author: LEE, Justice, BROOM, Justice,

text:
    Doris Brown WALL v. STATE of Mississippi.
    No. 51567.
    Supreme Court of Mississippi.
    Jan. 23, 1980.
    Rehearing Denied Feb. 20, 1980.
    John R. Poole, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Doris Brown Wall was indicted, tried and convicted in the Circuit Court of Walthall County for the murder of Alvin Randall, and was sentenced to a life term in the Mississippi State Penitentiary. She appeals from the judgment of the lower court and assigns the following errors in the trial below:

(1) The court erred in overruling appellant’s motion for new trial on the ground that the jury verdict was against the overwhelming weight of the evidence.

(2) The court erred in giving State’s Instruction S-12.

(3) The court erred in permitting over objection proof of other crimes.

Appellant was convicted on the testimony of Erma Randall, 48-year-old widow of the deceased, and Leroy Dillon, a 13-year-old boy. Mrs. Randall resided in Tylertown, Mississippi, with her husband, Alvin Randall (victim) and Leroy Dillon resided in nearby Kentwood, Louisiana. They had been acquainted with each other for approximately twelve (12) months and frequently met at the Tic-Tock Lounge, a tavern in Kentwood operated by appellant. Dillon swept the floors and did odd jobs around the establishment. Mrs. Randall had also been acquainted with appellant for approximately five (5) or six (6) years. She frequented appellant’s tavern and was on friendly terms with her. The testimony of Mrs. Randall and Leroy Dillon is substantially as follows.

The appellant talked with Erma Randall on a number of occasions about her husband, Alvin Randall (domestic trouble between the Randalls), inquired as to how much and what kind of property Randall owned, and suggested that she should kill Randall. Appellant talked with Leroy Dillon, planned the murder of Randall and instructed Dillon in detail how the murder should be executed. She told Mrs. Randall that Dillon had agreed to kill Randall.

On the afternoon of December 30, 1977, Mrs. Randall picked up Leroy Dillon in Kentwood at appellant’s tavern, transported him in her automobile to a point near her home in Tylertown, where she let Dillon out of the automobile. They arrived there just before dark. The plans were that when darkness fell, Mrs. Randall would go out on the back porch, pretend to feed her dog, and leave an automatic shotgun, three (3) shotgun shells, a rag and gloves on the porch. The rag and gloves were for the purpose of preventing and removing fingerprints. This was the signal for Dillon to come to the porch, obtain the mentioned articles and, after Mrs. Randall had returned into the house and gone to bed, Dillon would open and shut the car door outside to attract the attention of Mr. Randall. When Randall came to check upon the disturbance, Dillon would shoot him three (3) times.

After Dillon moved a distance away into the darkness, Mrs. Randall went back into the house and told her husband she was going to bed. It was approximately 8:00 p. m. She heard the car door slam, Mr. Randall got up, put on a pair of trousers and slippers, turned the porch light on, and walked out to determine the cause of the noises. At that point, Dillon shot him one (1) time in the lower chest with the shotgun. Randall fell to the ground with his head pointing west toward the house and his feet at the edge of the driveway. Dillon was frightened and did not fire the other two (2) rounds. Mrs. Randall came outside to the driveway, felt the pulse of her husband, and, when Dillon told her he could not find the empty shell hull which had been ejected from the gun, obtained a flashlight, and they searched for, and discovered, the spent shell. Mrs. Randall then got into her car with Dillon and drove back to appellant’s tavern in Kentwood. When they arrived at the tavern, appellant asked them whether Randall was dead. Mrs. Randall said no, and Dillon said yes. Appellant told Dillon to throw the empty shell hull across the highway near the tavern. She took the shotgun and said she would throw it in the river. Dillon and Mrs. Randall claimed that appellant said she would kill them, if they didn’t kill Randall.

Mrs. Randall returned to her home in Tylertown, telephoned Mr. Batson Brum-field, a relative, and reported that something was wrong with her husband. Brum-field came to the house, found Mr. Randall dead (on the ground) and telephoned the sheriff, who came to the scene and began to make an investigation of the homicide. Deputy Sheriff Jim Smith and Mississippi Highway Patrolman Donald Butler assisted in the investigation. On December 31, 1977, the day after the homicide, Patrolman Butler interviewed appellant at the Tic-Tock Lounge for the purpose of checking Mrs. Randall’s alibi. His testimony follows:

“When I arrived in Kentwood and talked with Mrs. Brown, I asked her about whether or not Mrs. Erma Randall had been down there that previous afternoon. She stated she had left her about an hour before sundown, and I asked her if she knew about the death of Mr. Randall, and she stated that someone had called her and told her. She stated she knew Boots Randall; that he had come in there several weeks previous; had a woman with him, and that he had mistreated Miss Erma and she was glad that the SOB was dead.”

Deputy Sheriff Smith testified that he saw appellant on January 5, 1978, and that when he told her about Randall having been killed, she said she knew about it and that he should have been killed. Further, he asked her, if she knew who did it, and appellant said, “You’d better check out that sorry damned son-in-law of theirs, they’ve had trouble for years over them kids.” On February 15, 1978, after questioning Dillon, the boy admitted to the officers his part in the crime, took them to the place where he had thrown the empty shell hull and Deputy Sheriff Smith found it there.

Appellant denied any connection with, or knowledge of, the homicide. She admitted that she told Deputy Sheriff Smith that Mrs. Randall’s son-in-law probably killed Randall. She denied that she told Patrolman Butler on December 31, 1977, that someone had called her and told her of Randall’s death and that she knew Mr. Randall. She stated that the first time she knew of his death was when Patrolman Butler informed her about it and that she had never seen Randall. Those are the contradictory statements attributed to appellant. She testified that she had never been in the Randall house. Mrs. Randall said that appellant told her on one occasion that she had driven by the house. There is no evidence of any overt act or any circumstance connecting appellant with the crime. It is undisputed that, at the time of the homicide, appellant was in the company of another individual(s).

Erma Randall entered a plea of guilty to manslaughter, was sentenced to serve a term of twenty (20) years in the state penitentiary, and was told that she would be eligible for parole in approximately six (6) years. The record does not reflect any action taken against Leroy Dillon. The briefs indicate that no proceeding of any kind was instituted against him.

I.

Was the verdict of the jury against the overwhelming weight of the evidence?

Although persons may be convicted of crimes on the uncorroborated testimony of accomplices, such testimony is to be viewed with great caution and suspicion. In Thomas v. State, 340 So.2d 1 (Miss.1976), in discussing the principle, this Court said:

“The law is settled in this state that the uncorroborated testimony of an accomplice will support a guilty verdict, but the rule requires that such uncorroborated testimony should be viewed with great caution and suspicion and that it must be reasonable and not improbable or self-contradictory or substantially impeached. Black v. State, Miss., 336 So.2d 1302, handed down September 7, 1976; Hutchins v. State, 220 So.2d 276 (Miss.1969); Cole v. State, 217 Miss. 779, 65 So.2d 262 (1953).” 340 So.2d at 2.

The bizarre facts of this case cause us to distrust and suspect the testimony of the two admitted murderers and accomplices. However, in view of our decision on the second assignment, we do not now say that such testimony is incredible or unreasonable.

II.

Did the trial court err in granting State’s Instruction S-12?

The Instruction S-12 states: “The Court instructs the jury that under the laws of the State of Mississippi, proof of motive is not essential to a conviction for felonious homicide.”

Motive is not required to be shown in order for a conviction of crime to be upheld. However, the above instruction is an abstract instruction on the law and should not be given. Kitchens v. State, 300 So.2d 922 (Miss.1974): People v. Rivera, 32 Ill.App.3d 500, 336 N.E.2d 255 (1975); 23A C.J.S. Criminal Law § 1198, at 507 (1961). The instruction was prejudicial to the appellant and well could have confused the jury into returning a guilty verdict after having been told by the court that motive was not required to be shown. There was no motive indicated in the case.

Appellant made no objection to the instruction and, under Rule 42, Miss.Sup.Ct. Rules, the error will not be considered on appeal, except that in extreme cases, this Court may raise an objection to a jury instruction in order to prevent manifest injustice. We are of the opinion that on the close facts of this case, where appellant was convicted solely on the testimony of the deceased’s wife and a 13-year-old boy, admitted murderers and accomplices, justice requires that the case be reversed for another trial.

The record indicates that when appellant left for The Pines lounge on the evening of the homicide, Dillon, Mrs. Randall and Leon Zeigler were present and, upon her return to the Tic-Tock Lounge, Mildred Fluker, her cleanup woman was there. This was approximately 11:00 p. m. and well after the time when Mrs. Randall and Leroy Dillon testified they returned to the Tic-Tock Lounge and were met there by appellant. Also, appellant testified that when she was informed of the death of Mr. Randall by Patrolman Butler, she telephoned Erma Randall in the presence of one Bill Gray. None of those persons testified. It would be beneficial on a retrial for the court and jury to know whether Mildred Fluker, Leon Zeigler and Bill Gray corroborate the testimony of appellant.

III.

Did the trial court err in admitting evidence of other crimes over appellant’s objection?

Appellant contends testimony of Dillon and Erma Randall that appellant permitted Dillon to drink and sell beer in the Tic-Tock Lounge was evidence of other crimes committed by appellant and was error. Such conduct of Dillon was closely intertwined to the relationship between Dillon and appellant and there is no merit in such assignment.

For the reason stated, the judgment of the lower court is reversed and the case is remanded for a new trial. •

REVERSED AND REMANDED.

PATTERSON, C. J, SMITH and ROBERTSON, P. JJ., and BOWLING and COF-ER, JJ., concur.

BROOM, SUGG and WALKER, JJ., dissent.

BROOM, Justice,

dissenting:

Concurrence here by me is withheld because (1) the evidence adequately supports the conviction, and (2) reversal is unwarranted by the faulty jury instruction not objected to at trial.

Reversal is partly based upon the fact that tfie appellant was convicted “solely on the testimony of the deceased’s wife and a 13-year old.” In effect, the majority assumes the role rightly belonging to jurors and says that no credence will be placed upon the testimony of these two state’s witnesses. Heretofore, the rule which we have generally followed is that credibility, weight and worth of the testimony of witnesses should be decided by the jury and not this Court. We said so in olden times and as recently as December 19, 1979, when this Court in Davis and Brooks v. State, 377 So.2d 1076, 1079 speaking through Patterson, C. J., in a well-reasoned opinion, stated “the jury’s resolution of credibility issues will not be upset by this Court on review” (citing numerous cases). Speaking through Patterson, C. J., in Whittington v. State, 377 So.2d 927 handed down the same date, we held the same thing (again citing numerous cases). Now, just a month later in the instant case, the majority opinion as written states the “bizarre facts of this case cause us to distrust and suspect the testimony” of certain state’s witnesses (emphasis added).

In the instant case the jury was precisely instructed to view the testimony of the state witnesses Dillon and Mrs. Randall with suspicion and great caution. After hearing all of the witnesses present their testimony, and having observed their demeanor and attitude, the jury accepted Dillon’s and Mrs. Randall’s testimony, and rejected the defendant’s substantially impeached testimony. From my study of the record, I cannot agree that the state’s case consisted merely of Dillon’s and Mrs. Randall’s testimony. A law officer in the case (Deputy Smith) testified that he interviewed the defendant after the killing, and she said the deceased should have been killed. Another officer (Patrolman Butler) interviewed the defendant during the investigation and according to Butler, the defendant told him: someone had called her and told her about Mr. Randall’s death, and that she was glad the SOB was dead. At trial she denied having made these statements. Additional evidence against the defendant included the spent shot-gun shell found near her Tic-Toek Lounge.

Part II of the majority opinion states that the lower court should not have instructed the jury that “. . . under the laws of the State of Mississippi, proof of motive is not essential to a conviction for felonious homicide.” Although no objection was made to the faulty instruction below, the majority bases reversal partly on the instruction.

In this case, I think it is highly improper for the Court to even in part base its reversal upon the instruction not objected to at trial. According to our Rule 42, Mississippi Supreme Court Rules, no objection having been made at trial, the issue is not properly to be considered on appeal. In basing reversal on the instruction, this Court is departing from prior decisions of the Court and refusing to abide by our own Rule 42, supra. As well stated by Mr. Justice Smith, writing for the Court in Entrican v. State, 309 So.2d 851 (Miss.1975), “alleged defects . not pointed out to the trial court” should not be considered here.

Bell v. State, 360 So.2d 1206 (Miss.1978) upheld a death penalty in spite of the fact that at the trial level two erroneous instructions were given, both of which contained misstatements of the law. There this Court considered the errors of granting the palpably erroneous instructions as harmless error, and affirmed Bell’s death sentence. Faulty Bell instructions having been considered as harmless error where the death penalty was involved, logically the instruction in the present case (not death penalty) is much more to be considered as harmless error.

Reversal is contrary to all of the cases cited above and in my judgment not warranted upon the record. Here where no death penalty is at issue, the Court is applying a much more stringent standard to a jury instruction than was done in Bell where the Court affirmed a death sentence. Acting upon a cold record, the majority has judicially decided to “distrust” the state’s testimony although the trial judge and jury accepted the testimony as true.

In my view, by the majority action, this Court here: elected not to follow its own case law; refused to abide by its own rules; and although the case presents a calloused killing, assumed the role of an advocate and reversed a distinguished trial judge upon an issue (the faulty jury instruction) not argued below. A fair trial was accorded the defendant, and my conclusion is that no reversible error has been shown. Accordingly, I must dissent.

SUGG and WALKER, JJ., join this dissent.


source: Caselaw Access Project

author: WALKER, Justice,

license: Public Domain

text:
    Gibson STURGIS v. STATE of Mississippi.
    No. 51622.
    Supreme Court of Mississippi.
    Jan. 23, 1980.
    Rehearing Denied Feb. 20, 1980.
    W. E. Gore, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BROOM, JJ.
   WALKER, Justice,

for the Court:

The appellant, Gibson Sturgis, was indicted and convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on a charge of uttering and publishing a forged and counterfeit check. From a sentence of fifteen years, five of which were suspended, the appellant appeals.

The state’s evidence showed that Michael Carano, an employee of United Tire and Rubber Company, which was a subsidiary of Giant Tire Industries, agreed to sell the appellant Sturgis a quantity of truck tires for the sum of $9,500.00. Pursuant to this agreement, Carano met with Sturgis and one James Puckett, a coindictee, at the Sheraton Hotel in Jackson. At this meeting, a cashier’s check drawn on the First National Bank of Jackson and payable to United Tire and Rubber Company, Inc., was delivered by Sturgis and Puckett to Carano. The check made no reference to Giant Tire Industries. The check was signed by one James Hinton, a purported officer of First National Bank of Jackson, and was deposited in a California Bank by Carano but was subsequently dishonored by First National Bank.

The state’s evidence further showed that First National Bank had no record of having issued the check and that there had never been anyone employed by First National Bank by the name of James Hinton, the person who purportedly signed the check for the Bank.

At the close of the state’s case, the prosecuting attorney made a motion to amend the indictment because it incorrectly recited that Sturgis had uttered a forged check to United Tire and Rubber Co., a division of Grant Tire Industries, Inc., a California corporation, while the proof showed that United Tire and Rubber Company was a division of Giant Tire Industries, Inc., a California corporation. Over appellant’s objection the trial court orally sustained the state’s motion to amend the indictment so as to change Grant Tire Industries, Inc., a California corporation, to read Giant Tire Industries, Inc., a California corporation. No order allowing the amendment was placed on the minutes of the court nor was the indictment physically altered to conform to the proposed amendment.

Sturgis concedes that under Mississippi Code Annotated section 99-17-13 (1972) , that the indictment could properly be amended to show the correct name of the corporation. However, he contends that since no order allowing the amendment was placed on the minutes of the court that there was in fact no valid amendment to the indictment and consequently there was a material variance between the state’s evidence and the indictment. Because of this alleged error, it is urged that the judgment and conviction be reversed.

At common law, an indictment once filed could not be withdrawn for amendment. State v. Springer, 43 Ark. 91 (1884). However, the Mississippi Legislature has enacted what is now Mississippi Code Annotated section 99-17-15 (1972) which specifies the manner in which an indictment may be amended, and it reads as follows:

The order of the court for amendment of the indictment, record or proceedings provided in section 99-17-13 shall be entered on the minutes, and shall specify precisely the amendment, and shall be a part of the record of said case, and shall have the same effect as if the indictment or other proceeding were actually changed to conform to the amendment; and wherever necessary or proper for the guidance of the jury, or otherwise, the clerk shall attach to the indictment a copy of the order for amendment.

The Court has not strictly adhered to the mandate of the statute that “The order of the court for amendment of the indictment, . shall be entered on the minutes. . .."

In cases where no objection was made at trial to the state’s motion to amend an indictment, and the court orally allowed the amendment, and the district attorney made the amendment on the face of the indictment by interlining or otherwise, and the amendment was not jurisdictional, the Court has held objection could not be raised for the first time on appeal that no order allowing the amendment was put on the minutes of the court. See Mahfouz v. State, 303 So.2d 461 (Miss.1974); Jones v. State, 279 So.2d 594 (Miss.1973); Richburger v. State, 90 Miss. 806, 44 So. 772 (1907).

On the other hand, the Court has held that where the defendant objects to the state’s motion to amend and the objection is overruled and the amendment is allowed by the court but no order allowing the amendment is placed on the minutes of the court, a variance between the indictment as originally drawn and the proof is fatal, even though the district attorney made the amendment on the face of the indictment. Shurley v. State, 90 Miss. 415, 43 So. 299 (1907); Davis v. State, 150 Miss. 797, 117 So. 116 (1928).

Although the objections interposed in those cases were not directed to the fact that no order was placed on the minutes of the court allowing the amendments, we would point out that in Jones v. State, 279 So.2d 594 (Miss.1973), where the amendment was made on the face of the indictment by striking out the name “Larry” and entering the name “James”, this Court said:

In the trial appellant waived any objection to the amendment, and made no point of the fact that the order authorizing the amendment was not entered upon the minutes of the court prior to actual making of the amendment. He waived his right to urge reversible error so far as the amendment is concerned. The rule is now well established in this state that objections and exceptions, not jurisdictional in nature, cannot be raised for the first time on appeal. Ellis v. State, 254 So.2d 902 (Miss.1971). (279 So.2d at 595-96).

It is clear from this language that, under the circumstances above presented, a defendant must specifically bring the absence of an order on the minutes of the court allowing the amendment to the attention of the trial court, or the error will be waived and it may not be raised for the first time on appeal.

It is apparent from the foregoing authorities that the attempted amendment to the indictment against the appellant, Sturgis, was of no effect for the reason that there was no order authorizing the amendment placed' on the minutes of the court nor was the amendment made on the face of the indictment.

The state correctly points out, however, that where an attempted amendment to an indictment fails, yet there is no variance between the indictment as it was originally drawn and the proof, there would be no error because the indictment stands good as it was originally drawn. Mahfouz v. State, 303 So.2d 461 (Miss.1974).

This case falls within that rule. The indictment against Sturgis alleged that he defrauded United Tire and Rubber Company, a division of Grant Tire Industries, Inc., a California Corporation. The check alleged to be forged was physically attached to and referred to in the indictment and was payable to United Tire and Rubber Company, Inc. The recital in the indictment that United Tire and Rubber Company was a division of Grant Tire Industries, Inc., a California Corporation, was merely surplusage and unnecessary since the identity of the company intended to be defrauded was clearly set forth. We have recognized that unnecessary averments or words in an indictment may be treated as surplus-age and disregarded. Jones v. State, 279 So.2d 594 (Miss.1973).

This case also comes within the rule that where a copy of the check charged to be forged and uttered was physically attached to the indictment, that even though there was a slight variance between the indictment and the check, that the case will not be reversed if there is no possibility that the defendant could be again prosecuted for the same offense. See Stone v. State, 242 So.2d 127 (Miss.1970). There is no such possibility in this case.

We are, therefore, of the opinion that although the proposed amendment to the indictment was not effectively made, the indictment as originally written did not require amendment since the identity of the company defrauded was clearly set forth in the indictment' and shown by the check attached thereto. Consequently, the indictment was good as originally drawn. The reference to United Tire and Rubber Company being a division of Grant Tire and Rubber Company, Inc., a California Corporation, was unnecessary surplusage.

We have considered the other points referred to in appellant’s brief but find them to be without merit.

The judgment of the trial court is therefore affirmed.

AFFIRMED.

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

      . Whenever, on the trial of an indictment for any offense, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof, in the name of any county, city, town, village, division, or any other place mentioned in such indictment, or in the name or description of any person or body politic or corporate, therein stated or alleged to be the owner of any property, real or personal, which shall form the subject of any offense charged therein, or in the name or description of any person, body politic or corporate, therein stated or alleged to be injured or damaged; or intended to be injured or damaged, by the commission of such offense, or in the Christian name or surname, or both, or other description whatever, of any person whomsoever, therein named or described, or in the ownership of any property named or described therein, or in the description of any property or thing, it shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on the merits, to order such indictment and the record and proceedings in the court to be announced according to the proof, whenever it may be deemed necessary by the court to amend such indictment, record, and proceedings, on such terms as to postponing the trial, to be had before the same or another jury, as the court shall think reasonable. After such amendment, the trial shall proceed in the same manner, and with the same consequences in all respects, as if a variance had not occurred; but if the court shall, on application, refuse a continuance, the defendant may take a bill of exceptions thereto, and assign such refusal for error.

      . Research reveals the following general law with reference to the amendment of indictments.
      (a) It is not required, when the court allows an amendment to be made, that the trial be suspended and court remain at rest while and until the clerk records the order on the minutes. Thomas v. State, 167 Miss. 504, 142 So. 507 (1932).
      (b) An amendment to an indictment entered after trial, in vacation, is a nullity. Unger v. State, 42 Miss. 642 (1869); Jones v. State, 279 So.2d 650 at 651 (Miss.1973).
      (c)The Supreme Court has stated that it will not look to the stenographer’s notes to determine whether an amendment has been allowed by the court and made. Crane v. State, 157 Miss. 548, 128 So. 579 (1930). However, a reading of later cases makes it evident that the court, out of necessity to determine whether an objection was or was not made to an amendment, whether the indictment was amended by being physically altered and whether an order was placed on the minutes, does in fact examine the pertinent parts of the entire record on appeal, including the stenographer’s notes.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Sara Adams BURNETT et al.
    No. 51632.
    Supreme Court of Mississippi.
    Jan. 23, 1980.
    Rehearing Denied Feb. 20, 1980.
    Parker, Averill & Butts, David 0. Butts, Jr., Tupelo, for appellant.
    Mitchell,' McNutt, Bush, Lagrone & Sams, R. N. McNutt, Tupelo, for appellees.
   Appeal from Special Court of Eminent Domain, Lee County; Neal Biggers, Judge.

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

AFFIRMED.


text:
    James A. SANDERS, Jr. v. STATE of Mississippi.
    No. 51678.
    Supreme Court of Mississippi.
    Jan. 23, 1980.
    Stephen L. Beach, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Reuben V. Anderson, Judge.

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

AFFIRMED.


author: PATTERSON, Chief Justice,

text:
    BABCOCK & WILCOX COMPANY and The Travelers Insurance Company v. John R. SMITH.
    No. 51637.
    Supreme Court of Mississippi.
    Feb. 6, 1980.
    Daniel, Coker, Horton, Bell & Dukes, Walter W. Dukes, Gulfport, for appellants.
    Gholson, Hicks & Nichols, Dewitt T. Hicks, Jr., Lydia Quarles, Columbus, for appellee.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   PATTERSON, Chief Justice,

for the Court:

This appeal by an employer, the Babcock & Wilcox Company and its workmen’s compensation insurer, The Travelers Insurance Company, concerns the extent of John Smith’s right to medical payments for practical nursing assistance rendered by his wife following a 1969 industrial accident. Having unsuccessfully opposed Smith’s petition before the administrative law judge, the Workmen’s Compensation Commission, and the Circuit Court of Clay County, the employer and its insurer appeal, contending (1) that our decision in Graham v. City of Kosciusko, 339 So.2d 60 (Miss.1976), should be confined to its peculiar facts, and (2) that in any event a portion of Smith’s claim fails because he did not request the employer to provide the medical services sought to be compensated. We affirm.

As the result of the 1969 accident, Smith suffered total paralysis from the waist down. Unable to maneuver inside and out of his house, he required assistance from his wife at least four hours each day in bathing, clothing and assisting with his exercise program. As early as mid-1971, Smith requested medical payments of the insurer to cover this required assistance “about the house.” The insurer responded, “[t]his, unfortunately, is not provided for under the Workmen’s Compensation Law and we must decline to pay for such service.” To assuage the burdens upon his family, Smith filed a petition proposing structural modifications of his home in 1972. According to the administrative law judge who heard the petition, Smith at this time clearly reserved his right later to seek medical payments covering practical nursing assistance of the kind refused by the insurer in 1971.

The administrative law judge granted the petition, and contractors completed the modifications by April of 1973: By this time, Smith could bathe and dress himself, but substantial evidence shows he still required at least two hours assistance each day in his exercise program. To obtain payments covering this assistance, Smith on February 14, 1977, petitioned for payment of medical services, past, present and future. The administrative law judge granted the petition, the commission affirmed but expanded to allow four hours per day prior to the modifications of the home and two hours a day thereafter for life or until discontinuance of the exercise program; and the circuit court affirmed the commission.

As a paraplegic, Smith wears leg braces, exercises with weights, and walks laboriously each day. The record supports the findings that the combined activities of putting on and removing the leg braces, helping with his weight exercises, and steadying him while he walks, as well as being near in case of falls, demands at least two hours a day of his wife’s time. She has performed these services for him while continuing to hold a fulltime job. At least one physician and one physical therapist, to an extent corroborated even by the physician called by the insurer, were of the opinion Smith’s continued exercise program and braces were medically indicated. While one of Smith’s physicians referred to the assistance as “nursing care,” he acknowledged the services required little technical knowledge and that “a wife certainly could be taught to do these things.”

A physical therapist testified that the exercise program might well be continued for the balance of- Smith’s life, and Smith indicated he did not intend to discontinue his exercise program.

Graham, supra, holds that practical nursing services over and above that called for by the ordinary duties of a wife in a normal home may be compensated as medical services under the Mississippi Workmen’s Compensation Law. We follow this rule, because without it, we would frustrate the remedial purposes underlying the statute. The claimant could not otherwise be made whole because his injury would operate as an excessive, unrewarded burden upon his family. We reject the appellants’ suggestion that a claimant’s right to medical payments for assistance in the home turns upon whether his wife willingly exhibits the virtues of patience and long suffering. We also think insignificant the fact that the assistance requested involves essentially non-technical tasks resembling those performed by orderlies or licensed practical nurses in hospitals.

As for the appellant’s argument that the appellee failed to satisfy the request requirement of Mississippi Code Annotated section 71-3-15(1) (1972), we need only point to the insurer’s 1971 letter responding negatively to the appellee’s request, and to the administrative law judge’s responses to interrogatories concerning the appellee’s preservation of his rights at the time of the hearing on the petition requesting modification of the home. This evidence, we think, establishes beyond cavil the appellee’s compliance with the request requirement.

AFFIRMED.

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


text:
    Dewey GRACE v. STATE of Mississippi.
    No. 51636.
    Supreme Court of Mississippi.
    Feb. 6, 1980.
    Richard E. Wilbourn, Don 0. Rogers, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from the Circuit Court of Lauderdale County, Mississippi, wherein appellant was indicted for the murder of Doris M. Wright but convicted of manslaughter and sentenced to serve fifteen years in the Mississippi State Penitentiary. Being aggrieved at that conviction and sentence, the appellant takes this appeal.

The appellant assigns as error that:

(1) The verdict of the jury was against the weight of the evidence and contrary to the instructions of the court;

(2) The trial court erred in overruling defendant’s motion for a mistrial by reason of the two police officers wearing their uniforms during testimony; and

(3) The trial court erred in refusing defendant’s peremptory instruction and motion for a directed verdict.

Police Sergeant Harold Clark testified that he was working as desk sergeant at the Meridian Police Department on July 30, 1978, when about 2:00 a. m. he saw a green Plymouth rapidly drive up and stop in front of the first parking place at the police station. He further stated:

A. The car was occupied by two people, a colored male and a colored female. The colored male was driving — I mean the colored female was driving and the colored male was sitting close to her on the driver’s side. I heard a scream. A few seconds later I heard a shot. I proceeded out the front door and on the way to the front door I hollered back to the back toward the radio room where the booking man was located that I needed help up front. And as I was opening the front door, I turned to the left — the front door of the Police Station — I turned to the left and I was shot in the left arm. The man that shot me in the left arm reached his hand out of the driver’s side, extended, and shot me. After I was shot, I run toward the car which was in the process of backing and he backed over the curb and struck me and knocked me into the grassy knoll area on the east side of the police station. After he knocked me there the car proceeded backwards. It cleared my body, but I was under the car. I heard him changing gears and I wasn’t as lucky when he proceeded forward. It run over my body when he went forward. And as I was getting up from the grassy area I noticed that he was across the street kind of at an angle. At this time I run into the Police Station; I run back toward the radio room, and I think I ran up front, maybe sat in a chair up there for a while and then I run back out. Then I saw Officer Currie — I think I saw Currie inside the station as well as on the outside.
Q. Did you see who shot you?
A. Yes, I did. It was that gentleman over there between Mr. Wilbourn, and I believe that other attorney on the right is Rogers. He’s sitting over there in the turtleneck sweater.

The appellant testified as follows: On the morning of July 29, he went to a girl friend’s house, after which he went from place-to-place drinking large quantities of beer and whiskey until 1:00 or 1:30 a. m. Shortly thereafter he and his girl friend (the deceased) drove in her car to get fried chicken. As she was driving, he was smoking, dropped his cigarette, leaned over, saw a gun halfway under the seat, picked it up, tried to open it, and as they got to the police station, she hit a curb and the gun went off. Appellant further contends that he was thrown into the dashboard or windshield at which time he reached for the steering wheel and the gun went off again. He testified that he did npt mean to pull the trigger at any time, and these events were accidental.

When the officers went to the car, they found Doris M. Wright on the driver’s side of the vehicle, slumped over, dying of gunshot wounds.

Upon the state and defendant resting, the defendant requested a peremptory instruction which was denied. The state requested and was granted two instructions on the crime of murder and one instruction on manslaughter.

The defendant interposed the following objection to the state’s manslaughter instruction:

Instruction S-4, we will object to as having no basis in the testimony, no basis of any passion, or argument or anything like that, and it is improper.

We will consider as one the appellant’s assignments that the trial court erred in refusing defendant’s peremptory instruction and, that the verdict of the jury was against the weight of the evidence and contrary to the instructions of the court.

The appellant contends that he is entitled to the benefit of the Weathersby rule that . . where the defendant or the defendants are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.” (Weathersby v. State, 165 Miss. 207, 209, 147 So. 481 at 482 (1933).

We have carefully examined this record and are of the opinion that the Weathersby rule is not applicable. The appellant’s version of the incident was that he had picked the gun up and was attempting to unload it when the deceased, who was driving, struck the curb in front of the Meridian Police Station, at which time the gun accidentally went off and that he then grabbed for the steering wheel, and the gun went off a second time. He said that he struck his head against the windshield and received bruises about the face as a result. However, the appellant’s version was contradicted by Officer Clark, who testified that he saw a vehicle rapidly approach the police station; that it stopped at the curb; the lights were then turned off; he heard a woman scream; and a few seconds later, he heard a shot.

Since the appellant’s only defense was that the deceased was killed accidentally in the manner described by him, which version was contradicted by Officer Clark, the question of the appellant’s guilt or innocence was properly submitted to the jury. The jury could have found, from Officer Clark’s testimony, that the deceased, who was driving the vehicle, pulled up to the curb in front of the police station, stopped, turned off her lights, after which the defendant for some unknown reason caused her to scream, and a second or two later, willfully shot her. Under these circumstances, the jury would have been justified in finding the defendant guilty of murder but, chose instead to find him guilty of manslaughter. The verdict was amply supported by the evidence.

The appellant complains of the granting of a manslaughter instruction requested by the state contending that there was no testimony of any fighting, arguing or other dispute between the decedent and the appellant, nor were there any facts in evidence from which the jury could infer that an argument took place or that the shooting occurred in a “heat of passion.” We disagree. If the jury believed Officer Clark’s testimony that after the car stopped, the lights were turned off and he then heard a scream followed a second or two later by a shot, they could have reasonably inferred from this screaming that the parties were engaged in some type of dispute. Aside from that, this case is controlled by the principle of law that where a defendant is convicted of manslaughter upon an instruction granted by the state to that effect and the evidence would have justified a conviction of murder, the instruction on manslaughter, even if not authorized by the evidence, does not constitute reversible error. In West v. State, 233 Miss. 730, 734, 103 So.2d 437, 439 (1958), this Court said:

The appellant argues that the court erred in granting to the State the manslaughter instruction. Prior to the decision of Calicoat v. State, 131 Miss. 169, 95 So. 318, counsel would be correct in his contention, however, since that time it has been held in a large number of cases that where a defendant was convicted of manslaughter upon an instruction granted by the state to that effect and the evidence would have justified a conviction of murder, the instruction on manslaughter, even if not authorized by the evidence, was not reversible error. Graham v. State, 195 Miss. 291, 15 So.2d 478. In the case of Bradford v. State, Miss., 161 So. 138, the Court cited a long list of cases upon the identical question here presented.

The appellant’s contention that he was erroneously convicted of manslaughter is without merit.

The appellant’s remaining assignment of error that the trial court erred in overruling defendant’s motion for a mistrial by reason of the two police officers wearing their uniforms during their testimony is wholly without merit. The evidence revealed that the witnesses were, in fact, police officers. The fact that they had their police uniforms on at the time they testified did not, in our opinion, bolster their testimony as contended by the appellant.

The judgment of conviction and sentence of the appellant by the trial court is affirmed.

AFFIRMED.

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

      . This was brought out on cross-examination.


text:
    Sherrell R. MARSHALL, Sr. v. Bobbie Jo MARSHALL.
    No. 51655.
    Supreme Court of Mississippi.
    Feb. 6, 1980.
    James G. McIntyre, Jackson, for appellant.
    Holmes, Dukes & Bates, Paul H. Holmes, Hattiesburg, for appellee.
   Appeal from Chancery Court, Forrest County; Michael Sullivan, Chancellor.

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

AFFIRMED.


text:
    UPTON’S CARPET & FLOOR COVERING, INC. v. Max HODGES.
    No. 51557.
    Supreme Court of Mississippi.
    Feb. 6, 1980.
    McDavid, Edmonson, Bennett, Lotterhos & Sulser, Richard M. Edmonson, Robert A. Biggs, III, Jackson, for appellant.
    No brief filed on behalf of appellee.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

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

REVERSED AND REMANDED.

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


text:
    C. P. CARTER v. The FORREST COUNTY BOARD OF SUPERVISORS et al.
    No. 51582.
    Supreme Court of Mississippi.
    Feb. 6, 1980.
    Dudley W. Conner, Hattiesburg, for appellant.
    Barefield, Riley & Evans, Stone D. Bare-field, Hattiesburg, for appellee.
   Appeal from Chancery Court, Forrest County; Howard L. Patterson, Jr., Chancellor.

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

AFFIRMED.


text:
    LOWNDES COUNTY BOARD OF EDUCATION and A. D. Hatcher, County Superintendent v. Lorene Burt ANDREWS.
    No. 51631.
    Supreme Court of Mississippi.
    Feb. 6, 1980.
    William G. Burgin, Jr., Robert B. Prather, Columbus, for appellant.
    Billy J. Jordan, Philip T. Dean, Columbus, for appellee.
   Appeal from Chancery Court, Lowndes County; W. W. Brand, Jr., Chancellor.

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

REVERSED AND DECREE ENTERED HERE FOR APPELLANTS.

PATTERSON, C. J., ROBERTSON, P. J., and BROOM, WALKER, LEE and COFER, JJ., concurring.


author: TORBERT, Chief Justice.

text:
    Charles H. PRITCHETT, etc., et al. v. NATHAN RODGERS CONSTRUCTION AND REALTY CORP.
    78-467.
    Supreme Court of Alabama.
    Nov. 21, 1979.
    Rehearing Denied Jan. 11, 1980.
    Mayer W. Perloff, Mobile, for appellants.
    Mitchell G. Lattof, Mobile, for appellee.
   TORBERT, Chief Justice.

The appellee, plaintiff below, Nathan Rodgers Construction and Realty Corp., filed a petition for a writ of mandamus against Charles Pritchett, the maintenance mechanical inspector of the City of Sara-.land, and Richard Prescott, the mayor of Saraland, as well as five of the city’s councilmen to show cause why they should not grant permission for the connection of plaintiff’s sixteen-unit apartment complex to the sanitary sewer system of the City of Saraland. Nathan Rodgers, president of the plaintiff corporation, testified that he first appeared before the council and requested permission to connect the plaintiff’s sixteen-unit apartment complex to the sanitary sewer system in the City of Saraland on December 28, 1978. On that date his request was tabled. Rodgers also attended the council’s meetings on January 15, 16, and 18. No decision was made at these meetings because too few council members attended to meet the quorum required for a vote. Mr. Rodgers also attended the January 25, 1979, meeting of the council, at which no action was taken on his request, and the mayor informed him that taking no action was equivalent to denying his request. Rodgers testified that he had a telephone conversation with the mayor on January 3, 1979, during which the mayor led him to believe that there would be no problem with obtaining the council’s permission to connect his apartments to the sewer system. After this conversation, Rodgers obtained financing for his apartments. Rodgers testified that Mr. Isherwood, the city engineer, and several of the city councilmen told him that there would be no problem with obtaining a permit: “It’s just a matter of formality of going before the council, then, voting on it and, then, the permit being issued.”

The minutes of the special meeting of the Saraland City Council on October 3, 1977, show that a motion was passed “that no apartments be allowed to tie into our sewer whether it is available or not until the council can check to see if it is feasible.” The same minutes show that a Mr. Palmer appeared after the motion was adopted and requested that he be allowed to tie his apartment on Richie Street into the sewer system of Saraland. The record shows, and the city clerk, Mrs. Potter, testified, that Mr. Palmer’s request was granted after that motion had passed. In November of 1978, Mr. Isherwood wrote the council and recommended that the city declare a moratorium on all future requests for connection to the sanitary sewer system. The Circuit Court of Mobile County found that approximately 600 more units could be attached to the sewer system without creating a health problem and that plaintiff’s proposed apartment complex would be equivalent to about seven units.

The trial court further found that:

The city council has not declared a moratorium as recommended by the Engineer nor adopted any motion or resolution relating thereto.
The 600 units which can still be connected to the sanitary sewer system have not been assigned by any motion, ordinance or resolution of the City Council to the property owners involved in the current sewer project and they are available to be issued to the public at large.
In addition, on or about January 18, 1979, Nathan J. Rodgers, President of the Plaintiff corporation, met with Mayor Richard H. Prescott, Jr., and some of the City Councilmen and was led to believe that the request of the Plaintiff corporation for permission to connect to said sanitary sewer system would be granted at the next meeting of the City Council to be held on January 25,1979, and acting on this belief the Plaintiff corporation completed its permanent financing for said apartment complex project and thereby incurred substantial liability, and the defendant’s subsequent refusal to permit the Plaintiff to connect to said sanitary sewer system and to issue the building permit applied for, which are mere ministerial functions or duties required to be performed by the Defendants, although the same had been demanded, are actions which are arbitrary, capricious and without lawful right.

On April 9, 1979, the circuit judge issued a peremptory writ of mandamus to the mayor of Saraland and several council members ordering them to grant the plaintiff, Nathan Rodgers Construction and Realty Corp., permission to connect its apartments to the sanitary sewer system of the City of Saraland. The mayor and councilmen brought this appeal, alleging that it was error for the trial court to issue the writ of mandamus.

The appellant argues, and we agree, that the petition must on its face state facts which show that the petitioner is entitled to have this extraordinary writ granted. Ex parte Alabama Power Co., 280 Ala. 586, 196 So.2d 702 (1967); Lassiter v. Werneth, 275 Ala. 555, 156 So.2d 647 (1963); Guaranty Funding Corporation v. Bolling, 288 Ala. 319, 260 So.2d 589 (1972). “Mandamus is an extraordinary legal remedy, grantable only when petitioner show[s] a clear, specific legal right for the enforcement of which there is no other adequate remedy.” All American Life and Casualty Co. v. Moore, 286 Ala. 492, 242 So.2d 661 (1970). See also: Campbell v. City of Hueytown, 289 Ala. 388, 268 So.2d 3 (1972). The appellant contends that the petition in the instant case does not meet the requirements established by this court for a mandamus to issue. We disagree.

The application for mandamus in the instant case avers that the decision of the city council to reject the request of Nathan Rodgers Construction and Realty Corp., to connect its apartments to the sanitary sewer system was made without the aid of reasonable regulations concerning health and sanitation, and without any statement of the reasons for denying the building permit and that the decision was thus arbitrary and capricious. These allegations, if supported by proof, are sufficient to require the issuance of a writ of mandamus because though a city may regulate matters of health and sanitation through reasonable ordinances or resolutions, it may not regulate on an arbitrary case-by-case basis. Code 1975, § 11-47-131, entitled “Powers as to health, sanitation and quarantine generally,” reads:

In addition to the powers granted to them by the applicable provisions of this title or any other provisions of law, all cities and towns of this state shall have the following powers, and the councils or other governing bodies of such cities and towns May Provide By Ordinance Or Resolution for the exercise or enforcement of the same:

(1) To prevent the introduction of contagious, infectious or pestilential diseases into such cities or towns;
(2) To establish and regulate a sufficient quarantine, not inconsistent with laws of the state, in the towns and cities and within the police jurisdiction thereof and to punish any breach of quarantine law;
(3) To Adopt Such Ordinances And Regulations As The Council Or Other Governing Body May Deem Necessary To Insure Good Sanitary Condition in public places or in private premises in the cities and towns; and
(4) To prescribe the duties and fix the salaries and compensation for such health officials as they may deem necessary.

Code 1975, § 11-47-131 (emphasis added).

This statute is a reenactment of previous statutes (Code 1940, Tit. 37 §§ 491, 492) which codified the judicially created principle that a state, pursuant to its police power, may regulate for the protection of its citizens’ health. This concept, however, is not a license to abuse the police power by applying it capriciously and arbitrarily.

Where a statute confers on a municipality the power to regulate the use of sewers, and neither defines the limits of that power nor prescribes the manner of its exercise, the municipality is necessarily invested with power to exercise its discretion, and the courts will not interfere with such action Unless It Appears To Be Unreasonable Or Arbitrary.

64 C.J.S. Municipal Corporations § 1805, p. 265, (1950) (emphasis added).

Appellant argues that the council’s decision to grant or deny a permit is discretionary, and the trial court’s finding that the decision was ministerial is in error. Whether that decision was discretionary or ministerial, it is clear that the council can not exercise its discretion in an arbitrary manner. Appellant argues mandamus will not lie to order a person to exercise his discretion in a particular manner. We agree; however, mandamus will lie to order an official not to exercise his discretion in an arbitrary or capricious manner. In Foshee v. State, 210 Ala. 155, 97 So. 565 (1923), this court held:

As a general rule a writ of mandamus will not issue to review an exercise of judicial or quasi judicial discretion, and this rule applies to the approval of official bond. Payne v. Spragins, 207 Ala. 264, 92 So. 466; Mobile Co. v. Cleveland, 76 Ala. 321; Ex parte Harris, 52 Ala. 87, 23 Am.Rep. 559.
This rule, however, has an exception in this jurisdiction, for in some cases The Writ of Mandamus Has Been Employed to correct errors of inferior tribunals, and to prevent a failure of justice where there is a clear right and there is an absence of any other adequate remedy, and it has also been employed To Prevent An Abuse Of Discretion, Or To Correct An Arbitrary Action Outside Of The Exercise Of a Reasonable Discretion. 26 Cyc. 189; Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836; Ex parte Dowe, 54 Ala. 258.

Foshee v. State, 210 Ala. at 156, 157, 97 So. at 566 (emphasis added). See also: Williams v. Board of Dental Examiners, 222 Ala. 411, 133 So. 11 (1931); Katz v. Alabama State Board of Medical Examiners, 351 So.2d 890 (Ala.1977).

Clearly, the city has the power to regulate for the protection of the health of its citizens, but that power can not be exercised arbitrarily. In this case the city had adopted no moratorium on connections to its sewer system, but was proceeding to grant or deny these connections on a case-by-case basis. This was an abuse of the discretion placed with the city council.

When the trial court hears evidence ore tenus, its conclusions will not be disturbed on appeal unless palpably erroneous. Rice v. Hill, 278 Ala. 342, 178 So.2d 168 (1965); Custred v. Jefferson County, 360 So.2d 285 (Ala.1978). Peterson v. Jefferson County, 372 So.2d 839 (Ala.1979). The record amply supports the trial court’s finding that the council acted arbitrarily and capriciously in denying this permit to Nathan Rodgers Construction and Realty Corp. Based on that finding, the trial court properly issued the writ.

AFFIRMED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


text:
    Bennie D. HERRING v. Hubert M. PRESTWOOD, Jr., et al.
    78-537.
    Supreme Court of Alabama.
    Nov. 21, 1979.
    Rehearing Denied Jan. 11, 1980.

      John B. Crawley, Troy, for appellant.
    Alvin T. Prestwood and W. Michael Young, Montgomery, for appellees.
   TORBERT, Chief Justice.

FACTS AND CASE

Appellant, Bennie Herring, filed suit below for a declaratory judgment to define the terms of an option to purchase land from the appellees, Hubert and Mary Prest-wood. The option granted Herring the right to purchase 320 acres of land from the Prestwoods for a purchase price of $208,000 consisting of a down payment of $96,000 with the balance of $112,000 to be paid in annual installments over a period of ten to twenty years with interest at 8%. The evidence is in dispute as to whether any consideration was paid for the option.

The first amendment to the complaint reworded the complaint to allege that the written option did not reflect the total agreement of the parties and added two counts to the complaint, one for breach of contract in refusing to convey, the other for fraud. Herring insists that the written option agreement is incomplete because it does not contain that portion of the actual agreement which would allow Herring to use the 320 acres as security for a loan to pay the down payment. The Prestwoods filed a motion to strike those allegations of the complaint which referred to the alleged oral promise and that motion was granted by the court because that court found proof of those allegations would be inadmissible. The. defendants filed a motion for summary judgment based on two grounds: (1) that there was no consideration given for the option, and (2) that the plaintiff had failed to make an effective tender of the down payment in offering to exercise the option and obtain his down payment by pledging the land to a lender simultaneously with his receipt of the deed. The defendants contended in their second ground for summary judgment below that to make an effective tender, plaintiff must pay $96,000 as a down payment to the defendants prior to receipt of the deed. ■ The Circuit Court of Coffee County granted the defendants’ motion for summary judgment on May 4,1979, based on the second ground.

ISSUE

The issue before this court is: Where an option to purchase real estate provides for a down payment, is the purchaser required to pay the stated amount of the down payment prior to delivery of the deed, in order to make an effective tender, or may the purchaser require delivery of the deed simultaneously with the payment of the down payment?

The argument of the appellees, with which the trial court agreed, was that prior to conveying their land, as promised in the option, they must receive $96,000 in cash. To allow these transactions to occur simultaneously, would in the words of the trial court, force the defendants to “provide a warranty deed to the plaintiff with no down payment whatsoever, whereupon the plaintiff would place a first mortgage on the property in the amount of $96,000, pay that money to Prestwood, and then . give Prestwood a second mortgage upon said property for the balance in the amount of $112,000.” However, it is our opinion that this procedure comports with the agreement of the parties as expressed in the option and with the uniform practice for paying a down payment on the purchase price for land where the contract for the sale of land does not otherwise provide.

The law is inveterate that the down payment on the purchase price for land is a concurrent condition with the transfer the deed and not a condition precedent, so that it is not necessary that either occur before the other but they may occur simultaneously.

As Professor Corbin points out, “A transfer of ownership of goods or land and the payment of the agreed price in money or in other goods or land are performances that can be completely rendered simultaneously.” A. Corbin, Corbin on Contracts One Volume Edition, § 656, p. 627 (1952). Other treatise writers agree:

Where the promised acts are capable of simultaneous performance, each duty of performance is constructively conditioned upon the conditional tender of the other. The primary application of this rule is in contracts for the sale of personal or real property.

J. Calamari and J. Perillo, Contracts, § 156, p. 244 (1970).

Citing the Alabama case of Cay v. Ferrell, 239 Ala. 297, 195 So. 224 (1940), as authority, Corpus Juris Secundum states:

Where covenants in a contract of sale are mutual and dependent, the acts required to be performed by the vendor and purchaser are concurrent, and the intention of the parties, as shown by a construction of the contract, governs in determining whether the covenants are dependent or independent, as discussed infra § 109, and the acts to be performed concurrent, or otherwise. This rule applies in determining whether the conveyance by the vendor and the payment of the purchase price by the purchaser are to be concurrent acts; BUT UNLESS THERE IS SOMETHING IN THE CONTRACT TO SHOW AN INTENTION TO THE CONTRARY, THEY WILL BE REGARDED AS CONCURRENT.

91 C.J.S. Vendor and Purchaser § 102, p. 994 (1955). (Emphasis added).

The option agreement in this case makes no statement as to when the down payment should be paid and therefore the payment of the down payment and delivery of the deed were concurrent conditions which should have been fulfilled simultaneously. “When, by contract, one agrees to sell and another to buy at a stipulated price, nothing else appearing to a different effect, the law interprets it to mean that compliance by each is to be concurrent with that of the other.” Cay v. Ferrell, supra. See also: Brady v. Green, 159 Ala. 482, 48 So. 807 (1909); Maury v. Unruh, 220 Ala. 455, 126 So. 113 (1930).

In Brady, supra, Brady and Green had entered into a contract whereby Green agreed to sell to Brady certain land on Madison Street in Tuscaloosa. Brady offered to comply with the agreement and sued Green when Green refused to sell. Green filed demurrers to the complaint and argued that Brady had never fulfilled his part of the bargain by tendering performance (in this case payment of $4,000) and absent such performance on Brady’s part Green could not be put in breach of the contract. Justice McClellan, speaking for the Court, held:

If actual tender of the money, rather than tender of performance, coupled with ability to perform, was required of the purchaser, whose actual performance was not contemplated by the parties to be more than a concurrent condition with that of his adversary to convey, he would be necessarily placed in the attitude of surrendering his money without the equivalent in return of the property he had engaged to buy. The readiness, willingness, ability, and offer of plaintiff to perform, and, on the other hand, the refusal thereupon of defendant to perform on his part, is averred. This phase of the demurrer was, therefore, properly overruled.

In Smith v. Cleveland, 289 Ala. 401, 268 So.2d 14 (1972), a case which is factually similar to the instant case, this court held that the trial court erred in denying specific performance and assigning as its grounds therefore that “appellants did not appear to have the necessary amount of money available to pay for the land.” In Smith v. Cleveland, the Court held that either party, within a reasonable time, could OFFER TO PERFORM and call on the other party to do so. It is important to note that, in cases such as these, performance itself is not required to give rise to the other party’s duty to render his performance but rather that a mere offer to perform gives rise to that duty of counter performance.

We have examined the record carefully and we find that the option was accepted by the appellants in compliance with all provisions of the option contract. We further find that the appellants notified the appellees within a reasonable time to furnish a deed to the appellants in order that the loan proceeds could be obtained and paid to the appellees.
The option contract contained no provision for a time limitation within which payment would be made by the appellants to the appellees. Thus, either party could, within a reasonable time, offer to perform and call upon the other party to do so. Cay v. Ferrell, 239 Ala. 297, 195 So. 224; Forrester v. Granberry, 211 Ala. 402, 100 So. 551.

Smith v. Cleveland, 289 Ala. 401, 268 So.2d 14 (1972).

We hold, absent a provision in the contract to the contrary, that the tender of a down payment on the purchase price for land is a concurrent condition with the transfer of a deed and these performances can be rendered simultaneously. We hold that the trial court erred in granting the defendant’s motion for summary judgment based on the ground that the plaintiff failed to make an effective tender in offering to exercise the option and obtain his down payment by pledging the land to a lender simultaneously with his receipt, of the deed.

The appellant also assigns as error the trial court’s/ order striking those portions of his pleadings which allege that the written option did not reflect the entire agreement of the parties. A motion to strike is a severe remedy and should not be resorted to except in extreme and palpable cases. Cooper v. Cooper, 204 Ala. 183, 85 So. 468 (1920). A motion to strike should be granted only where the pleadings are unnecessarily prolix, irrelevant or frivolous. Beatty v. Hartwell, 217 Ala. 239, 115 So. 164 (1927); Harris v. Barber, 237 Ala. 138, 186 So. 160 (1939). Lyons, Alabama Practice, § 12.13, p. 178 (1973). Those allegations of the complaint which alleged that the written option did not reflect the total agreement of the parties were not irrelevant and therefore it was error for the trial court to strike those portions of the complaint.

We do not deem it necessary to address the other issue presented in this appeal, which assigns as error the trial court’s refusal to allow the jury to determine whether the written option contained the entire agreement of the parties, because our holding above that the purchaser made an effective tender of the down payment, by offering to pay the down payment simultaneously with his receipt of the deed, disposes of this issue.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.

ON APPLICATION FOR REHEARING

On application for rehearing the opinion is extended to address the parol evidence rule issue, in order to give the trial court guidance on remand.

We hold that the trial court committed reversible error in finding that the parol evidence rule barred any testimony to the effect that the written option did not reflect the total agreement of the parties. The appellant contends that the entire agreement of the parties included the seller’s agreement to allow him to place a first mortgage on the property. The appellee contends that the entire agreement included the buyer’s agreement to abstain from placing any encumbrance on the property which would impair the vendor’s lien. The written option is silent as to first mortgages. Because the writing does not cover the issue of first mortgages, parol evidence is admissible to establish the agreement of the parties.

The parol evidence rule, therefore, does not apply to every contract of which there exists written evidence, but applies only when the parties to an agreement reduce it to writing, and agree or intend that the writing shall be their complete agreement. [Citations omitted.]
Where there exists doubt that the written agreement was ever intended to reflect the full agreement of the parties, the courts of this State have not hesitated to admit contradictory parol evidence. [Citations omitted.]

Hibbett Sporting Goods v. Biernbaum, 375 So.2d 431 (Ala.1979) (emphasis added).

This writer expressed his understanding of the parol evidence rule in a dissenting opinion in Hibbett Sporting Goods, supra. There he disagreed with the majority because the specific issue about which the admission of parol evidence was sought had been covered in the writing. In the instant case, the writing was completely silent as to first mortgages or vendor’s liens.

It is fundamental that the parol evidence rule prohibits the contradiction of a written agreement by evidence of a prior oral agreement. The rule provides that when the parties reduce a contract to writing, no extrinsic evidence of prior or contemporaneous agreements will be admissible to change, alter, or contradict such writing. Hartford Fire Insurance Co. v. Shapiro, 270 Ala. 149, 117 So.2d 348 (1960); Richard Kelley Chevrolet Co. v. Seibold, 363 So.2d 989 (Ala.Civ.App.1978); 3 A. Corbin, Corbin on Contracts § 573, at 357 (1969). When the writing is a final expression of the parties’ agreement, it is said to be integrated. If the writing is final but not complete, it is partially integrated and consistent terms only can be supplied by extrinsic evidence. If the writing is final and complete, it is totally integrated and not even evidence of consistent terms can be admitted. J. Murray, Jr., Murray on Contracts § 105 (1974); J. Calamari & J. Perillo, The Law of Contracts § 40, at 76 (1970).
Whether the instrument is a final and complete expression of the agreement is to be determined from the conduct and language of the parties, the surrounding circumstances, and the instrument itself. Southern Guaranty Insurance Co. v. Rhodes, 46 Ala.App. 454, 243 So.2d 717 (1971); Pasquale Food Co. v. L & H International Air, Inc., 51 Ala.App. 127, 283 So.2d 438 (1973); 9 J. Wigmore, Evidence § 2430, at 98 (3d ed. 1940). In making such a determination, “the chief and most satisfactory index for the judge is found in the circumstance whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing. If it is mentioned, covered, or dealt with in the writing, then presumably the writing was meant to represent all of of the transaction on that element; if it is not, then probably the writing was not intended to embody that element of the negotiation.” Id. at 98-99; Southern Guaranty Insurance Co. v. Rhodes, supra.

Hibbett Sporting Goods v. Biernbaum, 375 So.2d at 437 (Ala.1979).

Since the written option in the instant case was silent as to vendor’s liens or first mortgages, it does not embody that element of the negotiation and parol evidence is admissible to establish the understanding or agreement of the parties in regard to a first mortgage.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


author: BLOODWORTH, Justice.

text:
    CITIBANC OF ALABAMA/TUSKEGEE, a corporation v. Guy POTTER and Hazel Potter et al.
    78-577.
    Supreme Court of Alabama.
    Nov. 21, 1979.
    As Corrected On Denial of Rehearing Jan. 11, 1980.

      Harry D. Raymon, of Raymon, Nathan-son & Raymon, Tuskegee, for appellant.
    Fred D. Gray, of Gray, Seay & Langford, Tuskegee, for appellees.
   BLOODWORTH, Justice.

This appeal is from a declaratory judgment subordinating a recorded judgment lien obtained by Citibanc to mortgages executed subsequent to the judgment lien and to a statutory claim of homestead exemption. We affirm in part, reverse in part, and remand for entry of a judgment in conformity with this opinion.

The facts are best presented chronologically.

April 27, 1976: Citibanc obtained a judgment against Guy and Hazel Potter for $19,363.25 and costs of $27.50. The judgment was recorded the same day.

November 1, 1976: The Potters received a deed to the lot in question from their son, reciting $10 consideration. The deed was duly recorded. The same day the Potters executed a construction mortgage for $15,-000 to Alabama Exchange Bank, which was also duly recorded'.

December, 1976: The Potters entered into a construction contract with Tuskegee Lumber Company, Inc. to construct the house for $38,000.

January 10, 1977: The Potters executed another mortgage to Alabama Exchange Bank purporting to correct the previous mortgage to show it as a purchase money mortgage rather than as a construction mortgage.

February 22, 1978: The Potters executed a mortgage to Tuskegee Federal Savings & Loan Association to cover $30,000 of the construction contract, including the $15,000 mortgage to Alabama Exchange. On this same date, the Potters executed a second mortgage to Tuskegee Lumber Company for $8,000 to cover the balance of the construction contract. Also on this date, the Potters filed the statutory statement claiming the property as a homestead.

July 12, 1978: Citibanc brought its action for declaratory judgment.

April 18, 1979: A final judgment was entered in which the court held that the Potters had a homestead exemption of $2,000 in the property subject to the mortgages; that Tuskegee Federal Savings & Loan Association had a first mortgage on the property; that Tuskegee Lumber Company, Inc., had a second mortgage on the property; and that Citibanc had a judgment lien on the equity of the Potters in excess of $2,000. The court refused to grant priority to Citibanc’s lien because such a result “abhors justice and is rejected because the plaintiff [Citibanc] would be unjustly enriched.” Citibanc then appealed.

Appellant contends that the trial court erred in subordinating its judgment lien to the subsequently obtained mortgages. Ap-pellees contend that the mortgages amount to purchase-money mortgages and therefore were correctly given priority over the judgment lien.

It is clear that the mortgages were not purchase-money mortgages. The Potters already had title to the land before they ever attempted to obtain a loan from appellees. Title was obtained from their son, for a recited consideration of $10. The mortgages were created subsequent to the deed to the Potters from their son. The trial judge was faced with the question as to whether, by virtue of the attempted correction of the mortgage to Alabama Exchange Bank, it became a purchase-money mortgage. He ruled, correctly, that the attempted correction was ineffective and that the mortgage was not a purchase-money mortgage.

The issue, therefore, plainly stated, is whether the judgment lien should be given priority over subsequently created construction mortgages. As the trial court noted, there is no case law covering this exact point in Alabama. The question is therefore one of first impression. We hold that a duly registered judgment lien must be given priority over subsequently created construction mortgages.

Here, appellant Citibanc obtained a judgment against the Potters. It recorded that certificate of judgment in the probate court of their home county. A duly registered judgment lien, filed in accordance with Code 1975, §§ 6-9-210, -211, is superior to any rights acquired under a mortgage on the debtor’s property executed subsequently. Compton v. Sharpe, 174 Ala. 149, 56 So. 967 (1911).

The fact that the mortgages are construction mortgages makes no difference. The statutory lien attaches to the Potters’ interest in the property acquired after registration of the lien, and all subsequent mortgagees are charged with notice of the statutory lien. W. T. Rawleigh Co. v. Patterson, 239 Ala. 309, 195 So. 729 (1940). The facts make it unmistakably clear that appellant Citibanc complied with the statutory requirements to perfect its judgment lien. It could do no more.

It is true that Citibanc waited until the construction mortgages were executed and construction began before it sought a declaration of its rights. However, the statute does not place a duty upon the judgment lienholder to notify lending institutions of the judgment lien. Rather, the statute places prospective subsequent mortgagees on notice of the judgment lien against the debtor’s property.

The subsequent mortgagees can protect themselves by a check of judgment records to determine whether there are outstanding liens against the debtor or his property. Either appellees failed to do this or overlooked the judgment lien. They cannot now claim that appellant Citibanc would be unjustly enriched because it followed the statutory requirements to perfect its judgment lien against the Potters.

Our holding is supported by other jurisdictions. In Rittenour v. Smith, 107 Ohio App. 119, 157 N.E.2d 367 (1958), the Court of Appeals of Ohio was faced with a similar problem. The court first held that a real estate mortgage and a lien of a construction company should be given priority over judgment lienholders because “the record discloses that these creditors made no objection to the construction of the houses on the lots by [the construction company] and should not now, in equity, be allowed to benefit by the expenditures made by [the construction company] in increasing the value of the lots.” 157 N.E.2d at 371.

However, on rehearing, the court noted that the real estate mortgage, as to one of the lots in question, was dated after the judgment creditors had perfected their liens on all the lots. In addition, the equitable award to the construction company was made after the judgment creditors had perfected their liens. The court modified its original judgment and held that the judgment lienholders were entitled to priority over both the construction company’s lien and the real estate mortgagee. The real estate mortgagee was given priority over the judgment lienholders as to two other lots in question but only because the mortgage lien had been acquired prior to the dates of the judgments. 157 N.E.2d at 372.

Perhaps more in point is the case of Cobleskill Savings & Loan Association v. Rickard, 15 A.D.2d 286, 233 N.Y.S.2d 246 (1962). There, Rickard obtained title to the property in July 1953. He transferred title to his wife in February 1954. In October 1954, December 1954, March 1955, and May 1955, several creditors filed judgment liens against Rickard. In December 1955, Rickard’s wife conveyed the premises to herself and Rickard. In July 1956, Cobleskill Savings & Loan recorded a building and loan mortgage executed by the Rickards on the premises in the amount of $8,000. In July 1957, a contractor filed a mechanic’s lien against the premises. Rickard subsequently filed bankruptcy. The parties sought a declaration of the order of priority of the claims against Rickard in the event proceeds of the sale proved insufficient to satisfy the claims of the parties.

There was a conflict in the lien law of New York as to the priority of liens. One section granted a mechanic’s lien priority over the prior judgment-creditors; another section granted the real estate mortgage priority over the mechanic’s lien, but subordinated the real estate mortgage to the judgment-creditors. The court noted that whatever result was reached it could not be completely reconciled with the conflicting sections of the lien law. The court therefore applied equitable principles in determining the priorities. The court held:

“[T]he equities here lie with the judgment-creditors and the mechanic’s lienor. Appellant [the mortgagee] at the time it made the loan to the Rickards knew or was deemed to have knowledge of the prior judgments filed against the Rick-ards.
Appellant knew or should have known that these judgments would have priority over its claim in a foreclosure proceeding, and since the money advanced was for building purposes it should also have been aware of the possibility that a mechanic’s lien could be filed which, though subordinate to appellant’s mortgage, would have priority over the claims of the judgment-creditors which in turn would have priority over appellant’s mortgage. Appellant should have envisioned the instant problem and in fact could have eliminated it, and at the same time protected the mechanic’s lienor, by compelling the Rick-ards to satisfy the prior judgments before it made the loan to them. If there is any fault in the creation of the instant situation it must lie with appellant, and therefore, it seems only equitable, as found by the court below, that the mechanic’s lien- or be given priority over appellant to the extent of the amount of the three prior judgments over which he would normally have had priority.” [Emphasis supplied.]

223 N.Y.S.2d at 248.

The main factual difference between that case and this case is that Tuskegee Lumber Company is not a mechanic’s lienholder. It is only a second-mortgage holder. In priority, it stands behind Tuskegee Federal Savings & Loan Association’s mortgage.

Thus, we hold that the trial court erred in granting the subsequent mortgages priority over the prior judgment lien. The judgment lien attached to the Potters’ property immediately upon transfer from their son. Appellees were given statutory notice of the lien. They acted in disregard of such notice and are therefore subordinated to the prior judgment lien.

Appellees, Potters, Tuskegee Federal and Tuskegee Lumber, contend that a determination of priority is academic because the property in question may not be levied upon and sold in satisfaction of the judgment. They contend the Potters do not own an interest in the property which is subject to levy and sale under Code 1975, § 6-9-40 since the property is totally encumbered by a mortgage to Tuskegee Federal Savings and Loan, by a mortgage to Tuskegee Lumber Co., and by appellees Potters’ homestead exemption.

Appellees’ claim might have some merit if the mortgages were purchase-money mortgages. What appellees overlook is that two separate, distinct steps were undertaken by the Potters. The first was the transfer of the property by deed from the Potters’ son to them. The second was the execution of the mortgages to build a home thereon. The judgment lien attached to appellees Potters’ property as soon as it was transferred from their son, before the land was encumbered by the subsequent mortgages. These subsequent encumbrances do not affect the rights of the judgment lienor. Its lien attaches and it has a right to levy upon, and sell, the property to satisfy its judgment lien under the statutory scheme provided in Code 1975, §§ 6-9-40, 6-9-80 to 6-9-101.

We also hold that Citibanc’s judgment lien is subordinated to the Potters’ $2,000 statutory homestead exemption under Code 1975, § 6-10-2.

“When lands are purchased for a home, although a registered judgment stands against the purchaser, he may proceed to occupy it; and if there be no residence thereon, proceed to provide one, make such use of same as a base of family supplies as he may, and so prevent the attaching of a judgment lien.” W. T. Rawleigh Co. v. Patterson, supra, 239 Ala. at 312, 195 So. at 731. The homestead exemption lasts for the lifetime of the exemptioner, Caldwell v. Pollak, 91 Ala. 353, 8 So. 546 (1890), and is limited to $2,000 and 160 acres. Code 1975, § 6-10-2.

The trial court was therefore correct in holding that the statutory homestead exemption had attached. Since a judgment lien registered under the Code never attaches to a homestead, Majors v. Killian, 230 Ala. 531, 162 So. 289 (1935), the court was correct in subordinating appellant Citi-banc’s judgment lien to the Potters’ statutory homestead exemption of $2,000.

In conclusion, we hold that the order of priority among the liens is as follows:

(1) Appellees Guy and Hazel Potter have a homestead exemption of up to $2,000 in the property described.

(2) Appellant Citibanc of Alabama/Tuskegee has a judgment lien on the property in excess of the Potters’ $2,000 homestead exemption.

(3) Appellee Tuskegee Federal Savings & Loan Association has a first mortgage on the balance of property after priorities (1) and (2).

(4) Appellee Tuskegee Lumber Company, Inc., has a second mortgage on the balance of property after priorities (1) and (2).

The trial court’s judgment is affirmed in part, reversed in part, and remanded for entry of a judgment in conformity with this ■opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

ON REHEARING

OPINION CORRECTED. APPLICATION FOR REHEARING OVERRULED.


author: FAULKNER, Justice.

text:
    Scarlet W. RILEY, as Administratrix, etc. v. The CITY OF HUNTSVILLE, Alabama, etc., et al.
    78-155.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      Ralph H. Ford and Robert H. Ford of Ford, Caldwell, Ford & Payne, Huntsville, for appellant.
    E. Cutter Hughes, Jr., and James E. Davis, J., of Lanier, Shaver & Herring, H. Nelson Camp and Dennis G. Riley, of Camp & Riley, Huntsville, for appellee City of Huntsville.
    John C. Eyster of Eyster, Eyster, Key & Tubb, Decatur, for appellee Matthew & Fritts.
   FAULKNER, Justice.

This is an appeal from a judgment for the City of Huntsville and Matthew & Fritts, Inc. in a wrongful death action. We reverse.

In April, 1976, the City of Huntsville (City) let a contract to Matthew & Fritts, Inc. (Contractor) for installation of sewer lines in the Lincoln Village North area including the alley behind Levert St. and Front St. The sewer line was to be placed some six to eight feet below the surface of ground and below an existing natural gas line in the alley which had not been laid in a straight line but in places crossed over and above the bottom of the trench in which the sewer line was to be installed. During the installation of the sewer line behind 2037, 2039 Levert St., the gas main and service line were broken several times and promptly repaired by the City’s Utilities Dept., as was their duty. On completion of the sewer line the Contractor was to properly backfill the trench in which the sewer line lay, pursuant to specifications in the contract.

On September 29, 1976, an explosion and fire occurred at the residence owned by Mrs. Gussie Womack, located at 2037 and 2039 Levert St., Huntsville, Ala., resulting in the death of John Harold Womack. Womack, who was burned in the fire, was an occupant of the residence at the time of the explosion and fire. Womack apparently had been outside looking for a gas leak just prior to the explosion and fire.

Following the explosion and fire, an examination revealed a transverse, circumferential break in the gas main in the alley behind Mrs. Womack’s house. The gas main in which the break occurred was located above the bottom of the sewer trench and extended over and into the sewer trench.

Scarlet Riley, the only child of Harold Womack, as administratrix of his estate, sued the City and Contractor alleging negligence and wantonness resulting in the wrongful death of Harold Womack. She contended that the Contractor had negligently or wantonly backfilled the sewer trench under the gas line, resulting in a break in the gas line and a gas leak which led to the fire. She contended that the City negligently and wantonly failed to follow recommendations that the gas main be replaced before the sewer line was installed, to inspect the backfilling, to maintain the gas lines and that the City was liable under res ipsa loquitur. The City and Contractor denied any negligence and wantonness and asserted that Womack was contributorily negligent by using a cigarette lighter to detect the gas leak under the house.

The trial resulted in a jury verdict for the City and Contractor. From the verdict and judgment thereon, including the denial of a motion for new trial, Mrs. Riley appeals.

She contends the trial court erred in the following respects:

1. Refusal of the trial court to allow her to introduce evidence on the decision of the City not to follow the recommendation of its consulting engineer to relocate the gas lines in the alley before installing the sewer line.

2. Restriction to proof of breaks in the gas main and service lines in the area behind 2037-2039 Levert St.

3. Refusal to allow D. J. Farley, a qualified expert, to state whether or not it would be good safety practice to dig a sewer main at this location without relocating the gas lines.

4. Limitation of the cross-examination of city employee, Frank Miller, to his testimony on direct examination regarding the number of breaks caused by the Contractor in the alley behind 2037-2039 Levert St.

5. Refusal to allow as evidence the factors taken into consideration by the engineering consultation firm hired by the City when the general notes prepared by that firm had previously been admitted into evidence. Mrs. Riley claims this evidence was admissible since her claim was based in part on Contractor’s failure to properly locate the gas lines prior to construction and the Contractor’s and City’s failure to coordinate responsibilities.

6. Refusal to allow the City’s expert witnesses to testify that lack of proper backfill under a gas main will cause the type of break that was found in the gas main in the alley behind Mrs. Womack’s house.

7. Refusal to allow her to prove the cause of death of Womack when defendants had offered to stipulate the cause of death but she refused to do so.

8. Refusal to allow into evidence pictures of the body of Womack taken at the autopsy showing the burn pattern to be on Womack’s back when Womack’s potential contributory negligence was at issue.

9. Refusal to allow her attorney to cross-examine E. H. Hamilton, head of City gas department, on. general notes on the plans already in evidence.

10. Refusal to allow her attorney to cross-examine Curtis Willis, City engineering department inspector assigned to this project, about job specifications.

11. Refusal to allow her attorney to cross-examine Larry Waldrop, administrator of gas pipeline safety for Alabama, on his opinion on whether the backfilling in this case complied with the regulations and provided proper support.

12. Trial judge’s admonishments of her attorney were prejudicial error.

We will discuss the errors numbered 10 and 11, pretermitting discussion of the other errors asserted by Mrs. Riley, because they are not likely to occur on the retrial of this case.

At the beginning of the trial, job specifications for the Lincoln Village North project were introduced as plaintiff’s exhibit No. 33 and admitted into evidence. Those specifications provided for backfilling the sewer lines pursuant to the standards set out therein, and that the City’s Engineering Department, which was under the Department of Public Works, was required to approve the backfilling done by the Contractor. Later during the course of the trial, the defendants called Curtis Willis, an inspector for the City of Huntsville Engineering Department, who was assigned to oversee the Lincoln Village North project. On cross-examination Mrs. Riley’s counsel elicited that Willis was the project inspector not only for this job site, but for three others also, that he was familiar with the plans and specifications for the work being done by the Contractor, and that he had approved the backfill for the sewer project. Counsel then questioned him about how the backfilling was done and whether or not the wheels of the landscaper were used to compact the backfill within the trench. In an attempt to show negligence on the part of the City by its approval of allegedly improper backfill which would have led to the break in the gas line causing the explosion, Mrs. Riley’s attorney attempted to ask Curtis Willis about the specifications, which were already in evidence and which he had previously testified he was familiar with:

“Q. Do the specifications permit the running of a piece of heavy equipment to compact the backfill in the alley where the main was?
“MR. CAMP: Your Honor, we object; doesn’t say it does or does not.
“THE COURT: I sustain it.
“Q. How is backfill in the alley to be performed?
“MR. EYSTER: We object to that, Judge.
“Q. According to the specifications. Go ahead.
“A. Like I—
“MR. EYSTER: We object to that.
“THE COURT: I sustain it.

Rule 43(b) of the Alabama Rules of Civil Procedure provides that “any witness called by a party and examined as to any matter material to any issue may be cross-examined by the adverse party upon all matters material to every issue of the action.” Every party has the right to a “thorough and sifting” cross-examination of the opponent’s witnesses. Code 1975, § 12-21-137. Control of cross-examination is within the trial judge’s discretion only after the party has had an opportunity to substantially exercise his right of cross-examination. Atwell v. State, 354 So.2d 30 (Ala.Cr.App.1977), cert. denied 354 So.2d 39 (Ala.1978). The wide latitude and extent of cross-examination may be subjected to the trial judge’s limited discretion to stop questioning that is repetitious, irrelevant, harassing, annoying, or humiliating, or concerns wholly collateral matters. International Brotherhood of Teamsters, etc. v. Hantas, 287 Ala. 344, 252 So.2d 7 (1971); Ball v. State, 337 So.2d 31 (Ala.Cr.App.1976), cert. quashed 337 So.2d 39 (Ala.1976). Clearly counsel’s questions were not harassing, annoying, or humiliating. Likewise, they were not irrelevant or concerned with collateral matters. Questions relating to the substance of the specifications on backfill from the City employee who inspected and determined the Contractor’s compliance with those specifications, giving the City’s approval to the work, were not irrelevant or collateral. Although the specifications had been previously admitted into evidence, determining how those specifications were read and interpreted by the inspector who approved the sewer project backfill pursuant thereto was not impermissibly repetitious. Cross-examination should not be so limited as to lose its benefit to the questioner. Louisville & Nashville Railroad Co. v. Martin, 240 Ala. 124, 198 So. 141 (1940).

Defendants also called Larry Waldrop, an employee of the State of Alabama, who was Administrator of Gas and Pipeline Safety. Mr. Waldrop had helped organize the gas pipeline safety division of the Public Service Commission, had completed two years of engineering school at Auburn University, had considerable on-the-job engineering training as an assistant engineer, and had investigated natural gas line leaks and explosions since 1969. He had attended numerous seminars in connection with his work, including a two week course at Drex-el University in Philadelphia, Pennsylvania, dealing specifically with compliance with gas regulations and maintenance of gas systems. Waldrop testified on direct examination that Alabama had adopted the Department of Transportation regulations for transportation of natural gas and other gas by pipeline. As elicited by Mr. Eyster, the Contractor’s attorney, he gave his opinion on the ignition point of the fire. He also offered his opinion on direct examination that the explosion was a flash fire, that it would not take a great deal of natural gas to cause ignition, and that the ignition source was under the house.

On cross-examination of this witness, Mrs. Riley’s attorney determined that Mr. Waldrop had spent several hours inspecting the site of the explosion and the trench where the gas main had been repaired, the backfill, and stated that the backfill was not properly compacted. Mrs. Riley’s attorney later attempted to ask him if the back-fill complied with the Department of Transportation regulations:

“MR. RALPH FORD: I do have one more question.
“Q. I believe you said that the Department of Transportation Regulations for the transportation of natural gas and other gas by pipeline had been adopted by Alabama?
“A. Adopted by Alabama, yes, sir.
“Q. And you are familiar with them?
“A. Yes sir.
“Q. And I will ask you if they provide in part that each ditch for a transmission line or main must be backfilled in a manner that provided firm support under the pipe?
“A. Yes, sir, it does.
“Q. In your judgment did the backfill-ing in this ditch provide firm support under the gas main line?
“MR. EYSTER: We object to that.
“THE COURT: I sustain it.
“MR. RALPH FORD: We except.
“Q. In Your opinion did it comply with—
“MR. EYSTER: We object to that.
“THE COURT: Sustained.
“Q. This regulation?
“MR. EYSTER: We object to that.
“THE COURT: Sustained.
“MR. RALPH FORD: That is all."

Whether or not a particular witness will be allowed to testify as an expert is within the discretion of the trial court, but once the witness is allowed to testify as an expert, proper questions should not be excluded. See Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972); Kozlowski v. State, 248 Ala. 304, 27 So.2d 218 (1946). The trial judge allowed Mr. Waldrop to testify as an expert, but disallowed the above questions on cross-examination that were proper. The line of questioning was pertinent on the Contractor’s alleged negligence in backfilling as could have been evidenced by its failure to exercise sufficient care in backfilling to comply with the recognized and applicable Department of Transportation standards.

Mrs. Riley’s right to cross-examine these witnesses in an attempt to establish negligence on the part of City and Contractor having been improperly limited, we reverse and remand.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.