author: SMITH, Presiding Justice,

text:
    Alan H. HARRIGILL v. STATE of Mississippi.
    No. 51591.
    Supreme Court of Mississippi.
    March 12, 1980.
    Rehearing Denied April 2, 1980.

      Wilkins, Ellington & James, Samuel H. Wilkins, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

This is an appeal by Alan H. Harrigill from his conviction in the Circuit Court of the First Judicial District of Hinds County of the crime of false pretenses. For his said offense, he was sentenced to serve three years in the Mississippi Department of Corrections, to pay a fine of $50,000 and to be immediately disbarred from the practice of law.

Although several grounds for reversal are assigned, we agree with appellant’s counsel that the case does not necessitate a lengthy or detailed statement of the facts.

Harrigill, a lawyer, was a member of a prominent firm and was serving as counsel for (now defunct) Bankers Trust Savings and Loan Association. He, William Marvin Faust and Ralph W. Blackmon were associated in forming several corporations, including Timberlake Company and Skyview Company. At the times involved, Faust was vice president and district loan manager for the Gulf Coast District of Bankers Trust. Blackmon was executive vice president in charge of financing and loans.

The substance of the State’s case is set out in the State’s brief as follows:

One Morris “approached Faust in 1973 regarding a loan to develop Beaumont Subdivision on property north of Gulfport, Mississippi. Although Morris paid $2,500.00 per acre for the land, Faust directed him to borrow $3,000.00 per acre for the purchase in order to give Faust, Blackmon and appellant a kickback of $99,000.00 or $500.00 per acre, which sum they had agreed was feasible. (A. 100, 101, 160) In return a loan of $1,851,700.00 would be approved for Gold Coast Enterprises, Inc., of which Morris owned one-third interest. (A. 160, 165) Faust, as the loan officer, prepared the loan and submitted it to his superior Blackmon who in turn passed it to the Executive Committee. (A. 97) The kickback was concealed on the closing statement within a $179,000.00 expenditure for engineering, grubbing, and clearing the land. (A. 109, 161) Morris then wrote a check for $99,-000.00 to Timberlake Company (A. 161) which Faust received and delivered to Blackmon and appellant in Blackmon’s office. It was then deposited directly to Sky-view Company. (A. 101) Checks were later issued to Faust, Blackmon and appellant (Harrigill) each in the amounts of $15,-000.00 and $18,000.00. According to Faust, appellant (Harrigill) handed him his two checks in a book while in Blackmon’s presence.”

The assignments of error will be dealt with separately.

(1) THE TRIAL COURT’S ACTION IN REFUSING TO QUASH THE INDICTMENT.

The first assignment challenges the'trial court’s action in denying Harrigill’s motion to quash the indictment upon the special plea of the two year statute of limitations. Mississippi Code Annotated section 99-1-5 (1972).

It is argued that the indictment charges only a conspiracy, a crime not among those excepted from the operation of the two year period of limitations. There is no merit in the contention. Conspiracy is a complete offense in itself, distinct from the commission of the crime contemplated by the conspiracy and does not become merged with that crime. Martin v. State, 197 Miss. 96, 19 So.2d 488 (1944), Moore v. State, 290 So.2d 603 (Miss.1974), U. S. v. York, 578 F.2d 1036 (5th Cir. 1978), cert. den. 439 U.S. 1005, 99 S.Ct. 619, 58 L.Ed.2d 682 (1979), U. S. v. Cheers, 439 F.2d 1097 (5th Cir. 1971).

In Prisock v. State, 244 Miss. 408, 141 So.2d 711 (1962), Prisock was convicted of the statutory crime of false pretenses under then Mississippi Code Annotated, section 2149 (1942). On appeal it was contended in his behalf that the indictment was duplicitous in that it charged (1) a conspiracy to commit the crime of false pretenses as well as (2) an attempt to commit that offense. In Prisock the indictment stated:

“[D]id willfully, unlawfully and feloniously conspire, willfully scheme and design, and willfully plan in concert with the other” .

a false automobile wreck to collect money under certain insurance policies. In rejecting Prisock’s argument this Court said:

The word “conspire”, used in conjunction with “scheme, design and plan,” concerning all of the indictees, was used in a generic sense to show the concert of action of the parties in planning the false wreck, obtaining the insurance, causing the faked accident, and making the claims. A fair construction of the indictment shows that defendant was charged and convicted of the crime of an attempt to commit false pretenses. The indictment did not charge an offense of conspiracy only. It averred overt acts manifestly constituting an attempt to commit the offense.
(244 Miss. at 416, 141 So.2d at 714).

The fact that two or more persons enter into an agreement or plan to commit a felony, each playing a part, whether it be murder, false pretenses or some other felony, and carry .out the plan and actually commit the crime, does not change the nature of the offense committed nor lessen the exposure of the plotters to punishment therefor.

It is next argued that the offense charged in the indictment is barred by the two year statute because it charges Harri-gill with having been an accessory only, and that being an accessory is a separate crime, one which is not among those excepted from the operation of the statute. This position is not well taken. Section 97-1-3 Mississippi Code Annotated (1972) provides:

Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.

Prosecution of one who has been an accessory before the fact to the commission of one of the excepted felonies is not barred by the two year statute of limitations. His guilt is exactly the same as that of the principal and he suffers the same exposure to prosecution and punishment.

The indictment charged Harrigill with the crime of false pretenses proscribed by Section 97-19-39, a felony, and it was of that crime that he was convicted. In express terms, false pretenses is excepted from the two year statute of limitations.

(2) DENIAL OF APPELLANT’S MOTION FOR CHANGE OF VENUE.

A motion was made for a change of venue, based upon a contention that there existed such public resentment because of the failure of Bankers Trust Savings And Loan Association and such prejudice against those who might be accused of having been implicated in its failure, that the case could not be fairly tried in Hinds County-

An examination of the record made upon the motion, the voir dire of prospective jurors, and the testimony of witnesses, reflected that there was no widespread or significant knowledge or information among members of the public or among the prospective jurors, relating to the failure of Bankers Trust, or associating Harrigill’s name with it or as having been involved in it, as would make it impossible or even difficult to select an impartial or unprejudiced jury. Jurors who stated that they might have read about it in the newspaper were not aware of specific details and had no knowledge of the facts of the case. There was no indication of prejudice on the part of the jurors. The situation, as reflected by the record, shows that the decision as to the change of venue was a factual one, one resting within the sound judicial discretion of the trial judge. There is nothing in the record to indicate that, in denying the motion, there was an abuse of such discretion or that Harrigill was prejudiced thereby. Anderson v. State, 246 Miss. 821, 152 So.2d 702 (1963), Shimniok v. State, 197 Miss. 179, 19 So.2d 760 (1944), Irving v. State, 361 So.2d 1360 (Miss.1978).

There is no merit in the assignment that there was an abuse of judicial discretion by the trial court in the denial of the motion for a change of venue.

(3) THE ACTION OF THE TRIAL COURT IN ALLOWING ADDITIONAL QUESTIONING OF A JUROR.

Following selection of the jury, but prior to the beginning of the trial, the district attorney discovered that the son of one of the jurors was under an indictment for burglary. A request was made that in the light of that information, an inquiry be made as to the juror’s competency by additional voir dire. The trial judge, noting that no testimony had been taken and that the juror’s competency should be determined prior to the beginning of the trial, proceeded to question the juror upon the matter. The juror informed the judge that his son had been convicted of armed robbery and charged with other crimes but stated that nothing in these circumstances would cause him to favor the defense or be prejudiced against the State. He assured the court that he was not prejudiced against the judicial system or law enforcement officers and expected no benefit by voting for or against the State. The juror assured the district attorney that his son’s charges and convictions would not influence his verdict. At the conclusion of this voir dire of the juror, appellant moved for a mistrial based upon the overruling of his objection. The motion for a mistrial was denied. There was no motion by the defense to excuse the juror or to strike him for cause.

Reopening under similar circumstances has been dealt with by this Court and the rule has been laid down that the reopening for further voir dire is a matter resting within the sound judicial discretion of the trial judge. This Court will not interfere unless there has been an abuse of that discretion. Sullivan v. State, 155 Miss. 629, 125 So. 115 (1929), Moser v. Brown, 249 N.W.2d 612 (Iowa 1977), State v. Kirkman, 293 N.C. 447, 238 S.E.2d 456 (1977), Foley v. Revlon, Inc., 200 So.2d 627 (Fla.App.1967).

In Sullivan v. State, supra, relied upon by appellant on this point, this Court said:

The power to stand jurors aside after they have been accepted should be exercised with due caution, but whenever there is adequate reason for so doing, and where there is no error or harm apparent from the record resulting therefrom, this court will not interfere with the discretion of the trial judge in his rulings. (155 Miss. at 637, 125 So. at 117).

The proper procedure under the circumstances related, if appellant considered that the juror was prejudiced or had been intimidated, was to move the trial judge to strike or excuse the juror for cause, as was done in Walls v. State, 371 So.2d 411 (Miss.1979). This was not done, however. Moreover, we cannot say from the record that appellant was prejudiced by the action of the trial court in refusing to order a mistrial.

(4) ADMISSION OF THE TESTIMONY OF INVESTIGATOR GUSACK CONCERNING APPELLANT’S STATEMENT.

There was introduced at the trial a detailed statement given by Harrigill to investigator Gusack. In this statement, Harri-gill related at length and in very considerable detail how he, Faust and Blackmon had collaborated in obtaining the $99,000.00 which was the fruit of the crime charged. He further told Gusack how he, Faust and Blackmon had handled the proceeds for the crime and how it eventually was divided between them — $33,000.00 each, paid in two checks, one for $15,000.00 and one for $18,-000.00. The facts related to Gusack by Harrigill, if true, clearly established his guilt of the crime charged. The question raised on appeal is that Harrigill had been induced to make the statement by a promise of immunity.

The statement was taken by Gusack after repeated warnings to Harrigill as required by Miranda, and was recorded on tape as it progressed. Testimony relating to Harrigill’s contention that he had been promised immunity in exchange for his confession, and that he had given the statement only because of such promise, is in direct conflict with opposing testimony, including that of Gusack. Thus a factual issue was created as to admissibility for determination by the trial judge¡ as trier of facts. Evidence supporting the voluntary character of the statement and supporting the State’s contention that it had not been induced by a promise of immunity, is neither unreasonable nor implausible. It amply supports the finding that the statement had been voluntary and that there had been no promise of immunity. In this connection, the testimony of Gusack is supported by the taped record of his interview with Harrigill. A decision of such a question of fact on conflicting evidence will not be set aside by this Court where there is substantial and believable evidence supporting it as there was in this case.

We have considered each of the questions raised and we find no merit in any of them. Harrigill’s statement and the testimony of Faust overwhelmingly support the jury’s finding that Harrigill was guilty of the crime charged. It appears that Harrigill was properly indicted, fairly tried and convicted and that no prejudicial error occurred in the course of his trial. The conviction and sentence must, therefore, be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: LEE, Justice,

license: Public Domain

text:
    Louise B. BARRETT, Individually and as Executrix of the Estate of James Eugene Barrett, etc. v. Dr. Ellis MOFFITT.
    No. 51751.
    Supreme Court of Mississippi.
    March 19, 1980.
    Young, Scanlon & Sessums, E. Stephen Williams, Jackson, for appellant.
    Stennett, Wilkinson & Ward, Shelby R. Rogers, Jr., Jackson, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Louise B. Barrett, individually, and as executrix of the Estate of Eugene B. Barrett, deceased, and her children appeal from a judgment of the Chancery Court of the First Judicial District of Hinds County, Mississippi, entered in favor of Dr. Ellis Moffitt [Moffitt] in the amount of nine thousand six hundred seventy-eight dollars twelve cents ($9,678.12).

The Barretts contend that Moffitt failed to probate his claim as required by law and that such failure is a bar to this action.

Moffitt and one Lee West were partners in a livery stable business known as Horse-haven Stables, and they borrowed twenty-five thousand dollars ($25,000) from Citizens’ National Bank of Jackson, Mississippi, through a single-payment promissory note. The funds were used in the capitalization of the enterprise. On January 16, 1974, that note was paid by converting same to an installment promissory note with a balance, principal’ and interest, of thirty-five thousand six hundred eleven dollars twenty cents ($35,611.20), payable in monthly installments of five hundred ninety-three dollars fifty-two cents ($593.52).

James Eugene Barrett and William E. Fowler also operated a livery stable business, known as Siwell and Southern Stables, Inc. On July 1,1974, they purchased all the equipment and chattels of Horsehaven Stables, and a bill of sale was executed to them by Moffitt and West, in which instrument Barrett and Fowler assumed payment of the installment note in the original amount of $35,611.20. In November, 1974, Barrett purchased Fowler’s interest in Horsehaven, Siwell and Southern Stables, Inc., and Barrett made the monthly payments until he died on June 8,1977. Barrett’s widow qualified as executrix of his last will and testament and continued the monthly payments for approximately four (4) or five (5) months after his death and then, upon the advice of the estate’s attorney, she discontinued making the payments. The original note was not secured to the Citizens’ National Bank, and Moffitt and West did not require Barrett and Fowler to secure same when the property was transferred to them.

Upon default in the payment of the installments by the Barrett estate, the bank called upon Moffitt to pay the balance of $9,678.12. He complied with the demand by executing a 90-day note- in said amount payable to the bank. He then sued Mrs. Barrett, individually, and as executrix, on June 7, 1978, for the balance of the note which he paid. The complaint was later amended to include other beneficiaries under the will.

After the executrix of Barrett’s estate qualified, notice was published July 8, 15, and 22, 1977, for all creditors to file claims against the estate within ninety (90) days from the date of the first publication of the notice or the claims would be barred. The 90-day period had been expired for approximately eleven (11) months at the time Mof-fitt filed his bill of complaint.

There is little dispute in the facts. The threshold question is whether or not appel-lee’s claim was barred by the 90-day statute of limitations for failure to probate it within that period. Mississippi Code Annotated Section 91-7-151 (Supp.1979) provides, in part:

“All claims against the estate of deceased persons, whether due or not, shall be registered, probated, and allowed in the court in which the letters testamentary or of administration were granted within ninety (90) days after the first publication of notice to creditors to present their claim. Otherwise, the same shall be barred and a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or administrator. . . .” (Emphasis added)

Appellee contends that the claim of Dr. Moffitt was an inchoate and contingent claim and briefs his position as follows:

“Prior to the death of Barrett, Moffitt had no cause of action against Barrett. Moffitt’s claim did not accrue until January of 1978, when Moffitt paid off the note; or at the earliest in November of 1977, when the note went into default status. At both of these times, the 90-day period for filing of claims under Section 91-7-151 had already elapsed. The Reedy and Sledge cases clearly state that in order for a ‘claim’ to be the type which is required to be probated in accordance with Section 91-7-151, that claim: (1) must have been enforceable against the decedent during his lifetime; and (2) must not be an inchoate or contingent claim.
In the case at bar, until such time as Barrett and Fowler breached their contract to pay the monthly installment payments on said note as and when due, no claim accrued which could be sued upon by Moffitt, West, the Bank or . anyone else. Until Barrett and Fowler breached their duty to Moffitt and West by failing to make the payments to the Bank as they contracted to do, Moffitt did not have a cause of action against Barrett or Fowler.”

Moffitt’s claim against Barrett was specifically for the balance of the note which Barrett assumed, and was enforceable during the lifetime of Barrett, although suit could not be instituted as long as the installments were paid as they became due. The contention of Moffitt is contrary to the statute and the holding of this Court in Reedy v. Alexander, 202 Miss. 80, 30 So.2d 599 (1947), where it was stated:

“The term ‘claim’ in statutes relating to claims against estates includes not only debts already due, but unmatured debts. Roth v. Ravish et al., 111 Conn. 649, 151 A. 179, 74 A.L.R. 364. It applies only to specific money demands due or to become due and not to inchoate and contingent claims. Evans v. Hoyt, 153 Ark. 334, 240 S.W. 409.” 202 Miss. at 89, 30 So.2d at 601.

Appellee cites Sledge & Norfleet Co. v. Dye, 140 Miss. 779, 106 So. 519 (1926) which held that secondary and contingent claims are exceptions to the Mississippi non-claims statute. In Sledge, two (2) notes due from Coldwater Mercantile Company to Mrs. Jones were endorsed by her to Sledge & Norfleet Company as collateral security for an indebtedness. Sledge failed to probate the notes and instituted suit against Mrs. Jones’ estate. The Court held that the claim was secondary because the notes were given as collateral security and that the claim was contingent because the corporation was primarily liable and might have paid the notes. The Court said:

“Not only was the liability by virtue of this indorsement secondary, but it was contingent upon the failure of the Cold-water Mercantile Company to pay its indebtedness to the appellant when the same became due. Whether the Coldwa-ter Mercantile Company would pay or fail to pay the note to the appellant, for the payment of which the two notes indorsed by the testatrix were pledged, could only be ascertained after the same became due on November 15, 1922, which was long after the death of the testatrix.” 140 Miss. at 786, 106 So. at 520.

The present case is different from Sledge for the reason that Barrett and Fowler assumed the indebtedness owed by Moffitt and West and agreed to pay that indebtedness. Barrett was primarily liable to Mof-fitt and no contingency was involved.

Reedy v. Alexander, supra, quoted from Roth v. Ravich et al., 111 Conn. 649, 151 A. 179, 74 A.L.R. 364 (1930), in which the facts are similar to the case at bar. The Roth court said:

“The assumption agreement of Hicks was an absolute obligation to pay the full amount of the note according to its terms, and, so far as appears, it was not qualified or conditioned upon any happening or contingency whatsoever. The .trial court properly held that this was an obligation existing at the death of Hicks and that legal presentation of his claim by the plaintiff was required by law to render it enforceable against the estate. Hicks, by his own payments and his executors in the same way after his death, had recognized the claim as existing. The deficiency now ascertained is merely the unpaid balance of that claim. That its existence and amount were not known until found in the present action in no way affects its character as a part of the obligation created by the assumption agreement. . The term ‘claim’ as used in our statutes includes not only debts already due and payable, but unmatured debts, for these are nevertheless existing obligations and capable of proof. In this respect, they are distinguished from claims which are contingent or mere possibilities.” 151 A. at 180, 74 A.L.R. at 366.

The statute is plain and unambiguous that claims must be probated within the 90-day period, whether due or not. If a creditor desires to share in the general assets of the estate along with other creditors, he must probate his claim. If he is satisfied to rely upon the security for payment of a secured claim, he may do so without probating same and participating in the general assets of the estate.

The lower court erred in holding that Moffitt’s claim was not a probatable claim and that the statute did not apply. Since the decision on that question disposes of the case, it is not necessary to discuss the other assignments of error. The judgment of the lower court is reversed and judgment is rendered here for appellants.

REVERSED AND RENDERED.

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


author: ROBERTSON, Presiding Justice,

text:
    W. H. “Shag” PYRON v. Bob JOINER.
    No. 52011.
    Supreme Court of Mississippi.
    March 19, 1980.
    Wheeless, Beanland, Shappley & Bailess, John C. Wheeless, Jr., Vicksburg, for appellant.
    Keyes, Moss & Piazza, Ben J. Piazza, Jr., Earl Keyes, Jackson, Samuel E. Farris, Hat-tiesburg, for appellee.
   ROBERTSON, Presiding Justice,

for the Court:

On August 27, 1979, W. H. “Shag” Pyron filed his Petition to Contest with the State Democratic Executive Committee challenging the Committee’s certification of Bob Joiner as the winner in the Democratic primary election for Highway Commissioner from the Southern District, the Committee having found that Joiner was the winner by 5 votes, he having received a total of 133,-857 votes, and Pyron 133,852 votes in the Democratic primary election held on August 7, 1979. On the contest, the Committee adhered to its former action and granted no relief.

Pyron then filed his Petition for Judicial Review on September 26, 1979, in the Circuit Court of Claiborne County. Pursuant to Mississippi Code Annotated section 23-3-45 (1972), the Chief Justice of the Supreme Court of Mississippi designated and notified Chancellor John C. Love, Jr. to hear and determine this election contest. The judgment of the Special Tribunal rendered on November 13, 1979, stated:

“THIS CAUSE coming on to be heard on the Petition for Judicial Review filed by W. H. ‘Shag’ Pyron and the Answer and Cross-Petition thereto filed by Bob Joiner, said pleadings containing all of pleadings heretofore filed with the State Democratic Executive Committee, and trial of this matter having been commenced on October 15, 1979, in the Circuit Court of Forrest County, Mississippi, in Hattiesburg, Mississippi, said trial having been recessed from day to day, and the situs of said hearing having been moved from time to time to other counties in the district for purposes of convenience, through the date of this Judgment, and the Court, after having heard and considered evidence presented thereon in open court, finds as follows, to-wit:
That, based upon examination of the contents of ballot boxes in twenty (20) of the thirty (30) counties in the Southern Highway District, and, as the result of prior rulings dictated by the Court into the record, that the total votes certified for Bob Joiner should be reduced by 4,565, and the total count certified for W. H. ‘Shag’ Pyron should be reduced by 5,677 votes leaving Bob Joiner with a total vote of 129,292 and W. H. ‘Shag’ Pyron with a total vote of 128,175.
That, having made adjustments in vote totals as previously determined to be necessary, after considering the pleadings of the parties and evidence presented, the Court has determined that Mr. Bob Joiner has a majority of the votes which could legally be counted and considered in connection with this election.
That the Court has announced its findings and its opinion in Open Court, and has filed with the Court a written Opinion, said Opinion being attached hereto as Exhibit ‘A’ and made a part hereof as if copied herein in words and figures in full, and that, based upon the evidence, the Court finds that the relief sought by W. H. ‘Shag’ Pyron should be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Petitioner, W. H. ‘Shag’ Pyron has not proved that he received the most legal votes, or that substantial irregularities in material particulars have occurred so as to justify the calling of a new election, and that, therefore, the relief sought by the Petitioner should be denied and same is hereby denied.”

The margin of Joiner’s victory was thus raised from 5 to 1,117.

Pyron has appealed to this Court, and contends here that:

1. The Special Tribunal erred in not ordering a new election because the number of illegal votes exceeded Joiner’s winning margin, and
2. The Special Tribunal erred in allowing Joiner to amend his pleadings by deleting from his cross-petition allegations made in his cross-petition before the State Democratic Executive Committee.

The Special Tribunal found that as a result of mathematical or counting errors, contestee Joiner had a net gain of 194 votes, and contestant Pyron had a net loss of 92 votes. Due to improper initialing of ballots or failure to initial ballots, 4,332 votes were declared illegal. Because of managers’ failing to count ballots on election day, 258 ballots were declared illegal. Because of ballots marked in lead pencil, 175 votes were declared illegal. Due to a variation in the number of ballots in a box and the number of persons signing the voter register, 225 votes were declared illegal. Because of tampering with a box following the election, 107 votes were declared illegal. These votes declared illegal totaled 5,097 and constituted 1.9% of the 267,709 total votes cast.

Another group of votes totaling 5,290 from Jefferson Davis County was thrown out. Initially these votes were officially counted in the proper manner but the Circuit Clerk failed to properly reseal the ballot boxes after the official count was concluded. Pyron had a 536 vote lead in that county based on the original certification. Joiner moved to invalidate all of the votes in that County and Pyron confessed Joiner’s motion.

In his opinion, Chancellor Love stated that the only reason he sustained Joiner’s motion to invalidate these votes was because Pyron confessed the motion, and that:

“It was obvious at that point in the proceedings that Mr. Pyron was trying to have all the votes possible declared void in hopes of obtaining a new election and it was for this reason that he confessed the motion.”

In hindsight, the trial judge was of the opinion that, under Allen v. Funchess, 195 Miss. 486, 15 So.2d 343 (1943), “the proper procedure would have been to accept the certified result and simply not permit re-examination of those boxes,” since the discrepancy occurred after the votes had been officially counted and before the contest was filed.

The trial judge also stated:

“[T]hat even if the Court had accepted the certified figure from Jefferson Davis County, the net result would have been to only add 536 votes to Mr. Pyron’s total, and he would still not have had a majority of the votes at the conclusion of these proceedings.”

The Tribunal did not consider these 5,290 votes from Jefferson Davis County in computing the ratio of illegal votes cast (5097) to the total votes cast (267,709). Even if these 5,290 votes were added to the 5,097 illegal votes cast, the total would move up to 10,387 illegal votes and the percentage from 1.9% to 3.9%.

In O’Neal v. Simpson, 350 So.2d 998 (Miss.1977), this Court quoted with approval from Pradat v. Ramsey, 47 Miss. 24 (1872):

“The fundamental principle to which the judiciary look, is whether the election has had a termination, according to the will of a plurality, or majority of those qualified to vote.
“If the election was held at the proper time and place, and under the supervision of competent persons, irregularities which concern merely the form of conducting it will not avail; it must be shown that legal votes have been rejected, or illegal votes have been received, and that because of the one or the other, or both, the result does not conform to the will of the voters, or uncertainty has been cast upon the result.” 350 So.2d at 1009.

In Walker v. Smith, 213 Miss. 255, 56 So.2d 84, Suggestion of Error, 213 Miss. 255, 57 So.2d 166 (1952), this Court said:

“In the present case, there were 80 illegal votes, and a total vote of 1229, the illegal votes being only 6.5% of the total votes cast. We do not think that the present facts would warrant the court in saying that there is such a substantial failure to comply in material particulars with the statutes as to invalidate the election, as occurred in May v. Layton, supra, and only under such a state of facts is the contestant’s burden of proof reduced from a showing that the contes-tee’s illegal votes if eliminated would change the result, to proving only that enough illegal votes were cast to change the result or leave it in doubt. Appellee therefore failed to meet his burden of proof in contesting Walker’s nomination.” 213 Miss. at 265, 57 So.2d at 167.

Pyron contends that this language from O’Neal changes the method of comparison from that used in Walker:

“In this case more than seventy votes at the Darling precinct must be voided for the reasons heretofore stated in this opinion. Only twelve votes separated the two candidates in this election so there were sufficient illegal votes to change the result, or to cast uncertainty upon the result, so that the will of the voters cannot be ascertained.” 350 So.2d at 1012.

In O’Neal, the Court said it was confronted with two courses of procedure that could be followed. We said:

“First, we could disregard the vote at the Darling precinct [359 votes] because of the violations heretofore shown and declare O’Neal the winner, or, second, we could order a new election. If we followed the first alternative the effect would be to disfranchise a large number of legal voters at the Darling precinct [359]. This we do not choose to do. Because enough illegal votes were cast to change the result of the election, we declare the office of Supervisor, District No. 1, Quitman County, vacant and the Board of Supervisors is directed to fill the vacancy and order an election under the provisions of Section 23-5-195 Mississippi Code of 1972 Annotated.” 350 So.2d at 1012.

If all 359 votes cast in the Darling precinct were thrown out and the percentage was figured by dividing 359 by 942 (the total votes cast) the percentage of illegal votes would have been 38.11%. Not only would over Vsrd of the total votes cast have been invalidated, but also the result of the election would have been changed and the winner would have been O’Neal instead of Simpson.

We are of the opinion that, inasmuch as the illegal votes cast were only 1.9% of the total votes cast, or at most 3.9% (if the total Jefferson Davis County vote was considered in the total of illegal votes), and inasmuch as the result was not changed nor was any doubt or uncertainty cast on the result being in conformity with the will of a majority of the voters, the Special Tribunal was correct in finding that Bob Joiner was the winner in the Democratic Primary and would be the Democratic nominee for Highway Commissioner from the Southern District.

The second assignment of error was that the Special Tribunal erred in allowing Joiner to amend his cross-petition by deleting therefrom certain allegations of irregularities in certain voting precincts. Mississippi Code Annotated section 23-3-49 (1972), contains this pertinent language:

“[T]he judge or chancellor being, however, the controlling judge both of the facts and the law, and to have all the power in every respect of a chancellor in term time; and the tribunal shall be attended by the sheriff, and clerk, each with sufficient deputies, and by a court reporter. The special tribunal so constituted shall fully hear the contest or complaint de novo, and the original contestant before the party executive committee shall have the burden of proof and the burden of going forward with the evidence in the hearing before the special tribunal.” (Emphasis added).

The Court also said in Darnell v. Myres, 202 Miss. 767, 32 So.2d 684 (1947) [quoting from Harris v. Stewart, 187 Miss. 489, 193 So. 339, 341 (1940)]:

“In matters of practice and procedure under [The Corrupt Practices Act], and in respect to which the Act itself is silent, there will be applied the usual rules of procedure which prevail as regards other cases.” 202 Miss. at 774, 32 So.2d at 685 (Emphasis added).

The usual rule of procedure as to amending pleadings is stated in Mississippi Code Annotated section 11 — 5-53 (1972):

“Amendments shall be allowed in the pleadings and proceedings, on liberal terms, to prevent delay and injustice.”

There is no merit in this second assignment of error.

For the reasons herein stated, the judgment of the Special Tribunal, finding and adjudging that Bob Joiner was the winner in the Democratic Primary and would be the Democratic Nominee for the position of Highway Commissioner from the Southern District, is affirmed.

AFFIRMED.

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


text:
    Billy Joe GREGORY v. STATE of Mississippi.
    No. 51697.
    Supreme Court of Mississippi.
    March 19, 1980.
    Eugene Sexton Berry, Jr., Jackson, for appellant.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

A. F. Summer, Atty. Gen., by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

AFFIRMED.


text:
    Robert A. WILLIAMS v. STATE of Mississippi.
    No. 51462.
    Supreme Court of Mississippi.
    March 19, 1980.
    Richard L. Yarbrough, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
    PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE and COFER, JJ., concur.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

AFFIRMED.


text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY v. Tee TAYLOR and Yazoo Development Corp.
    No. 51743.
    Supreme Court of Mississippi.
    March 19, 1980.
    Daniel, Coker, Horton, Bell & Dukes, Curtis E. Coker, Thomas H. Suttle, Jr., Jackson, for appellant.
    Eaves & Eaves, John Arthur Eaves, Jackson, for appellees.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

AFFIRMED.


author: C. C. Torbert, Jr. Chief Justice

text:
    OPINION OF THE JUSTICES.
    No. 268.
    Supreme Court of Alabama.
    March 27, 1980.
   Members of the House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs and Mesdames:

On March 13, 1980, the Honorable John W. Pemberton, Clerk, House of Representatives, forwarded to this Court a copy of House Resolution 110, which requests that the Justices of this Court render an advisory opinion on certain constitutional questions pertaining to House Bill 411. That bill basically provides for the annexation of certain territory to the City of Hoover and contains the following substantive provisions:

A BILL TO BE ENTITLED AN ACT
To alter or rearrange the boundary lines of the City of Hoover, Jefferson County, Alabama, so as to include within the corporate limits of said city all territory now within such corporate limits and also certain other territory contiguous thereto, in Jefferson and Shelby County, Alabama, to provide for an election by residents of the territory to be annexed, to provide for the zoning of the territory upon annexation into the City of Hoover, to provide for a limitation on increases of ad valorem taxes, to provide for an exemption from the imposition of “occupational taxes” on persons employed within the territory be annexed, and to ratify an agreement between the City of Hoover and the owners of a part of the territory to be annexed concerning the development of such territory, and' which agreement provides, among other things, for the financing, construction and operation of a sewage treatment facility to serve a portion of the territory to be annexed. BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. That the boundary lines of the City of Hoover, Jefferson County, Alabama, be, and the same are hereby altered or rearranged so as to include all of the territory heretofore encompassed by the corporate limits of the City of Hoover and in addition thereto the following described territory, to-wit: [the metes and bounds description of the territory to be annexed is omitted because it is unnecessary for resolution of the issues presently under consideration].
Section 2. This Act shall be inoperative and void unless it shall have been approved by a majority of the qualified electors of Jefferson and Shelby Counties who live in the area to be annexed voting thereon at a referendum held for such purpose. The Boards of Registrars of Jefferson and Shelby Counties shall furnish to the City Clerk of the City of Hoover the names of those electors qualified to vote in this election no later than fifteen (15) days prior to the date of the election provided for herein. The election shall be held and conducted as nearly as may be in the same manner as elections on constitutional amendments, and shall be called and held by the City of Hoover not later than on the same day as the next general election of the municipal, county or state officers next following final passage of this Act. The City Clerk shall give notice, which notice shall be published in newspapers of general circulation in Jefferson and Shelby Counties, Alabama, once each week for three consecutive weeks before the day of the election. On ballots to be used at the election, the proposition to be voted on shall be stated substantially as follows:
“Do you favor the annexation of the property described in the notice calling for this election to the City of Hoover? Yes () No()”
If a majority of the votes cast at the election are affirmative votes, this Act shall be in full force and effect immediately thereafter. If a majority of votes cast are in the negative, this Act shall have no further effect. The votes shall be certified as provided by law, and all costs incurred with the said referendum shall be borne by the City of Hoover.
Section 3. All of the territory to be annexed to the City of Hoover pursuant to this Act shall be exempt from any increases in the rate of city ad valorem taxes in effect on the effective date of such annexation for the period of fifteen (15) years from such date, and persons employed within such territory shall be exempt from the imposition of any form of occupational taxes during such fifteen (15) year period; provided, however, that nothing herein shall prevent the City of Hoover from imposing any sales tax allowed by law on sales within the annexed territory.
Section 4. The Annexation Agreement executed by the City of Hoover and concerning the development of a portion of the territory to be annexed, and which agreement provides, among other things, for the financing, construction and operation of a sewage treatment facility to serve a portion of the annexed territory, is hereby ratified. Effective immediately upon annexation, the annexed area shall receive a Planned Unit Development (PUD) zoning classification under the Zoning Ordinance of the City of Hoover, and those parts of the annexed area which have already been developed shall be within a PUD land use district appropriate to their then present use and in accordance with any recorded restrictions on such areas.
Section 5. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
Section 6. All laws or parts of laws which conflict with this Act are hereby repealed.
Section 7. The provisions of this Act calling for an election shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law, and all other provisions shall become effective as otherwise herein stated.

With regard to H.B. 411, House Resolution 110 requests the opinion of the Justices on the following questions:

1. Does H.B. 411, which (1) rearranges the boundary of the City of Hoover, (2) provides for a referendum election by the residents of the proposed area, (3) provides for zoning of the annexed area, (4) exempts or limits certain taxes within the annexed area, and (5) ratifies certain agreements between the City of Hoover and residents of the proposed area, violate Section 45 of the 1901 Constitution of Alabama which provides, in part, that “each law shall contain but one subject, which shall be clearly expressed in its title”?
2. Does Section 4 of H.B. 411 violate Section 106 of the 1901 Constitution of Alabama, which states in part that the publication of notice “shall state the substance of the proposed law”? Specifically, do mere references to the “Annexation Agreement" (which is not a matter of public record) and to the Planned Unit Development (PUD) zoning ordinances of the city of Hoover in Jefferson County give the electors of Shelby County substantial notice of the law proposed by Section 4 of H.B. 411?

The answer to question one is in the negative; the answer to question two is in the affirmative. Because the specific questions asked are basically procedural in scope and focus upon certain problems which may be involved in the enactment and execution of House Bill 411 as it presently stands, you should not assume that the bill is otherwise valid and free from any substantive constitutional defects.

House Bill 411 is clearly a local law within the meaning of § 110 of the Alabama Constitution, as amended in November 1978, because it is limited in its application to a single political subdivision of this state, i. e., the City of Hoover. Local legislation is severely and strictly limited; in fact, its passage is constitutionally prohibited in certain situations. Section 104 of our Constitution is the major section which regulates the enactment of local laws. It contains a list of thirty-one (31) provisions which outline situations in which the enactment of a local law is constitutionally prohibited.

We now address your specific question about the adequacy of notice. Section 4 of H.B. 411 alludes to an “Annexation Agreement” executed between the City of Hoover and the residents of the territory to be annexed, whereby the City relinquishes its powers to exercise discretion in zoning the annexed area and assumes binding obligations with regard to the construction of sewage treatment facilities. The obligations thus assumed by the City must be considered very seriously, even more so because they are incorporated into the presently contemplated legislation.

We do not have a copy of the Annexation Agreement before us, but by reading H.B. 411, we can tell that the powers of the governing body of the City of Hoover are necessarily affected and it could be bound under a contract to construct substantial public improvements. We are prepared to say immediately that any agreement, whether affecting governmental powers or not, if referred to in local legislation, and which is ratified by the passage of that legislation, must be advertised as required by the Constitution. Section 106, as amended by Amendment 341, Constitution of Alabama 1901.

We feel that the very purpose of notice is to convey information to persons about prospective action on matters in which they have a fundamental interest. Wilkins v. Woolf, 281 Ala. 693, 208 So.2d 74 (1968). Only those persons holding such interests need be notified. Who then under H.B. 411 has an interest in the action contemplated thereunder? Who has an interest in the annexation of additional territory to the City of Hoover? We conclude that the residents of both the annexed and annexing territories have a direct interest. Their interests, though different, are equally important and must be respected. Their interests can best be summarized as follows:

To be sure, the interests of the annexing and annexed areas are far from identical. The municipality’s desire,' for example to erase the obstacles which a boundary poses to the exercise of its taxing and regulatory powers may be countered by the wish of those beyond the boundary to use it as a fence against acute social problems and conflicts in the city. But the distinction between these interests is not that one set is of overriding magnitude compared to the other; rather, the two areas hold opposing views on the same substantive questions. Annexation may sharply change the costs and benefits of government for the an-nexees, submerging their smaller numbers in the annexing municipality. In this respect, the impact on annexees is greater than on the residents of the annexing area. However, to the extent that the annexation guides the future growth and nature of a region, initial differences in its impact may be of relatively less importance. Annexing and annexed citizens clearly share general concerns with the governance and welfare of the area. Given the similar interests of the two areas, disfranchising either seems improper.

Note, The Right to Vote in Municipal Annexations, 88 Harv.L.Rev. 1571, 1578 (1975). The residents of both areas have an interest; therefore, both must be notified. In connection with H.B. 411, this notification should include the content of any “Annexation Agreement” and should set forth the proposed action to be taken.

We have now answered your specific inquiry, but we suggest that the legislature may want to consider whether H.B. 411 may also violate the Constitution because it alters or amends the Charter of the City of Hoover in violation of Section 104(18) of the Constitution, by specifically altering the City’s power to zone and grant tax exemptions, currently a part of the general laws, and, consequently, incorporated into Hoover’s charter. See Trailway Oil Co. v. City of Mobile, 271 Ala. 218, 223, 122 So.2d 757, 762 (1960).

RESPECTFULLY SUBMITTED,

C. C. Torbert, Jr. Chief Justice

Hugh Maddox

James H. Faulkner

Reneau P. Almon

Janie L. Shores

Sam A. Beatty

Associate Justices


author: WRIGHT, Presiding Judge. HOLMES, Judge,

text:
    The CENTRAL FOUNDRY CO. v. Paul Anthony BROWN et al.
    Civ. 2004.
    Court of Civil Appeals of Alabama.
    Dec. 5, 1979.
    Rehearing Denied Jan. 9, 1980.

      Thomas B. Huie of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellant.
    William J. Donald, III of Zeanah, Donald & Hust, Tuscaloosa, for appellees.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

The employer appeals from an award of death benefits to the natural children of an employee who was killed in an industrial accident on July 15, 1978. We affirm.

The facts of the ease are undisputed. The parents of the two minor claimants were divorced in 1972. In 1973 the claimants’ mother remarried, and on May 31, 1976, her new husband adopted the two children.

Appellant contends that the trial court erred in finding that the natural children of the deceased employee, adopted by and living with an adoptive father before the death of the natural father, are “dependents” of the natural father and entitled to benefits under § 25-5-60, Code of Alabama (1975).

For purposes of the Workmen’s Compensation Act certain persons are conclusively presumed to be wholly dependent upon the deceased employee. Among those presumed wholly dependent are “minor children under the age of 18 years and those over 18, if physically or mentally incapacitated from earning.” § 25-5-61(3), Code of Alabama (1975). It is undisputed that both claimants are under the age of eighteen years and that they are the natural children of the deceased employee.

Appellant argues that under Alabama law concerning adoption the claimants are to be considered the children of their adoptive father and that they should no longer be considered “children” of the natural father as that word is used in § 25-5-61(3). We do not agree.

The term “children” as used in the Workmen’s Compensation Act is defined to include “. . . posthumous children and all other children entitled by law to inherit as children of the deceased.” § 25-5-1(2), Code of Alabama (1975). There is no statement in the Workmen’s Compensation Act which indicates that the act of adoption takes a child out of the terminology of “children” of his natural father. All that is required is that the adopted child be entitled to inherit as a child of the deceased. Section 26-10-5(c) of the Code ends with: “Nothing in this chapter shall be construed as debarring a legally adopted child from inheriting property from its natural parents or other kin.”

We consider the reasonable construction of § 25-5-61(3) is that every child under the age of eighteen is conclusively presumed to be “wholly dependent” upon its natural parent, even though at the time of the death of the parent, the child had been adopted by and is living with adoptive parents. While this may in some instances result in a double dependency, we do not find this disturbing. The legislature in § 26-10-5(c) has given an adopted child the right of double inheritance. Such child may inherit from the adoptive parents and from the natural parents or other natural kin as well.

While this case presents a case of first impression in Alabama, other jurisdictions have been faced with the problem of an adopted child’s right to workmen’s compensation benefits upon the death of its natural parent and reached the same result. See, i. e., Snook v. Herrman, 161 N.W.2d 185 (Iowa 1968); Holland Construction Co. v. Sullivan, 220 Ark. 895, 251 S.W.2d 120 (1952); Shulman v. N. Y. Board of Fire Underwriters, 15 A.D.2d 700, 223 N.Y.S.2d 312 (1962).

The trial court’s award of benefits to claimants is affirmed.

AFFIRMED.

BRADLEY, J., concurs.

HOLMES, J., concurs specially.

HOLMES, Judge,

concurring specially:

The opinion authored by our presiding judge is correct under the existing law of Alabama. However, I see no rational basis for permitting an adopted child to retain a birthright of inheritance from his or her natural parents when their legal relationship has been terminated.

      . Adoption statute.


author: TORBERT, Chief Justice.

text:
    Ex parte The CENTRAL FOUNDRY COMPANY. In re The CENTRAL FOUNDRY CO. v. Paul Anthony BROWN et al.
    79-304.
    Supreme Court of Alabama.
    March 28, 1980.
   TORBERT, Chief Justice.

WRIT DENIED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: HOLMES, Judge.

text:
    Carl Ray ROBINSON v. Esther M. ROBINSON.
    Civ. 1903.
    Court of Civil Appeals of Alabama.
    Jan. 2, 1980.
    Rehearing Denied Jan. 30, 1980.

      Lee E. Bains and Jon B. Terry, Bessemer, Douglas P. Corretti and Samuel Maples of Corretti, Newsom & Rogers, Birmingham, Claude E. Bankester of Wilkins & Bankes-ter, Bay Minette, for appellant.
    James B. Kierce, Jr., of Stone, Patton & Kieree, Bessemer, L. Drew Redden of Redden, Mills & Clark, Birmingham, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

The husband appeals, contending that the trial court abused its discretion in the division of property, the award of alimony, the placing of liens upon the property, awarded to the husband, and the award of attorneys’ fees to the wife’s attorneys.

We find that the trial court did not commit reversible error in regard to the above and affirm.

Viewing the record with the attendant presumption, we find the following:

The parties were married for approximately thirty-three years. There were five children born of the marriage, all of whom have reached majority.

The wife is approximately fifty-three years old and has a high school education but no special job training or skills. The husband is fifty-two and is a medical doctor and an attorney-at-law. The husband’s medical practice grew to such an extent that the family lived in a state of affluence from the late 1950’s. The family resided in a comfortable home, the wife always drove a late model automobile and enjoyed other luxuries because of the husband’s large income.

During the period from 1972 to 1977, the husband received in cash, from salary and loans from his medical practice, over 1.6 million dollars. In 1977, he had income from his law practice in excess of $150,000. Although there was evidence that the husband’s income from his medical practice had been curtailed because he had been cut off from the Medicaid program, the husband still retained a very substantial medical practice and had several suits pending in his law practice. His income is still in the range of “six figures.”

Because of this large income, the husband acquired a great deal of realty and other assets. Although the evidence relating to these assets of the husband is not a paragon of clarity, it appears that the husband’s net worth at the time of the divorce was in excess of $750,000.

The record further reveals that the husband admitted having ten or eleven adulterous affairs during his marriage to the wife. There was evidence and the trial court so found that the husband had left the wife in 1972 and since that date had lived in a state of open adultery with a younger woman. The husband testified that this paramour had gotten her name legally changed to Robinson so that fewer questions would be asked by curious neighbors.

The trial court, after an ore ten us hearing, granted the wife’s petition for divorce on the ground of adultery. A division of property was made with the wife receiving the family residence, real estate and a life insurance policy. The combined worth of these assets is approximately $415,000. The husband was awarded a farm and country house and other real estate holdings with a minimum value of $450,000. Regarding the minimum value of the real estate, part of the realty awarded to the husband consisted of a 150,000 acre tract in Brazil. The husband testified at trial that the tract was worth $100,000. However, in an extra-judicial, sworn financial statement the husband fixed the market value of this property at $5,000,000. He made other extra-judicial statements that the Brazilian property was worth $10,000,000. There was evidence that the husband had spent approximately $150,000 in improvements and expenses on the Brazilian property.

Of all the assets awarded to the wife, only one tract of land was encumhered by a mortgage for which the husband is responsible to satisfy. This tract was ordered sold by the trial court and the proceeds divided after reduction for payments made by the husband on the mortgage, etc. Thus, there is no continuing financial burden placed on the husband with regards to the property awarded to the wife.

The husband was also required to discharge any unpaid income tax deficiencies. The trial court placed a lien upon all of the property awarded to the husband to protect the rights of the wife.

As periodic alimony the husband was required to pay the wife $2,500 per month. Additionally, the husband was required to pay the wife attorneys’ fees of $25,000.

Through able counsel, the husband contends that the trial court abused its discretion in its division of property and award of alimony because the husband is heavily in debt and because of a decrease in the husband’s earning capacity.

At the outset, we note that when the evidence in a divorce case is heard ore ten us by the trial court, its findings are presumed correct and the trial court’s division of property and award of alimony will not be disturbed on appeal in the absence of proof that discretion was exercised in an arbitrary and unjust manner. Johnson v. Johnson, Ala.Civ.App., 360 So.2d 996, writ denied, Ala., 360 So.2d 999 (1978); Meyers v. Meyers, 55 Ala.App. 697, 318 So.2d 725 (1975).

When considering an award of alimony or division of property, the trial court may consider certain factors depending upon the facts of a particular case. See, Goodwin v. Goodwin, Ala.Civ.App., 364 So.2d 678 (1978).

One factor that may be considered is the earning capacity of the parties. Clearly, the husband in the instant case has a tremendous earning capacity. Despite the contention of the husband that his earning capacity has decreased, his last reported income tax return shows an income from his medical practice in 1976 in excess of $150,000. Additionally, in 1977, he received legal fees of approximately $175,000. Without question, the husband, who is a doctor and a lawyer, has the skills and ability to produce great sums of money, while the wife has little or no earning ability.

An additional factor which may be considered is the conduct of the parties with reference to the cause of the divorce. Clearly, in this instance, the husband’s actions were an important consideration in the trial court’s award. In fact, the trial court found that the husband had been living in “a state of open and notorious adultery.”

We find that the property division, which when viewed in light most favorable to the husband, awarded the wife less than half of the husband’s estate, is not an abuse of discretion. This is particularly so in view of the circumstances of the case, including the husband’s misconduct and his earning capacity. See, Smith v. Smith, Ala.Civ.App., 369 So.2d 1235 (1979).

As noted above, the husband contends that he has experienced a decrease in income and is heavily in debt such that an award of $2,500 per month as periodic alimony is an abuse of discretion.

However, we again emphasize the fact that the husband, despite any decrease in earnings, still has income well into the six figures and has an earning capacity which is in no way impaired.

In addition, the wife presented evidence as to need of support and as to her standard of living. The husband’s claim of indebtedness is a secondary consideration when compared to the obligation to support his wife in relation to his income and the manner in which the wife is accustomed to living. Thus, the award of $2,500 per month as periodic alimony is not an abuse of discretion. See, Cranton v. Cranton, Ala.Civ.App., 347 So.2d 997 (1977).

Next, the husband contends the trial court erred in placing liens on all of the real property awarded to him to secure payment of and compliance with the final decree because the liens cloud the title of the property and lessen its market value.

However, the law in this state is to the effect that a decree can properly fix a lien on all of the real property of the husband. See, Davenport v. Davenport, 276 Ala. 87, 159 So.2d 204 (1963). We find no error in the placing of the liens in the instant case.

Next, the husband contends that the award of attorneys’ fees of $25,000 to the wife’s attorneys was an abuse of discretion.

The wife’s attorneys testified as to the amount of time spent working on the case and type of work involved. One of the attorneys testified that a reasonable fee for all of the wife’s counsel would be approximately $25,000. In addition to this evidence, the trial judge was entitled to use his own knowledge and experience in determining the value of the services performed. We cannot say that the trial court abused its discretion in the amount of attorneys’ fees awarded. See, Smith v. Smith, supra; Burgess v. Burgess, 54 Ala.App. 396, 309 So.2d 107, writ denied, 293 Ala. 748, 309 So.2d 111 (1975).

Even the husband admits that this award would approach a reasonable fee if he had sufficient assets to pay. As stated above, the husband’s income is and will no doubt remain very high. When this is coupled with the fact that the attorneys’ fees are to be paid over a two year period, we find no abuse of discretion.

Finally, the husband contends that since the alimony statutes of this state were declared unconstitutional in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), the trial court erred in its refusal to grant the husband’s motion for a new trial.

We first note that the husband never raised any question concerning the constitutional infirmity of the alimony statutes until more than two months after the rendition of the final decree and thus cannot now complain.

In any event, the benefits of the alimony statutes have been mutually extended, see, Orr v. Orr, Ala.Civ.App., 374 So.2d 895, writ denied, Ala., 374 So.2d 898, and in view of the facts as indicated above, the trial court’s decision ordering the husband to pay alimony will be affirmed. See, Hughes v. Hughes, Ala.Civ.App., 372 So.2d 845 (1979).

The wife has petitioned this court to award her a reasonable amount of money as attorneys’ fees on appeal. After due reflection, we consider $3,000 to be a reasonable amount for the services of the wife’s attorneys on this appeal and do hereby award that amount to her as attorneys’ fees.

This case is due to be affirmed.

Attorneys’ fees awarded.

AFFIRMED.

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


author: JONES, Justice.

text:
    Ex parte Carl Ray ROBINSON. In re Carl Ray ROBINSON v. Esther M. ROBINSON.
    79-353.
    Supreme Court of Alabama.
    March 28, 1980.
   JONES, Justice.

WRIT DENIED.

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


text:
    Louie M. HALLMARK v. Ann B. HALLMARK.
    Civ. 2025.
    Court of Civil Appeals of Alabama.
    Jan. 2, 1980.
    Rehearing Denied Jan. 30, 1980.
    Michael L. Roberts, of Floyd, Keener & Cusimano, Gadsden, for appellant.
    Barry N. McCrary, Talladega, for appel-lee.
   HOLMES, Judge.

The trial court divorced the parties and the wife filed a motion for new trial. In response to this motion, the trial court amended a property settlement which was incorporated into the decree of divorce.

The husband appeals contending the trial court had no authority to amend the judgment. We agree and reverse and remand.

The record reveals the following: The trial court entered a final decree of divorce on December 20, 1978. The wife’s motion, designated as a motion for new trial, was certified as having been served on January 19, 1979, the 19th being the thirtieth day after the divorce decree was entered. The motion was filed with the court on January 25, 1979, thirty-six days after entry of the decree.

We note that the wife’s motion was clear-' ly filed pursuant to Rule 59, ARCP. Specifically, the relief sought by the wife was an amendment to the previously entered decree. The relief granted was such an amendment. Rule 59, ARCP, clearly applies in such a case as it alone grants the trial court authority to make such amendments upon proper motion.

In any event, it is apparent to this court that the parties and the trial court treated the wife’s motion as coming under Rule 59. The motion was neither filed nor treated as coming under any other provision of our rules of civil procedure. Put another way, the motion was not filed pursuant to Rule 60, ARCP. In view of the above, we follow the rules applicable to Rule 59 motions. Erwin v. Shiloh Homes, Ala.Civ.App., 360 So.2d 1003 (1978).

In the recent case of City of Talladega v. McRae, Ala., 375 So.2d 429 (1979), our supreme court construed Rule 59(b), which requires that “a motion for a new trial shall be served not later than 30 days after the entry of the judgment.” The court concluded that one can “move” for a new trial only by filing a motion with the court, and read Rule 59(b) as requiring both filing and service of the motion within thirty days of the entry of judgment.

Under the reasoning of McRae, supra, the same conclusion must be reached even if the motion is said to be a Rule 59(e) motion, i. e., a motion to amend the judgment. This is so because Rule 59(e) contains language identical to Rule 59(b), mandating that a motion to amend “shall be served not later than 30 days after entry of the judgment.”

As we are bound by the decisions of the supreme court, § 12-3-16, Code of Ala. 1975, we must conclude that the motion was not filed in a timely manner. The thirty day time period allowed by Rule 59 having expired, the trial court had no authority to correct or amend its judgment except for clerical errors. Continental Casualty Co. v. Barlar, 55 Ala.App. 441, 316 So.2d 690 (1975). This case is due to be reversed and remanded for entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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


author:
PER CURIAM.
      MADDOX, Justice

text:
    Ex parte Ann B. HALLMARK. In re Louie B. HALLMARK v. Ann B. HALLMARK.
    79-359.
    Supreme Court of Alabama.
    March 7, 1980.
    Barry N. McCrary, Talladega, for petitioner.
    No brief filed for respondent.
   PER CURIAM.

WRIT DENIED. NO OPINION.

FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ„ concur.

TORBERT, C. J., and MADDOX, J., dissent.

MADDOX, Justice

(dissenting).

I dissent for the same reasons I expressed in my dissent in City of Talladega v. McRae, 375 So.2d 429 (Ala.1979).

TORBERT, C. J., concurs.


author: BRADLEY, Judge.

text:
    William J. DAVIS, as Director of Alabama Department of Industrial Relations v. J. W. SHERER.
    Civ. 2016.
    Court of Civil Appeals of Alabama.
    Feb. 13, 1980.
    Rehearing Denied March 19, 1980.
    George Cocoris, Gen. Counsel, Craig A. Donley, Asst. Gen. Counsel, Montgomery, for Alabama Dept, of Industrial Relations.
    William A. McCrary of Henslee & Bradley, Gadsden, for appellee.
   BRADLEY, Judge.

William J. Davis, as director of the Alabama Department of Industrial Relations (hereinafter referred to as “Industrial Relations”), appeals from a judgment holding that J. W. Sherer was entitled to unemployment compensation. We reverse.

Mr. Sherer was the president, manager, and sole stockholder of the Royal Crown Bottling Company of Gadsden, Inc., and a principal stockholder of Royal Crown Bottling Company of Cullman, Inc. Mr. Sherer sold his entire interest in both companies to a corporation based in Atlanta. When he applied for unemployment compensation benefits, his request was denied. Claimant appealed this decision to the board of appeals which also denied his request. This was followed by an appeal to the Etowah County Circuit Court for a trial de novo. The trial court held for the claimant. Appellant filed a motion to vacate the judgment. This was denied. Industrial Relations then filed a timely appeal to this court.

In order for claimant to be entitled to unemployment compensation, he must come under § 25 — 4-78(2) of the 1975 Code of Alabama. This section states:

An individual shall be disqualified for total or partial unemployment:
(2) VOLUNTARY DEPARTURE FROM WORK. — If he has left his most recent bona fide work voluntarily without good cause connected with such work. [Emphasis ours.]

Thus, the issues before us are whether claimant terminated his employment without “good cause,” thus disqualifying him for the benefits, and, if so, did the trial court err in awarding unemployment compensation.

Mr. Sherer admits that he voluntarily left his employment by selling out. He testified that he knew that he would not continue working for the company after he sold out, and that he did not have another job pending. This court stated in Department of Industrial Relations v. Estes, 45 Ala.App. 360, 231 So.2d 137 (1970):

[W]hen claimant admitted that she left her employment with Dan River Mills voluntarily, but sought to avoid the disqualification from receiving unemployment compensation benefits under Section 214-B, supra, the burden was then cast upon her to show that she had good cause connected with her work for leaving such employment.
This court has defined “good cause”: [A]s used in § 25-4-78 [Code of Alabama 1975] has been defined as, “substantial reason; just ground for action; adequate excuse that will bear the test of reason; and always the element of good faith.”

Department of Industrial Relations v. Lynch, Ala.Civ.App., 370 So.2d 1050 (1979). The only reason given at trial for the selling of the company was that the machinery and equipment in the Gadsden plant were too small.

Although there are no cases from this jurisdiction on the issue presented, other states have been confronted with similar questions and have determined that where the sole owner of a business sells it voluntarily, whether due to lack of operating funds, inadequate equipment or bad business management, such owner was not “unemployed” within the meaning of their unemployment compensation laws and was not entitled- to any benefits. Mednick v. Unemployment Compensation Board of Review, 196 Pa.Super. 73, 173 A.2d 665 (1961); Murray v. Unemployment Compensation Board of Review, 193 Pa.Super. 464, 165 A.2d 273 (1960); Fish v. White Equipment Sales & Service, 64 Wis.2d 737, 221 N.W.2d 864 (1974).

In the case at bar the only reason given for the sale of the business and the voluntary termination of employment was antiquated machinery. Such is not “good cause” within the meaning of our unemployment compensation law and does not entitle claimant to benefits.

To support his position, claimant says that the buyer corporation was in a position to offer him employment, but that this was not done even though he was willing and able to accept employment. He also says that he has looked for employment in three different places without success. Claimant also maintains that since he has contributed for many years to the unemployment compensation fund, he should now be able to collect. Appellant counters by pointing out that the only way to receive money paid in is to come under the statute. Appellee further cites Holmes v. Cook, 45 Ala.App. 688, 236 So.2d 352 (1970) for the proposition that:

[T]he Unemployment Compensation Act is remedial in character, and its beneficent purpose should be liberally construed, and its provisions of disqualification from benefits should be narrowly construed.

However, this case addressed the purpose of the act in relation to involuntary unemployment and thus does not apply here.

We conclude that claimant was disqualified from receiving unemployment compensation benefits due to his failure to prove that he had “good cause” under the statute for terminating his employment. Consequently, the trial court’s judgment is reversed and the cause is remanded for entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

HOLMES, J., concurs.

WRIGHT, P. J., recuses himself.


text:
    Ann W. RABREN v. Susan Chapman NORTON, Lynne Chapman Howard, Joan Chapman Bullock and Margaret Chapman Peterson.
    Civ. 2080.
    Court of Civil Appeals of Alabama.
    Feb. 13, 1980.
    Rehearing Denied March 19, 1980.
    John B. Givhan of Albrittons & Givhan, Andalusia, for appellant.
    Griffin Sikes of Tipler, Fuller & Sikes, Andalusia, for appellee.
   BRADLEY, Judge.

This is a suit for a broker’s commission. The trial court sitting without a jury found that appellant was not entitled to a commission. We affirm.

Appellees, Susan Norton, Lynne Howard, Joan Bullock and Margaret Peterson, jointly owned a dwelling house. Mrs. Norton, Mrs. Bullock and Mrs. Howard are sisters, and Mrs. Peterson is their aunt. Mrs. Peterson occupied the house.

The three sisters decided that they wanted to sell the house and divide the proceeds. Mrs. Norton contacted the appellant and executed a brokerage contract with her to sell the house. The appellant was informed at this time that Mrs. Norton was signing the agreement for herself and her sisters and was not signing for Mrs. Peterson. Mrs. Norton told the appellant that she might encounter problems with Mrs. Peterson in selling the property.

The appellant showed the house to prospective buyers with Mrs. Peterson’s consent on several different occasions. However, the appellant never requested that Mrs. Peterson sign the brokerage contract, although she testified that it was customary to obtain the signatures of all of the owners of realty on such agreements.

The appellant procured a prospective buyer for the house, but Mrs. Peterson refused to consummate the sale. The remaining appellees were willing to complete the sale at that time.

This appeal followed the trial court’s denial of the appellant’s claim for a broker’s fee.

It is the law in Alabama that when a real estate broker, retained by contract to find a purchaser for real estate, procures a buyer who is ready, willing and able to purchase according to the terms set by the vendor, the broker has earned his commission even though the vendor later refused to complete the sale. Guillotte v. Pope & Quint, Inc., Ala.Civ.App., 349 So.2d 62 (1977).

In Guillotte we held that a husband was liable under a brokerage contract if the realtor secures a ready, willing and able purchaser absent knowledge by the realtor of a defect sufficient to prevent conveyance of a good title or of the unwillingness or inability of the wife to join in a conveyance.

We think the reasoning of Guillotte applies to the present case. The appellant was informed at the outset that Mrs. Norton was signing the brokerage contract for herself and her sisters and not for Mrs. Peterson, a joint owner of the property. Therefore the appellant had knowledge of the possible unwillingness of Mrs. Peterson to join in a conveyance, yet the appellant never attempted to secure the signature of Mrs. Peterson on the brokerage agreement.

It is the opinion of this court that the appellant’s knowledge that fewer than all of the joint owners were willing to sell the property barred her recovery under the brokerage contract.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    LIBERTY TRUCK SALES, INC. v. Benjamin Nicholes FOUNTAIN.
    Civ. 2012.
    Court of Civil Appeals of Alabama.
    March 5, 1980.

      Leo E. Costello, Birmingham, for appellant.
    James S. Ward and Joel E. Dillard of Baxley, Stuart, Ward & Dillard, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

Defendant appeals from a jury verdict of $9,500 in favor of plaintiff.

Plaintiff instituted this action by filing a complaint against Liberty Truck Sales, Inc., Liberty Leasing, Inc., and John Purcell, individually and as agent for Liberty Leasing, Inc. The complaint stated claims based on fraud, an odometer disclosure violation, negligent repair, breach of express warranty, breach of implied warranty and strict liability under the Alabama Extended Manufacturer’s Liability Doctrine. The claims were grounded in allegations of facts surrounding the purchase by plaintiff of a used truck from the defendants, and dealings subsequent to that purchase.

The case was tried before a jury in Jefferson County Circuit Court. At the conclusion of the evidence the plaintiff withdrew his claim based on breach of implied warranty and the court struck the claim based on strict liability. The jury returned a verdict of $9,500 based on breach of express warranty against defendant Liberty Truck Sales, Inc. Defendant filed a motion for new trial or in the alternative for judgment notwithstanding the verdict, or in the alternative for remittitur. The trial court denied the motion on June 29, 1979. Defendant appeals from that denial.

Defendant has raised a number of issues as grounds for reversal of the trial court’s order denying his motion for new trial.

He contends that the trial court erred to reversal in sustaining objection to questions asked the plaintiff concerning a prior conviction for attempting to dispose of mortgaged property. The law in Alabama is clear that a witness may be impeached by proving his conviction of a crime involving moral turpitude. § 12-21-162, Code of Alabama (1975). A crime involving moral turpitude is defined as something immoral in itself, regardless of the fact that it is punished by law. Sims v. Callahan, 269 Ala. 216, 112 So.2d 776 (1959). Plaintiff admitted under voir dire examination that he had pled guilty to attempting to dispose of mortgaged property. § 13-4-1, Code of Alabama (1975). The trial court found that this act was not a crime involving moral turpitude and refused to allow cross-examination concerning it. We agree with the trial court. Under § 13-4-1, any sale or conveyance of mortgaged personal property without the consent of the mortgagor is a crime. This is true regardless of whether the sale Or conveyance is done with an intent to defraud the mortgagor. The mere sale or conveyance of personal property in which another has an interest without intent to defraud is not inherently immoral. The section might be violated in the mistaken belief that the mortgage or lien had been satisfied or that it would be satisfied by the buyer. We do not find an attempt to commit this act to involve moral turpitude. McElroy’s Alabama Evidence, § 145-01(7) at 301 (3rd Ed.)

Defendant contends that the trial court erred in permitting plaintiff to testify about his attempt to rent a truck during the time the truck purchased from defendant was being repaired. Defendant’s objection was that the questions called for hearsay testimony. We have carefully considered the portion of the record pointed out by defendant. It appears that the trial court sustained defendant’s objection to those questions which called for hearsay. The testimony allowed by the court was in response to questions concerning plaintiff’s personal knowledge of the availability of rental trucks. We find no error here.

Defendant next argues that the trial court improperly charged the jury as to the burden of proof. A party may not charge error in the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects, stating the matter to which he objects and the grounds of his objection. Rule 51, ARCP. Defendant’s objection to the court’s oral charge was:

Mr. Costello: No sir. We have some objections. First of all, Your Honor, I think that maybe I missed it, but I think you failed to mention the burden of proof as to each and every count.

Although a reading of the trial court’s charge shows that the court in fact did not mention the burden of proof in his instructions concerning each individual count, we do not find this to be error requiring reversal. The trial court clearly states at the beginning of its charge that the burden is upon the plaintiff to prove his charges or claims against the defendant. We consider that sufficient as an oral charge. If the objection is the failure to charge on a particular subject, it must be by way of a requested written charge. City of Birmingham v. Wright, 379 So.2d 1264 (1980).

Defendant’s final issue is that the award of damages by the jury was excessive and not supported by the evidence. We agree.

The jury expressly found for the plaintiff on his claim for breach of express warranty. There is much discussion in brief as to whether the warranty was a warranty of the general condition of the truck or merely to repair. That discussion is immaterial in light of the law of the case expressed in the court’s charge to the jury. The court charged the jury that, “The damages resulting from a breach of warranty of this type would be to make the repairs that you agreed to make and if you don’t do it, to pay the reasonable cost of somebody else making them.” There was no objection by either party to the charge on damages. This instruction to the jury, to which both parties assented by their silence, became the law of the case by which the jury was bound. Lee v. Gidley, 252 Ala. 156, 40 So.2d 80 (1949).

Defendant argues that plaintiff presented evidence showing at most |4,992.46 as the cost of repairs occasioned by defendant’s breach of warranty to repair. Upon a careful review of the evidence considered in light of the court’s charge, we consider that all damages in excess of $4,992.46 are excessive. A judgment will accordingly be entered that unless plaintiff files a remittitur with the clerk of this court within thirty days reducing the judgment to $4,992.46, the judgment of the trial court will stand reversed. If, however, such remittitur is filed, a judgment for $4,992.46, with interest thereon, will stand affirmed.

AFFIRMED CONDITIONALLY.

HOLMES, J., concurs.

BRADLEY, J., not sitting.


text:
    T. Dudley PERRY v. Dan MEREDITH, d/b/a Service Printing Company.
    Civ. 2034.
    Court of Civil Appeals of Alabama.
    March 19, 1980.
    John I. Cottle, III, Tallassee, for appellant.
    Elno A. Smith, Jr., Montgomery, for ap-pellee.
   HOLMES, Judge.

The plaintiff sued the defendant - in the Circuit Court of Montgomery County for materials, work, and labor done. After an ore tenus hearing, the learned trial judge rendered a judgment for plaintiff in the amount of $5,806.89. The defendant appeals and we affirm.

The dispositive issue is whether defendant’s campaign staff possessed apparent authority to bind the defendant for campaign materials ordered, accepted, and used by the staff.

The record reveals the following: Defendant was a candidate for the office of Attorney General of Alabama in the 1978 election. His campaign was faced with financial difficulties, and he instructed members of his campaign committee, as well as his office workers, not to incur any debts on his behalf.

Plaintiff first met defendant at a social function. The plaintiff testified the defendant personally told the plaintiff that he (the defendant) was going to send plaintiff the defendant’s printing business. The defendant’s testimony is contrary. However, it is undisputed plaintiff indicated his willingness to receive such business.

Shortly thereafter, an unidentified member of defendant’s office staff contacted plaintiff and placed an order for certain printed campaign material. This order was filled and the goods were delivered to and accepted by. defendant’s campaign headquarters. There were several subsequent orders placed. These, too, were filled and the goods accepted.

Plaintiff testified that defendant’s campaign headquarters were billed after delivery and acceptance of each order. However, payment was not forthcoming. Hence, this suit was brought.

On appeal, defendant contends plaintiff failed to establish the existence of an agency relationship between himself and the unidentified office worker who placed the orders with plaintiff. It is further argued that this office worker lacked apparent authority to place such an order and thus bind defendant. It is finally contended defendant lacked knowledge the orders were placed and the materials used, thus precluding the possibility of ratification of the orders.

At the outset, we note the general principles of law applicable to this appeal.

First, the question of agency is one of fact, and is thus subject to the ore tenus rule. Thus, this court will not reverse such a finding unless it is clearly erroneous and against the great weight of the evidence. Wood Chevrolet Co., Inc. v. Bank of the Southeast, Ala., 352 So.2d 1350 (1977).

Although the burden of proving agency rests on the party asserting it, such a relationship may arise from facts and appearances which lead others to believe that such a relationship has been ■ created. Wood v. Holiday Inns, Inc., 508 F.2d 167 (5th Cir. 1975).

Next, a principal may vest his agent with apparent authority to perform an act by omission as well as commission, and such authority is implied where the principal passively permits the agent to appear to a third person to have authority to act on his behalf. Assured Growth Corp. v. Tomberlin, Ala.Civ.App., 334 So.2d 918 (1976). Although the principal may limit the agent’s authority through secret instructions and restrictions, third persons ignorant of the restricted extent of the agent’s authority may rely on the apparent scope of the agent’s authority and their rights will not be affected so long as they deal in good faith. Blue Cross-Blue Shield of Alabama v. Thornton, 56 Ala.App. 678, 325 So.2d 187 (1975).

In this instance, there was evidence that the plaintiff and defendant discussed the plaintiff providing printed campaign material to the defendant. Additionally, there was evidence that thereafter a member of defendant’s campaign staff ordered and accepted the campaign materials. It is undisputed that the items were put to use in furthering defendant’s ultimately unsuccessful attempt at election. Furthermore, the record does not indicate that any attempt to limit the campaign staff’s authority to place such orders and to accept delivery was in any fashion communicated to plaintiff.

' Under such facts, as indicated, this court is unprepared to say the learned trial judge clearly erred. See, Semo Aviation, Inc. v. Southeastern Airways Corp., Ala., 360 So.2d 936 (1978).

Furthermore, it would appear that defendant is bound to pay for the campaign materials on a theory of quantum meruit. This is so because where services are rendered by one person to another, and knowingly accepted, a promise to pay therefor is presumed. Hood v. League, 102 Ala. 228, 14 So. 572 (1893). As seen from the above, the defendant’s agents possessed at least apparent authority to bind the defendant. Therefore, he is bound by their knowing acceptance and use of the campaign materials.

The case is due to be affirmed.

AFFIRMED. '

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


author: BRADLEY, Judge. HOLMES, Judge

text:
    DEPARTMENT OF INDUSTRIAL RELATIONS, Westala Coal Company v. Louis NIX, Norman Murray.
    Civ. 2051.
    Court of Civil Appeals of Alabama.
    March 19, 1980.
    George Cocoris, Gen. Counsel of Dept, of Indus. Relations, Craig A. Donley, Asst. Gen. Counsel of Dept, of Indus. Relations, Montgomery, Stephen A. Rowe of Lange, Simpson, Robinson & Somerville, Birmingham, for appellants.
    William E. Mitch and Earl V. Brown, Jr., of Cooper, Mitch & Crawford, Birmingham, for appellees.
   BRADLEY, Judge.

The appellants, the Department of Industrial Relations and Westala Coal Company (hereinafter referred to as “Industrial Relations” or “Westala”) appeal from a Walker County Circuit Court judgment in favor of appellees, Louis Nix and Norman Murray. We affirm.

Westala Coal Company, before December 5, 1977, had actively engaged in strip mining bituminous coal at Black Pond in Winston County, Alabama.

A collective bargaining agreement had existed prior to this time between Westala and the United Mine Workers of America (UMWA) which governed the wages, working conditions and hours of its rank and file employees. This agreement expired at midnight on December 5, 1977. Louis Nix and Norman Murray were UMWA members employed by Westala.

Collective bargaining procedures are usually conducted between the Bituminous Coal Operators Association (BCOA) and UMWA, which negotiations began December 5, 1977 and ended in agreement on March 28, 1978.

When the national coal strike commenced on December 5, 1977, Westala ceased its operations. However, because Westala was not a member of BCOA, it preferred to negotiate independently with the UMWA after March 28, 1978 concerning a contractual arrangement with its company.

Several meetings took place with the union; however, having reached an impasse, negotiations ended May 26, 1978. There have been no further meetings, nor any attempts to meet, between the two parties.

Shortly after this, Westala, in June 1978, retained only one foreman and one secretary. The secretary was transferred to another of Westala’s companies in October 1978, and the foreman requested termination around the same period. Westala’s vice president testified that' a week prior to trial in September 1979, some of Westala’s machinery was sold due to financial reasons. He further testified that the company had ordered no supplies, nor had it mined any coal. The company had, in effect, ceased functioning as a business, though the company still owns the mine properties.

The claimants, Nix and Murray, signed up for unemployment compensation but were denied benefits. An appeal was thereafter made to an appeals referee which also denied benefits. This decision was upheld on further appeal by the board of appeals. At a trial de novo, the circuit court reversed the earlier decisions and awarded the claimants unemployment compensation on August 6, 1979. An appeal was then made to this court.

There are two issues presented before this court on appeal. The first issue is whether or not the labor dispute was in active progress thereby disqualifying the claimants from unemployment compensation.

The Alabama unemployment compensation statute is stated in § 25-4 — 78 of the 1975 Code of Alabama.

. An individual shall be disqualified for total or partial unemployment:
(1) Labor dispute in place of employment. — For any week in which his total or partial unemployment is directly due to a labor dispute still in active progress in the establishment in which he is or was last employed. For the purposes of this section only, the term “labor dispute” includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. This definition shall not relate to a dispute between an individual worker and his employer. [Emphasis added.]

Appellants claim that even though negotiations have ceased, the claimants should still be disqualified as the labor dispute is still in active progress.

In the present case the following stipulation was put into the record concerning the events of the last bargaining session on . May 26, 1978: .

There occurred a bargaining session of some duration probably of over an hour. At the conclusion of which the differences between the parties had not been resolved and the meeting was terminated with the understanding between the parties that if there were any change in the position the parties would be in touch with each other and there has been no subsequent contact between the parties in regard to the resumption of negotiations.

The claimants recognize that they are not entitled to any compensation from December 5, 1977 to May 26, 1978, as negotiations were ensuing. However, claimants do contend that as negotiations had come to an impasse, they were out of work when there was no longer a labor dispute going on as defined in the statute.

Charles L. Fuller, president of district 20 of UMWA, wrote a letter to the union members in August 1978 stating:

Gentlemen: The labor dispute between Westala Coal Company, Inc., and the United Mine Workers of America has been terminated because negotiations have reached an impasse and we have been informed by management that they plan to close the mines.

This is a definite statement of the UMWA’s position that the labor dispute was terminated between Westala and UMWA. As a member of the union, the claimants can negotiate only through their agents, UMWA. The conclusion of the union that negotiations were terminated is substantial evidence that the dispute was no longer active.

At the outset we should note that the unemployment compensation statute ■ should be liberally construed in claimant’s favor and the disqualifications from benefits should be narrowly construed. Department of Industrial Relations v. Smith, Ala.Civ.App., 360 So.2d 726 (1978).

In T. R. Miller Mill Co. v. Johns, 261 Ala. 615, 75 So.2d 675 (1954), it was stated:

The fundamental theory of unemployment compensation in connection with the above-quoted subsections of the statute is that workers are not entitled to compensation where their unemployment was directly due to a “labor dispute” still in active progress in the establishment where last employed, but that when the strike shall have been ended if his unemployment so resulted he would be entitled to unemployment compensation if thereafter, without his fault, he should be rendered unemployed.

The rationale of Johns was applied in Greene v. Department of Industrial Relations, 38 Ala.App. 199, 83 So.2d 360, cert. den., 263 Ala. 564, 83 So.2d 364 (1955). In Greene, a company employer replaced striking workers, and after termination of the strike an employee failed to show up for work. We held that the disqualification did not survive the termination of the active dispute and that therefore the employee was entitled to compensation.

No Alabama case addresses the question of whether a labor dispute is still in active progress when an employer terminates the business. However, courts in other jurisdictions have held that an employer’s decision to cease operations altogether, or at least with respect to that portion of the business affected by the claimant’s strike, would operate to terminate the claimant’s disqualification under the labor dispute section of the unemployment compensation statute. Great A & P Tea Co. v. New Jersey Department of Labor & Industry, 29 N.J.Super. 26, 101 A.2d 573 (1953); Kitchen v. G. R. Herberger’s, Inc., 262 Minn. 135, 114 N.W.2d 64 (1962).

For the foregoing reasons, we hold that the finding of the trial court that the labor dispute was not actively in progress as of May 26,1978 is adequately supported by the evidence and we will not reverse.

The second issue raised by appellants is whether the trial court erred in awarding unemployment benefits after May 26; 1978.

Based on the above facts and decisions, we find that it did not. The trial court’s judgment is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., concurs.

HOLMES, J., concurs specially.

HOLMES, Judge

(Concurring specially).

I concur specially.

The testimony in this case reveals, in addition to those facts as stated in the majority opinion, that the claimants are ready, willing, and able to return to work upon the execution of a new collective bargaining agreement. The testimony also reveals that the employer is ready to resume operation upon the execution of an agreement. These facts, to me, therefore establish that there is in fact a labor dispute existing between the parties. However, the pertinent statute, § 25-4-78, Code of Ala. 1975, requires that the labor dispute be in active progress.

“Active” has been defined as “expressing action as distinct from mere existence or state . . . .” Webster’s Third New International Dictionary. In this instance, with the above definition in mind, I find there is evidence to support the trial court’s conclusion that there did not exist such a labor dispute in active progress so as to disqualify the claimant.


text:
    William J. DUNNAM v. Mary H. DUNNAM.
    Civ. 2070.
    Court of Civil Appeals of Alabama.
    March 19, 1980.
    Dan A. Payne of Houston County Legal Services, Dothan, for appellant.
    Douglas M. Bates of Adams & Bates, Dothan, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Houston County divorced the parties and ordered the husband to pay the wife periodic alimony of $150 per month. In addition, the husband was required to pay the reasonable medical expense of the wife. The trial court also awarded the wife’s attorney a fee. The husband appeals, contending the trial court abused its discretion in the award to the wife. We find no abuse of discretion and affirm.

We do not deem it necessary or prudent to set out in detail the facts as presented at the ore tenus hearing before the trial judge. Suffice it to say the following is pertinent.

The parties were married for over twenty-five years. The wife, since the marriage, has never been employed outside the home. The record reveals that she has no readily marketable skills. ' Additionally, she has some health problems. The husband is retired from the military. He nets approximately $300 in retirement income. Additionally, he earns another $300 per month working two or three days a week.

Awards of this nature in a divorce case are within the sound discretion of the trial court and will not be reversed on appeal absent a showing of a manifest abuse of discretion. Malkove v. Malkove, Ala.Civ.App., 349 So.2d 52 (1977); 8 Ala.Digest Divorce Key 286(3).

In view of the length of the marriage, the relative earning capacity of the parties, and the wife’s physical condition, we find no such abuse as to require reversal.

The wife has requested that a $400 attorney’s fee be awarded for representation on appeal. A $400 fee is awarded.

The case is due to be affirmed.

AFFIRMED.

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