCollum took office, Ms. Peseau informed him by letter of her desire to work with him and requested that he define her duties and responsibilities. He never responded.

The third finding of the Board under charge (b) assesses fault to Peseau for refusing the demand of Judge McCollum to inform him where she obtained the notes written about her by other employees. Pe-seau did not disclose her knowledge of the notes to either the authors or to Judge McCollum until a meeting on March 22. The principal author was present at the meeting and the judge was aware of her authorship. It is not clear why he asked to know how she got them, but it appears he was more concerned about that than who wrote and passed them and why. The record indicates that he considered the whole matter no more serious than to term it “childish.” We are unable to determine how this incident supports the charge of difficulty of dealing with her co-workers, particularly when she did not originate or participate in the writing and passing of notes. The refusal to disclose who found them and gave them to her was not unreasonable under the circumstances. We find no substantial evidence of cause for discipline under charge (b).

The Board also made specific findings in support of the charge of “failure to respect the office of probate judge.” It first stated (1) “Testimony by Ms. Peseau that she believed Judge McCollum was going to transfer or terminate her and the fact of going through trash cans and documenting notes from the first day he was in office. In fact it was four months after taking office that any action was taken.”

We are unable to determine how such action displays failure to respect the office. It appears reasonable that an employee who had heard that she was to be removed from her position and who had been stripped of the ordinary powers of her job by an incumbent who knew her to be a friend and supporter of his political opponent, should make some effort to protect herself from dismissal. To do so is no evidence of failure to respect the office. The reference to going through trash cans does not apply to Peseau. There was no evidence that she did so or that she requested others to do so.

The next findings are, “(2) failure to talk to department head about her feelings and problems and admitted failure to try and gain an audience with him,” and “(3) failure to inform Civil Service Board about her problems if no relief was given by department head.”

Reason (2) placed a burden upon the employee to carry complaints and express her feelings of insecurity to a department head who had (a) just stripped her of the responsibility of her position by telling other employees she had no further authority over them and (b) had failed to respond to her offer to conform to his policies and (c) had failed to respond to her request to define the duties which he desired her to perform. The testimony was that Peseau and the judge were in daily contact in the office. It would appear that the next administrative duty was his. Finding (3) places upon the employee a burden of complaining to the Board of actions of her department head who had the authority to discipline her. There is no power given the Civil Service Board by the Act to hear, much less act upon such a complaint. The Board does not supervise administration of county offices.

Finding (4) of the Board refers to a meeting of the judge and Peseau after he had already told her she was dismissed. The meeting involved negotiation of a possible transfer and demotion in lieu of being dismissed outright. It charges that in such negotiation, Peseau attempted to involve the transfer of another employee as a condition of her acceptance. Such action supplies no reasonable support of the charge of failure to respect the office.

Finding (5) charges Peseau with misplacing personnel records relating to vacation and sick leave of employees in the office. There was evidence that Peseau had formerly kept such records but stopped doing so when Judge McCollum told the employees to come to him with such requests. As a result she no longer had knowledge from which to keep the records. It was also shown that there was no requirement that such records be kept. They were not official records. Her testimony was that she may have thrown them out when she cleared her desk. She was not directed to give them to anyone else when her responsibility for personnel was removed. At best, the evidence would perhaps support negligence, not failure to respect the office.

Finding (6) charges Peseau with leaving a meeting with Judge McCollum without his permission or the ending of the meeting. This finding arises from evidence that because of a reported public disagreement between Peseau and another employee during office hours when Judge McCollum was out of the country, the judge asked the two to meet with him after the office closed at 5:00 P.M. It was undisputed that after some 45 minutes of discussion which apparently became argumentative and recriminatory, Peseau told the judge that her husband was waiting for her to go home and cook supper. She therefore left. As we view the evidence, this action, though perhaps impolite if construed most strongly against her, does not rise to the stature of disrespect of the office of probate judge.

To summarize, we find the reasons or finding of fact of the Board given to sustain the determination of guilt as to charges (b) and (c) do not satisfy the definition of substantial evidence and neither do they meet the standard of “cause” for the demotion and transfer of Ms. Peseau. This is most stridently evident when every witness including Judge McCollum testified that Ms. Peseau was a very competent and capable chief clerk and never failed to ably perform her duties in the office up to the day of her dismissal. The fact of her competence measured by integrity, efficiency and knowledge of her duties is found as fact and expressed in the decision of the Board. The decision of the Board further contains reference to what it feels the relationship should be between a probate judge and the chief clerk. It likens it to that of marital or law partners — one of complete confidence and trust. The decision states that the testimony indicates an absence of such a relationship between Peseau and the judge. It concludes therefore, that necessity requires removal of Ms. Peseau from her position. We believe it implicit in the decision that the existence of the lack of trust between Ms. Peseau and Judge McCollum and not necessarily its cause, necessitated the removal and demotion of Ms. Peseau. We agree that such condition is not conducive to a pleasant work environment and is perhaps detrimental to efficiency. However, we find that to be insufficient and erroneous when viewed in light of the Civil Service Act. To remove an employee because of absence of a relationship of complete trust and confidence between the employee and the department head, without substantial evidence that the employee is responsible, is to nullify the Act.

The second issue is whether there was lack of due process in the proceedings.

It is well settled that an employee who has established the right to permanent employment pursuant to a civil service statute such as Act 357, has a “property right” in his job which may not be taken away or altered without due process of law. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

We have previously pointed out that one of the bases of review of the decision of the Board by the circuit court is whether it is violative of constitutional provisions. Peseau contends, among other reasons, that her right to procedural due process was violated by the vague, uncertain and indefinite charges brought against her. The mandate of the due process clause is that one may not be deprived of property without the rudimentary elements of fair play, that is, reasonable notice of and precise description of the nature and substance of the charges and reasonable opportunity to present a defense. An examination of the charges previously set out herein exhibits their vagueness and uncertainty. They furnish no clue as to the specific acts which precipitated the conclusions contained therein and do not conform to necessary due process. Perry v. Sindermann, supra; Board of Regents of State Colleges v. Roth, supra; Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970); County Board of Education of Clarke County v. Oliver, 270 Ala. 107, 116 So.2d 566 (1959); State Tenure Commission v. Pike County Board of Education, 349 So.2d 1173 (Ala.Civ.App.1977).

We finally must conclude that the Board acted arbitrarily and capriciously or otherwise committed substantial error or injustice in denying to Peseau the right to offer evidence that the charges were brought against her for personal or political reasons of the department head.

Section 17 of Act 357 specifically forbids dismissal of an employee from any position because of his political opinions or affiliations. The chairman of the Board repeatedly forbade introduction of testimony concerning the “politics of the parties or anything relating to events occurring before the entry of Judge McCollum into office.” It is our opinion that Peseau should have been allowed to show the political affiliation and opinions of the parties insofar as it could reasonably be inferred to affect their relationships and the bringing of charges against her.

For all of the error herein noted, the judgment of the circuit court must be set aside, and the matter is remanded to that court for disposition not contrary to this decision.

REVERSED AND REMANDED.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result.


text:
    Ex parte CIVIL SERVICE BOARD OF TUSCALOOSA COUNTY, Alabama. (Re: Dee PESEAU v. CIVIL SERVICE BOARD OF TUSCALOOSA COUNTY, Alabama).
    79-655.
    Supreme Court of Alabama.
    July 25, 1980.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: HOLMES, Judge.

text:
    Charles MERRILL et al. v. Charles Edward BADGETT et al.
    Civ. 2106.
    Court of Civil Appeals of Alabama.
    April 9, 1980.
    Rehearing Denied April 30, 1980.

      John S. Casey, Heflin, for appellants.
    Jerry B. Oglesby, Anniston, for appellees.
   HOLMES, Judge.

The plaintiffs, four brothers doing business as Merrill Brothers Timber Company, appeal from the denial of their motion for new trial. Their contention is that the jury awarded inadequate damages. We affirm.

The dispositive issues are (1) whether the jury’s assessment of the damages was unsupported by the evidence and (2) whether the learned trial judge erred in sustaining an objection to a question relating to plaintiffs’ purported lost profits.

The record reveals the following: On October 6, 1976, Charles Merrill, while driving plaintiffs’ two-ton timber hauling truck, was involved in an accident with defendant.

This truck was specially equipped to meet the needs of plaintiffs’ business. It was a long-bed truck and had a logging frame attached to the bed as well as a tandem rear end.

As a result of the collision, this logging frame was bent and the truck was out of commission for ten months. The reason for the long lay-up was the time expended in acquiring and installing a new frame. Two months elapsed before plaintiff ordered this new frame, several more before it arrived, and, once received, it took two months to install.

Before trial, defendant conceded liability. Defendant also stipulated that in the event plaintiffs proved they were entitled to recover for loss of use of the truck during the time necessary to repair it, the sum of $50 net per day would be the reasonable rental value for a substitute vehicle.

There developed a dispute at trial as to the necessity of replacing the frame. Charles Merrill testified he did not want the bent frame repaired as he feared this could not be adequately accomplished. He stated he had not checked with any experts on the feasibility of repair. However, he indicated he would have accepted a repair in lieu of total replacement “if they would have given me some type of guarantee that that truck, that the frame would never have given me any trouble. . . . But, they would not have given me that.”

Buster Miles Chevrolet Company ordered and installed the frame as well as performing other necessary repairs.

William Jones, service and parts manager for the car company, indicated he had never been confronted with the question of what type of guarantee would be available on such a repair. He also testified that a repair would have been difficult and stated the Merrills desired a replacement, not repair.

Although Jones was not experienced in the type of work required to straighten a logging frame, it was his opinion that the job could have been done successfully in approximately three months by someone with the proper expertise.

He testified also that the bill for replacing the frame came to $3,819.67.

There was further testimony from Mr. Jones to the effect that he had no knowledge of any similarly equipped logging trucks in the area which were available for rental purposes. However, he made no direct inquiries on this point. Charles Merrill gave similar testimony as to the unavailability of suitable rental trucks, but his only effort to secure one was directed to Buster Miles Chevrolet Company.

Charles Merrill was asked what profits the partnership had lost during the ten month lay-up and he answered, “Roughly, $30,000.00.” After this answer was given, defendant’s counsel objected and the learned trial judge sustained the objection. However, defendant made no motion to exclude and there was no instruction to the jury that it could not consider the answer.

In his charge to the jury, the trial judge instructed the jury as to the damages plaintiffs could recover if the jury found in plaintiff’s favor. The jury was instructed the plaintiffs could recover the reasonable market value of the hire and use of the vehicle during the time reasonably necessary for its repair plus the reasonable expense of making such repair. The jury was further charged that plaintiffs’ loss of profits during the period of repair was not to be considered as an element of damages.

Finally, the jury was instructed plaintiffs had the duty to exercise such care as a reasonably prudent person would exercise under like circumstances to reduce or mitigate their damages and that plaintiffs could recover only such damages as would have been sustained if such care had been exercised.

Plaintiffs duly excepted to that part of the charge which dealt with the lost profits.

The jury returned a verdict in favor of plaintiffs in the amount of $4,000. Plaintiffs moved for a new trial due to the alleged inadequacy of this amount. The trial judge denied the motion and plaintiffs appeal.

At the outset, it is well established that jury verdicts are presumed correct and that this presumption is strengthened when the trial court denies a motion for new trial. Furthermore, when the ground set forth in the denied motion is that the verdict is contrary to the evidence, here inadequate, a reviewing court will not reverse unless, after allowing all reasonable presumptions of correctness, the preponderance of the evidence is so decided as to clearly convince the court that it is wrong and unjust. Freeman v. Turner, Ala.Civ.App., 374 So.2d 354 (1979). See, Spears v. Bishop, Ala.Civ. App., 339 So.2d 75 (1976).

Plaintiffs argue this case calls for reversal, contending the undisputed testimony and stipulations showed that they were entitled to recover at least $6,819.67. In support of this argument, they cite us to cases which hold a jury verdict cannot stand if it varies from an uncontradicted opinion of value and the jury disregards the testimony of competent witnesses, substituting its own conclusions for undisputed evidence. Free v. Palmer, Ala.Civ.App., 373 So.2d 1100, cert. denied, 373 So.2d 1103 (Ala.1979). In other words, a jury cannot disregard the only evidence of value before it and bring in a verdict unsupported by any reasonable hypothesis presented by the evidence. Farmers and Ginners Cotton Oil Co. v. Reliance Insurance Co., 341 So.2d 147 (1976).

Plaintiffs argue the jury disregarded the only competent evidence presented. They point to the repair bill totaling $3,819.67. They further point to the uncontroverted testimony that even if the frame had been merely repaired, and not totally replaced, the truck would have been out of commission for three months. As it was stipulated that the rental cost for an available replacement truck would have been $50 per day, plaintiffs argue the total recoverable rental expenditures would be at least $3,000. Plaintiffs conclude that although the jury was not bound to return a favorable verdict, when it in fact did, the amount awarded had to at least equal $6,819.67.

We cannot agree for we conclude, contrary to plaintiffs’ assertions, that there was a reasonable hypothesis supportive of the verdict. Farmers and Ginners, supra.

The trial judge instructed the jury the plaintiffs could recover only those damages which they would have sustained if they had exercised such care as a reasonably prudent person would have exercised under like circumstances to mitigate the damages. This was a good charge correctly stating the law and no exception was taken. See, Equilease Corp. v. McKinney, 52 Ala. App. 109, 289 So.2d 809 (1974).

With this charge in mind, as well as the presumption of correctness afforded the verdict, we note plaintiff Charles Merrill testified he had not sought an opinion as to the feasibility of repair as opposed to total replacement of the frame. In fact, his testimony made it clear he did not want the frame repaired.

William Jones testified that although repair would be difficult, one experienced in such work could have straightened the frame.

The complaining party is entitled, by reason of repair, to a vehicle equal to but not better than he had had immediately prior to the collision. Fuller v. Martin, 41 Ala.App. 160, 125 So.2d 4 (1960). In light of the above, we are unprepared to say the jury could not have reasonably hypothecat-ed that had plaintiffs made reasonable inquiry they would have found a less expensive repair would have been sufficient. Therefore, we cannot say the award of $4,000 is so inadequate, indulging the proper presumptions, as to require reversal.

As indicated, plaintiffs also sought to put forth testimony relating to a claim for lost profits. In this regard, Charles Merrill, in response to a question put to him by his attorney, testified plaintiffs had lost $30,-000 due to the inability to use the damaged truck. Only after this answer was given was an objection made by defendant which was sustained. There was no motion to exclude the answer, the answer was not excluded, and the jury was not instructed to disregard the answer.

When a party answers a question to which an objection is afterward sustained, the party asking the question is not prejudiced by the ruling. This is so because the objection, coming after the answer, does not remove the answer from evidence. See, Cooper v. Magic City Trucking Service, Inc., 288 Ala. 585, 264 So.2d 146 (1972), and cases cited therein.

In any event, there would have been no error even if the trial judge had specifically excluded plaintiff’s answer. This is so because in Alabama lost profits are not recoverable for the period a commercial vehicle is laid up for repairs. Wilson and Co. v. Sims, 250 Ala. 414, 34 So.2d 689 (1948).

Indeed, in Wilson, while acknowledging that some jurisdictions allow recovery of lost profits when no substitute vehicle can be obtained, the Supreme Court of Alabama declined to adopt this approach. There, the court specifically set forth the measure of damages in a case of this type to be exactly as charged to the jury in the case sub ju-dice.

It only follows there was no error either in sustaining the objection or in instructing the jury that lost profits were not to be considered.

This case is due to be affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Ex Parte: Charles MERRILL et al. (Re: Charles MERRILL et al. v. Charles Edward BADGETT et al.)
    79-611.
    Supreme Court of Alabama.
    July 25, 1980.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


text:
    LAUDERDALE CHRISTIAN NURSING HOME v. Elsie Mae DEAN.
    Civ. 2220.
    Court of Civil Appeals of Alabama.
    May 28, 1980.
    Rehearing Denied July 2, 1980.
    Michael B. Maddox of Guin, Bouldin, Porch, Maddox & Alexander, Russellville, for appellant.
    George E. Carpenter of Rosser & Munsey, Tuscumbia, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case.

The only issue raised by defendant upon its appeal is whether the trial judge’s finding that the plaintiff was permanently partially disabled to the extent of fifty percent was supported by the evidence. Only the degree of disability is in dispute.

The decision in Cochrum v. Kinro Industries, Inc., 352 So.2d 456 (Ala.Civ.App.1977) is very much in point. It was therein stated:

On appeal, defendant takes the position that the trial court’s judgment that plaintiff suffered a thirty percent permanent partial disability to her body and to her ability to earn a living is unsupported by the evidence.
However, in assessing defendant’s contention, we would point out that in reviewing workmen’s compensation cases our duty is to ascertain whether there is any legal evidence to support the findings of the trial court. And where such evidence is set out in the record before this court, it is our duty to affirm the trial court’s judgment. Conagra v. White, Ala.Civ.App., 348 So.2d 502 (1977)
In the case at bar the evidence demonstrates that plaintiff had never incurred difficulties with her back until the accident. Since the accident, however, she has suffered constant pain. In addition, she tires easily and is unable to perform all of her household chores. As a result of the accident, she can no longer work at the only type employment for which she has been trained, i. e. production type work. Her education is limited (the eighth grade being the last grade she completed), and she is not sufficiently trained to work in any other capacity for her former employer.
And despite the fact that the medical testimony was to the effect that plaintiff had only a ten percent disability to the body as a whole, the court heard the plaintiff’s testimony and also observed her while testifying and while in the courtroom. Based on the evidence in the record, and the inferences to be • gained therefrom, we are unable to say that the trial court’s finding of thirty percent permanent partial disability is erroneous.

The similarity of the facts in the instant case and in Cochrum, supra, is so striking that we will not burden this decision by rehashing the facts. However, we assure sincere and dedicated counsel for the defendant that we have carefully read, studied, compared and reviewed all of the evidence in this case and ascertain that the legal evidence, or inferences therefrom, support the findings of the trial court. Thus, we cannot hold that the circuit judge’s decision of a fifty percent permanent partial disability was erroneous. Farmers Gin Co., Inc. v. Rose, 374 So.2d 351 (Ala.Civ.App.1979); Conagra v. White, 348 So.2d 502 (Ala.Civ.App.1977); Unexcelled Manufacturing Corp. v. Ragland, 52 Ala. App. 57, 289 So.2d 626 (1974); Ala.Dig., Workmen’s Compensation, Key Nos. 1939, 1940. We, therefore, must affirm the workmen’s compensation award in this case.

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

AFFIRMED.

All the Judges concur.