author: SUGG, Justice, for the Court:

text:
    J. D. GAINES v. STATE of Mississippi.
    No. 52607.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      Vance & Perrier, Travis T. Vance, Jr., Eugene A. Perrier, W. M. Conerly, Vicksburg, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   SUGG, Justice, for the Court:

Appellant, J.D. Gaines, was indicted, tried, and convicted in the Circuit Court of Warren County for the crime of capital murder. He was sentenced to serve a term of life imprisonment as a habitual criminal under section 99-19-81 Mississippi Code Annotated (Supp.1977). From this conviction and sentence, he appeals. We affirm.

On October 21, 1978, shortly after 7:00 o’clock a. m., James McIntyre went into the Pack ’N Pay convenience store, and as he did so, a black man passed him who was leaving the store. He stated that there was a light blue late model GM automobile parked in front of the convenience store. About 7:15 a. m. Johnnie Ball and Phylis Morson arrived at the store to find that the clerk was not present. The cash register was closed, the clerk’s purse was still there, it appeared that no struggle had ensued, and the safe was closed as well. Ball felt the hood of a blue Toyota, later identified as the victim’s automobile, and it was still warm. At approximately 7:20 a. m., the owner of the convenience store, Danny Cappaert, was contacted at his home. He arrived at 7:30 a. m. to find that the victim’s car was there but not the victim. Phil Solomon, Vicksburg Chief of Detectives, and other law enforcement officers were then summoned to the convenience store. He stated that it appeared that no struggle had occurred, and nothing was taken from the store.

Harold Hollingsworth left his home about 8:00 o’clock a. m., the morning of October 21, 1978, driving east on Freetown Road. At the point where the blacktop ended and the road forked, he took a right and drove a couple of miles. While driving up an incline, he noticed some clothing in the middle of the road. A short distance from where the clothes were lying, a logging road turned off to the right. Approximately 40 yards down the road he noticed what appeared to be a body, whereupon he contacted Deputy Sheriff Dennis Cahill, and the two of them returned to the location of the body. There, Deputy Cahill found that the victim had been stripped of her clothing and that no signs of life were evident. At this point he cordoned off the road leading to the body and also the area in which the clothes were found. Furthermore, he stated that the body was medium warm when he arrived at the scene, and that there was blood on the back of the head. Detective Solomon, while enroute to the area, called the State Crime Lab to have experts report to the scene. Pictures of the body were taken and introduced into evidence at the trial. Following the autopsy Dr. Leo Scan-lon handed the bullet removed from the head of the victim to Detective Solomon. These bullet fragments were introduced at trial.

Earlier that same morning Marvin Summers also saw the clothes in the middle of the road, and 200 yards later, saw a black man talking to a black girl in a late model blue automobile parked by the side of the road. Summers picked the defendant out of a lineup, and identified him as the black man he had seen.

Dr. Leo Scanlon, who had performed the autopsy, stated the cause of death was a gunshot wound to the left side of the head with massive destruction and hemorrhage of the brain tissues. The skin' on her elbows was also scraped off, as if she had been pushed down, and there was an extremely severe injury to the vaginal area, though there was no evidence of sexual abuse. At trial, he identified the bullet as the one he had removed from the victim’s head. He also stated that, at the time of the autopsy, she had been dead from four and one-half to seven hours.

On May 14, 1979, Sheriff Paul Barrett received a call from Eddie Lucas, Director at Parchman Penitentiary, with regard to certain information that the defendant, J.D. Gaines, thought might prove helpful to the sheriff in solving the case. The defendant had been incarcerated at the Warren County jail on a charge of armed robbery and had heard the sheriff promise to help anyone who could supply him with information related to the murder. An initial statement, implicating several individuals, was taken at Parchman. It was subsequently introduced into evidence at trial. A second statement was also introduced into evidence. Gaines accused nine persons of the murder.

While implicating other individuals, the defendant, Gaines, supplied exact escape routes for the murderers. He accurately described the logging road where the body was located, and he also described the position of the body when it was found. Furthermore, he stated that the victim was carried from the car to the place where she was killed, which would coincide with the fact that none of her footprints were found leading up to the location of the body. Furthermore, a prisoner in the county jail, Shelby Smith, who was serving time for armed robbery, stated that he had overheard a conversation between Gaines and Joe Dawson in which Gaines stated that he and his brothers had gone to the convenience store, had an argument with a lady clerk, abducted her, beat her, and took her jewelry.

Following the defendant’s return from Parchman, but preceding his arrest, the murder weapon was recovered. Acting on information supplied by the defendant, the sheriff, two deputies, along with the appellant, went to Gaines’ mother’s home to retrieve the weapon. Gaines claimed that he had acquired the pistol from Sammy Gua-jardo on October 22,1978, the day following the murder. Guajardo stated, on the other hand, that Gaines had taken the gun away from him as the result of a fight over a drug transaction, at the end of the first week of October. Conflicting testimony was presented at trial with regard to the date of the pistol’s acquisition.

In establishing an alibi defense, the defendant’s two sisters testified that they had visited his apartment the morning of the murder, and that even though he had not responded to their knocking on the door, they knew that he was there. When they returned later in the morning his response to them was, “What do you all want this time.” He then told them that his girlfriend had just left the apartment. Gaines’ girlfriend testified that she had spent the Friday night before the murder with the defendant, and had not left him until 9:30 or 10:00 o’clock the next morning.

Cindy Bennett, an inmate at Parchman, was called as a defense witness. She testified she was living in a trailer with her boyfriend, Fabregas, at the time of the murder. Fabregas was one of those originally implicated by Gaines in the murder, Don Hester and his girlfriend also lived in the trailer. She went to the Beechwood Lounge on the night of October 20, 1978, where she saw Hester dancing with a woman identified to her as the murder victim. The witness, Fabregas, Hester, and his girlfriend, returned to their trailer at approximately 12:30 a. m. At about 5:30 a. m., Fabregas got up, said he had to take Hester to work, and took a gun with him. Both men returned about 8:30 or 9:00 o’clock a. m., and appeared to be upset. Hester’s jacket was torn, and something red had been splashed on his T-shirt.

Gaines did not testify and does not question the sufficiency of the evidence to support the verdict of the jury.

Appellant claims that his Sixth and Fourteenth Amendment rights were violated when the prosecution exercised its peremptory challenges on only the black members of the jury venire. Furthermore, the defendant argues that, in the wake of such action, the trial court erred in not quashing the petit jury.

The United States Supreme Court dealt with this issue in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

We cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor’s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.
In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case. (380 U.S. at 221-222, 85 S.Ct. at 837, 13 L.Ed.2d at 773)

For the reasons stated in Swain, the motion to quash the jury was properly denied.

Appellant also contends that he was a suspect in the case from the time he first contacted the sheriff claiming to have information which would lead to the murderer. As such, he argues that his statements were the result of “custodial interrogation,” and that he should have been issued a Miranda warning prior to his questioning.

The crucial question to be asked and answered is whether the defendant was a suspect from the very beginning of his involvement in the investigation, including the period of time in which he gave two statements to law enforcement officers. If he was, the answer is simple. Both Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966) and Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968) would require that a Miranda warning be given a suspect, even though he is already incarcerated for an unrelated crime.

We hold that he was not a suspect. Testimony was given • outside the presence of the jury to establish the voluntariness of Gaines’ statements. The sheriff, his deputies, and his secretary stated that the defendant was not a suspect until it had been ascertained that he had been in possession of the pistol used in the murder. Gaines’ possession of the murder weapon was not discovered until after he gave his statements. Furthermore, the sheriff followed every lead provided by Gaines in his statements, and all proved fruitless. In short, the accusation was-directed toward Gaines only after*every other suspect had been thoroughly investigated.

The Court stated in Smith v. State, 229 So.2d 551, 555 (Miss.1969),

It is, of course, not necessary for an officer to warn every person he talks to about a crime of his constitutional rights. . . . (However) when it becomes apparent to the investigative officer, or should be apparent from the circumstances, that the person being interrogated is likely to be charged with a crime, the officer must promptly warn him of his rights so that such person will not be required to give information that may incriminate him.

In Edwards v. Arizona, - U.S. -, -, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 387 (1981), the United States Supreme Court considered this issue. Although it was concluded that the fruits of the interrogation could not be used against Edwards because he had requested an attorney, the Court observed,

Had Edwards initiated the meeting on January 20, nothing in the 5th and 14th Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at trial. The 5th Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver.

The defendant was not a suspect at the time the statements were given, and the statements themselves were given only after Gaines had contacted the sheriff claiming to have information regarding the murder. Therefore, the trial judge did not err in allowing the statements to be introduced into evidence.

Similarly, Gaines urges that the vol-untariness of his statements was tainted by the sheriff’s promises to help those prisoners who might aid him in the investigation. First, the promise was made to all inmates at the Warren County jail, and not to the defendant in particular. Second, the fact that Gaines was not a suspect renders his statements nothing more than voluntary information. Suffice it to say, no law exists precluding rewards for information.

Appellant contends that reversible error was committed in allowing the sheriff, the prosecution’s chief witness, to remain inside the courtroom during the majority' of the trial even though the rule of sequestration had been invoked.

This Court has held that a case will not be reversed because of the ruling of the trial judge on such question unless it manifestly appears that there has been an abuse of discretion. . . . The sheriff or his deputies are required to attend all sessions of the circuit court, . . . and it is obvious that the trial judge may at times require the presence of the sheriff in the courtroom during the trial of cases in which he may be a witness. Since the sheriff is an officer of the court, this ruling of the court in this regard is necessarily discretionary. [Fondren v. State, 253 Miss. 241, 262, 175 So.2d 628, 637 (1965)]

In order to cast no shadow of impropriety upon his actions, the sheriff removed himself from the courtroom during the testimony of certain witnesses, including Samuel Guajardo, the defendant, and every witness who testified during the motion to suppress two statements given by the appellant at an earlier date.

The trial judge did not abuse his discretion in permitting the sheriff to remain in the courtroom although witnesses had been sequestered. The sheriff voluntarily removed himself during the testimony of those witnesses whose testimony he might be called to rebut or whose testimony might be used to bolster or fortify his own.

The defendant also argues that the sheriff tampered with a defense witness, William Garvin. A separate hearing was held on defendant’s motion for a mistrial based on the sheriff’s alleged improper conduct toward Garvin.

One of the factual issues in the case was, when did the defendant acquire the murder weapon? On this issue Guajardo, a migrant farm worker, who had taken a crew of workers to the Delta during the month of October, 1978, testified that he purchased a pistol on Saturday of the first weekend of October, which was October 7. The next day, Sunday, October 8, Guajardo got into a fight with defendant at which time defendant took the pistol from Guajardo. This testimony was significant because it placed the murder weapon in the hands of defendant two weeks before the murder on Saturday, October 21. One of the main points of dispute that arose with regard to Guajar-do’s testimony involved his statement that he had traveled to Indianola in his red pickup truck, along with two other persons, to purchase the pistol in question. Guarjardo remembered that he had purchased the pistol on October 7 before he bought a new white pickup truck on October 17, 1979. His testimony as to the date of the purchase of the truck was corroborated by a bill of sale for the white truck which showed that it was purchased on October 17, 1978.

At the conclusion of Guajardo’s testimony, the court released him from his subpoena and allowed him to return with his family to their home in San Antonio, Texas. Before Guajardo finished testifying, the defense had him identify William Garvin who was one of the persons who had accompanied Guajardo to Indianola to buy the pistol.

At the hearing on the motion, outside the presence of the jury, the district attorney stated that he asked defense counsel the purpose of having Guajardo identify Garvin and the response was that the gun was purchased at a different time. He asked the defense attorney when the gun was purchased but received no response. He then suggested to the sheriff that he have someone contact Garvin and find out what he was going to testify to. At the hearing on the motion, the sheriff testified that after Garvin left the courtroom the district attorney asked him to locate Garvin and ascertain whether the state would need his testimony. The sheriff dispatched his deputies to locate Garvin and in the meantime called the sheriff of Humphreys County to find out if he knew Garvin. The Hum-phreys County Sheriff responded that he had talked to Garvin and that Garvin had told him that he (Garvin) and Guajardo had traveled to Indianola in a white pickup truck, not a red truck.

Garvin was located and a meeting was held, at which the sheriff, Guajardo, Garvin and two deputy sheriffs were present. The sheriff testified that Garvin said he and Guajardo had bought the gun while they were both working at the cotton gin. Gua-jardo then told the sheriff that he had left his work at the gin on Saturday, October 21, 1978. Garvin said he quit work at the gin two weeks before Guajardo had quit. Garvin told the sheriff that they had traveled to Indianola in the white truck. The sheriff said he had not heard Guajardo’s testimony but he had a bill of sale for the white truck which indicated that it was purchased on October 17. Noting the discrepancy in Garvin’s story that was posed by the bill of sale, the sheriff said to Garvin that it couldn’t have been the white truck because Guajardo had purchased it after the time Garvin said he had quit work at the gin.

The sheriff said that he met with Garvin for the purpose of trying to find out what Garvin’s testimony would be and his purpose in questioning Garvin was to clear up the conflict over the color of the truck. He said he had not attempted to influence the testimony of Garvin and his testimony was corroborated by the two deputies.

Garvin testified that Guajardo and the sheriff had told him that it was a red truck and that under this pressure he decided to go along with them. Garvin said when the deputy sheriff told him the sheriff wanted to talk to him he thought he had to go but that he did not tell the deputy that he did not want to talk to the sheriff. He also stated that no one attempted to keep him from appearing in court and he was in court of his own free will.

The court overruled the motion and observed that the exigencies of the situation required prompt action by the prosecution. Guajardo had been released from his subpoena and was in the process of leaving the state when Garvin was contacted. It was the duty of the sheriff to interview Garvin and determine from that interview whether Garvin, or Guajardo, or both, should be bound by subpoena to testify for the state.

Garvin was not intimidated in any manner whatsoever because he later appeared as a witness for the defendant and testified that he accompanied Guajardo in a white pickup truck to buy the pistol on October 21. Therefore, there was no prejudice to the defendant.

Defendant’s last argument is that the trial court did not follow Rule 6.04 of the Uniform Criminal Rules of Circuit Court Practice. The trial judge followed the procedure approved by this Court in Lay v. State, 310 So.2d 908 (Miss.1975). See also, Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).

The trial judge read the indictment to the jury, including the previous convictions and did not hold a separate trial on the principal charge in the previous convictions. Appellant argues that such action demands a reversal under Rule 6.04.

The Uniform Criminal Rules were adopted by this Court on August 15, 1979, and the last paragraph of the order provides:

It is thérefore ordered and adjudged that the Uniform Criminal Rules of Circuit Court Practice (as amended and modified by this Court), a copy of which amended and modified rules is hereto attached, be and they are hereby approved and'adopted by the Supreme Court of Mississippi. The Clerk of this Court will send West Publishing Company a corrected copy of these Criminal Rules for publication in the Southern Reporter (Mississippi Section).

Pursuant to the direction of the Court, a copy of the rules was published by West Publishing Company on October 19, 1979, in the Southern Reporter. This was nine days after the judgment was entered in this case. The order adopting the rules did not fix a date for the rules to take effect, but directed publication in the Southern Reporter. We hold the rules did not take effect until publication in the advance sheet of the Southern Reporter on October 19, 1979.

For the reasons stated, this case is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: SMITH, Presiding Justice,

license: Public Domain

text:
    STATE of Mississippi v. Donald SISTRUNK and Leslie M. Hammons.
    No. 52724.
    Supreme Court of Mississippi.
    Oct. 14, 1981.
    Albert Necaise, Dist. Atty., Richard J. Smith, Asst. Dist. Atty., Gulfport, for appellant.
    Holleman & Krogstat, Lynne Gillespie Clark, Gulfport, for appellees.
    Before SMITH, P.J., and BOWLING and HAWKINS, JJ.
   SMITH, Presiding Justice,

for the Court:

Donald Sistrunk was individually indicted for five counts of embezzlement, on April 20, 1979, and Donald Sistrunk and Leslie M. Hammons were jointly indicted on two counts of embezzlement, on that same day. On May 7, 1979, both defendants waived arraignment as to all counts against them, and each entered a plea of not guilty. Sis-trunk and Hammons entered motions to dismiss, on February 25, 1980, 294 days after arraignment, based on the ground that the State had failed to bring the defendants to trial within 270 days after arraignment as required by Mississippi Code Annotated section 99-17-1 (Supp. 1981), which provides:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

After a hearing, the charges pending against Sistrunk and Hammons were dismissed by the Circuit Court of Harrison County.

The State of Mississippi has appealed as provided by Mississippi Code Annotated section 99-35-103(a) (1972), as provided by State v. Davis, 382 So.2d 1095 (Miss. 1980). Notwithstanding the granting of a motion to dismiss, where there is no actual prosecution of a criminal cause to final judgment, the limitations placed on the State by this statute are inapplicable, State v. Burrill, 312 So.2d 1 (Miss. 1975).

The facts shown by the record are undisputed, even though incomplete.

In the period between the indictment of Sistrunk and Hammons and dismissal of charges pending against them, only one of the counts which was pending against Sis-trunk alone, went to trial. Although the trial had been set to dispose of several of the pending counts of embezzlement, during this period, no other trial was actually initiated. The record discloses that delay in three distinct instances was due to granting a continuance in the prosecution of the case.

On August 17, 1979, the trial court granted a continuance at the request of the State, since two material witnesses of the State would be absent from the jurisdiction until the latter part of September. The continuance extended over a 27 day period, and no protest or objection was made to it by the defendants and there was no request by them for trial.

On December 13, 1979, the circuit judge entered an order of continuance, with the agreement of both parties involved, that trial was to be reset in January at the request of either party. This continuance extended over a period of at least nineteen days.

The court also made a general order, to carry over all cases from the January term to the February term, which was three days later.

These continuances are similar to continuances which State v. Davis, supra, held must be deducted from the amount of time elapsing after arraignment, in determination of whether there has been a violation of Mississippi Code Annotated section 99-17-1 (Supp. 1981). The Court in Davis, supra, noted that a delay resulting from a continuance cannot be considered as having been without good cause, if there has been a complete absence of any protest or objection, or any request by the defendants for trial.

Since Sistrunk and Hammons in no "way protested or objected to the continuances of August 17, 1979 and December 13, 1979, or ever requested trial, it is clear under Davis, supra, that the motion to dismiss by the defendants pursuant to Mississippi Code Annotated section 99-17-1 (Supp. 1981), was premature. This is especially true, since it is undisputed, that trial was set on March 18, 1980, and that such a trial would have been a timely one under Mississippi Code Annotated section 99-17-1 (Supp. 1981). It would be timely, because March 18, 1980 was 316 days after waiver of arraignment, and after considering the delay caused by the continuances of August 17, 1979, and December 13, 1979, which, as mentioned above, were duly ordered by the trial court without objection or request for trial by defendant, the trial was actually set 270 days after waiver of arraignment.

In keeping with the rule in Davis, supra, the case is reversed and remanded for trial.

REVERSED AND REMANDED.

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


author: PATTERSON, Chief Justice,

text:
    MASONITE CORPORATION and Hilda Hines v. Marie T. WILLIAMSON and W. B. Tate.
    No. 52901.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      Daniel, Coker, Horton & Bell, Thomas A. Bell, Joy Lambert Phillips, B. Stevens Hazard, Jackson, Guy, Dowdy & Whittington, William S. Guy, McComb, B. Calvin Cosna-han, for appellant.
    Mounger & Mounger, Breed O. Mounger, Sr., Tylertown, Keith Starrett, for appellee.
    Before PATTERSON, C. J., and SUGG and HAWKINS, JJ.
   PATTERSON, Chief Justice,

for the Court:

Marie Tate Williamson and W. B. Tate brought suits in the Chancery Court of Pike County for trespass and conversion of tim-. ber on their lands. All parties involved in the timber cutting and resulting sales were made defendants in the suits which were consolidated for trial. The chancellor found in favor of Mrs. Williamson and W. B. Tate. Two defendants, Masonite Corporation and Hilda Hines, appeal, assigning numerous errors, only four of which require discussion.

During the summer of 1976, George Brown entered into a verbal agreement with Hilda Hines to purchase timber owned by Miss Hines. Brown then entered into verbal agreements with other parties to cut and remove the timber. The timber was sold to different lumber mills, principally to mills owned by Masonite Corporation. All these parties — Hilda Hines, George Brown, those who cut, loaded, and hauled the timber, and- the purchasers of the timber — ' were made defendants in the present action.

The land owned by Hilda Hines is joined on the south by a 40 acre tract of land owned by Marie Williamson. The Bala Chitto Creek meanders back and forth along the southern border, with Miss Hines owning approximately three acres south of this creek. W. B. Tate owned sixty acres involved in this dispute, adjoining the Hines and Williamson properties. This controversy arose over timber cut south of the Bala Chitto Creek.

Miss Hines testified that at the time she contracted with Brown, she was uncertain about the location of her boundary lines, but thought that she owned three acres south of the creek. Although no fence marked the property lines, Brown made only superficial efforts to locate the boundary lines. Under Brown’s direction almost the entire 40 acres of timber belonging to Mrs. Williamson was clear cut. Cutting was also done on W. B. Tate’s land, though not as extensively as on the Williamson tract. Cutting stopped when the William-sons and Tates became aware of the cutting and asserted their ownership of the land. Brown subsequently pled guilty in the circuit court to two counts of malicious trespass arising out of these facts.

Proof of the amount of wood cut and removed came from the testimony of a forester. He made a 100% stump count of the cutting on both the Williamson and Tate lands. Measurements of the diameter and height of each stump were used to compute the volume of board feet in each tree cut. From the calculations the forester determined that 934 trees, with a stumpage value of $26,397.80 and a delivered value of $44,160, were cut off the Williamson land. 220 trees, having a stumpage value of $12,-090 and delivered value of $19,039, were found to be cut from W. B. Tate’s land.

The chancellor found each defendant who actually received and converted any timber liable for damages. Brown was held liable for damages in the amount of the delivered value of the timber plus the statutory penalty of $15 per tree. Although a conspiracy between Brown, Hines, and Craft, the principal cutter, had been alleged, the chancellor did not find that it had been proven. Miss Hines was held liable for $13,656.38, the amount she was paid by Brown less $343.62, the amount of the timber on the property she owned south of the creek. Masonite and the other purchasers of the converted timber were held liable for the delivered value of the timber they purchased. The damages against Masonite totaled $26,770.21. The chancellor found Masonite entitled, on its cross-bill, to recover against Brown the amount Masonite paid in damages to Mrs. Williamson and W. B. Tate.

Hilda Hines in her primary assignment of error contends that the judgment against her was erroneous because it was granted on the basis of negligence while the pleadings sounded of trespass and conversion based on conspiracy. In the court’s final decree, the chancellor stated “that the timber was hauled within 15 feet of the residence of Miss Hines and she should have realized that all of the timber could not possibly be coming from the three acres which she claimed to own from south of the Bala Chitto Creek.” From this finding of fact, Miss Hines contends that the judgment against her was based on negligence. We disagree. This factual determination led to the chancellor’s judgment against Miss Hines based on conversion, not negligence.

Conversion results from conduct intended to affect property. Conversion requires an intent to exercise dominion or control over goods inconsistent with the true owner’s rights. Mississippi Motor Finance, Inc. v. Thomas, 246 Miss. 14, 149 So.2d 20 (1963); W. Prosser, Handbook of the Law of Torts 83 (1971). In finding that Miss Hines should have realized the timber did not come from her own land, the chancellor found this intent to exercise dominion or control. Thus, when Miss Hines contracted for the cutting and received periodic payments for the timber, she exercised control over the timber inconsistent with the rights of Mrs. Williamson and W. B. Tate. Neither a mistake of fact on the part of Miss Hines concerning the location of the property lines nor the good faith of Miss Hines is a defense to this action of conversion. The chancellor’s determination that Miss Hines should have realized the source of the timber is simply a finding that Miss Hines acted in a positive way sufficient to constitute conversion. Thus, we find no merit in this assignment of error.

Hilda Hines further contends that the court’s judgment against her was contrary to the overwhelming weight of the evidence. Miss Hines testified that she received only $3500 from Brown as payment for the timber, while Brown testified that he paid her approximately $14,000. Miss Hines contends that her testimony was more credible, reasonable, and substantiated than the testimony of Brown. She attempted to substantiate her testimony by records of deposits into her savings account. While the conflicting testimony of both Brown and Hines was substantiated to a certain extent, the testimony of both individuals was vague and elusive at times. In considering the testimony of both Brown and Hines, we do not find that the chancellor was manifestly wrong in his factual determination. Thus, this assignment of error is without merit.

The primary assignment of error by Masonite Corporation concerns the measure of damages used by the chancellor. The damages assessed against Masonite were based on the delivered value of the timber, the price paid for the timber delivered to the Masonite mills. Masonite contends that the correct measure of damages is the stump-age value, the value of the standing timber before it is enhanced by cutting, loading, and hauling to the lumber mills.

It is well settled when a trespass is willful, the trespasser is held liable for enhanced damages, the value of the timber as enhanced by the trespasser’s labor in cutting, loading, and hauling the timber. Chevron Oil Co. v. Snellgrove, 253 Miss. 356, 175 So.2d 471 (1965); Heard v. James, 49 Miss. 236 (1873). The chancellor found that Brown, the original trespasser, was willful in his trespass and awarded damages of the delivered value of the timber against Brown. However, Masonite argues that because it was not the original trespasser and because it acted in good faith in purchasing the timber, the enhanced damages of delivered value was not the appropriate measure of damages.

It is well settled in this state that the measure of damages in an action for conversion is the value of the property at the time and place of its conversion. Phillips Distributors, Inc. v. Texaco, Inc., 190 So.2d 840 (Miss.1966); Ingram Day Lumber Co. v. Robertson, 129 Miss. 365, 92 So. 289 (1922). Under this rule the delivered value is the appropriate measure of damages. Masonite converted the timber when it purchased the timber cut and delivered to its mill. Thus the value at the time and place of conversion is the delivered value.

Where trees have been cut and removed through inadvertence or mistake, the proper measure of damages is the stumpage value, the value of the standing trees, unen-haneed by any labor of the trespasser. Chevron Oil Co. v. Snellgrove, 253 Miss. 356, 175 So.2d 471 (1965); Heard v. James, 49 Miss. 236 (1873). Masonite argues that because of its good faith in purchasing the timber, the measure of damages should be the stumpage value, the same as that used when the original trespasser acted in good faith. Some states have held that an innocent purchaser from a good faith trespasser is liable only for the stumpage value and not for any enhanced value. E. g. Koelling v. Ralph Anderson Lumber Co., 392 S.W.2d 393 (Mo.1965); Smith v. Shiflett, 66 Wash.2d 462, 403 P.2d 364 (1965). See Annot., 69 A.L.R.2d 1335 (1960). However that is not the situation in the present case.

While we have not ruled specifically on the measure of damages against an innocent purchaser of converted timber from a willful trespasser, we are of the opinion the delivered value is the appropriate measure of damages. This is the rule enunciated by an early U. S. Supreme Court case, E. E. Bolles Wooden Ware Co. v. U. S., 106 U.S. 432, 1 S.Ct. 398, 27 L.Ed. 230 (1882), and followed in numerous jurisdictions. E. g. Smith v. Shiflett, 66 Wash.2d 462, 403 P.2d 364 (1965); Godwin v. Taenzer, 122 Tenn. 101, 119 S.W. 1133 (1909); Central Coal & Coke Co. v. John Henry Shoe Co., 69 Ark. 302, 63 S.W. 49 (1901). This position is strengthened, we think, by the fact that had the owners been able to identify their timber at the Masonite mills, they could have recovered possession from Masonite, causing Masonite to lose its purchase price, the delivered value. Thus, we are of the opinion that the delivered value of timber is the appropriate measure . of damages against one who unknowingly purchased converted timber from a willful trespasser.

Both appellants assign as error the failure of the chancellor to issue separate decrees. The separate suits brought by Mrs. Williamson and W. B. Tate were consolidated for trial, and then a single decree was issued by the chancellor. In the damage award against Masonite and Hilda Hines, the chancellor did not divide the damage award between Mrs. Williamson and W. B. Tate.

While the general rule of law provides for separate decrees in consolidated causes, we have expressly held that a single decree is allowable when “the nature of the matters be such that it is clearly proper to' include them in one decree.” Elliott v. Harrigill, 241 Miss. 877, 133 So.2d 612 (1961) citing V. Griffith, Mississippi Chancery Practice, § 506 (1950).

In our opinion the single decree was proper in the circumstances of this case. Because the records of Masonite and of those persons cutting' the timber did not reflect the location of the trees on the property on which they were cut, it was impossible to determine how much of the timber delivered to Masonite came from Mrs. Williamson’s land and how much came from W. B. Tate’s land. Likewise the amount of money Miss Hines was paid for timber on the separate tracts belonging to Mrs. Williamson and to W. B. Tate could not be determined. We are of the opinion compensation should not be denied Mrs. Williamson and W. B. Tate simply because records did not show which timber came from which tract of land and what proportionate sum Tate or Williamson was entitled to. Thus we are of the opinion that the single decree was proper and equitable under these circumstances.

Having considered all the assignments of error, we find them without merit. Thus, this cause is affirmed.

AFFIRMED.

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

BOWLING, J., takes no part.


author: ADAMS, Justice.

text:
    Dale WERHAN v. PINELLAS SEAFOOD COMPANY, a corporation.
    79-663.
    Supreme Court of Alabama.
    July 10, 1981.
    James R. Owen of Owen & Ball, Bay Minette, for appellant.
    Ronald P. Slepian and Gordon O. Tanner of McDermott, Slepian, Windom & Reed, Mobile, for appellee.
   ADAMS, Justice.

This appeal by Dale Werhan, defendant below, seeks a reversal of an adverse judgment entered against him by the trial court. Plaintiff, Pinellas Seafood Company, brought an action in detinue against Wer-han and others in the Circuit Court of Mobile County. Plaintiff dismissed his action against the others and the case proceeded to trial with Werhan as the sole defendant. The case was heard ore tenus and a judgment awarding the proceeds from the sale of the disputed shrimp was given to the plaintiff.

The pertinent facts involved on this appeal are as follows. Plaintiff, a seafood processor, sold $110,554.10 worth of shrimp to J. & J. Seafood in two transactions. These transactions occurred on September 29 and 30, 1979. J. & J. Seafood paid plaintiff with two checks. On October 3, 1979, J. & J. Seafood delivered 16,100 pounds of the disputed shrimp to the defendant, a buyer and seller of seafood. The defendant testified at trial that he ordered the shrimp from J. & J. about two days prior to the delivery. Defendant, at the time, had a credit in his account with J. & J. of approximately $70,000.00. Werhan paid for the shrimp by having the bill, in the amount of $51,505.00, applied against his credit balance with J. & J. The money in the defendant’s account was advanced to J. & J. during the period of March 30, 1977, through August 1, 1977. Werhan advanced the money in order that J. & J. could purchase shrimp for him. After delivery of the shrimp to Werhan, J. & J.’s checks to the plaintiff were dishonored due to insufficient funds. J. & J. subsequently filed bankruptcy. The federal bankruptcy judge vacated the stay normally imposed upon proceedings involving the assets of one filing for bankruptcy, in order that the instant case could be adjudicated in circuit court. By agreement of the parties, the disputed shrimp were sold for approximately $42,500.00, and the net proceeds from that sale have been held in escrow pending the outcome of this litigation.

This appeal presents two issues for our review. The first is whether one who purchases goods paid for by partial satisfaction of a pre-existing debt is a purchaser for value entitled to protection as a good faith purchaser for value under Code 1975, § 7-2-403. The second is whether the defendant, at trial, established superior title to the disputed shrimp in himself, after the plaintiff proved a prima facie case in its detinue action. We hold that the defendant was a purchaser for value as required by Code 1975, § 7-2-403, and that he established at trial that he had superior title to the disputed shrimp. Code 1975, § 7-2-403(1), provides that:

A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though:
(a) The transferor was deceived as to the identity of the purchaser, or
(b) The delivery was in exchange for a check which is later dishonored, or
(c) It was agreed that the transaction was to be a “cash sale,” or
(d) The delivery was procured through fraud punishable as larcenous under the criminal law.

The protection given to a good faith purchaser for value of goods under § 2-403 of the Uniform Commercial Code has been noted by the United States Court of Appeals for the Eighth Circuit:

Section 2 — 403 gives a transferor power to pass good title to certain transferees even though the transferor does not possess good title. This section contemplates the situation in which a cash seller delivers goods to a buyer who pays by a draft that is subsequently dishonored, and then transfers title to a good faith purchaser. U.C.C. §§ 2 — 403(l)(b) & (c). In such a situation, as between the good faith purchaser and the unpaid seller, the former’s claim is clearly superior.

Burk v. Emmick, 637 F.2d 1172, 1174 (8th Cir. 1980). Whether the defendant is entitled to the protection provided under that section of the U.C.C is determined by whether he paid “value” for the shrimp within the context of our § 7-2-403. If he did not, and consequently cannot come within the purview of § 7-2-403 defendant would not have a superior claim to the proceeds from the sale of the disputed shrimp.

Plaintiff contends, citing previous decisions of this court, that the defendant’s purchase of the shrimp was a transfer in partial payment of a pre-existing debt and, thus, not for value. Prior to the Uniform Commercial Code, the various jurisdictions were split on the issue of whether a pre-ex-isting debt was good consideration for a chattel purchase. A majority of jurisdictions, in most situations, held that it was not. In Annot., 11 A.L.R.3d 1028, 1030 (1967), dealing mainly with pre-U.C.C. cases, it was remarked that

[a] substantial number of courts take the contrary view, holding that a purchaser who takes a chattel in partial or full satisfaction of a pre-existing debt is a purchaser for value, and protected against those with prior equitable claims in the chattel. The Alabama courts are not in entire accord with either of the foregoing views, but hold rather that the purchaser is protected if he has absolutely and in fact canceled the debt so that he can no longer recover it, but may be liable to the prior claimant if he merely “credited” the debtor’s account so that the debt may be restored in full upon failure of title to the chattel. [Footnotes omitted.]

Our position was expressed by Justice Anderson in Hawkins v. Damson & Abraham, 182 Ala. 83, 62 So. 15-16 (1913), wherein he stated:

Merely entering a credit on an account past due, without surrendering anything valuable, would not constitute the creditor a bona fide purchaser. He must give ■ up something of value, so as to materially change his position, such as a surrender of the evidence of indebtedness, or prior security. If he simply credits the debt- or’s account with the value of the thing purchased, and gives up nothing, and his title should fail in case the debtor had no right to sell to him, and the superior title or lien upon the thing sold deprived the creditor of same, his debt would remain unsatisfied. — First Nat. Bank v. Nelson, 105 Ala. 180, 16 So. 707; Spira v. Hornthall, 77 Ala. 137.

The above principle was noted also in the earlier cases of Loeb & Bros. v. Flash & Bros., 65 Ala. 526 (1880), and Loeb & Bros. v. Peters & Bros., 63 Ala. 243 (1879).

Subsequent to the above-cited decisions, and in more recent times, Alabama adopted the Uniform Commercial Code, which provides a different definition of value that specifically includes the “total or partial satisfaction of a preexisting claim.” Code 1975, § 7-l-201(44)(b). It is clear from the face of the language used in this sub-section that it was the intention of the legislature to raise the partial satisfaction of a pre-existing debt to the status of value in this type of transaction. Other jurisdictions have held that § l-201(44)(b) gives the status of value to the partial satisfaction of a pre-existing debt. First-Citizens Bank and Trust Co. v. Academic Archives, 10 N.C.App. 619, 179 S.E.2d 850 (1971), cert. denied, 278 N.C. 703, 181 S.E.2d 601 (1971); Sherburne Corp. v. Carter, 133 Vt. 411, 340 A.2d 82 (1975).

Thus, we hold that the legislature, by adopting § 7-l-201(44)(b), intended to include the partial satisfaction of a pre-exist-ing debt or claim within the definition of value. Hawkins v. Damson & Abraham, supra, and all cases in line with it, to the extent they hold that partial satisfaction of a pre-existing debt or claim is not value within the context of a chattel sale under the U.C.C., are overruled.

We next consider plaintiff's argument that the defendant failed to meet its burden to prove a superior interest in the disputed shrimp. Plaintiff cites the case of Griffith & Warren v. Biggers, 206 Ala. 563, 90 So. 795 (1921), which held that after a plaintiff, in a detinue action, makes out a prima facie case, the burden then shifts to the defendant to show a superior claim or title to the disputed property. Plaintiff contends that the defendant failed to show any interest in the shrimp that were the subject matter of the instant litigation. We have reviewed the record and find plaintiff’s contention to be without merit. Factually, it is clear from the record that the defendant purchased the same shrimp from J. & J. that Pinellas sold to J. & J. It is clear, as a matter of law, that the defendant was a good faith purchaser for value within the context of § 7-2-403(1), and that his claim to the shrimp is superior to that of the plaintiff.

Accordingly, the judgment of the trial court is reversed and the case remanded with directions for judgment to be entered for the defendant for $42,500.00 plus costs.

REVERSED AND REMANDED WITH DIRECTIONS.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: MADDOX, Justice.

text:
    FARM COUNTRY HOMES, INC., Robert L. Rigsby & Charles Ray, Jr. v. Dorothy RIGSBY.
    No. 80-17.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    Rehearing Denied Sept. 18, 1981.

      J. Robert Miller of Culver & Miller, Huntsville, for appellants.
    J. Allen Brinkley and Robert H. Ford of Brinkley, Ford & Fleming, Huntsville, for appellee.
   MADDOX, Justice.

This appeal arises out of a cause of action joining the claims of a stockholder’s derivative action and an action for abuse of process. After judgment for the plaintiff on both claims, the defendants bring this appeal. The issues presented on appeal involve: the reading, at trial, of certain depositions and testimony given in a previous distinct and separate trial; testimony given by an Internal Revenue Service agent concerning defendant Rigsby’s income; the statute of limitations on the abuse of process claim; whether a previous proper and legal judgment can give rise to a valid abuse of process claim; and whether the evidence presented at trial supports the findings and orders of the trial court.

After hearing this case ore tenus the trial court made the following findings of fact:

In 1971 Farm Country Homes, Inc., was incorporated by the appellant, Robert Rigs-by, his wife, Dorothy, and their son. At that time, Robert and Dorothy conveyed to Farm Country Homes, Inc., their home-place, which was their only asset. Robert, as president of the corporation, then proceeded to operate the corporation as a sole proprietorship, utilizing the homeplace as the only asset of the corporation and as security for loans to raise money to operate the business. In running the corporation, Robert commingled the income and assets of the corporation with his own personal income and assets and continued this method of operation through 1975. During this period, Dorothy was the owner of 1% of the stock in the corporation.

In 1976, the Rigsbys obtained a divorce. As part of the divorce decree, Dorothy was awarded an additional 25% interest in the corporation, making her total interest as a shareholder in the corporation 26%.

Robert remained president of the corporation and, at all times, treated the corporation as his personal property. He did not keep any separate books or records of the corporation nor did he keep any separate bank accounts. During his tenure as president of the corporation, Robert also committed numerous acts in violation of the fiduciary duty which he, as an officer and director of the corporation, owed to the corporation and its stockholders.

One of these acts, which was not only in violation of his aforementioned fiduciary duty but also gave rise to the abuse of process action, was the conveyance of certain corporate property, previously referred to as the homeplace. On March 9, 1976, Dorothy filed for the divorce. Robert was served with the papers on March 18, 1976. There was submitted to the court a deed purportedly executed on January 9, 1976, whereby Robert conveyed the homeplace to co-appellant, Charles Ray, Jr. This deed, however, was not recorded until April 9, 1976. Allegedly, Ray loaned Robert $20,000 as consideration for the transfer of the homeplace to him, but no receipts or records were kept of this transaction. Thereafter, Ray and Robert engaged in a scheme to defraud Dorothy of the alimony payments which Robert owed her. This was accomplished by Ray’s filing an ejectment action against Dorothy and obtaining a judgment against her for $2,750 as rent on the home-place. Pursuant to this judgment, Ray garnisheed the alimony payments that Robert owed Dorothy. Robert honored the garnishment and allegedly paid Dorothy’s next eleven months alimony payments to Ray., Ray later conveyed the property to a third party for $60,000 and, after paying off an existing mortgage, gave the balance of the money to Robert.

Based on these and other facts, the trial court determined that Robert, as officer and director of the corporation, had converted, misused and misappropriated a total of $211,045.96 of corporate assets to his own use and entered judgment against Robert in that amount. The court further held: in order to end the lack of management of the corporation; to end the fraudulent and oppressive conduct of Robert; and to end the misapplication and wasting of corporate funds, the corporation should be liquidated as allowed by § 10-2-204, Code of Alabama 1975.

The court further held that appellants Robert and Ray had committed an abuse of process in the ejectment and garnishment actions that arose out of the conveyance of the homeplace and awarded judgment for Dorothy against them in the amount of $10,000.

During the course of the trial, appellee, Dorothy, over Robert’s objection, was per-, mitted to read into evidence excerpts from testimony taken during the parties’ previous divorce hearing. The testimony dealt with Robert’s income and assets and how they were commingled with the assets of the corporation. Later, however, the court reversed its ruling to allow this prior testimony and made the following statements:

THE COURT: Let me make a ruling for the record. Yesterday I allowed in some reading from some depositions and a transcript from a prior trial, over objections of the defendants. I think that was an error on my part and I am reversing that ruling and I am sustaining the objections to the teading of those depositions and excluding that evidence from my consideration in this case.

Robert asserts that this prior testimony was totally irrelevant and had no place in the trial at hand, and that the trial court committed reversible error by allowing it to be read at trial.

Without discussing the issue of whether the prior testimony was or was not proper evidence in this trial and whether it should or should not have been admitted, we dispose of this contention on the basis that the trial court ultimately decided this issue in favor of the appellant. Thus, we find no adverse ruling on which the appellants can lodge this appeal. See Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So.2d 306 (1963). Also, there was sufficient evidence presented at trial in addition to this prior testimony, which the trial judge ultimately excluded, to support the final findings of the trial court. There is no reversible error found in the fact that the trial judge first heard this evidence and then decided to exclude it.

During the trial, an agent of the Internal Revenue Service was called and, over Robert’s objection, was allowed to testify to matters concerning Robert’s income. Robert claims this testimony violated federal statute 26 U.S.C.A. § 7213(a)(1), which provides that:

It shall be unlawful for any officer or employee of the United States to divulge or to make known in any manner whatever not provided by law to any person the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any income return, or to permit any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law....

This contention is not well taken. The purpose of this statute is to prevent the disclosure of confidential information to those who do not have a legitimate interest therein. Kingsley v. Delaware, Lackawanna & Western R. Co., 20 F.R.D. 156 (S.D.N.Y.1957). The prohibition is limited to disclosures made “in any other manner than may be provided by law” and is not deemed to forbid disclosures made pursuant to process lawfully issued in a judicial proceeding. Blair v. Oesterlein Machine Co., 275 U.S. 220, 48 S.Ct. 87, 72 L.Ed. 249 (1927).

. Co-appellants, Robert and Ray, appeal from the judgment on the abuse of process claim on two bases. First, they submit that the action was barred by the statute of limitations. Finding nothing in the appellants’ pleadings or in the trial record to suggest that this issue was raised at trial, we refuse to consider it on appeal. It has long been the law of this state that, under most circumstances, where the statute of limitations is not put in issue in the pleadings it will not be considered on appeal. Sands v. Hammell, 108 Ala. 624, 18 So. 489 (1895). See also Rule 8, A.R.C.P. Appellants present nothing here to convince us that exception to this rule should be made in this case.

Appellants, Robert and Ray, also assert that the abuse of process judgment is improper because it arises out of an action whereby a valid and legal judgment was obtained. An abuse of process action, however, presupposes an originally valid and regular process, duly and properly issued, and the validity of the process is no defense to an action for its abuse. 72 C.J.S. Process, § 120 (1951). It is the malicious perversion of a regularly issued process to accomplish a purpose whereby a result not lawfully or properly obtainable under it is secured. Duncan v. Kent, 370 So.2d 288 (Ala.1979); Dickerson v. Schwabacher, 177 Ala. 371, 58 So. 986 (1912).

The fact that the trial court determined the transaction between Robert and Ray to be entirely fraudulent and deceitful and that the subsequent garnishment and ejectment constituted the same is sufficient to sustain the abuse of process judgment even though the judgment for the ejectment and garnishment arose out of a proper and legal process.

Finally, the appellants contend that the verdict of the trial court is contrary to the evidence presented at trial and should be reversed. As this Court has stated on numerous occasions, the decree of a trial court sitting ore tenus carries with it a presumption of correctness and will not be disturbed unless palpably wrong, without supporting evidence, or manifestly unjust. Gertz v. Allen, 376 So.2d 695 (Ala.1979). We find nothing in the record nor in the appellants’ brief sufficient to overcome this presumption of correctness.

Careful review of all the facts and issues presented on this appeal reveals no adequate grounds for reversal. This being our determination, we affirm the findings and decree of the trial court.

AFFIRMED.

JONES, SHORES, BEATTY and ADAMS, JJ., concur.


author: TORBERT, Chief Justice.

text:
    Kenneth Maynard EMERSON, etc., et al. v. SOUTHERN RAILWAY COMPANY, a corp., et al.
    80-221.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    Rehearing Denied Sept. 25, 1981.

      Lloyd W. Gathings of Emond & Vines, Birmingham, for appellants.
    Crawford S. McGivaren, Jr. and Tony G. Miller of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellees.
   TORBERT, Chief Justice.

This is an appeal from a summary judgment in favor of defendants. The trial court held that plaintiffs’ claims seeking recovery for personal injuries and for loss of consortium were barred by the statute of limitations. We affirm in part, reverse in part, and remand.

The injuries from which this controversy arose occurred on September 9, 1977. On that day, Kenneth Maynard Emerson was injured while engaged in the “rebuilding” of a railroad trestle in Dallas County, Alabama. All parties to the case have stipulated that as a result of the injuries, made the basis of this suit, Kenneth Emerson was rendered and has remained non compos mentis, within the meaning of Code 1975, § 6-2-8.

On July 14,1978, Mary Ann Emerson, the wife of Kenneth Emerson, was appointed his legal guardian. The present action was instituted on March 21,1980, against Southern Railway Company, the owners of the trestle; Ronald Wilkenson and William Bibb Goodwyn, supervisory co-employees of Kenneth Emerson; and American Mutual Liability Insurance Company, the workmen’s compensation carrier for W. B. Good-wyn, Inc., Mr. Emerson’s employer. In Count A of the complaint Mrs. Emerson, as guardian, sought recovery for her husband’s personal injuries, alleging common law negligence or wantonness as to all defendants. Additionally, recovery was sought pursuant to the Federal Employers Liability Act; however, this claim, having a three-year statute of limitations, is not involved on appeal. In Count B Mrs. Emerson, individually, claimed damages for loss of consortium.

Defendants filed motions for summary judgment, contending plaintiffs’ claims were barred by the statute of limitations since more than one year had elapsed between Mrs. Emerson’s appointment as guardian and the filing of this suit. These motions were supported by Code 1975, § 6-2-39(a)(5), the “catch all” provision governing personal injury cases. Plaintiffs opposed the motions, citing Code 1975, § 6-2-8. The trial court granted summary judgment to all defendants on plaintiffs’ negligence or wantonness claims and on the claim for loss of consortium. Plaintiffs appeal.

The first issue before this Court is whether the appointment of a guardian for a non compos mentis begins the running of the statute of limitations in a personal injury action. The general rule, accepted by the majority of jurisdictions, is that the appointment of a guardian or committee for a mentally incompetent or non-age person does not have the effect of commencing the running of the period of limitations tolled by virtue of the disability. See, e. g., Wolf v. United States, 10 F.Supp. 899 (S.D.N.Y. 1935); Zini v. First National Bank, 228 Ark. 325, 307 S.W.2d 874 (1957). Funk v. Wingert, 134 Md. 523, 107 A. 345 (1919); Finney v. Speed, 71 Miss. 32, 14 So. 465 (1893).

In Wolf v. United States, 10 F.Supp. 899 (S.D.N.Y. 1935), recovery was sought on a war risk policy. A committee had been appointed for the plaintiff, an incompetent, in 1922; and suit for recovery was filed in March 1933. The World War Veterans’ Act of 1924, § 19, as amended, 38 U.S.C. § 445, contained a proviso, analogous to our tolling statute, which suspended the running of the statute of limitations in favor of incompetents. The court held that the appointment of a committee was not a removal of the plaintiff’s disability; therefore, the limitation period had not run as to his claim. Further, the court, citing Monroe v. Simmons, 86 Ga. 344, 12 S.E. 643 (1890); Funk v. Wingert, 134 Md. 523, 107 A. 345 (1919); and Finney v. Speed, 71 Miss. 32, 14 So. 465 (1893), stated that a statute which allows the institution of an action within a specific • time after the removal of a disability, amounts to a saving clause that covers the time of continuance of infancy or insanity.

Code 1975, § 6-2-8(a), provides such a savings clause:

(a) If anyone entitled to commence any of the actions enumerated in this chapter, to make an entry on land or enter a defense founded on the title to real property is, at the time such right accrues, below the age of 19 years, insane or imprisoned on a criminal charge for any term less than for life, he shall have three years, or the period allowed by law for the commencement of such action if it be less than three years, after the termination of such disability to commence an action, make entry, or defend; provided, however, that no disability shall extend the period of limitations so as to allow such action to be commenced, entry made or defense made after the lapse of 20 years from the time the claim or right accrued. [Emphasis added.]

Section 6-2-8 demonstrates legislative response to the need to protect individuals suffering under certain disabilities. This Court in past decisions has recognized the importance of § 6-2-8, and has clearly adhered to the general rule espoused in Wolf in tolling the statute of limitations in favor of infants and incompetents. Hood v. Johnston, 210 Ala. 617, 99 So. 75 (1924); Burford v. Steele, 80 Ala. 147 (1885); Moore v. Wallis, 18 Ala. 458 (1850).

In Hood v. Johnston, 210 Ala. 617, 99 So. 75 (1924), plaintiff, upon reaching majority, filed an action in ejectment for recovery of an interest in land. The defendants in Hood, as in the present case, claimed that the appointment of a guardian began the running of the limitation period and that plaintiff’s claim was barred. This Court, under § 4846 of the 1907 Code (presently § 6-2-8), held that an infant upon becoming of age is* entitled to sue in ejectment to recover an interest in land, regardless of the acts of his guardian during adverse possession of another. Specifically stated, “the authorities hold that, whatever may or may not have been done by his guardian, the plaintiff, upon coming of age, was entitled, under the statute (Code, § 4846), to sue in his own name.” Hood at 619, 99 So.75.

Alabama case law also recognizes an exception to the general rule in situations where the legal title or right of action is in the guardian/trustee and not in the infant or incompetent. See, e. g., Spann v. First National. Bank, 240 Ala. 539, 200 So. 554 (1941); Cruse v. Kidd, 195 Ala. 22, 70 So. 166 (1915); Molton v. Henderson, 62 Ala. 426 (1878). In these cases, the statute of limitations does begin to run.

Appellees contend that Spann v. First National Bank, 240 Ala. 539, 200 So. 554 (1941), stands for the proposition that the appointment of a guardian, in any situation, begins the running of the limitation period. They further contend that the guardian’s capacity to sue is all that is required, and that legal title or the right of action resting in the trustee is not determinative. However, the correct reading of Spann reflects our recognition and adherence to the general rule in tolling the limitation period for individuals who are incapacitated, and our recognition of the exception to the general rule.

In Span a comparison was made of the facts to a like situation in Scott on Trusts, stating that there were cases in which .the beneficiaries of a trust, although under an incapacity, would be precluded from bringing suit if the trustee was barred by the statute of limitations. Further, the court, citing Cruse v. Kidd, 195 Ala. 22, 70 So. 166 (1915), stated, “[T]he principle is established in this jurisdiction that as between the trustee and a stranger the statute of limitations runs as in other cases, and if the trustee is barred the cestui que trust is also barred.” Spann, 240 Ala. at 544, 200 So. 554. The reliance of the court on trust law and past Alabama cases clearly brought the holding of Spann within the exception to the general rule.

The appellees emphasized the duties and powers of guardians imposed by statute in Alabama. Section 26 — 4—3, et seq., were cited to support the contentions that Mrs. Emerson had the power and the duty to commence the personal injury action on behalf of her husband within the one-year limitation period. These statutes, however, define the obligation of the guardian in terms of support and maintenance, managing property owned by the ward, and collecting assets and the debts owed to the ward. They do not specifically provide a duty, as in the present action, for the filing of a personal injury claim. It is recognized by this Court that the guardian may present a claim for personal injury, on behalf of the ward, and a probate court could authorize a settlement thereof by compromise. Bishop v. Big Sandy Lumber Co., 199 Ala. 463, 74 So. 931 (1917).

A guardian’s ability to commence and settle personal injury actions has been addressed. See, e. g., Abernathy v. Colbert County Hospital Board, 388 So.2d 1207 (Ala.1980); Henderson v. Illinois Central Gulf Railroad Co., 361 So.2d 1011 (Ala.1978); Tennessee, Coal, Iron & Railway Co. v. Hayes, 97 Ala. 201, 12 So. 98 (1892); Spurling v. Fillingim, 244 Ala. 172, 12 So.2d 740 (1943). These cases demonstrate the fact that the right of action resides in the injured party and not in the guardian or representative. This is not to say that a guardian, next friend, or guardian ad litem cannot file a claim on behalf of the ward. It is clear to us, however, that failure on the part of the representative to file or pursue this claim within the limitation period does not bar recovery where § 6-2-8 is applicable.

In the present case the right to pursue recovery for personal injuries rests with Kenneth Emerson. He is within the class of individuals protected under the tolling provision of § 6-2-8; therefore, summary judgment as to his claim was in error.

The second issue to be addressed is whether the statute of limitations on Mrs. Emerson’s loss of consortium claim is tolled by virtue of the fact that the limitation period is tolled as to her husband’s personal injury claim. Several courts have specifically addressed this issue. They have found, and we agree, that the derivative claim for loss of consortium of a spouse or parent is not subject to the tolling statute of the infant or incompetent. See, e. g., Jaime v. Neurological Hospital Ass’n of Kansas City, 488 S.W.2d 641 (Mo.1973); Shack v. Holland, 89 Misc.2d 78, 389 N.Y. S.2d 988 (1976); Simpson v. City of Abilene, 388 S.W.2d 760 (Tex.Civ.App.1965).

A wife’s right to recovery for loss of consortium was recognized by this Court in Swartz v. United States Steel Corp., 293 Ala. 439, 304 So.2d 881 (1974), and was considered to be a separate property right. Because she has this separate property right, a wife is allowed to pursue an independent cause of action on her own behalf. The privileges afforded the class of individuals in § 6-2-8, however, are personal to those who suffer the disabilities provided for by the statute. Mrs. Emerson was suffering under no disability at the time her husband was injured; therefore, the tolling of the statute of limitations does not extend to her claim. Mrs. Emerson is barred recovery, and the trial court was correct in granting summary judgment as to her claim.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: FAULKNER, Justice.

text:
    Donald MURDOCH, et al. v. Theresa B. THOMAS, etc.
    79-687.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Rehearing Denied Sept. 25, 1981.

      Richard A. Ball, Jr., Montgomery, and Horace Williams, Eufaula, for appellants.
    Jimmy S. Calton, Eufaula, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment in a wrongful death action in the Circuit Court of Barbour County for plaintiff, Theresa Thomas.

On October 15,1978, Mr. Copeland Thomas, deceased, was injured in a two-car accident. He was taken by ambulance to the Barbour County Hospital emergency room complaining of pain in his chest, side and lower back. Defendant, Dr. Donald Murdoch, a licensed physician, examined Mr. Thomas upon arrival. Dr. Murdoch had worked exclusively in emergency room medicine for two and one-half years and was, at the time, an employee of Emergency Room Professional Association of Enterprise, Alabama, working on assignment in the Barbour County Hospital emergency room. Through the use of X-rays, Dr. Murdoch ruled out the possibility of broken bones, heart concussion, collapsed lungs, contused lungs or bleeding around the lungs, and ruptured abdomen. Dr. Murdoch further considered the possibility of a ruptured spleen but subsequently, after a physical examination, ruled it out. Dr. Murdoch prescribed Dolene-AP for the pain and advised Mrs. Thomas to take her husband home. When Mrs. Thomas expressed her desire to have Mr. Thomas admitted to the hospital, Dr. Murdoch purportedly responded: “[TJhere is nothing the matter with this man but he’s got arthritis in his left knee.” No follow-up instructions were given to the Thomases advising what to do if complications later developed. That night, Mr. Thomas took one of the pain pills, continued to complain of chest pains, and later vomited. Around 9:30 P.M., Mrs. Thomas contacted Dr.' Woodbury, her husband’s doctor, who informed her that vomiting was often a side effect of the particular drug that Mr. Thomas had taken and advised her to discontinue the medication. He also told Mrs. Thomas to call back if she needed him.

The following morning, Mr. Thomas was taken back to the emergency room and diagnosed by Dr. Woodbury and another examining physician as suffering from internal bleeding and shock. Shortly after being admitted, he lost consciousness and subsequent cardiopulmonary resuscitation (CPR) efforts failed to revive him. The autopsy report indicated that although Mr. Thomas had a severely diseased heart, death most likely resulted from a chain of events precipitated by an initial loss of blood from a ruptured spleen which culminated in respiratory arrest.

On November 21,1978, Theresa B. Thomas, the personal representative and adminis-tratrix of her husband’s estate, filed suit against Dr. Donald Murdoch and the Barbour County Hospital seeking one million dollars for the wrongful death of her husband due to the alleged malpractice of the defendants. She later amended her complaint to add Emergency Room Professional Association as a defendant and to dismiss Barbour County Hospital. The defendants pleaded the general issue and assumption of the risk. The jury returned a verdict of $100,000.00 in favor of Mrs. Thomas. Defendants’ motions for directed verdict and for JNOV or, in the alternative, for a new trial were denied. Dr. Murdoch and Emergency Room Professional Association appeal.

Appellants, Dr. Murdoch and Emergency Room Professional Association, raise the following issues:

1. Whether the trial court erred in denying defendants’ motions for directed verdict and for JNOV or, in the alternative, for a new trial on the grounds that the evidence was insufficient to support findings that: (1)the alleged negligence was the proximate cause of death; (2) the death was the proximate result of any injury that Dr. Murdoch could have reasonably discovered on the afternoon of the accident; and (3) the alleged failure to provide follow-up instructions played any part in the events leading to the death.

2. Whether the trial court committed reversible error in admitting into evidence — over defendants’ objections — nine separate incidents of testimony.

I

In Pappa v. Bonner, 268 Ala. 185, 105 So.2d 87 (1958), this Court addressed the issue of proximate cause of medical malpractice cases:

The rule of our cases in malpractice suits is that there must be something more than a mere possibility — something more than one possibility among others— that the negligence complained of was the cause of the injury. There must be some evidence to the effect that such negligence probably caused the injury .... However, this does not eliminate the effect of Alabama’s “scintilla” rule. If there is a scintilla of evidence that the negligence complained of probably caused the injury there is presented a question of fact for the jury’s determination, [citations omitted]

Appellants further contend that Ohio’s “probability of survival” test is, or should be interpreted to be, synonymous with this state’s requirement that there be “some evidence . .. that such negligence probably caused the injury.” Pappa v. Bonner. We disagree. Probability of survival and probability of cause are not the same.

Moreover, under our “scintilla” rule, “[i]f the evidence presents a mere gleam, glimmer, spark, smallest trace or scintilla to support the theory or to sustain the issue, the trial court must submit the question to the jury.” Baker v. Chastain, 389 So.2d 932 (Ala.1980) (emphasis added). In Waddell v. Jordan, 293 Ala. 256, 302 So.2d 74 (1974), a wrongful death action in which expert testimony indicated that the deceased suffered a massive cardiovascular infarction, we alluded to the “probability of survival” test and then indirectly rejected it in holding:

[T]he medical testimony shows that although prompt diagnosis and treatment might not have prevented a massive heart attack, such could have delayed or even prevented a terminal attack and impeded further damage to the heart. This, in our judgment, supplied at least a scintilla of evidence on the issues of negligence and proximate cause, and the case should have been submitted to the jury.

We now hold, therefore, on the authority of Waddell, that our standard for determining the propriety of the submission of proximate cause to the jury does not encompass the “probability of survival” standard urged by appellants.

We turn now to the evidence in order .to ascertain whether there was, in fact, a scintilla of evidence of proximate cause to warrant submission of that issue to the jury. After careful review and consideration of the record, we conclude that a scintilla existed and that proximate cause was properly before the jury. While time and space preclude an exhaustive recitation of the evidence supporting our conclusion, we necessarily include the following testimony which we believe supplies — at the very least — a basis from which “reasonable inferences” of a scintilla can be drawn. See Pappa v. Bonner.

Interrogatories answered by Dr. Murdoch revealed the following:

108. At any time did you consider the possibility that the said Copeland Thomas might have a ruptured spleen? A. I considered the possibility of a ruptured spleen on October 15, 1978, and examined his abdomen to see if one of its presenting findings, left upper quadrant tenderness, was present. No tenderness was present.
109. At any time did you consider the possibility that the said Copeland Thomas could have a subcapsular hemorrhage of the spleen?
A. See number 108.
110. If your answer to either of the two preceding interrogatories is in the affirmative, please state at what point during your examination you considered the possibility and please state at what point of your examination you ruled out this possibility.
A. I considered this possibility after I ascertained that he had been in an auto accident, the first time I saw him.
I considered the possibility of a ruptured spleen when I saw Mr. Thomas on October 15, 1978.
To eliminate the possibility of a ruptured spleen, these acts were done:
A ruptured spleen presents as left upper quadrant abdominal pain. I asked Mr. Thomas where his pain was and he said across his front chest. This was not in the abdomen and hence inconsistent with a ruptured spleen. A ruptured spleen also presents as shock from blood loss into the abdomen. The first finding of shock is weakness. Mr. Thomas said nothing about being weak. It also produces diaphoresis (sweating) most markedly located in the face. His skin was dry and not diaphoretic. The changes in vital signs produced by shock are first, tachycardia (fast heart beat) and then falling blood pressure. His hear rate, by the record, was 86 and his blood pressure was 140/80. These are both normal, indicating no blood loss and no shock and hence, no ruptured spleen on 15 October 1978. A ruptured spleen produces tenderness to palpation (pressing) in the left upper quadrant of the abdomen. I examined Mr. Thomas’s abdomen by palpation and found no tenderness. This, too, is inconsistent with a ruptured spleen. Considering all of the above, Mr. Thomas did not have a ruptured spleen when I saw him on 15 October, 1978. Hospitalization, therefore, could not have been justified or rationálized on the basis of a ruptured spleen. The possibility of a ruptured spleen was therefore ruled out at the end of the evaluation/examination on 15 October, 1978, to a reasonable medical certainty.
Subcapsular hemorrhage was considered along with ruptured spleen as a possible result of splenic injury. Sub-capsular hemorrhage is by nature a slowly developing and delayed result. The above referred to examination furnished no affirmative evidence of it and tended to rule it out. There was no evidence presented of trauma to the spleen and thus subcapsular hemorrhage was ruled out to a reasonable medical certainty, [emphasis added]

(Record, pp. 164-166)

When read into evidence, excerpts from the deposition of Dr. Willis Crawford, a pathologist, disclosed the following conflicting testimony:

Q. ... “Now, Doctor, is there anything on the October 15th, 1978, Emergency Room sheet, the one signed by Dr. Murdoch, which would rule out the possibility of a subcapsular hemato-ma?” Please read his answer.
A. Dr. Crawford said, “That is not possible.”
Q. “Why is it not possible, Doctor?”
A. “Because the only way you can rule out a subcapsular hematoma is to open the belly and look at the spleen." [emphasis added]

(Record, p. 480)

Dr. Murdoch further contended that the spleen was ruptured as a result of the CPR efforts; therefore, he could not have reasonably discovered the rupture on the afternoon of the accident. Dr. Murdoch introduced evidence from Harrison’s Principles of Internal Medicine consistent with his theory of rupture, i.e., that “[e]xternal cardiac massage [CPR] is not free from significant complications, including .. . ruptured spleen with late, occult blood loss.” Both the pathologist who performed the autopsy and Thomas’s family physician testified that they had never encountered a ruptured spleen resulting from CPR. The pathologist further testified that he had performed between 1500 to 2000 autopsies during his career. One of the medical experts also pointed out that the treatise introduced by Dr. Murdoch failed to state whether the referenced splenic rupture was a potential complication of a normal spleen, an abnormal spleen, or both. Moreover, multiple lacerations were found on Mr. Thomas’s spleen — several small, irregular, superficial lacerations and two deeper more extensive cuts. Expert testimony confirmed that the more extensive lacerations were consistent with blunt trauma, such as the impact of the steering wheel on the deceased.

When questioned specifically about which, if any, splenic rupture symptoms Mr. Thomas exhibited on presentation, Dr. Murdoch responded:

A. The symptoms of a ruptured spleen indicate pain in the left upper quadrant of the abdomen, tenderness of any or varying degrees to palpation in the abdomen, especially its left upper quadrant, and rarely as pain referred to the left shoulder blade. However, early impending or advanced shock from blood loss is a presentation due to internal bleeding into the abdomen. Here the symptoms would be weakness or dizziness aggravated by standing, rapid pulse, falling blood pressure are part of shock in whatever degree it is when seen [sic]. Mr. Thomas was fully conscious and reported no pain. His abdomen was soft with no tenderness to palpation. His pulse was normal at 86 and his blood pressure was normal at 140/80.
The condition which tends to indicate a splenic rupture is abdominal injury. There was no indication of abdominal injury.

The record is replete with testimony that Mr. Thomas was in pain. There is also evidence indicating that Mr. Thomas had difficulty standing when leaving the hospital and that he had to be helped to a wheelchair. While the emergency room record does not specify which side of Mr. Thomas’s chest was tender, the evidence is undisputed that Mr. Thomas did, in fact, suffer a chest injury. The following excerpt from an article entitled “Surgical Management of Splenic Injuries” published in American Journal of Surgery, Volume 108, November 1964, clearly shows that abdominal injury is not the only “red flag” indicator for splenic injury:

Any patient presenting a history of even mild trauma to the left side of the chest, left flank or left upper abdomen should be examined carefully and periodically for a period of at least two weeks, and properly cautioned as to the serious nature of any left upper quadrant symptoms.

Moreover, there was no evidence that Dr. Murdoch provided any follow-up instructions to the patient. In response to questions seeking what, if any, instructions or warnings were given, Dr. Murdoch answered:

I told Mr. Thomas, who was fully conscious when I saw him, that he had no broken bones or lung injury, and that the medicine I gave him was for pain.
The injury Mr. Thomas received on October 15, 1978, was so minor that it would not change his tolerance of his activities. Therefore, no advice was needed.
His ... injury was so minor that no complications were reasonably foreseeable.

(Record, pp. 170-172)

Once again, the record abounds with expert testimony to the effect that proper follow-up instructions were crucial. Numerous medical experts also testified that, under the circumstances, Mr. Thomas should have been hospitalized. Although the experts agreed that Mr. Thomas was a poor candidate for surgery, Dr. Weinheimer, a teacher and practitioner of emergency room medicine, testified: “Obviously, he was too sick not to operate on.”

In Torrance v. Wells, 219 Ala. 384, 122 So. 322 (1929), a case involving a doctor’s negligent treatment of a wound, this Court stated:

[A]ll agree it should have been promptly treated as an infected case, whether infection actually was discernible or not....
Defendant insists the evidence is insufficient to show that such lack of attention and care produced the unfortunate result, ... but it appears that ordinarily prompt treatment as outlined should have been given to retard and inhibit the growth of the infection, and reasoning from cause to effect the jury would be authorized to infer the result was proximately produced by the neglect.

Under the circumstances of the instant case — and based upon the foregoing rationale — there was sufficient evidence from which the jury could infer that the alleged negligence was the proximate cause of death.

II

Appellants, Dr. Murdoch and Emergency Room Professional Association, next contend that the trial court committed reversible error in nine separate instances for admitting allegedly illegal evidence over objection from counsel. After a thorough review of these nine instances, we are of the opinion that only one merits our attention. Appellants objected to the admission of a statement from Emergency Department Organization and Management (2d ed. 1978), that incorrectly expressed the standard of care owed a patient by a physician under Alabama law. No proof was made that the text or treatise was recognized as an authoritative one. Appellants are correct in their contention that the standard stated in the book or manual is not the law of this jurisdiction. We opine, however, that the admission of the complained of quote was harmless error on the authority of Rule 45, ARAP, and Knighten v. Davis, 358 So.2d 1022 (Ala.1978), wherein we stated:

Rule 45, ARAP, provides that no judgment may be reversed on the ground of improper admission of evidence unless, after examination of the entire case, it should appear the error complained of has probably injuriously affected substantial rights of the parties.

As in Knighten, we find the error did not probably injuriously affect the substantial rights of appellants.

Finally, we reemphasize the rule of Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891), that the trial judge’s refusal to grant a new trial strengthens the presumption in favor of the correctness of the verdict. The judgment of the trial court is due to be affirmed.

AFFIRMED.

ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs in the result.

      . Dr. Thompson, the pathologist who performed the autopsy, explained the distinction between a ruptured spleen and a subcapsular hemorrhage as follows:
      A. Well, in the one the bleeding gets beneath the capsule of the spleen [subcapsular hemorrhage] and distends it, and then eventually this will, in turn, rupture into the cavity.. And, of course, your out-and-out rupture is when the spleen is fragmented or has big tears in it.
      Q. Now, when you say a rupture of a capsule around the spleen, would that be something similar to a balloon filling up with water until it finally got as big and — and then popping?
      A. I think that is a fair description.

      . Subcapsular hematoma is the same as sub-capsular hemorrhage, supra.


text:
    GAYLORD DEPARTMENT STORES OF ALABAMA, INC. v. James W. STEPHENS.
    79-688.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Rehearing Denied Sept. 29, 1981.

      Horace N. Lynn and Lynn Clardy Bright of Piel & Lynn, Montgomery, for appellant.
    Clyde C. Owen, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
   FAULKNER, Justice.

This is an appeal from a jury verdict and judgment awarding Stephens $36,000.00 damages in a breach of contract and conversion of property action against Gaylord, and a jury verdict and judgment against Gaylord on its counterclaim. We affirm.

James Stephens, a licensed pharmacist, entered into an agreement with Gaylord Department Stores of Alabama, Inc. on or about July 14, 1977, whereby Stephens agreed to operate a pharmacy department in Gaylord’s store located on Southern Boulevard in Montgomery. The agreement and accompanying documents contained numerous provisions and conditions, including a covenant not to engage in similar employment during the length of the contract and for one year thereafter within a thirty-mile radius; an agreement to staff a registered pharmacist during all the hours Gaylord’s is open for business; and, a provision waiving jury trial in any prospective action between the parties. ,The agreement was to terminate on January 31, 1986.

Stephens spent $13,000.00 in preparing this pharmacy for business, and in October, 1978, he and his father opened another pharmacy one block away at the Super Foods Store.

The controversy centers around events occurring aróund Memorial Day, May 28, 1979. It is hotly disputed whether on three days prior to Memorial Day — Thursday, May 24; Friday, the 25th; Saturday, the 26th — the pharmacy was totally closed and unmanned in violation of the license agreement. Stephens testified that he was there and produced prescriptions showing he was there on those days. Gaylord’s witnesses said that Stephens was not in the pharmacy. For Monday, the 28th, Stephens had prearranged for another pharmacist to open and operate Gaylord’s Pharmacy, but the substitute did not appear. By mid-morning the next day, Tuesday the 29th, the pharmacy was still not opened, and Dorman, Gaylord’s district manager, phoned Stephens and told him that he, Stephens, and not a substitute pharmacist, had better come in and operate Gaylord’s Pharmacy or else it would be closed. Stephens was unable to come so Gaylord closed the pharmacy. Later that day, after a discussion with Dorman, Stephens started removing his stock inventory from Gaylord’s which was completed the next day.

The security agent would not permit Stephens to remove the pharmacy cash, and he threatened to arrest him if he attempted to remove the shelving and fixtures. Stephens received a letter from Gaylord dated May 31, 1979, terminating the lease agreement “due to ... discontinuance of the conduct of . . . business.” Stephens’s fixtures are being used by the successor pharmacist, although Stephens did not receive, from Gaylord, an offer to buy them. Stephens could not sell them to a third party buyer because he was prevented from removing them.

Before trial, the trial judge denied Gay-lord’s motion to strike Stephens’s jury demand. At the close of Stephens’s evidence, and again at the close of all evidence, Gay-lord moved for a directed verdict. Those motions were denied as was Gaylord’s motion for JNOV.

The issues presented for review are: (1) whether the court erred by not striking the jury demand; and (2) whether the verdict and judgment were contrary to the evidence.

(1)

Article I, § 11, Constitution 1901, provides that the right of trial by jury shall remain inviolate. Moreover, Rule 38(a), ARCP, provides that the right of trial by jury as declared by the Constitution of Alabama, or as given by statute of this State shall be preserved to the parties inviolate. While this precious right of trial by jury may be waived, was it properly waived in this particular case?

The validity of waiver of a jury trial in a contract action has been recognized in a number of jurisdictions, including Connecticut, Massachusetts, New Jersey, New York, and Ohio. See 73 A.L.R.2d 1333. The Supreme Court of Florida, construing New York law, upheld the jury waiver provision in a written contract. Central Investment Associates, Inc. v. Leasing Service Corp., 362 So.2d 702 (Fla.1978). However, all of these Courts upholding jury waivers follow a general rule that since the right of jury trial is highly favored, a waiver will be strictly construed. In Edsaid Realty Corp. v. Samuels, City Ct., 92 N.Y.S.2d 897 (1949), the Court held that the waiver must be clear and explicit and leave no room for doubt about the intention of the parties. And in National Equipment Rental Ltd. v. Hendrix, 565 F.2d 255 (2d Cir. 1977), the Court held a waiver of jury trial ineffective, where it was buried in the eleventh paragraph, and there appeared gross inequality in bargaining power between the parties, and it did not appear that the waiver was knowingly and intentionally made. We opine that these statements are applicable here.

The contract between Stephens and Gaylord appears to be a New Jersey form contract with boiler plate provisions. The jury waiver provision is buried in paragraph thirty-four in a contract containing forty-six paragraphs; the equality of the bargaining power of the parties is questionable; and it does not appear that the waiver by Stephens was intelligently or knowingly made.

Gaylord points to the fact (on pages 139 and 140 of the transcript) that he read the contract before signing it. Our reading of that testimony leads us to conclude that the questioning by Gaylord pointed to a prohibition against opening another pharmacy— not to the jury trial waiver.

Finally, we note that Gaylord prevented Stephens from removing his cash after it closed the pharmacy and Stephens was threatened with arrest by a Gaylord’s security agent if he removed his shelving and fixtures. Under these circumstances we opine that even if we were of the opinion that the waiver was effective as to the violations of the contract, the waiver could not be extended to the tort action stated in Count III of Stephens’s complaint.

(2)

We review, after denial of a motion for JNOV, the sufficiency of the evidence to support the jury verdict. Harville v. Goza, 393 So.2d 988 (Ala.1981). This we have done, and hold that it was sufficient as to Stephens, and as to Gaylord’s counterclaim.

The tenor of this case appears to be more wrongful conversion of property than breach of contract. The evidence shows that Gaylord wrongfully withheld and converted to its use property of Stephens totaling about $16,000.00. The jury, therefore, could have rightfully awarded punitive damages under its general verdict. Cf. U-Haul Co. of Ala. v. Long, 382 So.2d 545 (Ala.1980).

The judgment of the trial court is affirmed.

AFFIRMED.

ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs in the result.

      . “Licensor and Licensee hereby waive trial by jury in any action, proceeding or counterclaim brought by either party hereto against the other arising out of or in any way connected with this agreement, Licensee’s use or occupancy of space in Licensor’s store, any and all claims for injury and damages, or arising out of any other matter or controversy whatever.”