author: LEE, Justice, for the Court:

text:
    J. T. COX et ux. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 52057.
    Supreme Court of Mississippi.
    Aug. 13, 1980.

      Jacobs, Griffith, Pearson, Eddins & Po-vall, Lindsey C. Meador, Cleveland, for appellants.
    Alexander, Johnston & Alexander, Robert G. Johnston, Cleveland, for appellee.
    Before PATTERSON, BROOM and LEE, JJ.
   LEE, Justice, for the Court:

This eminent domain case appears before us for the second time. On the first trial in Bolivar County, a verdict was returned for the landowners against the Mississippi State Highway Commission [Commission] in the sum of thirty-five hundred dollars ($3,500) and on appeal to this Court, the case was reversed and remanded for a new trial because of incompetent testimony. Cox v. Mississippi State Highway Comm’n., 362 So.2d 607 (Miss.1978). On the retrial, a verdict was returned in favor of the landowners in the sum of twenty-three hundred dollars ($2,300). They have appealed again and assign two (2) errors in the trial below.

Evidence for the landowners was to the effect that just compensation for the land taken and damages was thirteen thousand dollars ($13,000) and evidence for the Commission indicated that just compensation amounted to sixteen hundred seventy-five dollars ($1,675.00).

I.

The landowners first contend that the trial court erred in refusing to permit them to introduce proof that an appraiser employed by the Commission was not called by it and that they should have been permitted to show what his appraisal was and to question him regarding his appraisal.

On the day of the trial, the landowners propounded interrogatories to Brad Jan-oush, an appraiser for the Commission, who had not been called by the Commission. They also had subpoenas issued for him, but he could not be found and was not served. The landowners then requested a continuance until such time as they could locate and serve the appraiser, which request was denied by the court.

The landowners argue that under Arkansas State Highway Comm’n v. Phillips, 252 Ark. 206, 478 S.W.2d 27 (1972), they were entitled to have such appraiser testify about his valuation of the property involved and that his appraisal had not been used by the Commission. They also cited Meridian Hatcheries, Inc. v. Troutman, 230 Miss. 493, 93 So.2d 472 (1957) (a tort action) wherein the Court said that failure of the defendant to call its bus driver as a witness, when he was available to it, and who was presumed to be friendly to it, raised a strong presumption against the facts claimed by the defendant.

It is not necessary for us to reach the question of whether or not the lower court should have required answers to the interrogatories filed, and whether or not Brad Janoush, the appraiser, should have testified, since the lower court did not abuse its discretion in overruling the motion for continuance, the case having been previously set for trial on the day when subpoenas were issued and interrogatories filed. There is no merit in the first assignment of error.

II.

The landowners next contend that error was committed when questions were propounded by the Commission to a witness about the setback distance from the highway of other houses along the highway and in the vicinity of the landowner’s home.

The first case was reversed by this Court because of the introduction of such testimony when no proper predicate was laid therefor. When similar questions were asked in the second trial, the judge sustained objections to such questions. He was not asked to instruct the jury to disregard the questions, which were not answered, nor was any motion made for a mistrial. The trial judge did everything he was requested to do and he did not commit error as claimed by the landowners.

The judgment for the landowners is affirmed on direct appeal.

CROSS-APPEAL

After the first trial, the Commission paid into the registry of the court the judgment amount of $3,500.00, which was disbursed by the clerk to the landowners. After the verdict of $2,300.00 on the second trial, the Commission made an oral motion requesting that the judge require the landowners to pay the Commission the difference between the first verdict and the second verdict, which he declined to do.

Mississippi Code Annotated § 11-27-27 (1972) provides the following:

“Upon the return of the verdict and entry of the judgment, the applicant shall pay to defendants, or to the clerk if defendants absent themselves, the differences between the judgment and deposits previously made, if any; shall pay the costs of court, including the cost of jury service as is otherwise provided by law for the court in which the case is tried. Then, ownership of the property described in the petition shall be vested in petitioner and it may use said property as specified in the petition. If deposits previously made exceed the judgment, then the clerk or defendant to whom disbursement thereof has been made, as the case may be, shall pay such excess to the petitioner.”

The Commission has cross-appealed contending that the lower court erred in declining to enter judgment in the sum of twelve hundred dollars ($1,200) for it, being the difference between the two verdicts. The landowners argue that the money had been disbursed to them, was not then on deposit with the clerk, and that the court could not require reimbursement.

In Mississippi State Highway Comm’n. v. Prescott, 346 So.2d 924 (Miss.1977), judgment was entered in an amount which was considerably less than that paid into the registry of the court by the Commission. The judgment was dated February 8, 1974, for the sum of the jury verdict. There was no request for a judgment excess against the landowner upon return of that verdict. On January 27,1975, the Commission filed a petition to enroll a judgment against George O. Prescott for the difference between the deposit made by the Commission and the jury verdict. We held that the special court of eminent domain did not have jurisdiction to entertain the petition to enroll judgment. In that situation, the only remedy for the Commission was to sue the landowner for reimbursement.

In the present case, when requested by the Commission, the trial court should have entered judgment in behalf of the Commission for the excess paid into the registry of the court, and the rights of both parties should have been adjudicated in that proceeding.-

Therefore, the judgment of the trial court is reversed on cross-appeal and judgment rendered here for the Commission in the sum of $1,200.00.

AFFIRMED ON DIRECT APPEAL; REVERSED AND RENDERED ON CROSS-APPEAL.

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


source: Caselaw Access Project

author: BROOM, Justice,

license: Public Domain

text:
    ALL PERSONS v. Mrs. Mabel P. BUIE.
    No. 52013.
    Supreme Court of Mississippi.
    Aug. 13, 1980.

      K. Maxwell Graves, Jr., Meadville, for appellants.
    Adams, Forman, Truly, Ward, Smith & Bramlette, Everette Truly, Natchez, for ap-pellee.
    Before SUGG, BROOM and LEE, JJ.
   BROOM, Justice,

for the Court.

Alienability of a grantor’s contingent remainder interest in land under a deed whereby the grantor conveyed land (a life estate) unto two grantees is the chief issue of this suit. The Chancery Court of Jefferson County ruled that the grantor could and did by subsequent deed effectively convey away his remainder interest in the property. Here the appellants are representative of “all persons” who claim interest in the property as heirs of the grantor. We affirm.

Stated simply, the undisputed facts show that T. J. Cupit by deed dated July 19,1929, conveyed a tract of land in Jefferson County, Mississippi, to his son Clarence Cupit and Clarence’s wife Mabel P. Cupit, now Mabel P. Buie, “for and during the term of each of their natural lives to the heirs of the body of the said Clarence Cupit in fee simple at the death of both” Clarence and Mabel. After this deed was properly recorded in the chancery clerk’s office on January 24, 1933, T. J. Cupit executed another deed to the same land for the purpose of making “absolute” in Clarence and Mabel the title to the land described in the previous deed. On March 21, 1940, Clarence Cupit died childless and intestate, leaving his wife Mabel Cupit (now Mabel P. Buie) as his sole heir at law.

On September 29, 1977, Mrs. Mabel P. Buie filed her bill of complaint to confirm title. Originally, Mrs. Buie relied both on the deeds mentioned above plus adverse possession to establish her claim, but during the course of the hearing on the merits of the matter, she abandoned the adverse possession theory.' Sole issue left for the lower court to determine was whether or not the two above described deeds conveyed to Clarence Cupit and his wife Mabel Cupit (now Mabel P. Buie) absolute fee simple title to the subject land.

After a hearing on the merits, the lower court entered a written opinion and a final decree adjudicating the fee simple title to be vested solely in Mrs. Mabel P. Buie. “All persons” (appellants) contend that by the first deed from T. J. Cupit to Clarence and Mabel Cupit dated July 19, 1929, T. J. Cupit created a life estate in Clarence and Mabel Cupit with a reversion-ary interest vested in the rightful heirs of T. J. Cupit. Their contention is that after this was done, T. J. Cupit could not alienate or divest the reversionary interest vested in his rightful heirs at law by the second deed dated January 24, 1933. The chancellor ruled that:

The primary reversionary interest after the Deed of July 19, 1929 remained in T. J. Cupit, and this was an interest that T. J. Cupit could convey or dispose of. The Deed from T. J. Cupit to Clarence Cupit and Mabel Cupit dated January 24, 1933 involved the same property as the Deed of July 19, 1929 and the same parties and the intention of T. J. Cupit, the grantor, was clear as to the purpose of the Deed which was, as is stated in the Deed, “for the purpose of making absolute the title to the land described in that certain deed from T. J. Cupit to Clarence Cupit and Mabel Cupit, his wife, recorded in Deed Book ‘4-E’, Page 251 of the deed records of said Jefferson County.” It is clear from this Deed that T. J. Cupit intended to convey his reversionary interest in the property to Clarence Cupit and Mabel Cupit and vest them with fee simple title and, in order to assure them of fee simple title, he made this a general warranty deed and which warranty in the deed would be binding upon his heirs at law.

The issue is placed in proper perspective by the following language excerpted from the proceedings of the Mississippi Law Institute on Real Property Law (1962), pages 186-7:

In a number of states, the doctrine of worthier title survives as a rule of construction. By such application or utilization of the doctrine, the recurring problem is whether a “remainder to the grantor’s heirs” (or comparable words of reference to ascertain persons who may ultimately be in line of descent from the grantor) be construed: (1) to designate an indefinite line of descent from the grantor, or (2) to identify, as devisees, the limited number of individuals who would otherwise take immediately upon grant- or’s death, intestate. If (1) applies, the grantor’s intended contingent remainder is a nullity. If (2) applies, the intended contingent remainder is valid and becomes a vested interest at the death of the grantor.
In Mississippi, the doctrine of worthier title has not been abolished, but survives as a rule of construction.

We conclude that when T. J. Cupit executed the first deed referred to above by which he conveyed to Clarence and Mabel Cupit the life estate, the language “to the heirs of the body of the said Clarence Cupit in fee simple at the death of both” Clarence and Mabel was ineffective to create a vested remainder in the non-existent issue of Clarence’s body. There was left in T. J. Cupit a contingent reversionary interest, contingent upon there being no live issue of the body of Clarence after his and Mabel’s death, which was alienable by him in his lifetime. In Harris v. McLoran, 30 Miss. 533, 570 (1855), this court in an opinion by Smith, C. J., stated:

It is a settled maxim of the common law, that a man cannot make a conveyance of real property to his heirs. Hence, it is uniformly held, that an ultimate remainder, limited to the right heirs of the grantor, is void, and that although the freehold be expressly limited away from him, it will continue in him, as his old reversion and not as a remainder. The heirs will take by decent, [sic] and not by purchase, because fortior et po-tentior est dispositio legis quam hominis.

28 Am.Jur.2d, Estates, § 174 (1966); 3 Restatement of the Law of Property, § 314 (1940).

Correct and applicable here is the rule stated in 28 Am.Jur.2d, Estates, § 175 (1966):

[A] limitation over to one’s own heirs in a deed is void, leaving a reversion in the grantor. .
[A]n inter vivos conveyance for life, with attempted remainder to the conveyor’s heirs or next of kin, is ineffective to create a remainder, but leaves a reversion in the conveyor.

The majority view in this country is that the inter vivos portion of the doctrine of worthier title is generally upheld where there has been no statutory abrogation of the doctrine. The Mississippi Legislature has not seen fit to statutorily abrogate the doctrine which remains viable in this state. Obviously it is the intent of the legislature for the doctrine of worthier title to remain active as a rule of construction.

We conclude that upon the execution by T. J. Cupit of his deed dated July 19, 1929, the contingent remainder interest vested in him and not in his yet unborn heirs, leaving him with the right to subsequently convey away this contingent remainder interest by the second deed in 1933 unto Clarence Cupit and Mabel Cupit. By his action in giving the second deed, it was obvious that the grantor T. J. Cupit understood that he was vested with the contingent remainder which was, in his opinion, alienable and one which he could convey away as he did. Upon execution of the second deed, there became vested in Clarence Cupit and his wife Mabel Cupit (now Mabel P. Buie) fee simple absolute title to the property and accordingly the decree appealed from must be affirmed.

AFFIRMED.

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

      . Appellants (defendants) are identified as “all persons” who would claim any interest in the land by inheritance from the grantor T. J. Cu-pit.

      . The Rule in Shelley’s Case has been specifically abrogated by statute by the Mississippi Legislature. See Mississippi Code Annotated § 89-1-9 (1972).


text:
    Mary Moore JOHNSON v. FIRST NATIONAL BANK OF JACKSON.
    No. 52026.
    Supreme Court of Mississippi.
    Aug. 13, 1980.

      Moore, Simmons & Thompson, Frank T. Moore, Jr., Clifford C. Thompson, Jackson, for appellant.
    Thompson, Alexander & Crews, Arlin C. Ruthven, Thomas R. Crews, Jackson, for appellee.
    Before SUGG, BROOM and LEE, JJ.
   BROOM, Justice,

for the Court:

Terminability of a trust agreement is the chief issue of this case in which the appellant, Mary Moore Johnson (trustor) seeks termination. She sued the trustee, First National Bank of Jackson (FNB), in the Chancery Court of the First Judicial District of Hinds County for termination of the trust and now appeals from a decree adverse to her. We reverse.

Mary Moore Johnson and FNB entered into a trust agreement dated August 5, 1976, and styled “Irrevocable Trust Agreement.” By the agreement, Moore assigned unto FNB most of her rights and interest derived from the estate of her deceased father, Lee White Johnson, M. D. In June of 1978, she sent to FNB a Revocation of Trust Agreement form. In this form, Johnson claimed that she was: the “settlor and sole beneficiary” of the trust; sui juris; suffering from no incapacity whatsoever; and desired to have all of the corpus of the trust returned to her control.

Johnson is 25 years old and has never been married. She attended college one year during which she attended three different colleges. Her collegiate studies included no courses in economies or related to handling or investing money or anything of that nature. Johnson has held various unskilled jobs, but none for a substantial length of time.

Her testimony was that she had entered into the trust agreement on the advice of her mother and a friend named Charlton Anderson, an FNB trust officer. She also had advice from Harold James, a CPA, who told her that he thought it would be a good thing. Further, she stated that she recognized the fact that at the time she had come into a large inheritance from her father’s estate but lacked the ability to handle that kind of money. Now, her testimony is that she is more responsible, older, wiser, and able to handle her affairs.

During this time period, Johnson has become associated with the Church of Scientology in Florida to the extent that in the past three or four years she has donated it approximately $30,000. Ten thousand dollars of this money was borrowed from Johnson’s grandmother which, at this time, has not been repaid.

There is no need to detail all of the transactions. Documentary evidence showed that during the approximately two years between the entering into the trust agreement and the filing of the revocation document, Johnson had made numerous demands to the trustee for money which would have had to come from the corpus of the trust. Some of the requests were granted and some were not. Evidence also showed that when Johnson did receive these sums, she may not have managed them with expertise.

At the close of the hearing, the chancellor entered an opinion favorable to FNB in which he noted that apparently Mississippi has not yet passed on the question of whether a supposedly irrevocable trust can be revoked at any time by the settlor who is the sole beneficiary of the trust. Johnson’s bill was dismissed.

DID THE LOWER COURT ERR IN HOLDING THAT JOHNSON, EVEN THOUGH SERVING AS BOTH TRUSTOR AND SOLE BENEFICIARY OF THE WRITTEN INTER VIVOS IRREVOCABLE TRUST AGREEMENT, COULD NOT TERMINATE SUCH AN AGREEMENT?

The problem involves three main questions: (1) as sole beneficiary of the trust, may the settlor compel termination of the trust even though the trust was apparently established to be irrevocable; (2) if the set-tlor can compel the termination of the trust generally, are there any reasons for not following the general rule which permits termination; and (3) if the first two questions are answered affirmatively, is there a reason in the case at bar for now allowing the settlor to terminate this trust?

In response to the first question above, we have not found nor has any Mississippi case directly in point been cited. Deposit Guaranty National Bank v. Walter E. Heller & Co., 204 So.2d 856 (Miss.1967) held that a spendthrift trust for the benefit of the grantor is void. Restatement (Second) of the Law of Trusts, § 339 (1959) states:

§ 339. Where Settlor is Sole Beneficiary. If the settlor is the sole beneficiary of a trust and is not under an incapacity, he can compel the termination of the trust, although the purposes of the trust have not been accomplished.

Also, G. Bogert, Trusts and Trustees, § 1004 (2d Ed. 1962) states:

If the trustee refuses the settlor’s request and insists on continuing the trust administration, the court should and does order him to comply and thus to terminate the trust. It is true that this is not carrying out the intent which the settlor had when he created the trust and when he decided to have his property managed for him and to take its benefits indirectly. But that original intent ought to be of no importance when the settlor has changed his mind and formed new plans with regard to the enjoyment of his own property. His present intent should be carried out.

As further pointed out in Bogert, supra, no one has standing to object to the ending of the trust in cases of this type where the settlor demands that the trustee return the trust property to him and the trustee acquiesces. 4 A. W. Scott, The Law of Trusts, § 339 (3d Ed. 1967) is to the same effect.

Our conclusion is that we should, and now do, adopt the general rule that a settlor who is the sole beneficiary of a trust may have the trust revoked and set aside even though it was initially set up in the form of an irrevocable trust. There may arise future cases on different facts where we will recognize exceptions to the general rule.

Final question to be resolved here is whether or not the court’s determination that it would not be in “the best interest of the complainant” to terminate the trust is controlling. The testimony and evidence showed that Johnson may not be an astute business woman, nor very proficient in managing her money. For example, after buying a Chevrolet Camaro in Mississippi for $5,400, she then went back to Florida and sold the car some two or three months later for $4,400. She made large contributions to the Church of Scientology, and the proof showed that she- intended to spend a great deal more of the money for courses and training with that entity. However, she has never been adjudged to be a person of unsound mind, has never been under a guardianship, or under any other legal disability whatsoever.

It might very well be in her best interest to have someone look after her financial affairs, as is true of many individuals. Nevertheless, in our opinion, this Court and the other courts of this state should not attempt to shield persons from their own folly, where there is no showing of lack of mental capacity. One of the maxims of equity is that “when parties are disabled, equity will act for them.” , (Griffith, Mississippi Chancery Practice, § 45 [1950]). This maxim was never intended to mean that the courts of equity would attempt to guard a person from his own folly as determined by the standards of society. In the case before us, it was shown that trustor Johnson had given considerable money to the Church of Scientology, and intended to give it much more. While the chancellor carefully avoided stating this as a ground for his decision, we think it is fairly obvious that it played at least some part in his opinion. We do not imply that the chancellor related his ruling to the particular church to which the appellant donated her money, but rather that she donated such vast amounts over such a short period of time.

How a person who is not under a legal disability chooses to spend her money is not and should not be subject to review by courts. If she so chooses, and so long as she is under no legal disability, Johnson is perfectly free to donate everything she has to any entity including the Church of Scientology. As was stated by Mr. Justice Jackson, dissenting in United States of America v. Ballard, 322 U.S. 78, 94, 64 S.Ct. 882, 890, 88 L.Ed. 1148 (1944), “I doubt if the vigilance of the law is equal to making money stick by over-credulous people.”

Further, Johnson may not create a spendthrift trust for herself in this case, i. e., she may not place this money in trust to remove it from the reach of her creditors. Deposit Guaranty National Bank v. Walter E. Heller & Co., supra. Even if this Court were to determine that it would not be “in the best interest” of Johnson to terminate or revoke this trust, she may in effect revoke it herself. For example, she may borrow money equal to the amount of the money of the corpus of the trust, donate this amount to the Church of Scientology, and her creditors would then be able to proceed against the corpus of the trust. Our view is that, unless Johnson is determined judicially to be of unsound mind (which has not been done) under the general rule stated above, she has the right to revoke and terminate this trust and dispose of the money.

It may be said of this case that FNB and the chancellor made a noble effort to protect the appellant from herself, but we are unwilling to say that they have a legal right to do so. The mere fact that a person has done or attempted to do something with her money which is considered foolish by society is not sufficient.reason for an equity court to invoke its power.

REVERSED AND RENDERED.

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


author: SUGG, Justice,

text:
    Sam COOPER, Jr. v. STATE of Mississippi.
    No. 52041.
    Supreme Court of Mississippi.
    Aug. 13, 1980.

      John C. Webb, Sidney J. Martin, Green-ville, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   SUGG, Justice,

for the Court.

Sam Cooper, Jr. was indicted in the Circuit Court of Washington County for armed robbery under section 97-3-79 Mississippi Code Annotated (Supp. 1975), found guilty by a jury, and sentenced to serve a term of forty (40) years.

Defendant’s sole assignment of error is that the following instruction should not have been granted.

The crime of robbery with a deadly weapon is defined as follows:
“Every person who shall feloniously take ‘or attempt to take ’ from the person or from the presence the personal property of another against his will by violence to his person or putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery.”
If you believe from the evidence beyond a reasonable doubt that on or about February 19, 1979, Sam Cooper, Jr., acting alone or in concert with others, did feloniously attempt to take or assist in the attempted taking from the presence and against the will of Ray Gunter money or personal property of Ray Gunter in any amount or of any value, by violence to the person of Ray Gunter, or by putting Ray Gunter in fear of immediate injury to his person, by the exhibition of a deadly weapon, to-wit: a pistol, then it is your sworn duty to find the defendant guilty as charged in the indictment.

Defendant objected to the instruction at his trial on the ground that armed robbery consists of the felonious taking of the property of another and asportation of the property is a necessary element of the crime. Appellant’s argument overlooks the provision in section 97-3-79 Mississippi Code Annotated (Supp.1975) that the attempt to take the property of another from his person or presence, together with other elements, constitutes armed robbery. Defendant has relied on cases decided under section 97-3-73 which defines the crime of robbery as feloniously taking the personal property of another, in his presence or from his person and against his will, by violence to his person or putting such person in fear of some immediate injury to his person. Defendant was not indicted under section 97-3-73 but under section 97-3-79.

Our present armed robbery statute was first enacted in 1932. Mississippi General Laws Chapter 328 (1932). In Hall v. State, 166 Miss. 331,148 So. 793 (1933) defendant’s conviction of armed robbery was upheld where there was no actual taking or aspor-tation of the owner’s property. In that case the armed defendant fled before taking any of the money he had demanded.

We hold the defendant’s assignment of error is not well taken, and affirm his conviction and sentence.

AFFIRMED.

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

      . Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.


author: PATTERSON, Chief Justice,

text:
    Turner Paul SMITH v. STATE of Mississippi.
    No. 51878.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    John M. Deakle, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court.

This appeal is from the Circuit Court of Forrest County wherein Turner Paul Smith, in a two-stage proceeding, was convicted of burglary and as an habitual offender was sentenced to life imprisonment.

The appeal was perfected as to the guilty verdict. The sentence as an habitual offender is not questioned. Smith contends the court erred (1) in admitting into evidence the physical evidence and the confession because they were the fruits of an unlawful search and seizure resulting from an arrest without probable cause; (2) in not allowing the defendant to make a timely opening statement to the jury and in permitting it to go unsupervised into the jury room after hearing the opening statements of the state, with no instructions as to discussion among themselves not to form opinions, bias, or prejudice; and (3) in allowing the confession of the defendant to be introduced into evidence because it was not freely and voluntarily given.

The record reveals that Smith was indicted as an habitual offender on December 1, 1978, for the April 3, 1978, burglary of Builders Supply Company in Hattiesburg. In this burglary a rifle, shotgun and a number of checks were stolen. No particular individual was arrested or suspected of the burglary prior to the following events.

On June 13, 1978, about ten weeks after the burglary of Builders Supply, Hatties-burg police officer Ezell was patrolling a high crime area in a plainly marked police car when at about 1:30 a. m. he received a radio communication from Lt. Dubose, his superior, informing Ezell that he was at the Martin Oldsmobile Paint Shop and had heard breaking glass at Courtesy Ford, evidently an automobile business. Ezell was instructed to investigate, and after doing so, reported to Dubose that he found no one in the vicinity of Courtesy Ford. Whereupon Dubose directed Ezell to leave the area and return later. Ezell complied and testified to the following:

[Approximately thirty or forty-five minutes later (2:45 a. m.) I came back and had my headlights off as I started checking Gibson’s Discount, [and] as I rounded the rear of Gibson’s I saw an individual in the back of Gibson’s and when he saw me he turned and ran.

He explained that when first observed, the individual held a bag in his hand. Ezell flicked on his headlights and pursued the man into a dead-end alley behind Gibson’s and a food store where he was overtaken at a garbage dump in the rear of the store. Ezell observed his quarry no longer had the bag, was perspiring heavily and appeared nervous. Upon request, the individual identified himself as Turner Paul Smith, handing an Alabama driver’s license to Ezell, and when asked what he was doing in the area, replied, “. . .he was looking for some boxes to sleep on.” After consulting with Lt. Dubose via radio, Ezell, on Du-bose’s “advice,” arrested Smith for “attempted burglary” and took him to the police station. During the suppression hearing Smith explained his flight from the police car thusly: “To be honest, I always run from the law.”

At this juncture the determination of whether there was probable cause is imperative because the “fruits” flowing from an arrest without probable cause cannot be used to strengthen the initial arrest. In McNeely v. State, 277 So.2d 435 (Miss.1973), we stated:

The probable cause factor must be evaluated by the officer making the arrest by the facts and circumstances existing at the time of the arrest and it may not be later strengthened by what the search revealed.
(277 So.2d at 438)

Additionally, an arrest must be considered in conjunction with Mississippi Code Annotated section 99-3-7 (1972) which provides:

An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.

“Probable cause” is indeed difficult to define or determine, but in McCollum v. State, 197 So.2d 252 (Miss.1967), this Court said, citing Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959):

“The existence of ‘probable cause’ or ‘reasonable grounds’ justifying an arrest without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The determination depends upon the particular evidence and circumstances of the individual case. The facts necessary to uphold an arrest without a warrant must be sufficiently strong to support the issuance of a warrant for arrest. Standards which may be reasonable for the apprehension of bank robbers may not be reasonable for the arrest of narcotic peddlers.
“ ‘Probable cause’ or ‘reasonable grounds’ justifying an arrest without warrant exist where the facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a narcotics offense has been or is being committed. It is not required that probable cause be established solely by facts within the personal knowledge of the arresting officer. A combination of information and personal knowledge may raise the inference beyond opinion, suspicion, and conjecture to reasonable probability. All information in the agents possession, fair inferences therefrom, and observations made by him are pertinent.”
(197 So.2d at 254-55)

In applying these standards to the facts- before us, we encounter much perplexity. There is little doubt but that a “stop and frisk” interception permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), existed, but much doubt of probable cause for arrest. Stated differently, probable cause is required to make a lawful arrest, while only reasonable suspicion is required to stop and frisk. Terry, supra, and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

A brief restatement of the salient facts which would support probable cause follows: (1) The sound of breaking glass near Courtesy Ford; (2) the lateness of the hour; (3) Smith was the only person seen in the area; (4) other burglaries had occurred fairly recently in the area; (5) Smith fled when he saw the police car; (6) when arrested, he no longer had the bags; (7) he was perspiring heavily and appeared quite nervous; (8) the dubious explanation of seeking a box to sleep on, and (9) finally, people normally do not loiter in the rear of business establishments in the early hours of the morning.

As detracting from probable cause, we must consider (1) Smith was not a trespasser on private property; (2) no indictable offense was committed or a breach of the peace threatened or attempted in Ezell’s presence; (3) Ezell had no knowledge that a felony had been committed; he knew only that Dubose had reported hearing “breaking glass”; (4) Courtesy Ford is one block from the place of arrest; (5) Ezell did not make an on-the-spot arrest, but did so on radio instructions from Dubose who was not present at the scene.

The trial court in considering this evidence, was of the opinion there was probable cause for the arrest and overruled the motion to suppress. We conclude that he did not err. In accord with McNeely, supra, the facts and circumstances existing at the time of the arrest are necessary to the determination of whether the seizure was unreasonable and without probable cause. In weighing the high crime area that Ezell was patrolling, the early morning hour, the sound of breaking glass, the furtive actions of Smith (flight, disposal of the bag, dubious explanation for his presence at the garbage dump), nervousness, and the absence of others in the area, were sufficient, in our opinion to “warrant a man of reasonable caution in the belief that an offense has been committed.” Carroll v. U. S., 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, as cited with approval in Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964). So therefore we cannot say that the seizure of Smith was unreasonable. For these reasons we conclude the trial court did not err in overruling the motion to suppress.

Upon Smith’s arrest and escort to the police station, a search of his person revealed two forged Builders Supply checks in his sock coinciding in number (Nos. 46538 and 46539) with two of the checks reported missing the morning after Builders Supply was burglarized. Although no rifle and shotgun were found when Smith was searched, he confessed to stealing a rifle and shotgun from Builders Supply and stashing them near some lumber behind the business where they had been previously found by an employee of Builders Supply. He also confessed to taking the checks and trying to burglarize the safe. His statements corresponded with the evidence revealed by police investigation of Builders Supply shortly after the burglary.

He next asserts that he was not allowed to make a timely opening statement and the trial court improperly recessed the jury without adequate supervision. This is without merit because it was the defendant’s own motion which necessitated the delay of his opening statement and the inexpedient recess of the jury. Furthermore, the time for making opening statement is discretionary with the trial judge and will not be reversed absent a clear showing of abuse of discretion or substantial injury. Black v. State, 308 So.2d 79 (Miss.1975).

Also assigned as erroi was the admission into evidence of the confession because it was allegedly obtained through coercion and promises of leniency. The fifth amendment challenge to the confession as involuntarily made is not well taken. On the motion to suppress, the State made out a prima facie case of voluntariness by showing that Smith was twice given Miranda warnings, signed a waiver before making his statement, and was not coerced or offered reward for his confession. Then Smith testified that his confession was extracted through psychological coercion and promises of time running concurrently with another charge. Subsequently, the State offered the testimony of all persons present at the time of Smith’s statement to prove that no coercion or offers of reward were made as an inducement for the confession. Thus, the giving of Miranda warnings, Smith’s waiver, and the State’s compliance with the rule in Agee v. State, 185 So.2d 671 (Miss.1966), plus the conflicting testimony, created an issue for the court’s resolution. The court determined the confession to be voluntary from this evidence and we cannot state it erred in this decision.

AFFIRMED.

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

      . In the Beck case the U. S. Supreme Court held no probable cause existed where the arrest without a warrant was based on a police picture and past criminal record of the- arrestee. But see Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), where probable cause existed to make a warrantless arrest where a reliable informer gave officers corroborated information that Draper, a narcotics peddler, would arrive on a certain train carrying a tan zipper bag containing three ounces of heroin and also provided a detailed physical description of Draper, i. e., a Negro of light brown complexion, 5' 8" tall, weighing 160 pounds, and wearing a light colored raincoat, brown slacks and black shoes.


text:
    WILLIAM Robert “Bill” CLOTFELTER v. Lea McGowan CLOTFELTER.
    No. 52016.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Colingo & Blackwell, Eddie C. Williams, Pascagoula, for appellant.
    Johnston & Steinberger, Albert S. Johnston, III, Pascagoula, for appellee.
   Appeal from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

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

AFFIRMED.


text:
    Earnest Ray DEES v. Norma Faye DEES.
    No. 52102.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Thornton, Guyton, Dorrill & Pettit, John D. Guyton, Kosciusko, for appellant.
    Morgan & Morgan, C. E. Morgan, III, Kosciusko, for appellee.
   Appeal from Chancery Court, Attala County; John C. Love, Jr., Chancellor.

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

AFFIRMED.


text:
    Fred JONES v. CITY OF PEARL, Mississippi.
    No. 52066.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Davis Hall Smith, Hansel Anthony Jones, Jackson, for appellant.
    Bacon, Stone, Jernigan & Goodman, Arthur F. Jernigan, Jr., Jackson, for appellee.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

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

AFFIRMED.


text:
    Robert E. RATLIFF v. ROBERT E. RATLIFF COMPANY, INC. and Maryland Casualty Company.
    No. 52099.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Gene Harlow, Grenada, for appellant.
    William L. Rone, Hernando, for appellees.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

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

REVERSED IN PART, AFFIRMED IN PART, ORDER OF COMMISSION REINSTATED, AND RENDERED.

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


text:
    Clementine REDMOND v. HOLMES COUNTY BOARD OF EDUCATION.
    No. 52073.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Fredrick B. Clark, Lexington, for appellant.
    Alix H. Sanders, Greenwood, for appellee.
   Appeal from Chancery Court, Holmes County; G. Milton Case, Chancellor.

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

AFFIRMED.


text:
    Ernest FRIERSON v. Robert E. COX et al.
    No. 52030.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Edward Blackmon, Jr., Blackmon, Smith & Nichols, Canton, for appellant.
    John W. Christopher, Canton, for appel-lees,
   Appeal from Chancery Court, Madison County; E. G. Cortright, Chancellor.

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

AFFIRMED.


text:
    Jack M. FRASIER v. Dorothy FRASIER.
    No. 52071.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Adams & Odom, Joe R. Odom, Meridian, for appellant.
    Williams, Glover & Walton, H. Wingfield Glover, Jr., Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

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

REVERSED AND RENDERED.

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


text:
    Carl PINTER v. STATE of Mississippi.
    No. 52155.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Butler & Butler, W. C. Butler, Eupora, for appellant.
    Bill Allain, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Webster County; Niles McNeel, Judge.

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

AFFIRMED.


text:
    Oddie M. SKIPPER v. FORTENBERRY DRILLING COMPANY.
    No. 51985.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Cothren, Pittman & Ferrell, James P. Co-thren, Jackson, W. E. “Billy” Andrews, III, Purvis, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Frank C. Horton, Robert S. Addison, Jackson, for appellee.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

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

AFFIRMED.


text:
    Luther Earl JACKSON v. STATE of Mississippi.
    No. 52020.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Franklin J. George, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Grenada County; Niles McNeel, Judge.

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

AFFIRMED.


text:
    William H. OLIVER v. DIAMOND T. FARMS, INC., et al.
    No. 52091.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Eddie H. Tucker, Jackson, for appellant.
    Conrad Mord, Macon, for appellees.
   Appeal from Chancery Court, Noxubee County; W. W. Brand, Jr., Chancellor.

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

AFFIRMED.


text:
    Willie Lee TAYLOR v. STATE of Mississippi.
    No. 52069.
    Supreme Court of Mississippi.
    Aug. 20, 1980.
    John C. Webb, Greenville, for appellant.
    Bill Allain, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Arthur B. Clark, Judge.

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

AFFIRMED.

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


text:
    H. A. JOHNSON, Jr. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 51926.
    Supreme Court of Mississippi.
    Aug. 20, 1980.
    Smith, McLemore & Smith, James E. Smith, Carthage, for appellant.
    Robert N. Brooks, Dist. Atty., Carthage, for appellee.
   Appeal from Special Court of Eminent Domain, Leake County; Marcus D. Gordon, Judge.

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

AFFIRMED.


text:
    Jimmie BROOKS v. HOLMES COUNTY DEMOCRATIC EXECUTIVE COMMITTEE and Joe T. Jones.
    No. 52023.
    Supreme Court of Mississippi.
    Aug. 20, 1980.
    Leonard McClellan, Oxford, for appellant.
    John Arthur Eaves, Jackson, for appel-lees.
   Appeal from Circuit Court, Holmes County; Rufus H. Broome, Special Judge.

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

AFFIRMED.


text:
    J. T. MILLER v. Mary Katherine Miller HOWELL.
    No. 52075.
    Supreme Court of Mississippi.
    Aug. 20, 1980.
    Ransom P. Jones, III, Pascagoula, for appellant.
   Appeal from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

W. Harvey Barton, Pascagoula, for appel-lee.

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

AFFIRMED ON DIRECT AND CROSS-APPEALS.


author: LEE, Justice,

text:
    SOONER FEDERAL SAVINGS & LOAN ASSOCIATION v. DEPOSITORS SAVINGS ASSOCIATION.
    No. 52087.
    Supreme Court of Mississippi.
    Aug. 20, 1980.
    Perry, Crockett, Morrison & Starling, Tommy E. Furby, Thomas W. Crockett, Jr., Jackson, for appellant.
    Bacon, Stone, Jernigan & Goodman, Arthur F. Jernigan, Jr., Jackson, for appellee.
    Before SUGG, BROOM and LEE, JJ.
   LEE, Justice,

for the Court.

Sooner Federal Savings and Loan Association of Tulsa, Oklahoma [Sooner] appeals from a decree of the Chancery Court of the First Judicial District of Hinds County, Honorable James Arden Barnett presiding, which ordered reformation of a written agreement between Sooner and Depositors Savings Association [Depositors], successor to Bankers Trust Savings & Loan Association [Bankers Trust], a Mississippi corporation, and entered judgment in the sum of twenty-nine thousand two hundred fifty-nine dollars fifty-two cents ($29,259.52) in favor of Depositors.

The question on appeal is whether or not the lower court erred in holding that there was a mutual mistake between the parties to the agreement and in reforming the agreement.

In January, 1974, Sooner loaned three million dollars ($3,000,000) to Bankers Trust, which agreed to repay the loan with interest at the rate of nine percent (9%) per annum in monthly installments. The loan was to be secured by the assignment of an undivided fifty percent (50%) interest in certain mobile home loans held by Bankers Trust.

Bankers Trust sustained financial setbacks and, in about June, 1976, Sooner learned of Bankers Trust’s financial crisis and sent Charles Stidham and Michael Ward, officials in its organization, to Jackson, Mississippi, who attempted to work out Sooner’s loan. The principal balance on said loan at that time was two million three hundred fifteen thousand dollars ($2,315,-000). Sooner discovered that, contrary to the provisions of its loan agreement, Bankers Trust had failed to perfect Sooner’s security interest in the mobile home loans and Sooner was in the position of an unsecured creditor of Bankers Trust, which was then in the hands of receiver Robert Warren.

The parties began to negotiate on the basis that Bankers Trust would assign unto Sooner certain specified mobile home loans and Sooner would release Bankers Trust of all liability under the original $3,000,000 loan. Bankers Trust took the position that, because of its bad financial condition, it could not afford to accept a book loss and insisted that the value of loans assigned, as shown on its books, would be no more than the amount of its book liability to Sooner. Mr. Warren instructed the employees of Bankers Trust that they could take no more losses.

Sooner’s position in the negotiations was that it would settle for the $2,315,000, being the balance on said loan, by cash payment, which, of course, Bankers Trust was unable to pay. Bankers Trust submitted to Sooner a computer printout describing the loans which it proposed to assign. Stidham and Ward took the computer printout to their motel room and inspected same on the night of July 6, 1976. The loans had a total balance due of two million eight hundred ninety-two thousand dollars ($2,892,000). Based on that figure, they estimated that the loans would yield six and six-tenths percent (6.6%) interest income per year rather than the 9% Bankers Trust had agreed to pay, and that Sooner would suffer a loss on the original loan contract in excess of fifty-five thousand dollars ($55,-000) per year.

On July 7, 1976, Stidham telephoned the home office of Sooner in Tulsa and submitted the choices (1) take $55,000 per year loss in income or face the hazards of long litigation and the possibility that Bankers Trust might not survive its financial crisis, or (2) attempt to get assignment of additional loans which would bring the yield up to the agreed 9% figure. Its Tulsa office instructed Stidham to attempt to get more loans, but, if Bankers Trust refused, then Stidham was instructed to accept the offer submitted on July 6, 1976.

On the morning of July 8, Stidham approached Eldredge Boyd, a senior vice president of Bankers Trust, and requested that Bankers Trust add more loans to the package in order to increase the agreed percentage rate of 9%. Boyd refused, stating that Bankers Trust would take a loss on its books, and Sooner could “take it or leave it.” Stidham, acting for Sooner, agreed to the compromise. The final document was agreed upon and was typed up and styled “Compromise Agreement.” According to its terms, Bankers Trust was released from its $2,315,000 liability and, in consideration therefor, assigned to Sooner loans for a balance due of approximately $2,892,000. The loans assigned were to be specifically described in an instrument marked Exhibit “A” to the agreement. Mr. Warren executed the contract, leaving blank the space in Paragraph 6(c) for the entry of the total of the unpaid balance of the loans.

Stidham and Ward went to the Bankers Trust offices where the employees had started boxing up the loans for delivery to Sooner, and they used the first computer run to check off the loans to make sure that the files described thereon were packaged. About mid-afternoon, Donald Pate, accountant for Bankers Trust, arrived with a different computer run, and announced that such computer run was a final list of the loans to be assigned to Sooner. Stidham and Ward tallied the unpaid balances of the loans in the new computer run and found that the total was approximately twenty-five thousand dollars ($25,000) less than the unpaid balance of the loans list agreed to that morning. They brought the shortage to Pate’s attention and Pate stated that Sooner could not have any more loans than those set forth in the new computer run, which indicated the book value of the loan liability did not exceed the book value of those loans and they were under instructions not to take any losses.

Eldredge Boyd came in and the problem was explained to him. He asked Pate, “Is the unpaid balance [of the loans on the new computer sheet] less than it was this morning?” When Pate told him that it was, Boyd overruled Pate and said, “Add some loans to the package to bring it up.” The Bankers Trust employees delivered three (3) more loan files to Sooner, and after those loans were added to the list, Stidham inserted the sum of two million eight hundred ninety thousand eight hundred fifty-six dollars ninety-six cents ($2,890,856.96) in the space left for the total in Paragraph 6(c) of the compromise agreement. This was done with the approval of the Bankers Trust officials. He then executed the instrument on behalf of Sooner, Boyd and he initialed all exhibits to the agreement, Stidham and Ward then packed up the loans and returned to Tulsa with them.

Bankers Trust subsequently wrote Sooner that the book value of the loans assigned exceeded the book liability of.the debt to Sooner by approximately twenty-nine thousand dollars ($29,000) and Stidham replied that there may have been an excess book value settlement, but that Sooner had given up its right to the 9% yield and other valuable considerations and Sooner would not make any adjustment.

Stidham testified on the trial as follows, when Pate presented the new computer run:

“A. I stopped the whole process right then. I said, ‘Hold it. We are not going to accept this. This run is less than the offer that you made us this morning.’ And Donnie Pate and I got into an argument over it. Donnie was saying things like, ‘We have got to use this, because this is the book value of the Bankers Trust loans, and we are under an instruction not to take any losses.’ And I am saying, T don’t care. That is $25,000 less money owed from the customers than what you offered us this morning when you said take it or leave it.’ So Eldredge Boyd was in there, and he came over and said, ‘What is the trouble?’ I explained it to him. He thought about it awhile, and he said, ‘Add some loans to the package.’ He said words to this effect, paraphrasing, he said, he asked Donnie, he said, ‘Is the unpaid balance less than it was this morning?’ and Donnie said, ‘Yes, it is.’ And he said, ‘Add some loans to the package to bring it up.’ And Bankers—
Q. Bring it up to what?
A. To bring it back up to what we had this morning.
Q. As a result of Mr. Boyd’s instructions to the Bankers Trust staff, were any loans added to the package?
A. Yes, they were.
Q. What loans were those?
A. They are the loans that are noted on the bottom of Page — I think 35 of whatever this exhibit is, the attachment to the contract. Loan No. 173237,176941,190579. Those three loans were added.
Q. Which are written in handwriting?
A. That is right. They are written. Those three loans added up to $23,-799.14.
Q. What did those three loans add up to?
A. $23,799.14.
Q. That is the unpaid balance of those three loans?
A. Unpaid balance of the loans plus the unpaid balance of the insurance loans on the other loans applicable to them.
Q. And when they added those loans, what did it bring the total amount to, the total unpaid balance ?
A. It brought it up to $2,890,856.96.” (Emphasis added)

Donald Pate, Bankers Trust accountant, testified:

“A. As we said earlier, ‘Take it or leave it.’ And they decided to take it.
Q. And those were the loans that are described in Exhibit A, this computer printout?
A. That is correct?
Q. And there is no question but what those were the loans that Sooner got?
•A. In my mind there is no question. The loans on this printout are the ones Sooner got, right.
Q. And that was the deal you all made?
A. That is correct. (Emphasis added)

Paragraph 6(c), which is crucial to the contract, is in the following words:

“6. Bankers Trust represents and warrants to Sooner as follows:
c. That the information concerning the loans so assigned is true and correct as reflected on Exhibit “A” attached and the total unpaid balance of said loans is $2.890.856.96.”

In his written opinion, the chancellor stated:

“That there is a genuine controversy between the parties is without question. The Court can certainly understand that. I am not sure I understand all of it, but I understand at least that there is a controversy without question. .
I would just simply say this. As I heard each of the witnesses, I believed every one of them. As I heard one side, I believed them. As I heard the other side, I believed them. I think we are dealing with a situation where the parties genuinely approached in full and open and frank attempt to settle it, and there was a genuine misunderstanding. They were not talking the same language all the way through. I have vacillated back and forth so many times I feel like a zebra. But I do appreciate it. Thank you, gentlemen.”

In J. J. Newman Lumber Co. v. Robbins, 203 Miss. 304, 34 So.2d 196 (1948), the Court said in reversing a decree of the chancellor which reformed a contract:

“[Bjeeause the rule as stated approaches so nearly an intrusion upon the salutary rule that when parties have reduced their agreement to writing, the writing may not be varied by parol, it is required that the proof to sustain a bill to reform must be such as to establish the essential allegations beyond a reasonable doubt. .
This sends us to a close and critical examination of the record of the evidence. Two witnesses only were offered, the complainant in his own behalf, and for the defendant, the agent or scrivener who prepared the instrument. It is perfectly plain that the agent and scrivener prepared the instrument exactly as he intended it should be and that it expressed what he intended therein to express. There is, therefore, no case of a mutual mistake . . . .” 203 Miss, at 309-310, 34 So.2d at 197.

In Progressive Bank v. McGehee, 142 Miss. 655, 107 So. 876 (1926), the Court said:

“The evidence to support the decree of the Chancellor is not strong. On the contrary, the evidence to support the position of the appellant is very strong. We do not think it would answer any useful purpose to go into the evidence pro and con in detail. It is sufficient to say that there was a conflict. In Harrington v. Harrington, 2 How. 701, 718, Judge Sharkey said for the court:
‘The proof should be clear beyond a doubt, because, * * * it is better that a doubtful written instrument should stand, than that a doubtful provision should be substituted by parol testimony. * * * We cannot, on the mere ground of probability, reform written instruments for mistakes.’ ” 142 Miss, at 659, 107 So. at 876-877.

The principle of law stated has been affirmed in Perrien v. Mapp, 374 So.2d 794 (Miss.1979), and in numerous other cases.

There were intense negotiations by representatives of the parties in arriving at a compromise agreement of their differences. As stated, if Bankers Trust had been able to pay Sooner its principal balance of $2,315,-000, the matter would have been concluded and Stidham would have been glad to take that amount and go back to Tulsa. However, since that was an impossibility, he tried to recoup as much of the 9% due Sooner under the original contract as he could, but was only able to get loans which produced 6.6%. Although Robert Warren had instructed officials at Bankers Trust not to settle for a greater liability on the loans than the book value, the book liability of the loans listed for assignment to Sooner did exceed the book value. Stidham was not satisfied with the 6.6% income, but when Eldredge Boyd told him that was the best Bankers Trust would do and he could take it or leave it, Stidham accepted that compromise.

The evidence indicates that there was no mistake on the part of Stidham and Sooner, and that they knew exactly what they were agreeing to. The evidence also reflects that the Bankers Trust officials were aware of the situation as to book value and book liability of the loans assigned to Sooner, they were not taken advantage of, no fraud or misrepresentation was practiced upon them, and, even if those officials made a mistake, either in violation of instructions, or in their thinking at the time, there was no mutual mistake.

Therefore, the chancellor manifestly erred in finding that there was a mutual mistake in the preparation and execution of the compromise agreement and in entering judgment for Depositors. The judgment of the lower court is reversed and judgment is rendered here for appellant.

REVERSED AND RENDERED.

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


author: ROBERTSON, Presiding Justice,

text:
    Charlie MOSS v. STATE of Mississippi.
    No. 52015.
    Supreme Court of Mississippi.
    Aug. 20, 1980.

      John L. Hopkins, Corinth, for appellant.
    Bill Allain, Atty. Gen., by Carolyn B. Mills, Spec. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

An indictment was returned by the grand jury of the Circuit Court of Alcorn County, against Charlie Moss, charging him with the murder of Robert Burkhalter on December 27, 1978. He was found guilty of manslaughter, whereupon the court sentenced him to 12 years in prison, with 7 years suspended. Appellant assigns as error that the court erred:

I.In overruling the defendant’s motion to peremptorily instruct the jury to find the defendant “not guilty” at the close of all the testimony.
II.In overruling defendant’s motion to exclude the statement purportedly given to the law enforcement officers.
III. In allowing sheriff Edwin Coleman to testify.
IV. In allowing photographs of the deceased to be introduced into evidence.
V.In giving an instruction which would have allowed the jury to return a verdict of “guilty” to murder.

Appellant also contends, on appeal, that the verdict of the jury was against the overwhelming weight of the evidence and was contrary to the law, and that the trial court erred in overruling his motion for a new trial.

Charlie Moss, his brother, Woodrow Moss, and a friend, Olen Rutherford, had been drinking at Charlie’s trailer home near Corinth since 1:00 P.M. on December 26, 1978. Others had been there during the afternoon and some of them had been arguing and fighting on the road in front of Moss’ trailer. Sheriff’s deputies had been by about 9:30 P. M. to investigate the disturbance that afternoon.

Shortly after midnight, Robert Burkhal-ter entered the defendant’s trailer and asked who had beaten up his friends. Moss stated that nobody had. Moss and Burkhal-ter argued and then Burkhalter grabbed a 12-gauge shotgun which was leaning up against the couch and shouted, “I’m going to kill every damn one of you.” He ran out the trailer door toward the road. Moss grabbed his .30-caliber carbine from the gun rack, went to the trailer door, took aim, and shot Burkhalter in the upper left back. Moss stated that Burkhalter then shot him in the leg and Moss grabbed his 20-gauge shotgun and from the trailer door shot Burkhalter twice as he lay on the ground.

An autopsy was performed and the pathologist testified that the cause of death was the high-powered rifle shot in the upper left back. This shot fractured ribs and lodged in the left lung. The autopsy also revealed that Burkhalter had been hit in the lower back with 38 shotgun pellets.

After the shooting, Moss was taken to the hospital for treatment of his leg wounds and remained there until January 3, 1979. Upon his release from the hospital he was arrested and charged with the murder of Burkhalter. He was advised of his Miranda rights, signed a waiver of his rights in the presence of two witnesses, and then gave a statement which was reduced to writing by Alcorn County Deputy Sheriff Harold Mullins, read to Moss and then signed by him in the presence of three witnesses, Mullins, Chief Deputy Sheriff Terry Doles, and Deputy Sheriff Patricia Strachan.

At a preliminary hearing on the voluntar-iness of Moss’ written statement, Mullins and Doles testified, both on direct examination and in rebuttal. Their testimony was that there were no threats, promises, force or pressure of any kind and that his statement was entirely voluntary. Deputy Stra-chan’s absence was explained in a letter from her gynecologist that she was pregnant and within two weeks of delivery, and “should not be subjected to the trauma in a courtroom.”

In our opinion, all the requirements set forth in Holt v. State, 348 So.2d 434 (Miss.1977), and Agee v. State, 185 So.2d 671 (Miss.1966), were met; the statement was entirely voluntary and was properly admitted into evidence.

Defendant’s only plea was self-defense. He contends that his explanation of how it all happened was reasonable and plausible and that he was entitled to the benefit of the Weathersby Rule. Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). The physical facts (victim was shot in the back), the pathologist’s testimony, and even defendant’s own written statement refute his trial testimony that he shot in self-defense.

The trial court was correct in refusing a peremptory instruction for the defendant. The court was also correct in allowing the photographs of the deceased to be introduced into evidence. The photographs had legitimate evidentiary value in proving that Burkhalter was shot in the back with a high-powered rifle and a shotgun.

The trial court was also correct in allowing Sheriff Edwin Coleman to testify. His testimony was limited to the qualification of the photographs admitted into evidence. The fact that the sheriff’s name was not on the list of witnesses furnished the defendant would not prohibit him from testifying under Rule 4.07 of the Uniform Criminal Rules of Circuit Court Practice. That Rule only covers notice to each side when defendant interposes a defense of alibi. The defendant never denied that he shot Burkhalter; he contended only that he shot in self-defense.

The trial court did not err in giving an instruction which would have allowed the jury to return a murder verdict. This Court has consistently held that one convicted of manslaughter may not complain of a murder instruction. King v. State, 315 So.2d 925 (Miss.1975).

There was ample evidence adduced for the jury to find beyond a reasonable doubt that the defendant was guilty of manslaughter. The conviction and sentence are, therefore, affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Ex parte STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner. In re Howard JOHNSON, as Administrator of the Estate of Rether Johnson, Deceased, v. Nancy LYNCH, Tammie Ward, David Campbell, et al.
    78-824.
    Supreme Court of Alabama.
    May 9, 1980.
    Rehearing Denied Aug. 8, 1980.
    Fred W. Killion, Jr. and Patricia K. 01-ney, of Pillans, Reams, Tappan, Wood, Roberts & Vollmer, P. C., Mobile, for petitioner.
    Joseph J. Boswell, Mobile, for respondents.
   FAULKNER, Justice.

State Farm Insurance Company petitions for a writ of mandamus to Judge Elwood L. Hogan to review and reverse his order requiring it to turn over large portions of its investigative file to Howard Johnson, administrator of the estate of Rether Johnson, for his use in a wrongful death action against State Farm’s insured. The writ is granted.

Howard Johnson, as administrator of the estate of Rether Johnson filed suit on September 6, 1977 against Nancy Lynch, Tammie Ward, and David Campbell in Mobile County Circuit Court for the wrongful death of Rether Johnson resulting from an accident on May 4. He alleged that automobiles driven by Lynch and Ward collided and ran into the parking lot of a 7-11 store where Johnson was struck and killed. At the time of the accident Ward was operating a car owned by David Campbell, who was insured by State Farm.

State Farm filed a declaratory judgment action seeking a declaration that Ward was not an insured under its policy. The wrongful death action was enjoined until the trial judge decided that Ward was an insured under the State Farm policy. State Farm then filed an answer on behalf of Ward.

Being the insurer of one of the vehicles involved in the accident, State Farm, through its claims specialist, Robert Burnett, investigated it promptly. His office received the claim on May 6. Following in chronological order appear the documents prepared by him:

Date Document Prepared: Nature of Document:

May 10, 1977 Statement of Mrs. David Campbell, Sr.

May 10, 1977 Statement of Mr. David Campbell, Sr.

May 10, 1977 Statement of Ms. Tammy Ward

May 10, 1977 Statement of Ms. Jackie Grant

May 11, 1977 Preliminary Report

May 12,1977 Statement of Mr. David Campbell, Sr.

May 16, 1977 Memo from Mr. Warren Harris

May 19,1977 Statement of Mr. Herman Bed-well

May 19,1977 Statement of Mr. David Campbell, Sr.

May 19,1977 Office memorandum to Mr. Warren Harris

May 20,1977 Office memorandum from Mr. Warren Harris

June 10,1977 Office memorandum from Mr. Warren Harris, including final report on accident

June 13,1977 Office memorandum to Mr. Warren Harris

Subsequently, based on his interviews and research, Burnett submitted reports and inter-office memoranda to his supervisor, Warren C. Harris, evaluating the claims, discussing possible theories of liability, and settlement value. Harris replied, also by inter-office memoranda, giving his evaluation of the claims, possible liability, and his recommendation to Burnett, whether to settle or litigate.

During discovery, Johnson’s lawyer served a subpoena on State Farm requesting production of the following documents under Rule 34, ARCP:

(a) All written or sound recorded statements in the possession, custody or control of State Farm which were taken from any person which in any way pertains to the accident made the basis of Civil Action No. CV-77-001206.
(b) All interoffice memorandums in the possession, custody or control of State Farm which in any way pertains to the accident referred to in paragraph (a) above.
(c) All written or recorded statements in the possession, custody or control of State Farm taken from any person which in any way pertains to the circumstances or occurrences, including all hearsay statements, which existed or took place prior to the defendant Tammie Lee Ward coming into possession of the automobile owned by David Campbell, which automobile Tammie Lee Ward was operating at the time of the accident referred to in paragraph (a) above.
(d) All correspondence or letters of every nature and description in the possession, custody or control of State Farm and its attorneys), which in any way pertains to any of the matters referred to above in paragraph (a)(b) and (c). [sic.]
(e) In general, all other documents, instruments, written or sound recorded statements taken from any person and things of every nature and description not hereinabove specified, in the possession, custody or control of State Farm which tends in any way to prove or disprove Tammie Lee Ward’s contention that the defendant Tammie Lee Ward was not negligent as alleged in defendant Tammie Lee Ward’s answer.

Paragraph (d) was later amended to correct a typographical omission and to read as follows:

All correspondence or letters of every nature and description in the possession, custody or control of State Farm (EXCEPT CORRESPONDENCE OR LETTERS BETWEEN STATE FARM AND ITS ATTORNEYS), which in any way pertains to any of the matters referred to above in paragraph (a) (b) and (c).

State Farm filed an objection to the subpoena and a motion for a protective order asserting the material sought (essentially their entire file) was prepared in anticipation of litigation and could not be discovered under ARCP 26(b)(3) unless it was shown that Johnson had substantial need of it and was unable without undue hardship to obtain the substantial equivalent of the material by other means. They also argued that the request was an undue invasion of the mental impressions, conclusions, opinions, and legal theories of State Farm’s attorneys and agents.

After a misunderstanding by State Farm on what the court had earlier ordered State Farm to do relating to the documents, the court allowed State Farm to orally refile its motion and objection to the subpoena and allowed Johnson to refile his Rule 34 motion. State Farm also filed affidavits from Harris and Burnett. After a hearing, on August 30, 1979, the trial judge denied State Farm’s motion for a protective order and overruled its objection to the subpoena and granted Johnson’s motion to compel production of documents. State Farm filed this petition for writ of mandamus and a motion for stay. We granted the petition, ordered the trial judge to file an answer, and granted the motion to stay.

The trial judge, in his answer, denied that his order compelled State Farm to turn over its entire investigative file to Johnson’s lawyer. Additionally, he denied that the materials described in the subpoena were prepared in anticipation of litigation, for trial by or for any party, or for State Farm’s attorney.

We are asked to decide whether a party’s insurer may be required by an adverse party pursuant to ARCP 34 to produce statements (other than that of the requesting party), office memoranda, evaluation reports and other materials prepared by the insurer after the claim arose but before a suit is filed against the insured, when the requesting party makes no showing of substantial need of the materials or that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

ARCP 26(b)(1) provides the general scope of discovery, and ARCP 26(b)(3) further defines the requirements that must be met to discover trial preparation materials:

(3) Trial Preparation: Material. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. [Emphasis added.]

Thus, if these materials were “prepared in anticipation of litigation,” their discovery could properly have been ordered only on a showing by Johnson that he had “substantial need of the materials in preparation of his case and that he [was] unable without undue hardship to obtain the substantial equivalent of the materials by other means,” and no such showing was made.

The exact meaning of the phrase “prepared in anticipation of litigation” has never been considered by this Court. Because of the similarity between the Federal Rules of Civil Procedure and the Alabama Rules, we examine cases interpreting Federal Rule 26(b)(3) for authority in construing the language at issue in our Rule 26(b)(3). See, Bracy v. Sippial Electric Co., 379 So.2d 582 (Ala. 1979); State v. Horton, 373 So.2d 1096 (Ala. 1979). We also look to decisions of other states construing their rules of court similar to ARCP 26(b)(3).

Numerous federal courts have considered the discoverability of reports and memoran-da prepared by a party’s insurer and have not arrived at a single position. The apparent majority of the federal courts appear to take the position that unless the insurer’s investigation was investigated at the request of or under the guidance of an attorney, there is a conclusive presumption that the investigative reports were made in the ordinary course of the insurer’s business and not in anticipation of litigation or for trial. Cf. Thomas Organ Co. v. Jadranska Solbodna Plovidba, 54 F.R.D. 367 (N.D. Ill. 1972); McDougall v. Dunn, 468 F.2d 468 (4th Cir. 1972); Fletcher v. Meaerne, 20 F.R.Serv.2d 202 (D. Mass. 1975); Atlanta Coca-Cola Bottling Co. v. Transamerica Ins. Co., 61 F.R.D. 115 (N.D. Ga. 1972); Universal Vendors, Inc. v. Candimat Co. of America, 16 F.R.Serv.2d 1329 (E.D. Pa. 1972); Southern Ry. Co. v. Campbell, 309 F.2d 569 (5th Cir. 1962).

Other federal cases, however, have arrived at the position that reports, statements, memoranda, and the like developed by the insurer during its investigation prior to the employment of counsel are prepared in anticipation of litigation and absent a Rule 26(b)(3) showing by the requesting party are not subject to discovery. Almaguer v. Chicago, Rock Island & Pacific Railroad Co., 55 F.R.D. 147 (D. Neb. 1972); Smedley v. Travelers Insurance Co., 53 F.R.D. 591 (D. N.H. 1971). Almaguer appears to be the most discussed federal case that does not follow the apparent federal majority.

State courts have generally taken the position of Almaguer. See Fireman’s Fund Ins. Co. v. McAlpine, 391 A.2d 84 (R.I. 1978). In Almaguer the U.S. District Court held that:

statements taken by a claim agent immediately after an accident are taken in anticipation of litigation. * * * The anticipation of the filing of a claim against a railroad, when a railroad employee has been injured or claims to have been injured on the job, is undeniable, and the expectation of litigation in such circumstances is a reasonable assumption.

In Fireman’s Fund Ins. Co., Justice Kel-leher, apparently persuaded by Almaguer stated:

This statement is of equal validity when the mishap involves an automobile. In our litigious society, when an insured reports to his insurer that he has been involved in an accident involving another person, the insurer can reasonably anticipate that some action will be taken by the other party. The seeds of prospective litigation have been sown, and the prudent party, anticipating this fact, will begin to prepare his case. See 8 Wright and Miller, Federal Practice and Procedure, § 2024 at 198 (1970). Although a claim may be settled short of the instigation of legal action, there is an ever-present possibility of a claim’s ending in litigation. The recognition of this provides, in any given case, the impetus for the insurer to garner information regarding the circumstances of a claim.
We do not mean to imply, however, that under no circumstances can an insurer be deemed to conduct an investigation of a claim in the ordinary course of its business. In many cases an insurer may prepare reports for a purpose other than in response to the threat of litigation.

In this case, State Farm’s claims specialist testified, by affidavit, that from the very outset of his investigation, it was obvious to him that State Farm’s insured was free from liability, and that he prepared all of the documents for eventual litigation. Even though State Farm did not turn over its file to its attorney until after the lawsuit was filed in September, we opine, from the meager evidence in the record, that the investigation was conducted in anticipation of litigation. From the nature of the case, a death Claim, State Farm’s agent could have reasonably concluded that its insured would be sued. This was not the type of fender-bender case where a settlement with the insured would likely occur without a lawsuit.

We hold that, in this case, discovery of the materials sought by Johnson cannot be permitted unless he shows a substantial need of the materials for preparation of his case, and that he is unable without due hardship to obtain the substantial equivalent of the materials by other means. By this holding, we are not to be understood that it would apply in every case. Because a claims agent may state conclusively that his investigation was conducted in “anticipation of litigation” will not necessarily make it so. Each case must sit on its own bottom.

We grant the writ and remand the case so that Johnson may be given an opportunity to make a showing of “substantial need” and “without undue hardship” as provided by Rule 26(b)(3), ARCP.

WRIT GRANTED.

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

BLOODWORTH, J., not sitting.


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    Cleveland L. BROWN v. Charles N. PARNELL, III, et al.
    79-140.
    Supreme Court of Alabama.
    Aug. 8, 1980.
    Richard S. Jaffe and Marion F. Walker of Walker, Jaffe & Burton, Birmingham, for appellant.

      Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellee.
   FAULKNER, Justice.

This is an appeal from a summary judgment granted in favor of defendant attorneys in a malicious prosecution and abuse of process action. We affirm.

Cleveland Brown is president and 98% shareholder in Auto Sound and Distributors, Inc., a corporation. On the advice of his attorney, he filed complaints in small claims court to collect three bad debts. Brown, who was not an attorney, appeared in small claims court on behalf of his corporation and obtained two judgments. While he was in court he was observed by at least three of the defendant attorneys, Gatewood Walden, Nick Parnell and Horace Lynn. After the court session, Walden, Parnell, Lynn and Collier Carlton, who was also in court when Brown appeared, went into the coffee shop and discussed Brown’s appearance in the small claims court representing his corporation and that he was not an attorney. The contents of this conversation and the defendants’ subsequent actions leading to issuance of a warrant for Brown’s arrest are in dispute. Apparently, there was some concern about Brown’s unauthorized practice of law and the legal and ethical considerations confronting the defendant attorneys if they did not act to report and stop this violation. Among these defendants and others there was some discussion about a conflict between the Small Claims Court Rules which seemed to allow Brown to represent his corporation and 1942 Alabama case law which would not allow a private individual to represent his corporation in court.

Members of this group contacted J. 0. Sentell, Clerk of the Supreme Court and the local bar association to determine if Brown was a licensed attorney. They also consulted the Secretary of State’s office to learn if Brown’s business was incorporated.

Parnell, Harry Perdue, Donald Harrison, Lynn, and Walden signed a warrant for Brown’s arrest for the unauthorized practice of law pursuant to Title 46, § 42, Code of Alabama 1940 (now Code 1975, § 34-3-7). Brown was arrested and was subsequently tried and convicted of the charges in district court. He appealed to the circuit court where the district attorney nol-prossed the case.

Brown then filed a complaint for malicious prosecution and abuse of process against the defendants, who moved for summary judgment. He also filed a motion in opposition to the summary judgment along with briefs and affidavits. The parties dispute whether there was ever a hearing on this motion. The motion for summary judgment was granted with no grounds specified as the basis for that ruling. After denial of his motion for reconsideration, Brown appeals.

We are presented with two issues on appeal: first, whether the trial court erred in granting the defendant’s motion for summary judgment where there were genuine issues as to material facts regarding elements of malicious prosecution, i. e., malice, probable cause, and a termination favorable to Brown; and second, whether defendants were guilty of abuse of process.

To successfully maintain an action for malicious prosecution the plaintiff has the burden of providing the following essential elements: (1) a prior judicial proceeding; (2) instigated by the defendant; (3) without probable cause; (4) with malice; (5) which was terminated in favor of the plaintiff; and (6) damages. Gosnell v. Slaughter, 364 So.2d 1154 (Ala.1978); Jordan v. Empiregas, Inc. of Belle Mina, 337 So.2d 732 (Ala.1976). A different standard is used to determine whether there was a “want of probable cause” in a malicious prosecution suit when the prior action was a criminal case as opposed to a civil case. Compare Republic Steel Corp. v. Whitfield, 260 Ala. 333, 70 So.2d 424 (1953), (contributing to the delinquency of a minor) with Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So.2d 555 (1959), (nonpayment of rent under a lease). The rule where the prior conviction occurred in a criminal case is that “the judgment of conviction, though later vacated and accused discharged, is pri-ma facie evidence of the existence of probable cause for instituting the prosecution ‘which may be rebutted by any competent evidence which clearly overcomes the presumption arising from the fact of defendant’s conviction in the first instance.’ ” Jordan v. Wilson, 263 Ala. 625, 626, 83 So.2d 340, 342 (1955), quoting from Republic Steel Corp. v. Whitfield, 260 Ala. at 337, 70 So.2d at 426 (emphasis added). The reasoning behind that rule was expressed thusly:

“The true and logical reason why a conviction reversed on appeal and the defendant discharged is relevant evidence on the issue of probable cause is, not that the judgment imports absolute verity; for after the reversal and discharge there is in fact and law no judgment. The true reason, as stated in the case of Nehr v. Dobbs, 47 Neb. 863, 66 N.W. 864, is the fact that ordinarily, if a court having jurisdiction has upon a full and fair trial proceeded to conviction, it must have had before it such evidence as would convince a prudent and reasonable man of the guilt of the accused. Therefore, while a subsequent reversal may show that the accused was in fact innocent, yet it does not show that there was no probable cause for believing him guilty.”

Ex parte: Kemp, 202 Ala. 424, 424-25, 80 So. 809-10 (1919) (malicious prosecution action instituted after nolle prosequi of plaintiff’s appeal to circuit court, quoting from Skeffington v. Eylward, 97 Minn. 244, 105 N.W. 638 (1906).

In the case before us, we must determine whether there was sufficient competent evidence to clearly overcome the pri-ma facie presumption of probable cause arising from Brown’s conviction in district court. Brown contends that probable cause was lacking for several reasons: the discussion of the apparent conflict between the Small Claims Rules pamphlet and Alabama case law led to the idea that a warrant be sworn out against Brown to institute a test case, the proportion of collection work done by some of the defendant attorneys, and the individual defendants’ failure to act as prudent and competent attorneys would have done investigating the Small Claims Rules and determining whether Brown was an attorney and his business a corporation.

Harry Perdue handles collections amounting to approximately 50% of his work load. At the time of the incident in Small Claims Court, Nick Parnell was associated with a firm that did collection work. Horace Lynn is a member of a firm which does a small amount of collection work and he had occasionally appeared in Small Claims Court. Don Harrison and Gatewood Walden do almost no collection work. Collier Carlton, who signed the warrant but was not sued for malicious prosecution, does no collection work himself, all of his firm’s collection cases being handled by his partner which amount to about a quarter of his partner’s work.

Walden, Parnell, Lynn and Carlton were sitting in the small claims courtroom when Brown presented his cases to the judge. All of them stated in their depositions that Brown was attempting to perform as an attorney would in a courtroom, arguing his case and presenting documents to the judge. They stated that from his demeanor at the bar they thought him not to be an attorney and none of them recognized him as a member of the Montgomery Bar although it was clear to all of them that he was representing a local business. There in the courtroom they briefly questioned each other on whether any of them knew Brown to be an attorney. Walden specifically stated that he heard Brown tell the judge that he represented a corporation and several of the others got that impression from his argument. Don Harrison testified on deposition that while he did not sit in the courtroom with the other attorneys that he walked into the room, observed Brown arguing his cases and left the courtroom.

Walden, Parnell, Carlton, Lynn, Harrison, and Perdue were all a part of the discussion in the courthouse coffee shop that went on after the incident in Small Claims Court. They questioned each other on whether Brown was an attorney and a member of the bar and generally resolved that he was not. Perdue, having been president-elect of the Montgomery County Bar Association, would have known or have seen a list of all the members’ names. They discussed their belief that Brown was not an attorney based on his actions before the Small Claims judge and that this was a violation of the law, a misdemeanor. They talked about the legal and ethical considerations involved in knowing of the violation and their individual and collective responsibility in reporting it. With no mention of names or the specific violation of law, a judge who walked into the coffee shop was asked what they should do if they had observed a violation of the law and were told that it was their duty to act, to report the violation. Parnell and Harrison were effectively delegated the duty of contacting the local bar association, J. O. Sentell, and the corporations clerk with the Secretary of State. This was done and it was learned and reported to the others that in fact Brown was not a licensed attorney and his business that he had represented was a corporation. Harrison even called his place of business. Lynn looked up the statute involved and both he and Harrison contacted the court clerk to see the docket sheets and the pleadings filed in the cases in which Brown was involved. Parnell, who had previously had a client involved in a similar situation and done research in this area, had his memory jogged about a case in this area and then looked up Ex parte: Lamberth, 242 Ala. 165, 5 So.2d 165 (1942), and read it to some of the other attorneys. All of them knew of the Small Claims Rules although some of them had had no contact with the court management pamphlet which stated that an individual could represent his own corporation. Carlton was the only one of the attorneys who testified on deposition that he was concerned about the conflict in the rules and the case law. After this discussion and discussions with several of their partners or attorneys with whom they shared office space the defendants decided to swear out the warrant. Additionally, Perdue was told by a circuit judge that he ought to sign the warrant or do something about this as an officer of the local bar association. None of the attorneys knew or had ever had any contact with Cleveland Brown.

Our review of the deposition testimony which was offered in support of the motion for summary judgment does not reveal to us that Brown presented sufficient competent evidence to clearly overcome the prima facie presumption of probable cause. Having found the defendants’ motion for summary judgment to be supported by one of the asserted issues of material fact, we need not address the other two asserted issues of material fact. See, Jordan v. Empiregas, Inc. of Belle Mina, supra.

Brown also presents the issue of whether defendants were guilty of abuse of process. That cause of action has as an element of proof the existence of an ulteri- or purpose in filing the action. Dillon v. Nix, 55 Ala.App. 611, 318 So.2d 307 (1975). Our examination of the facts involved does not reveal such an ulterior purpose.

AFFIRMED.

ALMON, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring in the result).

By concurring in the result, I do not wish to be understood as approving nor condoning the initiation of criminal process to resolve the issue of whether Mr. Brown was engaged in the unlawful practice of law in the filing of a claim on behalf of his own corporation in the Small Claims Court. This issue, subsequently addressed and now resolved by the legislature (See, Act No. 80-758, SB. 247), has been subject to varied opinions and considerable controversy. Other more appropriate remedies were available short of criminal sanctions. Moreover, Mr. Brown may have filed these claims in court based upon certain language contained in the informational handbook entitled “The Who, When and How of Using the Small Claims Court in the State of Alabama” which was distributed as an aid to persons filing such claims.