text:
    E. L. FIGG v. Bert CUPIT, Jr., Barbara Cupit Wettach and Sandra Cupit Bailey.
    No. 52509.
    Supreme Court of Mississippi.
    July 22, 1981.

      Bill Waller, Waller & Waller, Jackson, for appellant.
    Jerry T. Johnston, Johnston, Adams & Younger, Brandon, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   SMITH, Presiding Justice, for the Court:

Bert Cupit, Jr. and his two daughters filed suit in the Chancery Court of Jefferson County on October 13, 1977, seeking specific performance of a ten-year royalty deed between themselves and appellant E. L. Figg. The chancellor ordered performance of the remaining period of the ten-year term and Figg appeals.

Cupit and his daughters agreed to sell Figg a one-half royalty interest in twenty-seven acres of land in the Union Church Community of Jefferson County. The agreed price for conveyance of the ten-year royalty was $9,112.50.

After the deed was signed by Cupit and his daughters, Figg delivered to Cupit a draft drawn on the First National Bank of Jackson in the amount of $9,112.50. On the face of the draft appeared the following words, “UPON APPROVAL OF TITLE BUT NO LONGER THAN 10 DAYS AFTER ARRIVAL AT COLLECTING BANK.” Figg testified that the deal was premised upon the condition that he have ten days to check and approve the title.

On November 16, 1976 the check was deposited in Cupit’s bank in Brookhaven. The royalty deed was attached to the draft. It was never established when the draft arrived at the collecting bank, but it was stated that it generally takes two days for a draft to arrive at the collecting bank after its deposit.

On November 17 Figg employed a Port Gibson attorney, Allen Burrell, to check the title. It is not disputed that the attorney is a reputable and competent attorney. Bur-rell made an examination of the land records on November 18 and found four items, which he considered questionable, concerning the title. One concern was that when Cupit’s predecessor in title, his father Bert Cupit Sr., took title to the property there was a reservation outstanding of one-half of the minerals. Another item was that the deed by which Cupit Jr. received the property passed title to him and his wife Imogene as joint tenants and Imogene had not signed the royalty deed. The final two items which the lawyer questioned related to the survey description and the acreage content.

The day after his title examination, the Port Gibson attorney called Figg, related the problems with the title, and told Figg that he could not approve the title unless the problems were cleared up.

Relying upon the lawyer’s findings, Figg informed Cupit that the deal was off and instructed First National Bank not to pay the draft. This occurred within the ten day period stipulated on the face of the draft.

As it turned out, it subsequently developed that the attorney had overlooked a deed granting Cupit’s predecessor in title the outstanding mineral interest in 1952. Also, Mrs. Imogene Cupit, the joint tenant owner of the property, had died prior to the execution of the royalty deed thus extinguishing her interest in the property.

The chancellor ordered Figg to pay 7/io of the $9,112.50, an amount which equaled the balance outstanding on the ten-year term specified in the deed.

Figg argues on appeal that the words on the draft — “UPON APPROVAL OF TITLE BUT NO LONGER THAN 10 DAYS AFTER ARRIVAL AT COLLECTING BANK” — created a purchaser satisfaction contract which required that the title not be merely merchantable, but one satisfactory to the purchaser.

The death of the joint tenant was a matter in pais, not reflected by the land records. While it appears now to be conceded that she was, in fact, deceased, and that there were answers to other questions raised by the lawyer, the question was not whether the grantors who executed the deed had a merchantable title, but whether the title was in such condition, in his lawyer’s opinion, as to meet that individual’s unqualified approval within the brief time limited.

When the excitement of the prospect of oil proauction enters a county and of quick riches “beyond the dreams of avarice,” time becomes of the essence and litigation the order of the day. It is not unreasonable that a knowledgeable purchaser should desire to buy only mineral royalties with nothing left to explanation or proof of matters in pais, such as death of the owner of an interest upon whose estate no administration is had. Figg had a right so to contract. He could rely upon the opinion of his lawyer and, in the absence of fraud or bad faith (of which there is no suggestion here) may reject a title not approved by him.

We have found no Mississippi cases addressing purchaser satisfaction contracts. However, the courts of Louisiana and Texas have repeatedly upheld such contracts in transactions similar to the instant case.

In Hardtner v. Dixie Oil Co., 163 La. 1011, 113 So. 357 (1927) suit was brought to specifically perform an alleged contract to purchase an oil and gas lease. The contract on which the suit was based was a draft drawn by the purchaser in favor of the vendor. The draft contained a notation that payment was subject to the approval of title by the purchaser’s attorney. When the attorney disapproved title and the purchaser rejected the lease, the vendor sued for specific performance. The trial court refused to order specific performance and the Louisiana Supreme Court agreed. The Court quoted with approval from the trial court’s opinion.

It is a well-known fact that in the oil business no reputable company desires to accept any title that is the least bit defective, suggestive of litigation, irrespective of whether that title can be considered on its face as a good and merchantable one, and we can see no reason why a perfectly valid and binding contract cannot be drawn providing for the approval of title by some specific person. Such a contract, in our opinion, is not illegal, and is not dependent upon whether or not the title tendered is a good and merchantable one, or satisfactory to the purchaser.
(Id. at 1015, 113 So. at 358).

See also Izquierdo v. Kenner, 11 La.App. 594, 123 So. 366 (1929).

The law is well settled in Texas, a state which has had occasion to deal with the question more often than any other heretofore, that a provision providing that a purchase is subject to the approval of title by the purchaser’s attorney will be given effect so long as the attorney’s failure to approve the title is not arbitrary or in bad faith. Smith v. McMillan, 352 S.W.2d 871 (Tex.Civ.App.1961); Campbell v. Hart, 256 S.W.2d 255 (Tex.Civ.App.1953); Dixie Oil Co. v. McBurnett, 6 S.W.2d 83 (Tex.Civ.App.1928); City of Amarillo v. W. L. Slay- ton & Co., 208 S.W. 967 (Tex.Civ.App.1919). See also Annot., 47 A.L.R.2d 441 (1956).

After studying the decisions from our sister states we are of the opinion that the notation on the face of the draft from Figg to Cupit was an agreement between them and constituted a purchaser satisfaction contract. Figg was given only ten days to act. Thus when Figg dishonored the draft in good faith within the ten-day period, acting upon the advice of his attorney, he was within his contractual rights. It is of no consequence that the attorney’s advice later proved erroneous. As was stated by the Louisiana Supreme Court in Hardtner, no one in the oil business desires to accept a title which invites or is the least bit susceptible to litigation despite the fact that an investigation of matters in pais makes the title seem merchantable.

Therefore, the chancellor’s decree of specific performance is reversed and a decree is entered here for appellant.

REVERSED AND RENDERED.

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


source: Caselaw Access Project

author: HAWKINS, Justice, for the Court:

license: Public Domain

text:
    Kay W. Jackson WESTMORELAND v. Andrew Roland JACKSON.
    No. 52508.
    Supreme Court of Mississippi.
    July 22, 1981.
    Lindia Robinson, Larry F. Harold, McComb, for appellant.
    No briefs filed.
    Before SMITH, BOWLING and HAWKINS, JJ.
   HAWKINS, Justice, for the Court:

This is an appeal from the Chancery Court of Pike County by the appellant Mrs. Kay W. Jackson Westmoreland denying her petition to cite the appellee Andrew Roland Jackson, her former husband, for contempt for failure to pay child support. We reverse.

Appellant Kay W. Jackson Westmoreland (Mrs. Westmoreland), and the appellee Andrew Roland Jackson (Jackson) were married January 5,1960, and five children were born unto their marriage. Mrs. Westmore-land filed for divorce in the Chancery Court of Pike County on September 30, 1977, resulting in a decree for divorce in her favor on December 17, 1977.

The permanent custody of David Jackson, Andrew Jackson, Dwayne Jackson and Mark Jackson was granted to Mrs. West-moreland in the divorce, and Jackson was directed to pay $300.00 per month child support, payable on the 1st and 15th of each month. This decree was modified by a decree of the chancery court on November 28, 1978, reducing the child support payments to $275.00 per month, $150.00 to be paid on the first of the month, and $125.00 on the 15th of the month. In the first decree the father was given reasonable visitation rights. In the second decree of November 28, 1978, the father was given the additional right in reference to Mark Jackson to take the minor to visit with him from 5:00 p. m. on Friday until 5:00 p. m. on the following Sunday, every other weekend, and also on Christmas day beginning at 2:00 p. m., and three days following each year.

Mrs. Westmoreland, who remarried following her divorce from Jackson, filed a petition to cite Jackson for contempt on March 4, 1980, for failure to pay child support.

At the hearing it developed the mother had not allowed the father to have the child on a weekend, and because of her failure to abide by the decree of the court, the chancellor denied her petition. At the time of the hearing Jackson was several months in arrears in child support payments.

The appellee Jackson has filed no response to the brief of Mrs. Westmoreland, which ordinarily would be tantamount to a confession of error in the trial court.

We have understanding for the chancellor’s impatience with Mrs. Westmoreland in her failure to abide by the decree granting the right of Jackson to have Mark visit with him, as well as other matters coming before the court at the hearing.

The father’s duty to pay child support as required by a chancery court decree is not relieved by misconduct of the mother. Lide v. Lide 201 Miss. 849, 30 So.2d 51 (1947); Kimbrell v. Kimbrell, 252 Miss. 360, 173 So.2d 437 (1965). While this Court has denied a petitioning mother relief in a case where she wilfully hid their children from the father for eight years, Cole v. Hood, 371 So.2d 861 (Miss.1979), this is not such a case. Ample means are provided a chancery court to see that a mother who has custody of a child permits visitation as ordered by the court.

The decree of the chancery court denying Mrs. Westmoreland’s petition is reversed and this cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


text:
    ODEN CONSTR. CO. & Commercial Union Ins. Co. v. Eddy Keathon ANDERSON.
    No. 52653.
    Supreme Court of Mississippi.
    July 29, 1981.
    George E. Dent, Louie Ruffin, Aultman & Aultman, Hattiesburg, for appellants.
    Henry Ray Mitchell, Ocean Springs, for appellee.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

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

AFFIRMED.


text:
    Mitchell COLLINS v. STATE of Mississippi.
    No. 52603.
    Supreme Court of Mississippi.
    July 29, 1981.
    Robert J. Kelly, Garner & Garner, Her-nando, for appellant.
    Bill Allain, Atty. Gen., by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, DeSoto County; Andrew C. Baker, Judge.

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

AFFIRMED.


text:
    Julia McAmis TODD v. Elton L. McAMIS and the Bank of Port Gibson.
    No. 52672.
    Supreme Court of Mississippi.
    July 29, 1981.
    William E. Spell, Sullivan, Hunt, Spell, Shackelford & Henson, Jackson, for appellant.
    Allen L. Burrell, Drake & Burrell, Port Gibson, J. Walter Brown, Zuccaro, Riley, Pintard & Brown, Natchez, for appellees.
   Appeal from Chancery Court, Claiborne County; Frank W. Walden, Judge.

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

AFFIRMED.


text:
    David Eugene DIXON v. STATE of Mississippi.
    No. 52608.
    Supreme Court of Mississippi.
    July 29, 1981.
    David 0. McCormick, Cumbest, Cumbest & Hunter, Pascagoula, for appellant.
    Bill Allain, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, George County; Clinton E. Lockard, Judge.

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

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, BROOM, BOWLING and HAWKINS, JJ., concur.


text:
    David JONES v. Frankie JONES.
    No. 52720.
    Supreme Court of Mississippi.
    July 29, 1981.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Harry L. Kelley, Jackson, for appellant.

Herman M. Mason, Jackson, for appellee.

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

AFFIRMED IN PART; REVERSED IN PART.

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

HAWKINS, J., takes no part.


text:
    HIRSCHBACH MOTOR LINES, INC. v. CENTRAL & SOUTHERN TRUCK LINES, INC.
    No. 52742.
    Supreme Court of Mississippi.
    July 29, 1981.
    George E. Dent, Aultman & Aultman, Hattiesburg, for appellant.
    Jay L. Jernigan, Dukes & Bates, Hatties-burg, for appellee.
   Appeal from Circuit Court, Covington County; L. D. Pittman, Judge.

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

AFFIRMED.


text:
    Henry TALLIE v. Bessie TALLIE.
    No. 52675.
    Supreme Court of Mississippi.
    July 29, 1981.
    Robert B. Marshall, Jr., West Point, for appellant.
    H. Clark Coleman, Jr., West Point, for appellee.
   Appeal from Chancery Court, Clay County; Lenore L. Prather, Chancellor.

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

AFFIRMED.


text:
    Leo HUGHES d/b/a Leo Hughes Mobile Homes & Maxwell Housing, Inc. v. Lynda MEADOWS.
    No. 52537.
    Supreme Court of Mississippi.
    July 29, 1981.
    Glen W. Hall, Percy S. Stanfield, Jr., Jackson, for appellants.
    Clarence R. Scales, Scales & Scales, Jackson, for appellee.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

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

AFFIRMED.


text:
    TOWN OF EDWARDS, Mississippi, Mayor and Board of Aldermen v. W. H. MONTGOMERY.
    No. 52749.
    Supreme Court of Mississippi.
    July 29, 1981.
    Oran C. Page, Page, Patton & Moyo, Jackson, for appellant.
    William W. Ferguson, Raymond, for ap-pellee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

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

AFFIRMED.


text:
    Rufus Fitzgerald POWELL v. Robin Lee POWELL.
    No. 52542.
    Supreme Court of Mississippi.
    July 29, 1981.
    Richard W. Hamilton, Bernard Gautier, Pascagoula, for appellant.
    Robert T. Mills, Mills & Perkins, Moss Point, for appellee.
   Appeal from Chancery Court, Jackson County; Glenn Barlow, Chancellor.

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

AFFIRMED.


text:
    Raymond Carl HORN v. May SHORT (Horn).
    No. 52699.
    Supreme Court of Mississippi.
    July 29, 1981.
    Frank Liebling, Liebling & Liebling, Gautier, for appellant.
    L. C. James, Wilkins, Ellington & James, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

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

AFFIRMED.


text:
    Ruby Jean MARSHALL v. STATE of Mississippi.
    No. 52336.
    Supreme Court of Mississippi.
    July 29, 1981.
    Everett T. Sanders, Brown, Alexander & Sanders, Jackson, for appellant.
    Bill Allain, Atty. Gen., by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

AFFIRMED.

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


author: LEE, Justice, for the Court:

text:
    Mike PIERCE v. STATE of Mississippi.
    No. 52550.
    Supreme Court of Mississippi.
    July 29, 1981.
    George T. Kelly, Jr., Cleveland, for appellant.
    Bill Allain, Atty. Gen., by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice, for the Court:

Mike Pierce was convicted in the Circuit Court of the Second Judicial District of Bolivar County, Honorable Elzy J. Smith presiding, for delivery and sale of cocaine and was sentenced to serve fifteen (15) years with the Mississippi Department of Corrections and to pay a fine of five thousand dollars ($5,000). Pierce has appealed to this Court and he assigns two (2) errors in the trial below.

According to the State’s evidence, on May 22, 1979, confidential informant David Hammontree met with narcotics agents Ron Pitts and Mike Tyson near Alligator, Mississippi. Hammontree and Pitts drove to appellant’s rural home followed in a separate automobile by Tyson. Upon arrival there, Hammontree went inside and shortly thereafter returned with appellant to the Pitts automobile. Pitts asked appellant whether he had any cocaine for sale. Appellant answered in the affirmative and offered to sell him two (2) grams for $200.00. Pitts purchased the cocaine from appellant and later, he and Hammontree met Tyson at a nearby roadside park where they examined the packages containing a white powder, which appeared to be cocaine. Subsequently a test of the substance at the crime laboratory verified that it was cocaine.

After his arrest, and upon the trial, appellant denied that he had met with the officers and Hammontree and that he sold cocaine on the occasion mentioned. He testified that his first knowledge of the matter was on May 13, 1980, when was arrested at his father’s home. Appellant’s defense was an alibi, corroborated by his father and wife.

(1) Did the lower court err in refusing to permit an independent analysis of the contraband prior to trial?

Appellant was indicted for the sale of cocaine on May 12, 1980; counsel was appointed for him on May 13; arraignment was conducted May 19; and the trial was set for May 26, 1980. On May 20, the court entered an order setting 4:00 p. m. on May 22, as the deadline for filing pretrial motions. At 5:00 p. m. on May 22, counsel for appellant, the prosecutor and the trial judge met in chambers, at which time counsel for appellant requested an extension of the motion deadline. The judge extended the deadline until noon on May 23, with the understanding that no late motion would cause a delay in the trial. On the next day, appellant’s attorney filed a motion for continuance setting out a need for additional time in order to obtain an independent laboratory analysis of the contraband. The motion was denied as untimely, since it would delay trial. However, the trial judge did grant appellant access to the contraband and the right to have an analysis made, if and when he desired to do so.

After the trial, appellant had the contraband examined by an analyst of his choice and that examination revealed the substance to be cocaine which corroborated the analysis made by the State Crime Laboratory. Appellant contends that the trial court committed reversible error in refusing to grant a continuance in order that he might have the benefit of an independent analysis prior to trial. In Jackson v. State, 243 So.2d 396 (Miss.1970), this Court reversed a drug conviction where the defendant’s motion for an independent analysis of the substance had been overruled by the lower court. The opinion stated:

In Armstrong v. State, 214 So.2d 589, 596 (Miss.1968), we recognized the developing trend toward allowing inspection by the defendant of tangible evidence. After discussion of all pertinent authority, we stated:
“It is becoming increasingly clear from a study of the foregoing authorities that, although the trial judge has discretionary power in determining whether or not tangible evidence in the possession or under the control of the prosecuting attorney should be given to the defendant for his inspection, nevertheless, the defendant should be permitted to inspect tangible evidence which may be used against him or which may be useful in his defense. This does not mean that a defendant may peruse the private files of a prosecuting attorney or examine his private notes. It does mean, however, that the concept of “due process” and “fair trial” requires that material, tangible evidence must not be concealed from the defendant who is accused of crime. There is no good reason why the defendant in a civil case should be entitled to a more liberal right to tangible evidence in the possession of his adversary under the authority of section 1659, Mississippi Code 1942 Annotated (1956), than is a person under a serious criminal charge.”
The guilt or innocence, prison sentence or acquittal, of the defendant depends entirely upon the identification of the contents of the boxes as marijuana. This substance was relevant, material, competent and, in fact, necessary evidence to defendant’s conviction. Under this circumstance we are of the opinion that due process of law requires, upon the court’s attention being directed thereto by motion, that the analysis of the substance not be left totally within the province of the state chemist. The defendant having made proper and timely motion for a portion of the substance, it should have been made available to his attorney, as an officer of the court, and under such safeguards as the trial court deemed necessary, for inspection and analysis. We hasten to add that this opinion is limited to the alleged possession or sale of a prohibited substance where the outcome of the case is dependent upon its identification as contraband. We conclude, therefore, that the lower court erred in not sustaining the defendant’s motion for a portion of the seized substance.
(243 So.2d at 397-398).

In Ladnier v. State, 273 So.2d 169 (Miss. 1973), appellant made an untimely motion for an extension after the jury had been empaneled. The Court affirmed the conviction with the following comment:

The granting or refusing of motions which should have been made timely before trial, such as motions to produce and inspect that would be time consuming, are left to the sound discretion of the trial judge as are motions for continuances, and his ruling will not be disturbed unless there is a clear showing that injustice resulted therefrom.
(273 So.2d at 173).

We are of the opinion that the lower court did not err in declining to grant a continuance for time in which to obtain an independent analysis for the reason that the motion was not filed timely. If the examination subsequent to trial had indicated that the contraband substance was not cocaine, that evidence probably would have warranted a new trial even though the motions were not timely filed. However, there has been no showing of prejudice absent the independent analysis at trial. One of two things would have occurred, if that information had been available prior to trial: (1) appellant would not have used his expert to verify the state’s analysis, or (2) if he had used the expert, the State’s case would have been strengthened against appellant.

(2) Did the lower court err in permitting a tape to be played before the jury which contained evidence of a different drug sale made by appellant on May 21, the day before the subject sale?

Appellant testified in his own behalf at the trial. On direct examination, he was asked and responded to the following question:

Q. Mike, before this date, have you at any time in your life ever sold any narcotic drugs to any person on the face of this earth?
A. No, sir. I have never sold no drugs.

On cross-examination, the following transpired:

BY MR. KNOWLTON:
Q. You are saying that you — we have all heard you say that it is just a complete denial, isn’t it, Mr. Pierce, that you have never seen the person who came in here and said his name was Ron Pitts until he came in here?
A. That’s correct.
* * * * * *
Q. And your counsel has asked you the broadest questions possible about your past history with drugs. You are saying that you have just never had anything to do with selling drugs; is that right?
A. I say I never sold no drugs. I have been caught with possession of marijuana.
Q. Right, but as far as selling drugs—
A. —I have not sold no drugs.
Q. And you are saying specifically in terms of this case and the testimony that you heard from Ron Pitts and from David Hammontree, you are saying specifically that the day before this cocaine transaction, you didn’t sell them any drugs that day?
A. No, sir.
Q. You couldn’t have since you never sold any drugs, right?
A. That’s correct. If I have never sold any, I couldn’t have sold him any that day or the day after.
Q. Right. It is complete denial of ever in your whole life any kind of history of that kind with drugs?
A. Yes, sir.
******

The appellant denied that the voice on the tape was his. He contends that introduction of the tape was prejudicial and that it related to a separate and distinct crime from the one with which he was charged and tried. The tape was admitted into evidence and was played before the jury on the ground that it was for impeachment of appellant’s testimony as to previous drug sales made by him. In Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1953), Walder was indicted and tried for narcotics possession. He had been previously indicted in 1950 for a similar offense but the indictment was dismissed due to an unlawful search and seizure. At his trial in 1952, Walder testified on direct examination that he had never sold any narcotics to anyone in his life. He repeated the denial during cross-examination, whereupon the prosecution offered evidence of the 1950 drug sale. The trial court permitted the impeachment and, upon appeal, the United States Supreme Court affirmed the trial court and said:

Take the present situation. Of his own accord, the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics. Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility-
(347 U.S. at 65, 74 S.Ct. at 356, 98 L.Ed. at 507)

Also, see Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), wherein the United States Supreme Court stated that a defendant is under a duty to testify truthfully and in order to test the veracity of his statement, the prosecution may utilize traditional truth-testing devices of the adversary process.

We hold that, under the facts of the case sub judiee, the lower court properly admitted the tape for the purpose of impeaching appellant’s testimony.

AFFIRMED.

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


author: ADAMS, Justice.

text:
    Jack Gullage BONNER v. DISCIPLINARY BOARD OF THE ALABAMA STATE BAR.
    79-761.
    Supreme Court of Alabama.
    June 12, 1981.
    Rehearing Denied July 10, 1981.
    Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellant.
    William H. Morrow, Jr., Gen. Counsel, Montgomery, for appellee.
   ADAMS, Justice.

This is an appeal from a final order of a Disciplinary Board of the Alabama State Bar Commission denying the petition of Jack Gullage Bonner for reinstatement as an attorney under Rule 19 of the Rules of Disciplinary Enforcement of the Alabama State Bar. Because the facts in this case are particularly egregious, we shall recite only those facts necessary to shed light on this appeal.

Jack Bonner is 48 years of age, married, and has one dependent daughter. He was licensed to practice law by the State of Alabama in 1965. In 1970, he moved to Gadsden, Alabama, where be began processing loans for Old Southern Life Insurance Company. On September 13,1977, the petitioner, Jack Bonner, while a licensed attorney, entered a plea of guilty to the charge of violating Code 1975, § 27-27-26. This statute provides:

Any officer, or director, or any member of any committee or any employee of a domestic insurer who is charged with the duty of investing or handling the insurer’s funds . . . shall not borrow the funds of such insurer; shall not be pecuniarily interested in any loan, pledge or deposit, security, investment, sale, purchase, exchange, reinsurance or other similar transaction or property of such insurer except as a stockholder or member ....

While employed as an attorney for Old Southern Life Insurance Company, Jack Bonner, indeed, did become pecuniarily interested in many loans made by that company, although he was prosecuted for only one loan. As part of his agreement to plead guilty to violating Code 1975, § 27-27-26, Bonner agreed to surrender his license to practice law in the State of Alabama, and he did surrender said license, effective September 26, 1977. As a result of his plea of guilty, he was sentenced to twelve months in the county jail, but the sentence was suspended.

In 1972, Bonner arranged a loan from Old Southern Life Insurance Company for a Howard McCullough in the amount of $24,-000.00. The loan was never consummated, but Old Southern issued its check for $24,-000.00 directly to Bonner and he used the money for office expenses and his personal use. The money was received some time in October or November 1972, and had been dissipated by July of the following year.

Bonner admitted that he arranged three fictitious loans to raise the $24,000.00 which he had misappropriated. The borrowers on the loans never received the proceeds of the loans and did not, in fact, own the properties which the records of Old Southern Life Insurance Company indicated were security for the loans. In addition to these fictitious loans, Bonner negotiated at least seven other fictitious loans, making a total of over $50,000.00 in bogus loans from Old Southern. All of these loans were arranged during a period commencing in 1970 and ending in 1973. In connection with many of these loans, Bonner would secure appraisals and insurance on non-existing property— placing false recording data on the mortgage instruments, although the documents had not been recorded at all. He also rendered false title opinions on some of the property and paid “straw people” to execute documents and then cause title to be transferred to himself. Bonner kept fictitious loans from lapsing into default by making periodic payments himself to Old Southern.

He explained that he had been personally involved in approximately 40 to 50 kickback transactions with Old Southern. In his capacity as closing attorney he would carefully explain to the borrowers that ten percent of the loan had to be taken back as a fee. After the ten percent had been taken out, Bonner said, he would keep between three and four percent and give the rest to the president of the company, Roy Epperson, and other officials.

In February or March of 1974, Bonner went on the official payroll of Old Southern Life Insurance Company as its general counsel; he actually moved his family to Montgomery in July 1974, in order to be able to protect himself on the fictitious loans he had engineered. Bonner knew that the state examiners were moving on Old Southern and he knew that it would not be long before they figured out what was going on. The state examiners did figure out what was going on and Bonner went to the president of Old Southern, Roy Epper-son, and asked him where he might borrow $50,000.00 to make good the fictitious loans that he had processed. Epperson told Bonner to speak with James Lane (the general manager of Old Southern). Lane did provide Bonner with $50,000.00 and took a mortgage on property ostensibly owned by Bonner. It later became necessary for him to foreclose on this property. The foreclosure proceeds were applied against the loan, leaving a balance of $35,000.00, which was still due and owing by Bonner at the time of the last hearing before the Disciplinary Board. Bonner has had two hearings before the Disciplinary Board in less than three years from surrender of his license.

At the second disciplinary hearing, Bonner indicated in his petition that since the first hearing, James Lane had loaned him $1,000.00 and had advanced him $5,000.00 on a “finder’s fee” to procure American Consumers Company for Old Southern. Bonner testified that he has no “qualms” about association in a legal way with Old Southern — he would represent them as their lawyer under appropriate circumstances if he were reinstated.

Bonner verified that the $50,000.00 check payable to him could have come from the account of an agency owned by Lane called Old Southern Insurance Agency. Although the payments under the $35,000.00 note secured by a mortgage to James Lane are $633.00 a month, Bonner has not made a single payment, nor has James Lane pressured him concerning payments. To the contrary, he has made available to him an additional $6,000.00. Petitioner admits that he is still on good terms with the officials of Old Southern. Since his disbarment, he has actively sought for Old Southern the acquisition of companies that were in distress. While an attorney for Old Southern in 1974, he negotiated its purchase of Georgia Life and Health Insurance Company for a $340,-000.00 cash outlay with the balance of the purchase price to be paid out of premiums collected from Georgia Life and Health policies. However, he steadfastly maintains that he has paid off and satisfied his obligation on the fictitious mortgages and he has no concrete information of where the $50,-000.00 came from that James Lane made available to him to pay off his debt.

Petitioner’s first petition for reinstatement was filed on July 17, 1978. At that hearing, petitioner made it known to the Board that he had borrowed $50,000.00 from James Lane and paid back Old Southern for losses it had sustained as a result of petitioner’s mishandling of the company’s funds. On January 31, 1979, by unanimous decision, the Board denied Bonner’s first reinstatement petition.

On February 11, 1980, he filed a second petition for reinstatement and a hearing was had on this petition on May 30, 1980. The day before the scheduled hearing for May 30, 1980, the Bar’s assistant general counsel, by telephone, requested the chairman of the Disciplinary Board to continue the hearing from May 30, 1980 to June 27, 1980. The reason given by the assistant general counsel was that he needed additional time to pursue the issue of whether restitution had really and truly been made to Old Southern Life of Bonner’s $50,000.00 indebtedness to it, or whether the funds made available to Bonner in truth, were funds of Old Southern’s wholly owned subsidiary, Georgia Life and Health Insurance Company, funneled through its general manager and agent, James Lane. Petitioner refused to agree to the continuance and the chairman of the Disciplinary Board indicated that the injection of this issue in the case, even though not proved, might cloud the hearing and suggested that the petitioner may be advised to agree to a continuance. Petitioner, however, refused to agree to a continuance and the Disciplinary Board denied the request of the assistant general counsel and proceeded with the hearing. After the hearing was completed, and on the same day, the Board again unanimously denied Bonner’s petition for reinstatement.

Besides his own testimony before the Board, Bonner introduced the testimony of two live witnesses and introduced 17 affidavits attesting to his present good moral character and fitness to be reinstated as an attorney in the State of Alabama. There was only one objection made to his application. That objection was made by a person who said Bonner owed him about $900.00. After the objection was made, Bonner amended his petition to include this loan.

Having set forth the facts, we now compliment the parties’ attorneys for the excellent briefs furnished us seeking to apply the law to the issues raised by the facts. As we see it, the issues framed by the briefs of the parties are as follows:

I. a. Was the petitioner denied procedural due process of law at his disciplinary hearing when issues were raised for' the first time at a hearing itself, of which he had only one day’s notice?

b. If the petitioner was not denied procedural due process, did he nevertheless sustain his burden of proof at the reinstatement hearing, entitling him to readmission to the Bar of the State of Alabama?

II. Was the petitioner denied substantive due process of law at a disciplinary hearing where the Disciplinary Board did not follow with exactitude its own rules?

We answer in the negative to each issue and affirm.

I. (a) and (b)

The petitioner’s arguments that he was denied procedural due process when the Bar’s assistant general counsel, at virtually the last minute, raised the issue of whether he had actually reimbursed Old Southern for its losses fall short of their mark because of an inherent confusion of the burden of proof in original disbarment cases, as opposed to cases where the attorney seeks readmission to the Bar. In original disbarment cases, the burden of proof is on the Bar’s counsel to prove facts sufficient to justify the Disciplinary Board in ordering disbarment. The burden of proof is on the other party in reinstatement cases. In such cases, the disbarred lawyer must prove by clear and convincing proof that he is entitled to reinstatement. The governing principle is in Rule 19(c) of the Code of Professional Responsibility of the Alabama State Bar (Rules of Disciplinary Enforcement), which reads as follows:

At the hearing the petitioner shall have the burden of demonstrating by clear and convincing evidence that he has the moral qualifications to practice law in this State and that his resumption of the practice of law within the State will not be detrimental to the integrity and standing of the Bar or the administration of justice, or subversive of the public interest. . . .

Our analysis of the rule leads us to the conclusion that the Bar’s counsel was under no obligation to offer any evidence in the reinstatement proceedings. His calling attention to a weakness in petitioner’s proof on restitution can by no means be construed as denial of procedural due process, inasmuch as it was the burden of the petitioner to negate any inference that restitution had not been made.

Petitioner suggests that he had been led to believe that the issue of restitution had been laid to rest in the first reinstatement hearing. We have read and reread the record, in an attempt to find any commitment, stipulation, or promise, but have been unable to find any support for this belief.

It was observed in In re Hiss, 368 Mass. 447, 333 N.E.2d 429, 438 (1975):

The judgment of disbarment “continues to be evidence against . .. [the petitioner] with respect to lack of moral character at later times in accordance with the principle that ‘a state of things once proved to exist may generally be found to continue.’ Galdston v. McCarthy, 302 Mass. 36, 37, 18 N.E.2d 331, 332 [1938], Whatever the offense for which a judgment of disbarment was entered, the person disbarred has a heavy burden on a subsequent petition for admission to the bar to overcome by evidence the weight of the facts adjudicated by such judgment and to establish affirmatively that since his disbarment he has become ‘a person proper to be held out by the court to the public as trustworthy.’ ” Matter of Keenan, 313 Mass. 186, 219, 47 N.E.2d 12, 32 (1943). See McArthur v. State Bar of Cal., 28 Cal.2d 779, 788, 172 P.2d 55 (1946). [Footnotes omitted.]

Proof that an attorney has become a proper person to be held out to the court as worthy of public trust includes overwhelming proof that restitution has been made, in fact, as well as in form. Petitioner may have been well advised to have produced James Lane at the hearing and all legal documents surrounding the loan transaction with James Lane, including the disbursement checks to prove, unequivocally that the restitution was genuine and not a pretext.

We have set out facts in the beginning of our opinion which are rather bizarre. There are some who take the position that there are certain heinous offenses against the judicial system which should forever bar attorneys from reinstatement. The rule would be that “no matter what a disbarred attorney’s subsequent conduct may be; no matter how hard and successfully he has tried to live down his past and atone for his offense; no matter how complete his reformation — the door to restoration is forever sealed against him.” In Re Stump, 272 Ky. 593, 597-598, 114 S.W.2d 1094, 1097 (1938). We do not subscribe to this position in Alabama. Alabama has subscribed to the principle set forth in the case of In Re Stevens, 59 Cal.App. 251 at 255, 210 P. 442 (1922):

[0]ne who has been guilty of the acts which he has committed should not be reinstated in the ranks of the legal profession except upon the most clear and convincing, nay, we will say upon overwhelming, proof of reform — proof which we could with confidence lay before the world in justification of a judgment again installing him in the profession which he has so flagrantly disgraced. [Emphasis added.] [Cited in In re Stephenson, 243 Ala. 342, 10 So.2d 1 (1942)].

Under that holding, Bonner was due to offer proof to the Disciplinary Board concerning the restitution matter that would make him “clean as a hound’s tooth.”

The petitioner has cited for our consideration several important United States Supreme Court cases, as well as our decision in Opinion of the Justices, 345 So.2d 1354 (Ala.1977). These cases are Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1964); In Re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). These cases deal with the notice required to meet procedural due process standards. They are important and probably would be decisive if this were an original disbarment case. The Willner case is a petition by the plaintiff to be allowed to be admitted to the practice of law. The Ruffalo case is a case concerning whether or not an attorney should be disbarred in federal court, where he had been disbarred by the Supreme Court of Ohio. The Gault case involves the commitment of a 15-year-old boy to the state industrial school as a juvenile delinquent. All of these cases are inapposite here. None are bar reinstatement cases. The United States Supreme Court case that comes closest to the factual situation involved in the instant case is Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). There, the court held that inmates in a penal institution had a liberty interest under the 14th Amendment to the Constitution of the United States that was protected by due process, but it was a different liberty interest from that of persons who were already on parole and against whom parole revocation was being sought. The majority of the court explained the difference between the rights of persons expecting release from incarceration and the rights of persons who are already free on parole but subject to procedures which might possibly bring about incarceration. The court held that the petitioners in the Greenholtz case (inmates in Nebraska penal institutions) had received all the process that was due them by the procedures set up by the Nebraska State Board of Parole. We hold that the Disciplinary Board, in affording petitioner an opportunity to rebut any confusion that may have been caused by the issue of restitution, afforded all the process that was due and which petitioner’s liberty interest justified under the facts of this case.

We agree with the petitioner that an application for reinstatement of an attorney, after judgment of disbarment, must be treated as an application for admission to practice, and not an application to vacate the order of disbarment. In re Stephenson, 243 Ala. 342, 10 So.2d 1 (1942); In re Gaines, 251 Ala. 329, 37 So.2d 273 (1948); Ex parte Montgomery, 244 Ala. 91, 12 So.2d 314 (1943); Danford v. Superior Court, 49 Cal.App. 303, 193 P. 272 (1920). However, we have said that his burden is usually heavier because he must dispel the cloud of distrust engendered by his disbarment. Because application for reinstatement is to be considered an application for admission, petitioner argues that our recent decision in Reese v. Board of Commissioners of the Alabama State Bar, 379 So.2d 564 (Ala. 1980), mandates his readmission to the Bar. The cases are clearly distinguishable. In Reese, the petitioner was making his first application for certification as a law student. His brushes with the law were not nearly as severe as Bonner’s.

Although we are not privy to the reasons for the Board’s decision not to reinstate Bonner, we can see reasonable bases for failure to reinstate, based solely on the testimony of Bonner. Canon 9, Code of Professional Responsibility of the Alabama State Bar, provides that lawyers should avoid even the appearances of professional impropriety. In his sworn testimony, Bonner indicated that he had no qualms about his legal association with Old Southern, under appropriate conditions. This is the same company that he said required him to give kick backs on 40 or 50 occasions. Even since his disbarment, he has performed business responsibilities for Old Southern, to the extent he was loaned $1,000.00 by James Lane and given an advancement of $5,000.00 on an assignment which is yet to be accomplished. It is conceivable that the Disciplinary Board felt that if Bonner were reinstated, he would go right back to the same business that originally got him in trouble.

We agree that although courts are slow to disbar, they are slower to reinstate. In re Petition of Morrison, 45 S.D. 123, 126, 186 N.W. 556, 557 (1922). The petitioner here has been disbarred for a little over three years. It is common knowledge that virtues do not come about more quickly than vices. The Disciplinary Board could have had these principles in mind when it refused to reinstate the petitioner.

Under the circumstances, we cannot say that the Board was wrong in deciding that Bonner had failed to prove by clear and convincing evidence that he had reformed, was of good moral character, and was worthy to be enrolled as an attorney in the State of Alabama.

II.

Petitioner complains that the Board of Bar Commissioners did not comply with Rule 19(c), which provides as follows: “Upon receipt of the petition by the Disciplinary Board the Chairman shall promptly set the petition for a hearing within 28 days.” Here, the petition was set for a hearing 109 days after it was filed. Petitioner quotes a statement cited in Frozen Food Express, Inc. v. United States, 535 F.2d 877, 880 (5th Cir. 1976), to the effect that “There may not be a rule for Monday, and another for Tuesday, a rule for general application, but denied outright in a specific case.” This is essentially an equal protection argument and petitioner has not demonstrated that other applicants’ petitions have been set within the 28 days, and his was arbitrarily set 109 days from filing. For aught that appears, other petitions may have been set more than 109 days from the filing.

Finally, we hold that the 28-day rule is directory and not mandatory. Failure to comply therewith, where reasonable and absent substantial prejudice to the petitioner, may be tolerated. Arden v. State Bar of California, 52 Cal.2d 310, 341 P.2d 6 (1959); Geibel v. State Bar of California, 11 Cal.2d 412, 79 P.2d 1073 (1938), cert. denied, 305 U.S. 653, 59 S.Ct. 248, 83 L.Ed. 423 (1938); In re Posler, 393 Mich. 38, 222 N.W.2d 511 (1974); Matter of Wireman, 367 N.E.2d 1368 (Ind.1977), cert. denied, 436 U.S. 904, 98 S.Ct. 2234, 56 L.Ed.2d 402 (1978), 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261 (1980).

Nothing in this opinion is to be construed as precluding petitioner from reapplying for admission to the Bar, consistent with rules set forth in the Code of Professional Responsibility of the Alabama State Bar, adopted May 6, 1974. The Board will consider his petition in the light of the principles set forth in this opinion as well as the general law of reinstatement of attorneys. Its decision of May 30, 1980, is due to be affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Stella M. JONES v. Melonae BURLINGTON, et al.
    79-710.
    Supreme Court of Alabama.
    June 26, 1981.
    Bryant F. Williams, Jr., Ozark, for appellant.
    Joseph W. Adams of Steagall & Adams, Ozark, for appellees.
   EMBRY, Justice.

Stella M. Jones filed this action seeking reformation of a deed and specific performance of a contract to convey lands. The defendants are heirs of J. B. Bright. Bright, prior to his death, delivered a deed to five acres of his land to Jones and contracted with her to convey his lands lying south of the public road running through the NW Vi of NW Vi, Section 5, Township 6 North, Range 26 East, Dale County, Alabama, in consideration of Jones providing physical care of him during the remainder of his life.

The parties entered into a settlement which was dictated into the record. It provided for reformation of the deed and for an award to defendants of varying proportionate undivided interests in four acres of the land. Bright owned at his death lying south of the public road running through the NW Vi of NW xk, Section 5, Township 6 North, Range 26 East, Dale County, Alabama. The remainder of that property south of the road was to be awarded to plaintiff. The settlement described the four acre parcel awarded defendants as:

[T]he four acre parcel of land commencing at the eastern most point of the J. B. Bright lands which intersects the road and then running a sufficient number of feet back west along the south boundary of the south right of way line of the road a sufficient number of feet that when you go in a perpendicular manner to the back property line that a four acre parcel is carved from the lands ....

On Jones’s motion for a register’s deed the trial court ordered that a register’s deed be executed and delivered to defendants conveying the following described land:

A parcel of land in Dale County, Alabama, and being more particularly described as follows: Beginning at the Northeast corner of the NW Vi of the NW Vi of Section 8, T6N, R26E, and thence Sl° 39'29"E along the east line of said forty, 722.70 feet; thence N41° 54'42"W, 641.46 feet to the southerly side of the Public Paved Road leading from Wesley Chapel to Brown’s Church (SACP 7202-A); thence N48° 05'18"E, along the southerly side of said road, 314.45 feet; thence N47° 54'35"E, along the southerly side of said road, 229.27 feet; thence Sl° 39'29"E, 149.7 feet to the Point of Beginning. Said parcel being in the NW Vi of the NW Vi of Section 8, T6N, R26E, and the SW Vi of the SW Vi of Section 5, T6N, R26E, and containing 4.0 acres, more or less.

Parcel 2 in the sketch in Appendix B shows the land in this description.

The trial court’s judgment provided that a register’s deed be executed and delivered to plaintiff conveying 22 acres of land: that owned by Bright south of the road exclusive of the four acres discussed previously. Parcel 1 in the sketch in Appendix B shows this land.

The issues raised by Jones’s appeal are: (1) Whether the trial court committed reversible error in construing the parties’ settlement stipulation and as a result ordered a different four acre tract deeded to defendants than that provided for by the stipulation; and (2) whether the trial court erred in not setting aside the judgment entered on the settlement agreement on account of fraud or mistake?

Jones contends the settlement agreement stated into the record provided for a long and narrow four acre tract running along the east side of the Bright lands as shown by parcel 2 in the sketch in Appendix A. This is based on Jones’s construction of the description of the boundary between the four acre tract and the 22 acre tract as it reads in the stipulation.

The effect of the agreement regarding the four acre parcel was to place a single division line or boundary line across the land owned by Bright at his death in order that a four acre parcel could be conveyed to Bright’s heirs. Jones argues that the settlement agreement provided for that line to form a perpendicular or 90 degree angle with the back property line and fall where it might along the road and thus divide a four acre parcel from the rest of the land (see Appendix A).

The trial court, by entering an order for the issuance of a register’s deed for the property to be deeded the heirs of J. B. Bright, interpreted that settlement agreement so that the dividing boundary line would run perpendicular to or at a 90 degree angle from the south side of the paved road (see Appendix B).

Unquestionably, the wording of the settlement agreement is ambiguous. Such a stipulated compromise is nonetheless a contract and its construction is governed by legal principles applicable to contracts generally. The primary object of judicial interpretation of such an agreement is to effectuate the intention of the parties in light of the language used and circumstances surrounding its making. 15A Am.Jur.2d Compromise and Settlement, § 23 (1976).

We find no error in the trial court’s construction of the contract in light of the surrounding circumstances. The trial court had the opportunity to hear evidence, ore tenus, of the surrounding circumstances in order to construe the contract according to the intention of the parties as expressed in it. Its construction is a more practical construction than the construction advocated by Jones. Her construction would create a tract with severely impaired utility owing to its long and narrow configuration.

Furthermore, we find no reversible error in the trial court’s failure to grant a new trial or to set aside the judgment on the basis of fraud or mistake. Whether Jones entered into the settlement agreement because of a mistake as to its terms or because of a fraud perpetrated on the appellant are factual questions for resolution by the trial court. The granting or refusal of a motion for new trial rests within the sound discretion of the trial court. Its exercise of that discretion is presumed correct and will not be disturbed unless some legal right was abused and the record shows plain and palpable error by the trial court. Hill v. Cherry, 379 So.2d 590 (Ala.1980). This is not such a case; therefore the judgment below is affirmed.

AFFIRMED.

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

APPENDIX A

APPENDIX B


text:
    Hugh V. SMITH, Jr. v. DISCIPLINARY BOARD OF the ALABAMA STATE BAR.
    79-862.
    Supreme Court of Alabama.
    July 10, 1981.
    Frank 0. Burge, Jr. and James L. North and Mark E. Ezell of North, Haskell, Slaughter, Young & Lewis, Birmingham, for appellant.
    William H. Morrow, Jr., Gen. Counsel, Alabama State Bar, Montgomery, for appel-lee.
   EMBRY, Justice.

Hugh V. Smith, Jr., appeals from an order of suspension rendered by Panel II of the Disciplinary Board of the Alabama State Bar suspending him from the practice of law for three months. The Board found Smith in violation of Disciplinary Rule 1— 102(AX4) on four charges. That rule proscribes a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, or being guilty of willful misconduct.

Issues

Whether the Board erred in determining that Smith violated Disciplinary Rule 1-102(A)(4).

Whether the Board erred in determining the appropriate discipline to be imposed upon Smith.

Smith was found guilty of four of the nine charges against him. Of the four, three involved the attorney’s final certificates to Mississippi Valley Title Insurance Company which falsely recited “. . . that nothing has been filed of record or come to the attention of the undersigned which would affect adversely the estate or interest in said real estate to the insured; . . . . ” One related to a lot conveyed to Frank Wayne Bailey and Agnes G. Bailey on or about 15 April 1975. Another related to a lot conveyed to Alexander Hooker Caroth-ers and Helen J. Carothers on or about 15 April 1975. The third certificate related to a lot conveyed to Voy J. Nicholson and Martha L. Nicholson on or about 31 July 1975, the purchase of which was financed by Central Bank of Montgomery, Alabama, the insured mortgagee. The other charge involved the execution of warranty deed to Voy J. Nicholson and Martha L. Nicholson on or about 31 July 1975 concerning which the attorney’s final certificate referred to above was made. The warranty deed falsely recited that the premises “. . . are free from all encumbrances. .. . ” At the time the final certificates were made, and the warranty deed executed, each of the premises, the subject of the certificates and the warranty deed, was encumbered by a $600,-000 unsatisfied mortgage of record to Herman Gibson and one for $2,600,000 to Housing Investment Corporation.

Smith contends that Rule 1-102(A)(4) refers to conduct requiring an evil motive or intent but does not cover the mere failure to exercise good judgment or utterance of a misleading statement. He says he had no evil motive, but, to the contrary, genuinely believed his representations to be accurate. He says further, that neither of the certificates nor the warranty were false. He bases this contention on his interpretation of the legal effect of the mortgages: the interests of the purchasers were not impaired because the mortgages were not valid liens.

Presumably, Smith regarded the purchase money mortgage to Herman Gibson ineffective as a lien because the debt was otherwise sufficiently secured and also because he had tendered full payment at the time he purchased the property but Gibson opted instead to take an installment note secured by a mortgage on the property and other assets.

Allegedly Smith regarded HIC’s interest in the lots under its mortgage as having been waived because of a statement made to him by an agent of HIC. Smith had informed the agent that the proceeds of the loan secured by the HIC mortgage were not sufficient to complete the real estate development project and indicated it would probably have to be shut down. Smith was told by the agent to “do whatever is necessary to keep the project going.” Smith contends that by making this statement HIC either waived its interest or is estopped from asserting it under the mortgage regarding the lots in question which were sold to keep the project going.

Smith was the seller of each of the properties concerning which he made the certificates and warranty. This being true, there is no need for further discussion of the facts upon which Smith based his representation to Nicholson that title to the lot sold him was “free from all encumbrances” or certified to each of the purchasers that there was nothing of record which would adversely affect the respective interest of each as an insured in the real estate to be insured.

There is sufficient evidence here to support the Disciplinary Board Panel’s determination that Smith was guilty of engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, or was guilty of willful misconduct with respect to each of the incidents in question. Smith did not inform any of the purchasers or the title insurance company of the unsatisfied mortgages of record. He also failed to discuss with them the basis of his legal conclusions that the mortgages were not effective liens. There is no serious contention here that Smith was not fully aware of the two unsatisfied mortgages of record. Smith’s defense that he believed the mortgages were not encumbrances and they would not adversely affect the estates or interests of the insureds under the title insurance policies tests one’s credulity. We are compelled to the conclusion that the Disciplinary Board Panel committed no error in its determination of guilt.

Regarding the appropriateness of the discipline imposed on Smith, we are not inclined to alter it. Although clearly the court possesses inherent powers over admissions and disbarments, Board of Commissioners of the Alabama State Bar v. Baxley, 295 Ala. 100, 324 So.2d 256 (1975), under the facts and circumstances of this case we do not consider discipline imposed by the Disciplinary Board Panel in this case so inappropriate as to justify this court’s altering it by either increasing or decreasing its degree.

For the reasons assigned, the order of suspension rendered by Panel II of the Disciplinary Board of the Alabama State Bar on 27 June 1980 is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, SHORES, BEATTY and ADAMS, JJ., concur.


text:
    STAUFFER CHEMICAL COMPANY, INC. v. McINTYRE ELECTRIC SERVICE, INC.
    80-47.
    Supreme Court of Alabama.
    July 10, 1981.
    James D. Brooks and Carl Robert Gott-lieb, Jr., Mobile, for appellant.
    Bert S. Nettles and J. F. Janecky, Mobile, for appellee.
   ADAMS, Justice.

Stauffer Chemical Company appealed a judgment of the Circuit Court of Mobile County dismissing Stauffer’s third-party complaint against McIntyre Electric Service, Inc. After Stauffer was sued by an employee of McIntyre, for injuries allegedly sustained on Stauffer’s premises, Stauffer brought a third-party complaint against McIntyre. Stauffer sought indemnification from McIntyre pursuant to a hold harmless agreement entered into by McIntyre with Stauffer. McIntyre filed a motion to dismiss the third party complaint, and later moved to have its motion to dismiss treated as one for summary judgment. The trial court granted summary judgment in favor of McIntyre, and pursuant to Rule 54(b), Alabama Rules of Civil Procedure, entered final judgment in favor of McIntyre.

This is another in a line of cases to come before this court in recent years testing the perimeter of the immunity provided by our workmen’s compensation statute, to an employer in regard to injuries to an employee. The issue on this appeal was considered by this court in Paul Krebs & Associates v. Matthews & Fritts Const., 356 So.2d 638 (Ala. 1978). There the court considered “whether an employer’s statutory immunity from suits on account of injury to employees under § 25-5 — 53, 1975 Code, protects the employer from suits by third parties seeking indemnity (under contractual provisions) from claims arising out of injuries sustained by employees of the same employer.” This court answered in the affirmative and held that an employer would not be held liable. Paul Krebs & Associates.

Stauffer next argues that Alabama’s workmen’s compensation law, Code 1975, § 25-5-1, et seq., deprives it of a remedy for its injury suffered by breach of the hold harmless agreement between it and McIntyre. This, Stauffer contends, violates Ala. Const. 1901, art. I, § 13. In Hertz Equipment Rental Corp. v. Dravo Corp., 360 So.2d 325, 326 (Ala. 1978), this court held that “the right to indemnification ... is not a cause of action and remedy preserved by our constitution.”

In light of the unequivocal pronouncements in Paul Krebs & Associates and Hertz, we are bound to uphold the judgment of the trial court.

Affirmed.

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


author: PER CURIAM.

text:
    Morris RANSOM, et al. v. Jessie Lee RANSOM.
    80-137.
    Supreme Court of Alabama.
    July 10, 1981.

      Joseph W. Smith and W. Donald Morgan, Jr., of Smith, Smith & Morgan, Phenix City, for appellants.
    Larry W. Roney, Phenix City, for appel-lee.
   PER CURIAM.

This appeal is a constitutional attack, on equal protection and due process (gender-based) grounds, of the “old” Homestead Act (Title 7, § 663, Code 1940, the forerunner of § 6-10-62, Code 1975, which latter statute substituted “spouse” for “widow”).

James Ransom, a resident of Russell County, Alabama, died intestate on October 7, 1972. He left surviving him a widow, Jessie Lee Ransom, the appellee. Mr. Ransom had no children and his parents predeceased him. His next of kin at the date of his death, the appellants, were his brothers and sisters.

At the date of his death, Mr. Ransom owned an undivided one-half interest in a small parcel of real estate located in Russell County, where he lived with his wife. He owned no other real estate.

On August 6, 1980, Jessie Lee Ransom sought to have this undivided one-half interest set apart to her as homestead pursuant to § 6-10-62, Code 1975. There had been no previous administration with respect to Mr. Ransom’s estate. Commissioners were appointed to appraise the realty and returned their report setting apart the property as requested on August 8, 1980. Notice of this action was given to the heirs at law as provided by statute.

The heirs appeared at the hearing set for September 23, 1980, and filed written objection to the setting apart of homestead, alleging that: (1) § 6-10-62 was inapplicable because Mr. Ransom died prior to its enactment; (2) the applicable section, Code of Alabama 1940 (Recomp.1958), Title 7, § 663, is violative of equal protection since it mandates unlawful gender based discrimination; and (3) the real estate descended to the next of kin by virtue of statute.

Mrs. Ransom then amended her application to have homestead set apart under the earlier code section.

On October 6,1980, the matter was again heard and homestead was set apart to Jessie Lee Ransom and approved by the Probate Court. The intestate’s siblings appeal.

Two dispositive issues are presented:

1. Whether Title 7, Section 663 (the homestead act in effect at the time of intestate’s death), is violative of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

2. If so, whether the homestead act (of the 1940 Code) must be terminated, thus denying its benefits to the class of persons therein specified; or whether its scope may be judicially expanded, thus according it constitutional validity.

We agree with appellants that because James Ransom died on October 7, 1972, the controlling homestead and descent statutes are Title 7, § 663, and Title 16, § 1(5), (6), Code 1940, respectively, Mordecai v. Scott, 294 Ala. 626, 320 So.2d 642 (1975).

That the homestead act, which uses the operative word “widow,” is gender-based and beyond rational support as against a constitutional challenge is not fairly debatable. Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Peddy v. Montgomery, 345 So.2d 631 (Ala.1977). Thus, we answer the first issue in the affirmative.

Because its defect is one of underin-clusion (i. e., benefiting only the widow and not the widower), our declaration of the Act’s invalidity, however, does not automatically, and of itself, necessitate its termination.

This precise point is addressed by the Court of Civil Appeals in Orr v. Orr, 374 So.2d 895 (Ala.Civ.App.1979):

Where a statute is constitutionally infirm on the basis of underinclusiveness, a court may satisfy the Constitution’s commands by either extending benefits to those excluded from the scope of its coverage or by invalidation of the statute in its entirety. Orr, supra; Welsh v. U. S., 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). In Welsh, supra, the Supreme Court stated:
Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion. . . . (Citations omitted.) 393 U.S. at 361, 90 S.Ct. at 1807-1808, Harlan, J., concurring.
Courts have on a number of occasions remedied the deficiencies in underinclu-sive statutes by extending benefits to those impermissibly excluded. See, e. g., Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977); Weinberger v. Wissenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1965); White v. Crook, 251 F.Supp. 401 (M.D.Ala.1966); Beal v. Beal, Me., 388 A.2d 72 (1978). See also Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974).

As between declaring the Act invalid or expanding the scope of its applicability, we choose the latter and hold that the remedial alternative of expansion rather than invalidation of the whole is more in keeping with the history of the legislative purpose of the homestead act.

As the Orr Court, 374 So.2d at 897, stated:

The choice between invalidation of a statute or expansion of the scope of its applicability requires, of necessity, an ascertainment of the predominant legislative purpose underlying the statute’s enactment. Beal, supra. That is to say, given the nature and substance of the statute, its relevant economic, social, and historical implications, can it be concluded that benefits should be terminated to the class of persons whom the legislature intended to benefit. In this instance, we think not.

Applying the Orr test — for extension vel non of coverage of an underinclusive statute — to the homestead statute here challenged, we draw the same conclusion as that reached in Orr. For this Court to declare the homestead act a nullity (the remaining remedial alternative suggested by Mr. Justice Harlan in Welsh), thus “ordering] that its benefits not extend to the class that the legislature intended to benefit,” would be in defiance of the Act’s “relevant economic, social, and historical implications.”

For the purposes here pertinent, we believe the following language from Harrod v. Farmer, 273 Ala. 298, 139 So.2d 115 (1962), amply supports our application of the expansion doctrine:

As we pointed out in our recent case of Durham v. Mims, 269 Ala. 477, 114 So.2d 245 (in which case we went somewhat into the history of the legislation) the homestead statute confers no right upon decedent’s collateral heirs, grants to them no exemption, nor vests in them any title to decedent’s homestead property. Whatever title such heirs have or may have, in the absence of a will, arises out of and depends upon the statute of descent and distribution. — Code, Title 16, § 1. Provision has been consistently made in the homestead statute whereby the interests of collateral heirs may be protected, such as notice and opportunity to appear and be heard in proceedings to set aside homesteads. We have said that the only grounds given “other heirs” of decedent on which they may contest exemptioners’ right to have homestead set apart are that it exceeded the amount and value of the exemption allowed and was not all the real estate owned by decedent at the time of his death. Obviously, however, the right of contest on the part of such heirs could arise only where there are no children or descendants of deceased children of the homestead owner, and could arise only as against the widow, the only other homestead exemptioner, this for the reason that collateral heirs, such as brothers and sisters, are by the descent statute subordinated, in order of inheritance, to children and descendants of deceased children of the decedent. The result has been that the widow, except to a very limited extent, has been placed in a position inferior to that of the collateral heirs named in the descent statute. The effect of the amendments of §§ 661 and 663 is to place the widow in a more advantageous position than she had previously occupied, enabling her not only to occupy but to obtain title to the homestead of her deceased husband unlimited as to value, yet limited to 160 acres in area, where there are not debts of the estate or they have been paid by her. We are unable to say that this effect was not intentional on the part of the legislature in amending the statute.

We hold (in keeping with the handling in Orr), just as in the alimony statute challenged in Orr, the legislative intent to provide Mrs. Ransom a right of homestead in her deceased husband’s one-half interest in the homeplace is better effectuated by breathing into the Act constitutional validity than by declaring the Act a nullity.

AFFIRMED.

MADDOX, FAULKNER, JONES, SHORES and ADAMS, JJ., concur.

TORBERT, C. J., and ALMON, EMBRY and BEATTY, JJ., concur in the result.

      . Title 16, § 1, Code 1940, is codified in the 1975 Code as § 43-3-1 which, as last amended, altered the priority of a widow from place number six to place number two in the course of descents, effective as of May 28, 1980.


author: TORBERT, Chief Justice.

text:
    Ex parte ALLSTATE INSURANCE COMPANY. In re Douglas R. GOULET v. ALLSTATE INSURANCE COMPANY.
    80-148.
    Supreme Court of Alabama.
    July 10, 1981.

      Fred W. Killion, Jr., and Patricia K. 01-ney of Reams, Wood, Yollmer, Philips, Kil-lion & Brooks, Mobile, for petitioner.
    Robert L. Byrd, Jr., and Robert T. Cunningham, Jr., of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for respondent.
   TORBERT, Chief Justice.

Plaintiff, Douglas Goulet, insured by Allstate, was seriously injured in an automobile accident with an uninsured motorist on May 12, 1979. Allstate investigated the accident and found it to be a case of liability on the uninsured motorist. A draft for $11,000, the supposed policy limit, was delivered to Goulet’s attorney after it was confirmed that his medical expenses exceeded that amount.

Subsequently, Goulet discovered that since there were two cars covered by the same policy, he was entitled to an additional $10,000 in uninsured motorist coverage. In an effort to obtain the additional sum from Allstate, his attorney sent two letters to the Company. Receiving no response to either letter, Goulet filed suit on December 6, 1979, for the additional amount due him and for punitive damages for misrepresentation. After suit was filed, Allstate made an offer of judgment for the additional $10,000 plus $2,500 in court costs and attorney’s fees, the expenses entailed by Goulet in obtaining the $10,000.

Goulet refused the offer of judgment, and on May 5, 1980, served the following interrogatory on Allstate:

State the names and present addresses of all persons which fall within the following definition:
Persons who, within the past two years, were paid $10,000 in uninsured motorists benefits pursuant to a policy with your company and who, at the time of said payment, had more than one vehicle listed on the policy which fell within the meaning of the statement on your declarations sheet: “The following coverages and limits applied to each described vehicle as shown below:” (This question does not seek the names and addresses of any persons who were represented by counsel at the time of payment of the $10,000 nor does it seek the names and addresses of any persons who were paid $10,000 as a result of litigation, nor does this definition seek the names and addresses of any persons who resided outside the state of Alabama at the time of said payment).

On June 12, Allstate having failed to answer the interrogatory, Goulet filed a motion to compel. This motion was granted. Allstate then filed a motion for extension of time, which was also granted.

Ultimately, Allstate responded to Goul-et’s interrogatory by objecting to it on the grounds that: (1) it was irrelevant and could not possibly lead to the discovery of admissible evidence; (2) it was overly broad, oppressive, unduly burdensome, extremely expensive, and an abuse of discovery; and (3) to release the information to plaintiff’s counsel would violate the privacy interests of Allstate’s insureds without their consent. Goulet then filed a motion to compel discovery. In the course of the hearing on Goulet’s motion, Allstate offered evidence that answering the interrogatory would require the development of a computer program, the cost of which would exceed $1,000, and an extensive manual search of Allstate’s files, since the computer did not possess enough information to narrow the list of insureds to only those who possess the qualifications set out in Goulet’s interrogatory. Allstate argued further that since the duty owed to insureds represented by counsel is quite different from that owed to those not so represented, and since Goul-et was represented by counsel, the names and addresses of insureds not represented by counsel could have no relevance to Goul-et’s case. Judge Braxton Kittrell granted the motion and ordered Allstate to answer the interrogatory, and Allstate filed a motion to reconsider, which was denied. Allstate then brought a petition for mandamus to review Judge Kittrell’s order denying its motion for reconsideration, alleging that he abused his discretion.

Mandamus is a proper means of review to determine whether a trial judge has abused his discretion in ordering discovery. See, Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978). However, matters resting in the sound discretion of the trial court will not be disturbed on appeal unless there has been a clear abuse of discretion. Williamson-Johns Co. v. Johns, 355 So.2d 706 (Ala.1978); City of Mobile v. Wooley, 278 Ala. 652, 180 So.2d 251 (1965); Colquett v. Williams, 264 Ala. 214, 86 So.2d 381 (1956). We cannot say from the evidence presented that there was such a clear abuse of discretion by the trial judge in the case before us. Under Rule 26 of the Alabama Rules of Civil Procedure, parties are entitled to discover “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” ARCP 26(b)(1). Furthermore, the Rule provides that “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Evidence of similar misrepresentations made to others by the defendant is admissible in a fraud action. Cartwright v. Braley, 218 Ala. 49, 117 So. 477 (1928). Therefore, the information sought, the identity of others who had been paid $10,000 although their policy listed more than one vehicle, could very easily lead to admissible evidence. In the case before us, the trial court determined the interrogatory was proper. “The broad scope given our discovery rules necessarily requires that the trial court be vested with considerable discretion in ruling on such matters.” Drewes v. Bank of Wadley, 350 So.2d 402, 404 (Ala.1977). Also see, Ex Parte Guerdon Industries, Inc., 373 So.2d 322 (Ala.1979); Campbell v. Regal Typewriter Co., 341 So.2d 120 (Ala.1976). Since we find no abuse of discretion, the petition for writ of mandamus is due to be denied.

PETITION DENIED.

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


author: PER CURIAM. JONES, Justice EMBRY, Justice

text:
    David BENAUER, a minor, etc. v. MEDICAL CENTER HOSPITAL, INC., etc., et al.
    80-162.
    Supreme Court of Alabama.
    July 10, 1981.

      Carl Wade Robinson and Carl Ray Robinson, Bessemer, and Hogan, Smith & Als-paugh, Birmingham, for appellant.
    M. P. Ames of Reeves & Stewart, J. Garrison Thompson of Pitts, Pitts & Thompson, and Harry W. Gamble, Jr. of Gamble & Gamble, Selma, for appellees.
   PER CURIAM.

Affirmed on the authority of Reese v. Rankin Fite Memorial Hospital, 403 So.2d 159 (Ala.1981).

AFFIRMED.

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

JONES, J., concurs specially.

FAULKNER and EMBRY, JJ., dissent.

BEATTY, J., recused.

JONES, Justice

(concurring specially):

My views on the issues presented in this case are expressed in my special concurrence in Reese v. Rankin Fite Memorial Hospital, 403 So.2d 159 (Ala.1981).

EMBRY, Justice

(dissenting):

I would reverse and remand on the bases stated in my dissent in Reese v. Rankin Fite Memorial Hospital, 403 So.2d 159 (Ala. 1981).

FAULKNER, J., concurs.