author: BROOM, Justice,

text:
    MISSISSIPPI GULF COAST FISHERMEN’S ORGANIZATION, INC. v. MISSISSIPPI MARINE CONSERVATION COMMISSION et al.
    No. 52130.
    Supreme Court of Mississippi.
    Sept. 10, 1980.

      Walter E. Ross, Jr., Ross & King, Biloxi, for appellant.
    Lucien M. Gex, Jr., Waveland, Bobby G. O’Barr, O’Barr & Hurlbert, Biloxi, for ap-pellees.
    Before BROOM, LEE and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Shrimp taking pursuant to Ordinance 86 (0-86 herein) of the Mississippi Marine Conservation Commission is the salient feature of this case appealed from the Chancery Court of the Second Judicial District of Harrison County, Mississippi. 0-86 allowed bait fishermen to take from the waters certain shrimp along the Mississippi Gulf Coast. Under 0-86, these waters were not opened to other commercial fishermen; consequently, Mississippi Gulf Coast Fishermen’s Organization, Inc., a non-profit corporation of commercial fishermen (appellant herein), brought this injunction suit contending that 0-86 was invalid. After hearing testimony, the lower court (Chancellor Frank Alexander) denied the injunction, and found that 0-86 was a proper exercise of authority under Mississippi Code Annotated § 49-15-15(3)(k) (Supp.1979). We affirm.

Appellant contends: (1) the Commission exceeded its statutory authority in adopting 0-86 and two other ordinances; (2) the ordinances were not within the conservation mandates of state statutes because nursery areas for shrimp were permitted to be invaded; (3) appellant was denied its right of equal protection by the adoption and enforcement of these ordinances; and (4) appellant, in seeking to enforce the declared public policy of Mississippi Code Annotated § 49-15-1 (Supp.1979) and related sections, was entitled to attorney’s fees.

0-86 was passed at a special meeting of the Mississippi Marine Conservation Commission (Commission herein) on April 20, 1978; its practical effect was to allow no one but live bait fishermen to enter and take shrimp from our coastal waters North of Deer Island, North of a line from Grand Bayou on Deer Island as it runs to the Northeast to Marsh Point. Also, under 0-86, live bait fishermen were allowed to catch live bait in all areas North of the L & N Railroad as it runs through the coastal counties after July 1 of each year unless it was determined that 75% of the shrimp are smaller than 90 to 100 to the pound. At the time 0-86 was passed, Ordinances Nos. 59 and 63 (6-59 and 0-63 herein), which closed all areas one-half mile South of the Mississippi coastline to shrimping, excepting live bait captures, were in effect. On June 4, 1979, the Commission passed its order opening the 1979 shrimp season declaring the fishing grounds to be one-half mile from the shoreline of the three coastal counties. 0-59, 0-63 and the June 4, 1979 Order of the Commission in effect established a one-half mile staging area from the coastline and prohibited all shrimping therein except for 0-86. According to 0-86 live bait fishermen were authorized to catch shrimp within this one-half mile area which was not a part of the regular fishing grounds annually open to other commercial fishermen each year in June. Under 0-86, a total of 4,900 commercial shrimping licenses and 33 live bait licenses have been issued.

WAS THE COMMISSION’S ACTION IN ADOPTING 0-86, 0-59, 0-63 AND THE ORDER OF JUNE 4, 1979, IN VIOLATION OF ITS STATUTORY AUTHORITY AS EXCEEDING CONSERVATION MANDATES AND PERMITTING NURSERY AREAS TO BE FISHED?

Live bait catchers are, as pointed out by appellant, recognized under Mississippi Code Annotated § 49-15-29(i) (Supp.1979). That section provides that the live bait catchers must purchase a license to operate, and then the statute provides:

Such shrimp may be taken in either the closed or open season . ...

The position taken by appellant is that the Commission may only license live bait catchers to take shrimp in an area where others may do so although this may be done in “either the closed or open season.” They say that the Commission has too broadly interpreted § 49-15-29(i) and exceeded the “leeway the Legislature intended to grant the live bait catchers.” Additionally, the appellant argues that the legislative grant was “for one of additional time; it was not one of additional space.” Further elaborating upon its argument, the appellant contends “the Legislature, in allowing for live bait catchers to take (shrimp) during open or closed seasons, did not go so far as to allow them to take from any area, but instead limited the grant to that area where the season was opened or closed.”

In passing upon the argument before us, we are mindful of Mississippi Code Annotated § 49-15-1 (1972) which states that:

[I]t is the intent of the legislature to provide a modern, sound, comprehensive and workable law to be administered by specialists, who are vested with full and ample authority to take such action as may be necessary in order to help protect, conserve and revitalize seafood life in the State of Mississippi. [Emphasis supplied].

The wording of the portion of the statute just quoted makes it clear that the legislature in giving consideration to aquatic life was aware that each of the species has its own peculiarities and that the lawmakers could not effectively deal with the shrimping and fishermen’s industry with a rigid set of statutory regulations. Accordingly the legislature, so as to provide for the management and regulation of the fishing and shrimping industry, vested the Commission with broad and extensive powers:

1. § 49-15-11(1) (Supp.1979). The Mississippi Marine Conservation Commission is hereby established and full power is vested in the commission to manage, control, supervise and direct any matters pertaining to all saltwater aquatic life not otherwise delegated to another agency. [Emphasis supplied].
2. § 49-15-15(1) (Supp.1979). The express purpose of this section is to furnish the commission with jurisdiction and authority over all marine aquatic life.
3. § 49-15-15(3) (Supp.1979). In connection with its jurisdiction and authority, the commission:
(b) shall open, close, and regulate fishing seasons for the taking of shrimp, oysters, fish .
(c) shall set size, catching and taking regulations for all types of seafood

In order to provide statutory authority to deal with and provide for the needs of the shrimping (fishing) industry, there was enacted into law Mississippi Code Annotated § 49 — 15-15(3)(k) (Supp.1979):

(The Commission) is authorized to enact all regulations necessary for the protection, conservation or propagation of all shrimp, . . . . However, it shall be unlawful for any person, firm or corporation to take, catch or have in their possession . . . shrimp of a size weighing in the raw state less than one (1) pound to each 68 shrimp . . . This provision may be changed by a two-thirds (%) vote of the commission. [Emphasis supplied].

Appellant argues that the language of § 49-15-29(i), supra, permitting live bait fishermen to take shrimp in the closed or open season, precludes any other control by the Commission so as to allow live bait takers to operate where appellant may not. The statutory language is the following:

Such shrimp may be taken in either the closed or open season and may be sold only when alive or with the heads attached .

We do not agree with the appellant in its interpretation of this language. Analysis of the other statutory enactments referred to clearly establishes that the legislature had no intention to limit the Commission’s power according to the concept advanced here by appellant. Section 49-15-15(3)(b) gives the Commission the right to “. . . open, close and regulate,” and we cannot give the term “regulate” the narrow interpretation which appellant urges upon the Court.

“Regulate” is defined as:

(1) To govern or direct according to rule; to bring under the control of law or constituted authority; make regulations for or concerning.
(2) To reduce to order, method or uniformity.
(3) To fix the time, amount, degree, or rate of; to adjust so as to work accurately or regularly.
Webster’s Third New International Dictionary, page 1913.

Appellant urges that the statutes grant no authority to open areas outside the traditional shrimping grounds where shrimp are found in size to exceed 68 to the pound, or to allow the taking of shrimp in areas not otherwise opened or closed to other commercial fishermen. Section 49-15-15(3)(c) authorizes the Commission to “set size, catching and taking regulations for all types of seafood . . . .” We are unable to say that the ordinance under attack here sets forth powers in excess of those which the legislature intended for the Commission to exercise.

Another contention of the appellant is that 0-86 is not a conservation, protection, or propagation measure and therefore is outside the mandate of § 49-15-1 which vested in the Commission authority to “help protect, conserve and revitalize seafood life . .” A number of expert witnesses testified but their testimony was conflicting as to whether the action by the Commission would result in “conservation.” Our analysis of the expert testimony indicates that each of the expert witnesses understood and agreed that the highest and best use of the thing in controversy (shrimp) was an acceptable definition of “conservation.” Dr. Theodore Ford, Associate Director of the Louisiana Sea Grant College Program and Professor of Marine Sciences, testified:

Q. Dr. Ford, you were here yesterday, and I believe you heard the term, the definition used on several occasions, an acceptable definition of the term conservation as being the highest and best use of a resource. Do you agree with that as a definition?
A. That is a very acceptable definition.
Q. And have you read and studied Ordinance No. 86 of the Mississippi Marine Conservation Commission?
A. Yes, sir, I’ve reviewed it.
Q. Having reviewed that, what is your opinion as to whether or not that ordinance is consistent with the definition of the highest and best use of a resource?
A. I think it fits it very well because of two or three points; one, it provides for an orderly and reasonable and rational use of the resource.

Other experts presented different views on the subject.

The lower court observed the witnesses while they were upon the witness stand and agreed with the conclusion of the testimony offered by Dr. Ford and others on behalf of the Commission. In effect, the lower court found that the promulgation of 0-86 by the Commission was within its reasonable discretion and within the powers authorized by the legislature under § 49-15-15(3)(k), supra, permitting:

[A]ll regulations necessary for the protection, conservation or propagation of all shrimp, oysters, commercial fish and crabs in the waters under the territorial jurisdiction of the State of Mississippi.

Said section also provides:

This provision (as to the 68 count) may be changed by a two-thirds (%) vote of the commission.

We hold that the finding of the lower court was made upon sufficient evidence and a proper interpretation of the statutes.

Appellant contends that the constitutional guarantee of equal protection under the Mississippi and United States Constitutions is denied it by the ordinances. The gist of the argument here is that “live bait shrimpers” are treated differently and with favor as contrasted with the treatment of the other commercial fishermen. The effect of the ordinances under attack is to allow any fisherman to take live shrimp for bait provided the fisherman properly adheres to applicable regulations which are set forth in considerable detail. “Live bait fishermen” must use small nets so as to reduce the number of shrimp caught; they may only drag for brief periods of time so as to keep the shrimp alive; they must have certain type tanks; and they must adhere to other regulations. A question arising from the record is: Why does the Commission permit persons shrimping for live bait to fish within the half-mile limit and North of bridges? Wallace Andrews, a live bait dealer for thirty-four (34) years, answered the question:

Well, if we had to go outside and get in rough water, the shrimp would be beat to death on the walls of the tank. .

We are unable to agree with appellant’s argument that 0-86 arbitrarily favors “live bait shrimpers” over the others because conservation, according to the record, is the obvious purpose of the ordinance. Substantial testimony accepted by the lower court established that the ordinance would result in making the highest and best use of the shrimp industry as a resource of the State of Mississippi. We find no arbitrary or unlawful discrimination in the promulgation of the ordinance or in its application. As stated, any fisherman, including any of the appellants, may operate as “live bait shrimpers” provided they follow the applicable regulations set forth by the ordinances and statutes.

Another proposition argued is that the appellant was entitled to an award of attorney’s fees. We find that this proposition and others which were argued lack merit.

AFFIRMED.

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

PATTERSON, C. J., takes no part.


source: Caselaw Access Project

author: WALKER, Justice,

license: Public Domain

text:
    Victoria SMITH v. R. A. WEIR, Jr., et al.
    No. 52133.
    Supreme Court of Mississippi.
    Sept. 10, 1980.

      James E. Lambert, William C. Smith, Jr., Taylor, Covington, Smith & Matrick, Jackson, for appellant.
    O. B. Triplett, Jr. (Deceased) by Tom S. Lee and O. B. Triplett, III, Forest, for ap-pellees.
    Before ROBERTSON, P. J., and WALKER and SUGG, JJ.
   WALKER, Justice,

for the Court:

This is a suit to partition certain real property situated in Newton County, Mississippi. The complainant Victoria Smith, alleged that her second husband, Grover Smith, owned an undivided one-seventh interest in this property and that this interest passed to her as his wife and only heir when he died intestate in 1968.

The defendants answered, denying that Victoria Smith was entitled to any interest in the lands, and asserting they were the exclusive owners thereof. Their defense rested on a claim that Victoria Smith’s marriage to Grover Smith was void ab initio, her first marriage constituting an absolute impediment to her second marriage.

At the hearing before the chancellor the parties made several stipulations to eliminate the need for proof. They stipulated that at one time the 135 acres involved in this suit were owned by Joe Smith; that Joe Smith died intestate leaving a wife and seven children, one of whom was Grover Smith; that Joe Smith’s wife died intestate survived by six of her children and one grandson who took the place of the seventh child, so that the property was divided seven ways. Victoria Smith also stipulated that she had never filed for a divorce from her first husband and she had no knowledge of any divorce suit filed against her by her first husband.

The parties agreed that the sole issue before the lower court was whether or not Grover Smith was legally married to Victoria Smith when he died intestate. The chancellor ruled that he was not, and from that ruling Victoria Smith appeals.

The proof developed at the hearing showed that Victoria Smith, using the name Miss Quick Erneston, married one Sim Futch on June 3, 1918, in Scott County, Mississippi. She had two sons by Sim Futch before he left her sometime in 1919. She has never heard from him since then. One of her sons, Ned Futch, who lives in Detroit, Michigan, testified that he is 60 years old and has never met his father or anyone else by the name of Sim Futch.

Fifteen years after Sim Futch left her, Victoria married Grover Smith in Newton County, Mississippi. They resided in Newton County until Grover’s death on October 19, 1968. Victoria then moved to Detroit, Michigan, where she has resided ever since.

The defendants’ case rested on the testimony of one witness, Mrs. Mittis Bufkin, a sister of Grover Smith. She testified that she had a conversation with a man who stated he was Sim Futch in 1969, just after Hurricane Camille struck the Gulf Coast, and that this man told her Victoria Ernest was his wife. His specific words, as recollected by the witness, were, “That’s my wife.”

In light of this testimony, which the chancellor termed unequivocal and positive, and also considering the admission by Victoria Smith that she had never obtained a divorce from Sim Futch and had no knowledge that he had obtained a divorce from her, the chancellor held that the defendants had rebutted the presumption that the second marriage was valid. He, therefore, dismissed the bill of complaint. This was error.

Where there is proof of a marriage ceremony, the law will presume the capacity of the parties, consent of the parties, and all essentials to the validity of the marriage. The presumption was early recognized by this Court in Hull v. Rawls, 27 Miss. 471 (1854), and has been consistently applied ever since.

The rule of law was perhaps best stated in Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So.2d 735 (1954) as follows:

It is well-established that when a person has entered into several successive marriages, a presumption arises in favor of the validity of the second or last marriage. And this presumption of validity is applicable to a subsequent common-law marriage, as well as to a subsequent ceremonial marriage. Anno., 14 A.L.R.2d 7, 19; 55 C.J.S. Marriage § 43, pp. 887-892, 896. A subsequent marriage in fact raises the presumption that a former marriage has been terminated by divorce or by the death of a prior spouse. These presumptions' are based upon public policy. The burden of adducing evidence to the contrary rests on the party who attacks it. 55 C.J.S. [Marriage, § 43,] pp. 890-891. Of course this presumption can be rebutted by evidence excluding the possibility of a divorce or death of a prior spouse, 14 A.L.R.2d 45, but that burden of proof is a difficult one: “It has been declared that, an existing marriage being shown, the presumption of its validity is so strong that proof of a former subsisting marriage, in order to be sufficient to overcome this presumption, must be so cogent and conclusive as to fairly preclude any other result.” (221 Miss. at 662, 74 So.2d at 737).

In Pigford Bros. Construction Co. v. Evans, 225 Miss. 411, 83 So.2d 622 (1955), a deceased employee’s second wife was entitled to compensation benefits as the lawful widow of the employee. The only evidence offered to rebut the presumption was the testimony of the employee’s first wife that she had not divorced him and he had not divorced her. We held this evidence was not sufficient to rebut the presumption of validity of the second marriage because it did not prove that the deceased had not obtained a divorce from his first wife. The Court stated:

The practical course of proof in such a case would be to show where each party to the prior marriage had resided up to the time of the second marriage, and then to procure from the clerk of the proper court in each such county a certificate of search showing that no divorce or annulment had been granted by the court of which he is clerk. (225 Miss. at 421, 83 So.2d at 625).

In Ramphrey v. Ramphrey, 243 Miss. 184, 137 So.2d 906 (1962), a husband attempted to set aside the divorce decree granted to his wife. He alleged that at the time of their marriage his wife was still married to a former husband, and as proof he submitted a divorce decree obtained by his wife from her first husband after her marriage to her second husband. This was not enough. It was incumbent on the petitioner to show that the first husband had not obtained a divorce prior to the subsequent marriage.

The case of Erwin v. Hodge, 317 So.2d 55 (Miss.1975) most strongly illustrates the proof necessary to overcome the presumption. In that case Henry Erwin married Alice Newberry in 1941 in Lincoln County. He obtained a divorce in 1945, but remarried her in 1947. Later that same year he married Helen Scott in Lincoln County. In 1958 Helen Scott obtained a divorce from Erwin in Adams County. They also remarried in 1958, but divorced in 1959. In 1961 Erwin married Linnie Smith. He died intestate in 1971, in Jefferson County, while living with Linnie Smith Erwin. The proof showed that Henry Erwin was a lifelong resident of Jefferson County. Alice New-berry, his first wife, moved to Hinds County, then to Warren County, following her separation from Erwin. In an attempt to rebut the presumption of the validity of Erwin’s subsequent marriages, certificates were introduced from the chancery clerk of Adams, Hinds, Jefferson, Lincoln and Pike Counties, certifying that no record of divorce or an annulment had been granted to Henry Erwin or Alice Newberry Erwin between August 7, 1947, the date of their remarriage, and the date of Erwin’s death. This proof failed, in part because there was no showing whether there had been a divorce in Warren County.

The proof offered in this case to rebut the presumption that Victoria Smith’s marriage to Grover Smith was valid does not preclude the possibility that Sim Futch had obtained a divorce from Victoria or had died prior to Victoria’s second marriage. Mittis Bufkin’s testimony that she once met a man who claimed to be Sim Futch and who claimed to be married to Victoria Ernest was only hearsay. Even though there was no objection to this testimony it was entitled to little, if any, weight. Further, the stipulation that Victoria Smith had never divorced Sim Futch and that she had no knowledge of any divorce obtained by Sim Futch does not preclude the possibility that Sim Futch had in fact obtained a divorce from her. The burden of producing evidence to rebut the presumption of validity attaching to Victoria and Grover Smith’s ceremonial marriage rested on the parties attacking it, and that burden could only be met by producing proof so cogent and conclusive as to fairly preclude any other result. The proof in this case clearly falls short of that required.

Since it is evident that the chancellor erred, the cause should be reversed and remanded for proceedings on the bill of complaint for partition.

REVERSED AND REMANDED.

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

LEE and BOWLING, JJ., took no part.

      . Mrs. Bufkin testified that she and some friends drove to the Gulf Coast to view the damage done by Hurricane Camille. While travelling toward Biloxi off Highway 49, going into Back Bay, they stopped at a filling-station to have a flat fixed. An old black man identified himself as Sim Futch. He had seen the Scott County license plate and started a conversation with Mrs. Bufkin about different people in Scott County. He asked if she knew any Futches. She replied, “Yes.” He asked if she knew any Ernests, and she said she knew some. He asked her about Victoria Ernest (Victoria Smith’s maiden name). He said that was his wife. Mrs. Bufkin told him that the Victoria she knew was married to another man. He again told her Victoria was his wife and that he would look her up someday. Mrs. Bufkin just laughed.
      On cross-examination Mrs. Bufkin did not know the name of the filling-station, what highway it was on, or what county it was in. She described the man who claimed to be Sim Futch as gray-haired, brown-skinned, and of medium height. She had not seen him before or since, and there is no evidence that anyone else has seen him, either.


text:
    W. M. DEAVOURS v. Lester CHANDLER.
    No. 52147.
    Supreme Court of Mississippi.
    Sept. 10, 1980.
    W. M. Deavours, Deavours, Weems & Gilchrist, Laurel, for appellant.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

No briefs filed on behalf of appellee.

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

REVERSED AND RENDERED.

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

PATTERSON, C. J., took no part.


text:
    Robert Lee MEARDRY v. STATE of Mississippi.
    No. 52068.
    Supreme Court of Mississippi.
    Sept. 10, 1980.
    Thomas D. McDonough, Stanford Young, Waynesboro, for appellant.
    Bill Allain, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Wayne County; Lester F. Williamson, Judge.

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

AFFIRMED.

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


text:
    Freddie MORROW v. STATE of Mississippi.
    No. 52082.
    Supreme Court of Mississippi.
    Sept. 10, 1980.
    Calvin R. King, Durant, for appellant.
    Bill Allain, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Holmes County; Arthur B. Clark, Judge.

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

AFFIRMED.

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


text:
    Geraldine L. GARRIGA v. O. J. GOSS, Jr.
    No. 52052.
    Supreme Court of Mississippi.
    Sept. 10, 1980.
    Roy B. Strickland, Gulfport, for appellant.
    Harry P. Sneed, Jr., Gulfport, for appel-lee.
   Appeal from Chancery Court, Harrison County; Jason H. Floyd, Jr., Chancellor.

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

AFFIRMED.


text:
    Charles BROWN and Dorothy Brown v. STATE of Mississippi.
    No. 52086.
    Supreme Court of Mississippi.
    Sept. 10, 1980.
    Laurel G. Weir, Philadelphia, for appellants.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

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

AFFIRMED.


text:
    BAILEY LUMBER & SUPPLY COMPANY v. Roderick R. BRIDGES, et ux.
    No. 52107.
    Supreme Court of Mississippi.
    Sept. 10, 1980.
    Herbert J. Stelly, Sr., Roberts, Stelly & Rosetti, Gulfport, for appellant.
    Donald O. Simmons, Gulfport, for appel-lees.
   Appeal from Chancery Court, Harrison County; William L. Stewart, Chancellor.

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

AFFIRMED.


text:
    Eula Mae COCHRAN, Guardian of Mrs. Grace White v. Thurley G. WHITE, Hazel R. White and Richton Bank & Trust Company.
    No. 52138.
    Supreme Court of Mississippi.
    Sept. 10, 1980.
    Rehearing Denied Sept. 24, 1980.
    G. N. Jones, Waynesboro, for appellant.
    John M. Dunnam, Jr., New Augusta, Stanford Young, Thomas D. McDonough, Waynesboro, for appellees.
   Appeal from Chancery Court, Wayne County; J. Shannon Clark, Chancellor.

Before SMITH, P. J., and BROOM and LEE, JJ.

AFFIRMED.


text:
    Mary HARDY v. STATE of Mississippi.
    No. 52160.
    Supreme Court of Mississippi.
    Sept. 17, 1980.
   Appeal from Circuit Court, Oktibbeha County; Harvey Buck, Judge.

Ben F. Hilbun, Jr., Starkville, for appellant.

Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.

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

AFFIRMED.


text:
    Edward Earl JOHNSON v. STATE of Mississippi.
    No. 52055.
    Supreme Court of Mississippi.
    Sept. 17, 1980.
    Firnist J. Alexander, Jr., Brown, Alexander & Sanders, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge.

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

AFFIRMED.


text:
    Johnny Lee PERRY v. STATE of Mississippi.
    No. 51153.
    Supreme Court of Mississippi.
    Sept. 17, 1980.
    Boyd P. Atkinson, Cleveland, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

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

AFFIRMED.

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

PATTERSON, C. J., takes no part.


text:
    Willie James HUGHES v. Cora Lee GRANT.
    No. 52077.
    Supreme Court of Mississippi.
    Sept. 17, 1980.
    Ben Block Jones, Jackson, for appellant.
    John Robbins, II, Brandon, for appellee.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

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

AFFIRMED.


author: FAULKNER, Justice. SHORES, Justice

text:
    ESTIS TRUCKING COMPANY, INC., a corp., et al. v. Gordon HAMMOND et al.
    78-672.
    Supreme Court of Alabama.
    Aug. 8, 1980.
    Rehearing Denied Sept. 19, 1980.
    Bert P. Taylor of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellants.
    Watson, Moore & Chestnut, Huntsville, and J. C. Kellett of Kellett & Gillis, Fort Payne, for appellees.
   FAULKNER, Justice.

This case arose out of an automobile-truck accident which occurred in DeKalb County on July 26, 1976, near an intersection of Alabama Highway 75 and DeKalb County Highway 72. The jury returned a verdict for the plaintiffs. Defendants’ motion for new trial was denied. We reverse.

Frankie Langley, employed by Estis Trucking Company, Inc., was driving a coal truck north on Alabama Highway 75. Langley was following Gary Lowe, a plaintiffs’ witness at trial. At the trial, Lowe testified that he saw the coal truck in his rearview mirror and that it followed him for several miles. After cresting a hill, Lowe approached the intersection of Alabama Highway 75 and DeKalb County Highway 72, approximately 300 yards below the crest of the hill. He switched on his turn indicator and began slowing to negotiate a turn onto the county highway. Lowe testified that as the coal truck topped the crest of the hill behind him, it increased speed.

Lowe testified that Langley put on his breaks to avoid striking him and crossed lanes; Marie Hammond, traveling in the opposite direction, collided with the truck. She and her husband brought suit against Langley and Estis Trucking Company, Inc., claiming damages of $500,000.00. The case was tried and a jury verdict was returned in favor of both plaintiffs and against both defendants for $200,000.00.

Defendants contend that the trial judge committed numerous errors. We pretermit discussion of all alleged errors except the following: Did the trial court err in denying defendants’ motion for new trial based upon alleged improper comments during the course of trial and based upon alleged improper closing argument by plaintiffs’ counsel. We hold that the trial court did so err and we reverse and remand for a new trial.

During the course of trial, following redirect examination of Mrs. Hammond, the following discussion occurred, viz:

MR. KELLETT: That’s all.
MR. WATSON: Your Honor, we are going to have a few witnesses here on the before and after condition of this lady, and I have discussed it with Mrs. Hammond, and with the witnesses, and I would like to ask that she be excused for this testimony, if I may, regarding her condition. I think the testimony would be more truthful if she were excused, and I think it might save her some embarrassment.
MR. LIVINGSTON: We would like to object to those remarks by counsel, and move that this jury be instructed to disregard the remarks of counsel, that they are designed solely for the purpose of prejudicing the defendant, and solely for the purpose of injecting testimony into the record, and I think it is so prejudicial that I believe we will move for a mistrial at this point. I don’t believe statements like that have anything to do with the issues in this case.
MR. WATSON: I don’t know how else I can say it.
MR. LIVINGSTON: Well, it ought not to be said, period. It hasn’t got anything to do with the trial of this case. We didn’t bring this lawsuit, Mrs. Hammond is the one who brought the lawsuit.
MR. WATSON: Well, if the court please, we believe the testimony so far has been justified in her bringing the suit, and I don’t think there has been anything said here to indicate that she shouldn’t have brought it.
MR. LIVINGSTON: I would like very much for the jury to be excluded while these speeches are being made, and while he is injecting all of this into the record, and I would like to renew my motion.
******
COURT: Those remarks were directed to me. I know you heard it, but don’t consider it in your deliberations at all. Did you object to her being ....
MR. LIVINGSTON: No, sir. She doesn’t have to stay as far as we are concerned. It’s her case.
COURT: You objected to the statement he made?
LIVINGSTON: I objected to the statement, and that is the basis for our motion for a mistrial, and we would like to have a ruling on that.
COURT: All right. Now, ladies and gentlemen, the statements that the counsel made, they were made to me, and they are not part of the evidence that you will consider in making up your minds in arriving at a decision. So, you don’t consider those statements that you heard, if you heard them, and overrule the motion for a mistrial. Mrs. Hammond, will you come and go with the bailiff.

These comments on the evidence made by plaintiffs’ attorney were prejudicial to defendants, were statements not in evidence, and were, therefore, improper. But, as can be seen from a reading of the transcript, the trial court made a curative instruction to the jurors, instructing them to ignore any comments made by the attorneys. Since the curative instruction was given, we cannot say that the trial court erred in denying defendants’ motion for new trial based solely upon the improper comments made by plaintiffs’ attorney.

After both sides had rested their cases, plaintiffs’ attorney made the following statements in closing argument to the jury, viz:

[At a point when Mr. Watson was arguing the case to the Jury on behalf of the Plaintiffs]

MR. WATSON: They are talking about truth, and, it would have been a simple matter to get the truth about that distance. It is their defense, it is not our case, and Estis Trucking Company and the driver, Frankie Wayne Langley, hired Mr. — or had him hired, Mr. Taylor from Birmingham, spent the money from that. They hired Mr. Livingston from Scotts-boro and spent the money for that.
MR. LIVINGSTON: If it please, Your Honor, I want to object to that, because that is an improper line of argument, and ask that the jurors be instructed to disregard it.
MR. WATSON: I’ll withdraw that.

[At another point while Mr. Watson was arguing to the Jury]

MR. WATSON: They took the deposition of the doctors in Birmingham, and they did what they would have you believe is proper in building this defense about the distance, yet they come up here and bring this little picture that is taken way up the road from where the accident happened. I really believe that the Estis Trucking Company and the defense in this case could have afforded a ....
MR. LIVINGSTON: We move for a mistrial.
MR. TAYLOR: We move for a mistrial.
MR. LIVINGSTON: The jury recognizes what he has injected into the case.
MR. TAYLOR: I move for a mistrial, Your Honor. That is totally wrong argument, improper argument, and just strictly prejudicial and intended to prejudice the minds of the jury. It hasn’t got anything to do with the facts in the case, and I move for a mistrial for that.
* * * * * *
MR. WATSON: Well, I’ll withdraw that, then, if there’s something wrong with that, and I’ve been doing it for twenty years, talking about pictures, but if there is something wrong, me discussing the fact that they would have gotten a better picture than that, I’ll withdraw it.
MR. LIVINGSTON: We would like to renew our motion for a mistrial, based on the prejudicial statements made to the jury in the argument.
COURT: You will withdraw it?
* * * * * *
COURT: Now, I have a motion for a mistrial. The motion is overruled.
* * * * * #
COURT: Wait just a minute. Let me speak to the jury just a moment. I don’t know what all has been said by witnesses, or by lawyers. I try to forget, because it is improper for me to comment on the evidence. Now, you will make up your minds, of course, from the evidence you heard. Now, if there has been exchanges between the lawyers to one another, that is not in itself a part of the evidence that you are to consider in arriving at a verdict. Now, after a couple of days of trial, of course, nerves get frayed, and so forth, and it is understandable. I understand it probably more than you, because this is the first time some of you have been here, but I understand that it is not unusual, but you don’t consider it, and, I know several of you, and I know that you won’t consider it if I tell you not to. Overrule the motion for a mistrial, go ahead with your argument.
******

[At another point when Mr. Watson was arguing to the Jury]

MR. WATSON: Mr. Taylor stated to you that he is from Birmingham, but he’s shocked about this $500,000.00. Ladies and gentlemen, he’s not shocked. He deals in these figures everyday. He tries lawsuits all over the State of Alabama.
MR. TAYLOR: Your Honor, I again move for a mistrial. That has no place whatsoever in this lawsuit, and it is highly prejudicial.
******
MR. LIVINGSTON: I think that’s grounds for a mistrial.
MR. TAYLOR: I am moving for a mistrial right now. I really am, because that is totally false.
MR. WATSON: Judge, I’ll withdraw it, and I’ll start it another way. I would like to get through with it, if it is all right.
COURT: Overrule your motion for a mistrial.
MR. WATSON: Ladies and gentlemen, Mr. Taylor is not shocked about $500,-000.00, regardless of where he is from, and regardless of where he tries lawsuits. He is not shocked.
MR. LIVINGSTON: I would like to make the same motion, because that hasn’t got a thing in the world to do with whether Mrs. Hammond-what her injuries are dealing with at all, not the first thing, Your Honor, and we would like to make the same motion for the benefit of the record.
COURT: Overruled.

[At another point when Mr. Watson was arguing to the Jury]

MR. WATSON: Ladies and gentlemen of the jury, I have no reluctance in asking you to grant this lady $250,000.00 for the injury she has suffered. I have absolutely no reluctance, none whatsoever. If somebody told you that you were going to go through that wreck, and go through what we have shown here that she has gone through since then ....
MR. LIVINGSTON: We want to make another objection. He is asking the jury to place themselves in the place of this lady here. That is precisely what he said, Your Honor, and that is highly irrelevant, and Mr. Watson knows that that is highly improper, and we ask that the jury be disregarded to instruct-or, instructed to disregard that statement.
MR. WATSON: If I could get through with it, it might not be objectionable. I can’t get through with a sentence. When I get in the middle of it the objection comes, because they are afraid of what I might I might say, I guess.
COURT: Overruled.

Defendants contend that this argument was given for the sole purpose of prejudicing defendants, improperly introduced the wealth of defendants to the jury and improperly requested the jurors to place themselves in the position of plaintiff, Mrs. Hammond. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Humphrey, 54 Ala.App. 343, 308 So.2d 255 (1975), contains a concise, and correct, statement of the law in Alabama regarding closing argument.

In a case of improper argument where the trial judge overrules objection and fails to instruct the jury as to impropriety with direction to disregard, the test upon appeal is not that the argument did unlawfully influence the jury, but whether it might have done so. Williams v. City of Anniston, 257 Ala. 191, 58 So.2d 115.
In a case where objection to improper argument is made and sustained, with immediate and strong action by the trial court instructing the jury that such argument was not correct and admonishing them not to consider it, the test on motion for new trial and on appeal is whether the argument was so harmful and prejudicial that its influence was not or could not be eradicated by the action of the court. McLemore v. International Union, etc., 264 Ala. 538, 88 So.2d 170. When, after applying this test, the trial court denies a motion for new trial, its determination is presumed correct on appeal. McLemore v. International Union, etc., supra. In order to overturn such presumption, the reviewing court must determine from the facts and circumstances that the ruling of the court was unjust and plainly erroneous. [Emphasis added.] 54 Ala.App. at 348, 308 So.2d at 259.

We have carefully considered the evidence, the record of the argument, and the corrective actions of the court. We note that the trial court did not instruct the jury that the argument was improper. After consideration of these factors, we hold that the argument was improper and highly prejudicial and its influence was not eradicated from the mind of the jury by the admonition of the trial court in this case.

In Allison v. Acton-Etheridge Coal Co., Inc., 289 Ala. 443, 268 So.2d 725 (1972), this Court reversed a-jury verdict returned for the defendants because of improper statements made during closing argument, viz:

MR. NORMAN [attorney for defendant]:
It’s a great thing, folks, to be a very wealthy man and to be able to go out here and hire two law firms with four lawyers-
* * * * * *
MR. HARE: We object to that.
THE COURT: I sustain the objection. Ladies and Gentlemen, I will say now that arguments of counsel is not evidence in this case. You are going to be called upon to decide this case from the facts that you hear from the witness stand, so don’t consider-of course, that is not evidence, and I sustain your objection to that type argument.
Sj(*****
MR. HARE: You told them not to consider it evidence. I ask to charge them as improper argument.
THE COURT: I am going to say-I am asking him not to argue that anymore along those lines. Now go ahead.

In his oral charge to the jury the court made the following statement to the jury:

“I told you during the trial of this lawsuit that remarks made among counsel was not evidence in the case. Their arguments is not evidence in the case. It is their duty. It is their right to represent their clients to the best of their ability, and these gentlemen have done that. They have represented their client. That is their duty to do that.
“But as I say, you decide this lawsuit from the facts that you hear from the witness stand along with the exhibits that have been introduced in this lawsuit. You are not to decide this lawsuit upon any sympathy for anyone, nor are you to decide this lawsuit upon any prejudice against anyone, and you are not to go back there and guess, surmise.”

It is to be noted that the above instruction in no wise refers to the impropriety of defendant’s counsel’s reference to the plaintiff as a very wealthy man.

* * * * * *

“ * * * When an attorney in the heat of debate, goes to such extraordinary lengths, generally, the court should promptly set aside any verdict that may be rendered for his client. The repressive powers of a court, to prevent such departures from legitimate argument of a cause before a jury, should be vigorously applied. No mere statement that it is out of order or improper can meet the exigencies of the case.” [Quoting from Alabama Fuel & Iron Co. v. Benante, 11 Ala.App. 644, 66 So. 942 (1942).]

***** *

While the above case [Pearson v. Birmingham Transit Co., 264 Ala. 350, 87 So.2d 857 (1956)], dealt with the poisonous effect of injecting insurance into argument rather than an opponent's wealth, we can discern little difference between a reference to an opponent’s protection by insurance, and a reference to his wealth. The issues of liability for damages, or entitlement to damages, must validly be determined by the rules of legal liability applicable, and not upon the economic condition of either party, or the degree of burden that might result from a verdict or judgment.

But our conclusions need not rest upon the analogy of the poisonous effect of a reference to insurance to that of wealth of an opponent, for in Pryor v. Limestone Co., 225 Ala. 540, 144 So. 18, this court condemned as ineradicably prejudicial a reference in argument to an opponent’s wealth.

******

It must be remembered that in the present case the court at no time instructed the jury that the argument made by defense counsel was improper, but after sustaining the objection merely told the jury that argument of counsel was not evidence in the case, and upon counsel for the plaintiff requesting instructions that the argument was improper only replied: “I am asking him not to argue that anymore along those lines. Now go ahead.”

Nor can the rather general instructions in his oral charge that remarks of counsel were not evidence, and that the jury was not to decide the case upon sympathy for anyone, or prejudice against anyone be deemed to have eradicated the error of the argument since under our cases we think the argument must be deemed ineradicable. [Emphasis added.] 289 Ala. at 446-448, 308 So.2d at 727.

Plaintiffs’ attorney in the instant case stated that in his opinion defendants “could have afforded . . . ,” whereupon defendants’ attorney objected to the statement and moved for a mistrial. It is clear to us from the argument made previous to this statement that the language used by plaintiffs’ attorney was a reference to the wealth, or supposed wealth, of defendants, to the effect that defendants could have afforded a better photograph than the one they used at trial, and was, therefore, improper. Moreover, plaintiffs’ attorney stated that defendants’ attorney tried lawsuits “all over the State of Alabama” for $500,-000.00. This language implies that defendants’ attorney tries only expensive lawsuits, that the damages in this instant lawsuit must have been perceived by defendants to be potentially large or they would not have hired such an expensive attorney, and that defendants must be wealthy to afford an attorney who tries only $500,000 lawsuits. This argument is also improper as it reflects upon the defendants’ wealth.

We find that the cumulative effect of these two statements, coupled with the previously noted comments on the evidence made by plaintiffs’ attorney during the course of trial, was so poisonous and so prejudicial to defendants in this case that the argument was ineradicable, notwithstanding the trial court’s instruction to the jury. Blue v. State, 246 Ala. 73, 19 So.2d 11 (1944). Although the cumulative error doctrine announced in Blue was there applied in a criminal case, it is equally applicable in civil cases. Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389 (1930). The fact that plaintiffs’ attorney retracted the statements after defendants’ attorney objected to them is of no consequence. A retraction of the argument in no way eradicates the effect of the improper argument on the minds of the jurors. Metropolitan Life Insurance Co. v. Carter, 212 Ala. 212, 102 So. 130 (1924).

The last statement made in closing argument by plaintiffs’ attorney to the effect that “if somebody told you that you were going to go through that wreck,” etc., was equally prejudicial. In Hayles v. Jeter, 279 Ala. 283, 184 So.2d 363 (1966), this Court held that similar argument, given the context in which the argument was presented to the Court, was not reversible error. In Hayles, plaintiff’s counsel, in his closing argument to° the jury stated, “I ask you, gentlemen, to put yourself in the Plaintiff’s place . . .,” whereupon defendant’s attorney immediately objected. The Court, in addressing whether this bare invitation to the jury was reversible error, stated, viz:

* * * Plaintiffs counsel may have been saying that plaintiff was not negligent in so doing and asking the jurors to place themselves in plaintiff’s place in judging whether he was guilty of contributory negligence in so doing. We do not say such argument would be proper. We do not, however, have before us enough of the argument to say that the bare invitation constituted such a forbidden appeal to the sympathy of the jurors as to prejudice defendant to the extent that this judgment must be reversed. 279 Ala. at 285, 286, 184 So.2d at 363-366.

Likewise, in British General Insurance Co. v. Simpson Sales Co., 265 Ala. 683, 93 So.2d 763 (1957), this Court held that there had not been a showing of injury requiring reversal when plaintiff’s counsel, in closing argument, asked the jury, “How would you like to have that happen to you?” In British General the main issue was whether plaintiff was insured, plaintiff’s counsel contending that plaintiff was led by the insurance agent to believe that he was covered, and asking, in argument, for the jurors to determine whether they would have believed they were covered if the same thing had happened to them.

However, the argument in the instant case goes beyond the argument alleged to be improper in Hayles and British General. In the instant case, there was not merely a bare invitation for the jurors to put themselves in the place of the plaintiff. There was more. The argument here presented was an appeal to the jurors’ feelings and passion, tantamount to requesting the jurors to hold in favor of the plaintiffs based upon the jurors’ sympathy for Mrs. Hammond. A jury verdict reached in favor of any party on the basis of bias, prejudice or sympathy must be set aside.

REVERSED AND REMANDED.

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

SHORES, J., dissents.

BLOODWORTH and ALMON, JJ., not sitting.

SHORES, Justice

(dissenting):

I dissent. Even if the argument were improper, it was clearly not ineradicable.


author: PER CURIAM.

text:
    Barry L. BOOTH v. MONTROSE CEMETERY ASSOCIATION, a non-profit corporation.
    78-807.
    Supreme Court of Alabama.
    Aug. 8, 1980.
    Rehearing Denied Sept. 12, 1980.

      T. K. Jackson, III and James J. Ward of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellant.
    James L. Shores, Jr. of Shores & Moore, Fairhope, for appellee.
   PER CURIAM.

This is an appeal from a summary judgment granted Montrose Cemetery Association setting aside the declaration of vacation of certain portions of streets in the Montrose subdivision of Baldwin County. We affirm. On April 28, 1978, Barry Booth and the other defendants below, each of whom owns property abutting portions of Chapman, Taylor, Ledyard, and Third Streets in Montrose, filed in the Office of the Probate Judge of Baldwin County a declaration of vacation pursuant to § 35-2-54, Code 1975, vacating the portions of those platted streets abutting their property. Montrose Cemetery Association, owner of Block 23 and Lot 3 of Block 3, filed suit to set aside the vacation. Montrose was granted a summary judgment that was later set aside because the hearing and ten-day service requirements of ARCP 56(c) were not met. Montrose then filed a second motion for summary judgment and supporting affidavits indicating that the vacated portions of Chapman, Taylor, Led-yard, and Third Streets had been used as public roads. Booth and the other defendants filed affidavits in opposition to the motion, asserting that the vacated streets were not now, and never had been, used as public thoroughfares.

After hearing arguments, the trial court found that Montrose was not within the boundary of any municipality in Baldwin County and the assent of the Baldwin County Commission to the vacation had not been procured; that the Cemetery Association had acquired an easement appurtenant in the streets of Montrose which could not be divested by the unilateral action of the defendants; and that there was no genuine issue of material fact involved in the case. Thus, the trial judge set aside the declaration of vacation and enjoining interference with the use of the streets to be vacated. From the denial of the defendants’ ARCP 59 motion, Barry Booth appeals.

Both asserted errors are appropriately posed in the summary judgment posture of the final order appealed from:

(1) The validity of the trial court’s initial ground for setting aside the declaration of vacation-lack of consent of the Baldwin County commission-rested on a factual question of whether the portions of the streets involved were being, or had ever been, used as public roads; and

(2) The trial court’s invalidation of the declaration of vacation foreclosed genuine issues of fact relating to “reasonable access” and “remoteness.”

We agree in part with Booth’s first contention. It is true that § 35-2-54, the statute here invoked, distinguishes between those dedicated public streets “within the limits of any municipality” and those “outside of any municipality,” the latter requiring “assent of the county commission” only “[i]f such street or alley has been or is being used as a public road.” The statute requires “assent of the . . . governing body of the municipality” if the proposed vacation of a dedicated street or alley is “within the limits of any municipality” without regard to its present or past use.

While neither the statute nor case law sheds any light on the basis for this distinction, we surmise that policy considerations regarding the normal differential in density of population prompted the legislature to vest in cities a greater interest in dedicated public ways. At any rate, even if this were the only ground asserted by the trial court for its summary judgment, we would not be compelled to reverse; and this for the reason that, though the county's requisite assent is dependent upon the use of the streets in question, whether these streets are, or have been, used as public streets is not a genuine issue of material fact. It is immaterial, except for the statutory requisite assent of the county to vacate its dedication, whether a dedicated public way is used, or has been constructed or used, as a public street. Stack v. Tennessee Land Co., 209 Ala. 449, 96 So. 355 (1923).

Consequently, although the trial court erred in granting summary judgment adversely to declarant on the ground of the lack of assent of the county (there being an issue of fact as to the use of the streets in question), Booth could not prevail, as a matter of law, on the ultimate issue of whether these streets are, or have been, used as public streets.

In other words, this factual issue of public use speaks only to the necessity vel non of obtaining the county’s assent to the declaration of vacation and not to the propriety of the trial court’s final determination that no genuine issue of material fact is presented on the instant question of Booth's right to unilaterally close the subject streets. Stack mandates that the result would be the same even assuming the county’s assent had been sought and obtained or even assuming Booth’s evidence of nonuse of the streets by the public had been uncon-troverted.

We now turn to the “reasonable access” and “remoteness” issues. Because a recent influx of cases, invoking § 35-2-54, evidences a common misunderstanding of this vacation statute’s limited field of operation in the context of a constitutional attack by a nonassenting owner, we restate the salient legal principles that govern the disposition of these cases.

Case law in this State reflects that the statute authorizing a platted street to be vacated by “the owner or owners of the lands abutting the street,” is interpreted to protect the interests of other property owners in the subdivision, who may not necessarily own property abutting the street or portions thereof sought to be vacated. Every purchaser of a lot shown on the recorded map of the subdivision has the right, as against the dedicator of the streets and the purchasers of the other lots, to have the designated scheme of public thoroughfares maintained in its integrity, as it existed when he purchased the property, and all persons whosoever may use these public ways as the occasion requires. Whitten v. Ferster, 384 So.2d 88 (Ala. 1980); Thetford v. Town of Cloverdale, 217 Ala. 241, 115 So. 165 (1927); Highland Realty Co. v. Avondale Lane Co., 174 Ala. 326, 56 So. 716 (1911); East Birmingham Realty Co. v. Birmingham Machine & Foundry Co., 100 Ala. 461, 49 So. 448 (1909).

The vacation statute is in derogation of the common law prohibition against the vacation of public ways and is interpreted by the Court, as mandated by constitutional due process standards, to protect the property interests of nonconsenting property owners affected by the proposed vacation, subject only to the rule of remoteness. Gwin v. Bristol Steel & Iron Works, Inc., 366 So.2d 692 (Ala. 1978). The remoteness limitation is also mentioned by the Thetford Court, where, in discussing the rights of the property owners adjacent to the street sought to be vacated, it states, “The interest of the purchasers of lots more or less remote from the street in question may be more or less theoretical, depending on circumstances.”

This limitation on a nonadjacent property owner’s capacity to oppose and set side a declaration of vacation has not been directly addressed by our decisions; nor are we called upon here to set the precise limits of its field of operation. Where, as here, Montrose Cemetery currently owns lots in the subdivision in the immediate proximity to the street sought to be closed, no fact question can possibly be presented to invoke the rule of remoteness. This Court’s decision establishing more exact standards for the operative effect of this rule should await the appropriate case.

Booth insists that the statutory language, “Convenient means of ingress and egress to and from their property shall be afforded to all other property owners owning property in the tract of land . . . ,” renders “reasonable access” a material factual issue. This point was also spoken to in Gwin, relying on Thetford, in which Mr. Justice Sayre said that “it does not lie in the mouth of [declarant] to say that [other attingent owners] should now be satisfied with one way only.”

Finding no genuine issue of material fact presented under either the “remoteness” or “reasonable access” rules, we find no error to reverse.

AFFIRMED.

MADDOX, JONES, ALMON, EMBRY and BEATTY, JJ., concur.

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

FAULKNER, J., dissents.

BLOODWORTH, J., not sitting.

SHORES, J., recuses herself.

      . In the recent case of Daniel v. Evans, 384 So.2d 88 (Ala. 1980), this court, following the cited authorities, summarily rejected declar-ant’s contention, supported by the original developer, that the Court should transpose a dedicated public street into a private way pursuant to the alleged intent of the developer at the time he recorded the subdivision plat. Our case law is clear to the effect that the unequivocal intent shown by the developer in recording a platted subdivision with unrestricted public streets and alleys indicated thereon, and in selling lots by reference thereto, cannot be vacated by subsequent parol evidence of a contrary intention.


author: JONES, Justice.

text:
    GREIL MEMORIAL HOSPITAL v. FIRST ALABAMA BANK OF MONTGOMERY, N. A., and John B. Nicrosi, as Executors of the Estate of Jule R. Brightwell, Deceased, et al. John B. NICROSI, Individually and as Co-Executor of the Will of Jule R. Brightwell, Deceased, and Margaret R. Nicrosi v. FIRST ALABAMA BANK OF MONTGOMERY, N. A., as Executor of the Estate of Jule R. Brightwell, Deceased, et al.
    79-317, 79-363.
    Supreme Court of Alabama.
    Aug. 8, 1980.
    Rehearing Denied Sept. 12, 1980.
    Sterling G. Culpepper, Jr. and Charles M. Crook of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant Greil Memorial Hospital.
    Robert B. Stewart and Joel F. Dubina of Jones, Murray, ' Stewart & Yarbrough, Montgomery, for appellants John B. Nicrosi and Margaret R. Nicrosi.
    Joel F. Dubina and Robert B. Stewart of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellees John B. Nicrosi and Margaret R. Nicrosi.
    Jack Crenshaw, Montgomery, for appellee Presbyterian Home For Children.
    Thomas B. Hill, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellee First Alabama Bank of Montgomery, N. A., as Executor of the Estate and under the Will of Jule R. Brightwell, Deceased.
    Joe Espy, III of Melton & Espy, Montgomery, for appellee Brantwood — The Children’s Home, Formerly The Children’s Protective Association.

      John N. Albritton of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellee Working Women’s Home, Montgomery, Alabama, as Beneficiary Under the Will of Jule R. Brightwell, Deceased.
   JONES, Justice.

These consolidated cases involve the interpretation of a will. Mrs. Jule Bright-well’s will, dated December 5, 1962, makes several substantial specific bequests to charitable organizations, including Montgomery Tuberculosis Sanitorium, which was reincorporated in 1973 as Greil Memorial Hospital. The trial Court held that the change of identity and purpose of the named beneficiary caused this legacy to lapse and that the lapsed legacy goes to the remaining residuary legatees and not to the next of kin. The pertinent terms of the will read:

“VIII
“I make the following bequests to charitable institutions:
“1. To the First Presbyterian Church of Montgomery, Alabama, the sum of Ten Thousand ($10,000.00) Dollars.
“2. To the Montgomery Tuberculosis Sanitorium, the sum of Five Thousand ($5,000.00) Dollars.
“3. To the Working Women’s Home, Montgomery, Alabama, the sum of Five Thousand ($5,000.00) Dollars.
“4. To the Montgomery Spastic Children’s Association, the sum of Ten Thousand ($10,000.00) Dollars.
“5. To the Patty G. Upchurch Trust Fund, for the use and benefit of the Children’s Protective Association, Inc., of Montgomery, Alabama, the sum of Five Thousand ($5,000.00) Dollars.”
“IX
“All the rest and residue of property owned by me at the time of my death, every kind and character, real, personal, and wherever situated, I give, devise and bequeath, subject to the payment of debts, administration expenses, taxes and other claims against my estate as hereinafter provided, in equal parts, share and share alike, to the following charitable institutions:
“1. Montgomery Tuberculosis Sanito-rium.
“2. The Working Women’s Home, Montgomery, Alabama.
“3. Montgomery Spastic Children’s Association.
“4. Patty G. Upchurch Trust Fund, for the use of the Children’s Protective Association, Inc., of Montgomery, Alabama.
“5. The Presbyterian Home for Children, Talladega, Alabama.
“6. The Alabama Institute for the Deaf and Blind, at Talladega, Alabama. “It is my will and I direct that the devise and bequest of said residuary estate is subject to the payment of any and all debts which are owed by me at the time of my death, administration expenses, estate or inheritance taxes, and to any and all other lawful charges against my estate, which I direct shall be paid out of the residue of my estate herein referred to.”

There are two sets of Appellants: 1) Greil Memorial Hospital; and 2) the Nicro-sis, heirs-at-law of Mrs. Brightwell. Greil Memorial, claiming error in . the Court’s finding that its legacy lapsed, contends that the unqualified bequest is still valid irrespective of the change of name of the beneficiary. The Nicrosis agree with the trial Court’s holding that Greil Memorial’s legacy lapsed, but contend that these bequests should now go to the heirs-at-law and not according to the residuary clause. We reject the contentions of both sets of Appellants and affirm the judgment below in all its aspects.

I.

The Lapse Issue

While we agree with Appellees’ characterization of the case as one of first impression, the basic principles that govern this issue are quite well settled. We preface the discussion of these principles and their application to the instant case with a brief statement of the undisputed facts.

The Anti-Tuberculosis League of Montgomery was incorporated on June 24, 1911, pursuant to Section 3613 of the 1907 Code, which required only a certificate stating the corporate name selected, the names of the trustees, and the length of time for which they were selected. On July 24, 1934, a constitution and bylaws were duly adopted, changing the name of the organization, and in 1944 the original charter was amended by providing the following sole purpose:

“2. The purpose of this organization shall be to devise plans for combating tuberculosis in this City and County and generally by maintaining buildings for the treatment of sufferers, cooperating with County and City officials, and the County Board of Health in improving health conditions, and in such other ways as may appear to be advantageous in curing and preventing tuberculosis.”

That the Testatrix had a particular interest in the Montgomery Tuberculosis Sanitori-um, which operated a hospital for the treatment of tuberculosis, can be readily discerned from the fact that her father suffered from tuberculosis, was a patient at the Montgomery Tuberculosis Sanitorium for many years, and died there. In addition, Testatrix’s brother, John Randolph, also suffered from tuberculosis.

By the year 1971, a drastic change developed in the method of treating tuberculosis. Whereas previously it was necessary to isolate patients and treat them in a sanitori-um, the use of chemotherapy now made it possible to treat tubercular patients in a general hospital without risk of infecting other patients. Pursuant to the legislative enactment of T. 22, §§ 199 and 199(1), all State aid to tubercular hospitals ceased, effective September 30, 1973. Until 1971, Montgomery Tuberculosis Sanitorium operated as a corporation in furtherance of its sole purpose as stated in its 1944 amendment, the cure and prevention of tuberculosis.

Its 1973 reincorporation, in Article 2, completely changed the objects and purposes of the corporation from those in effect at the time the will was executed. While the purpose of Montgomery Tuberculosis Sanitorium was limited to “curing and preventing of tuberculosis,” the word “tuberculosis” is not mentioned in the Articles of Reincorporation. The reincorporation gave as one of the objects and purposes, to establish, maintain, and operate a general hospital, dispensary, and out-patient department, for medical and surgical aid, care, and treatment for persons in need thereof. Those hospital buildings were conveyed to the State (Alabama Mental Health Board) in 1974. Greil Memorial owns no hospital facility of any kind, and no funds have been spent for tuberculosis treatment since 1973. Greil Memorial Hospital is not conducting health programs and services for the community. It is not conducting educational programs for students in various health fields. So, since 1974, the general objects and purposes of Article 2 have not been carried out. Greil Memorial is acting merely as a conduit for the distribution of income to various nonprofit organizations, including the Boy Scouts, alcoholic programs, and similar worthy causes. Its current financial statement shows that its only assets were cash and certificates of deposit, with an income of $29,085.92, out of which $28,330.00 was contributed to individual charities chosen by Greil.

Here, as in all will interpretation cases, “[t]he intention of the testator is the polestar to guide a court in the construction of a will and, in arriving at the testator’s intention, the court should consider the instrument as a whole and not construe any paragraph separately. Wilson v. Skelton, 262 Ala. 504, 80 So.2d 633 (1955); Allen v. Maxwell, 249 Ala. 655, 32 So.2d 699 (1948); Smith v. Nelson, 249 Ala. 51, 29 So.2d 335 (1947).” Perdue v. Roberts, 294 Ala. 194, 198, 314 So.2d 280, 282 (1975).

Our ascertainment of the testatrix’s intention is further aided by our adoption and application of the following rule: A bequest to a charitable corporation, formed for a single charitable purpose, is a gift in trust for that purpose, and no specific words of trust are necessary to its creation if that intention clearly appears. See Gordon v. Central Park Little Boys League, 270 Ala. 311, 119 So.2d 23 (1960).

The rule and its rationale are well stated in Wesley Home v. Mercantile Safe Deposit & P. Co., 265 Md. 185, 289 A.2d 337 (1972):

“. . .In the construction and determination of the legal effect of donations to charitable corporations, the objects and purposes for which a charitable institution was incorporated may be considered. That is true because a gift, donation, or bequest, by name, without further restriction or limitation as to use, to a corporation organized and conducted solely for charitable purposes, may be deemed to have been made for the objectives and purposes for which the corporation was organized.”

See, also, American Bible Society v. American Tract Society, 63 N.J.Eq. 219, 50 A. 67 (1901).

The Supreme Court of Pennsylvania, in In re White’s Estate, 340 Pa. 92, 16 A.2d 394 (1940), expressed the rule in succinct language:

“A gift to a charitable or religious institution without stating the use to which it is to be put is a gift solely for the uses for which the institution was incorporated.” In re White's Estate, 16 A.2d at 396.

Applying these rules of construction to the instant facts, we think it is inescapable that, by her bequest to Montgomery Tuberculosis Sanitorium, Mrs. Brightwell’s intention was to benefit that corporation in the furtherance of its sole purpose of curing and preventing tuberculosis; and, thus, to give this bequest to Greil Memorial Hospital would do violence to the plain intent of the testatrix.

The basis for our holding is not the legatee’s act of reincorporation nor its change of name. Mrs. Brightwell’s unrestricted bequest to Montgomery Tuberculosis Sanitori-um, expressing no specific purpose, would not be defeated even by a mere shift or alteration in its corporate activities. It is the total abandonment of its sole corporate purpose, which renders the reincorporated entity an entirely distinct and separate corporation, that thwarts the testatrix’s intention and compels our holding that this legacy lapsed. Finding no error to reverse this aspect of the trial Court’s ruling, we affirm.

The Residuary Legatees/Heirs at Law Issue

We now turn to the second and final inquiry: Is the lapsed legacy controlled by the residuary clause or does it pass according to the laws of intestacy? Counsel for the heirs at law, Appellants as to this aspect of the judgment below, advance a persuasive argument which we quote in part from their brief:

“Section 43-1-7 of the Code of Alabama is explicit:
‘“All property not disposed of by will must be administered and distributed, as in case of intestacy . . . . ’
“This provision has been in our Code since 1852, and from the early cases of Denson v. Autrey, 21 Ala. 205, Bendall v. Bendall, 24 Ala. 295, and Banks v. Sherrod, 52 Ala. 267, to the more recent cases of Caldwell v. Caldwell, 204 Ala. 161, 85 So. 493, Trustees of Cumberland University v. Caldwell, 203 Ala. 590, 84 So. 846, Parrish v. Gamble, 234 Ala. 220, 174 So. 303, our courts have said that in view of this section, estates by implication to defeat the heirs at law of the testator are disfavored and must be based on clear evidence found in the Will itself and circumstances attending its execution, showing an intention on the part of the testator not only to deprive the heirs of their inheritance, but indicating who should take [citing, also, 36 ALR 2d 1117].
“Bendall v. Bendall, supra, is perhaps the most positive expression of the law as applied to our facts. Here the testatrix left her estate equally to A and B in trust for C. A and B predeceased the testatrix. On the bill to construe the Will since the testatrix had no next of kin, the Court held that the legacies to A and B lapsed and would have gone to the next of kin; there being none, they escheated to the State rather than going to the trustee for C.”

We have carefully studied the referenced statute and each of the cited cases; and we believe our decision to uphold the trial Court’s ruling against intestacy gives full effect to § 43-1-7 and completely accords with the “intent of the testatrix” rule of interpretation. Additionally, here, another much favored rule is brought into play and that is the rule that mandates a strong presumption against intestacy. See Crippled Children Foundation v. Cunningham, 346 So.2d 409 (Ala.1977).

Mrs. Brightwell acknowledged her heirs at law by providing each of them with a specific bequest of $10,000. She included a residuary clause disposing of “All the rest and residue of [her] property” to six specifically named charitable organizations. Thus, her intent with respect to the heirs at law has been satisfied in full, and the passing of the lapsed legacy under the residuary clause prevents the operative effect of intestacy. Id. No specific intent on the part of Mrs. Brightwell to avoid intestacy need be found; this element is furnished by the rule of presumption against intestacy unless a contrary intention clearly appears. Certainly, one of the prime purposes of a residuary clause is to avoid the state of intestacy contemplated by § 43-1-7, whose language is directed solely toward “[a]ll property not disposed of by will.”

We think the rule, as it relates to both aspects of these appeals, is well stated in Teele v. Bishop of Derry, 168 Mass. 341, 47 N.E. 422, at 423 (1897): “[Where] the purpose which the testatrix had in view has failed ... it follows that the bequest must be held to have failed and to pass under the residuary clause.”

AFFIRMED.

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

BLOODWORTH, FAULKNER and AL-MON, JJ., not sitting.

      . Mrs. Brightwell died October 27, 1977, having been judicially declared mentally incompetent in 1967.


author: FAULKNER, Justice.

text:
    ROSS NEELY EXPRESS, INC. v. HORNADY TRUCK LINES, INC. ALABAMA PUBLIC SERVICE COMMISSION v. HORNADY TRUCK LINES, INC.
    79-252, 79-253.
    Supreme Court of Alabama.
    Aug. 15, 1980.

      James W. Porter, II, Birmingham, for appellant Ross Neely Express, Inc.
    Stanley W. Foy, Atty.-Examiner and Jean William Brown, Asst. Atty. Gen., Montgomery, for appellant Alabama Public Service Commission.
    Gerald D. Colvin, Jr. of Bishop, Sweeney & Colvin, Birmingham, for Hornady Truck Lines, Inc.
   FAULKNER, Justice.

These are appeals from an order of the Monroe County Circuit Court reversing the Alabama Public Service Commission’s denial of Hornady Truck Lines, Inc.’s application for amendment of its Permit No. 166 and instructing the Commission to issue an order amending the permit in question to include the requested authority. We reverse.

Hornady under Permit No. 166 has authority to transport the following items as a contract carrier in intrastate commerce for the account of Arvin Industries, Inc.:

(1) Steel in coils and flat sheet from Birmingham, Alabama; Gadsden, Alabama; and Alabama City, Alabama, to Monroeville, Alabama, returning any damaged or unaccepted shipments.
(2) Scrap metal from Monroeville, Alabama, to Birmingham, Alabama; Gadsden, Alabama; and Alabama City, Alabama.
(3) Steel in coils, flat sheet steel, steel tubing, automotive exhaust systems and component parts of automotive exhaust systems between Fayette, Alabama, and Monroeville, Alabama.

Arvin Industries’ Automotive Division has plants in Fayette and Monroeville, Alabama, which are served by Hornady. The Fayette operation used wide core steel or coil steel to produce automotive exhaust systems, mufflers, pipes, flanges and other items. The Monroeville plant takes steel slit in various sizes and makes exhaust pipe. To more fully utilize its steel slitter in Fa-yette, after the initial contractual relationship between Arvin and Hornady began, Arvin had coil steel shipped directly from Republic Steel in Gadsden where it was purchased to its Fayette plant where it slit its own steel for Monroeville rather than employing either Hanna Steel in Gadsden or Ferralloy in Birmingham to slit the steel and then transport it to Monroeville.

Hornady neither under its Permit No. 166 nor under its common carrier certificate had authority to move the steel from Gadsden to Fayette, although it served Arvin from Fayette to Monroeville and from Mon-roeville to Gadsden. Thus, on July 21,1978, Hornady filed an application to extend its existing common carrier certificate to have transit of steel from Republic in Gadsden to all points in Alabama and to convert its contract carrier authority to common carrier authority. This application was later amended to add only the following authority to Hornady’s contract carrier Permit No. 166:

“. . . as a contract carrier, by motor vehicle, in intrastate commerce over irregular routes, in the transportation of steel sheets, plates, and coils from Gadsden, Alabama to Fayette, Alabama, for the account of Arvin Industries, Inc.,

Notices of protest were filed by Gadsden Truck Line, Inc., Victory Freight Lines, Inc., Ross Neely Express, Inc., Arrow Truck Lines, Inc., and Vulcan Freight Lines, Inc. A hearing was held before an examiner and only Ross Neely appeared to oppose the amended application. After hearing testimony, because a majority of the commissioners did not hear the application in its entirety, the examiner submitted a written report and recommended order in which he recommended that the application be denied as it did not appear that proposed operation would be consistent with the public interest. Hornady filed exceptions to the examiner’s report and Ross Neely filed replies to those exceptions.

After careful consideration of the entire record in this case, the Alabama Public Service Commission (APSC) determined that the examiner “fairly summarized the evidence presented in his report.” They entered an order adopting his summary of the evidence and concurring with the examiner’s conclusion that Hornady’s proposed service was not consistent with the public interest.

Hornady appealed to the Monroe County Circuit Court. After receiving briefs from the parties and hearing oral arguments, the trial judge entered an order reversing the APSC and remanding Hornady’s application to that body with instructions to issue an APSC order amending Permit No. 166 to include the additional contract carrier authority sought. Ross Neely and APSC appeal to this Court.

The issue presented for decision in the instant case is whether the APSC erred to the prejudice of Hornady’s substantial rights in its application of the law and/or whether its order was based upon a finding of facts contrary to the substantial weight of the evidence. More specifically, as an ancillary issue, we are asked to determine whether the APSC erred in finding Horna-dy’s proposed operation was not consistent with the public interest.

Appellate review of orders of the APSC both by a circuit court and by the Supreme Court of Alabama is governed by § 37-1-124, Code 1975. Alabama Public Service Commission v. Redwing Carriers, Inc., 366 So.2d 1111 (Ala.1979). That section provides in pertinent part:

The commission’s order shall be taken as prima facie just and reasonable. No new or additional evidence may be introduced in the circuit court, [except as to fraud or misconduct of some person engaged in the administration of this title and affecting the order, ruling or award appealed from,] but the court shall otherwise hear the case upon the certified record and shall set aside the order if the court finds that:
(1) The commission erred to the prejudice of appellant’s substantial rights in its application of the law; or
(2) The order, decision or award was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence.
[Emphasis added.]

Our review of the commission’s order is like that on a direct appeal, without any presumption as to the correctness of the judgment of the circuit court. Redwing Carriers v. Alabama Public Service Commission, 356 So.2d 129 (Ala.1978); Jefferson Trucking Company v. Alabama Public Service Commission, 347 So.2d 372 (Ala.1977); Alabama Public Service Commission v. Consolidated Transport Company, 286 Ala. 333, 239 So.2d 763 (1970); Osborne Truck Lines v. Alabama Public Service Commission, 284 Ala. 166, 223 So.2d 284 (1969); Alabama Public Service Commission v. Decatur Transfer & Storage, 257 Ala. 346, 58 So.2d 887 (1952); Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So.2d 409 (1949). This court has clearly stated that courts must guard against substituting their own judgments of findings of fact for the judgment of the APSC. Floyd & Beasley Transfer Co. v. Alabama Public Service Commission, 276 Ala. 130, 159 So.2d 833 (1963). Where the evidence is heard ore tenus by a hearing examiner, the presumption of correctness which is normally accorded the APSC’s order is accorded to the examiner’s findings of fact; and if the APSC adopts the examiner’s findings of fact, the APSC order is entitled to the same presumption. Alabama Public Service Commission v. Redwing Carriers, Inc., supra.

In examining a contract carrier case, the APSC is required to determine that: (1) the proposed operation sought to be authorized by the permit will be consistent with the public interest; and (2) the applicant is fit, willing and able to properly perform the service of a contract carrier by motor vehicle and will conform to the statutory provisions and the lawful rules, requirements, and regulations of the APSC thereunder. Section 37-3-13, Code 1975; Redwing Carriers v. Alabama Public Service Commission, supra; Alabama Public Service Commission v. Consolidated Transport Company, supra; Osborne Truck Lines v. Alabama Public Service Commission, supra; Alabama Public Service Commission v. Decatur Transfer & Storage, supra; Alabama Public Service v. Nunis, supra. The “consistent with the public interest” requirement, which is the crux of the controversy in this case, as the parties do not dispute that Hornady meets the second requirement, has been determined by the application of the following two-pronged test: a contract carrier permit should be issued when 1) a common carrier cannot extend the preferential service or other advantages of a contract carrier; and 2) the granting of such a permit will not tend to materially depreciate the ability of the protesting common carriers to serve the public. Redwing Carriers v. Alabama Public Service Commission, supra; Alabama Public Service Commission v. Consolidated Transport Co., supra.

The hearing examiner, in applying the first requirement of the two-pronged test, heard testimony and recorded it in his findings of fact indicating that no specific equipment was to be dedicated to the service of Arvin for the transit of coil steel from Republic Steel in Gadsden to Fayette. Hornady proposed to dispatch truck trailers through its central dispatch in Monroeville for the loads rather than constantly using equipment from its Ragland terminal, which is twenty-five miles from Gadsden. William Grant, assistant to the president of Hornady, testified that very little Republic Steel material was hauled by the Ragland facility and most of the Ragland material was hauled through central dispatch. Grant also stated that no special equipment was required to haul the steel; regular flatbed trailers were to be used. No special handling was needed in the transportation of the steel and both the applicant and the protestant had previously hauled steel for Arvin.

Fredrick Smith, production control general foreman of Arvin’s Fayette plant, testified that they had had some delay problems with Ross Neely’s transportation of steel in the past. The hearing examiner observed in his findings, however, that a weekend was involved in all of the transit delay situations and overnight service shipments were allowable. Smith also stated on cross-examination that the Fayette plant has had very few emergency situations where they needed steel on a moment’s notice, that they have had no other problems with Ross Neely, and that the contract carrier rates to be charged by Hornady would be no different from the Ross Neely rates.

Officers of Arvin and Hornady asserted at the hearing that preferential service was to be rendered in the round — robin service or triangular movement from Gadsden to Fa-yette, then to Monroeville, and back to Gadsden. The reason for such service was said to be to save Arvin money in outside steel slitting costs and Hornady money in fuel costs.

The hearing examiner found that there was no preferential service proposed to be rendered by the contract carrier, Hornady. He stated that the fact that Hornady would save money did not indicate any preferential service rendered to Arvin and the round-robin service was merely a convenience. He further concluded that:

Another problem here is Mr. Grant stated that equipment would be dispatched from throughout the state with very little of the Ragland facility serving Republic Steel. This situation could involve deadhead mileage for some of Hor-nady’s equipment as in the past. On the other hand, Mr. John Foster from Ross Neely testified that their facility, which serves Republic, adjoins the property of Republic.
The testimony of Mr. Smith is that the rates charged by Hornady would be the same as those of Ross Neely, and both' Hornady and Ross Neely utilize the same equipment for steel movements and both have experience with this commodity: Therefore, no other real advantages exist.

Our examination of the record, comprised of the testimony and the exhibits before the hearing examiner, convinces us that the examiner’s finding that no preferential service was to be rendered by Hornady was correct. Thus, the requirement of the first part of the two-pronged test was not met in Hornady’s application.

Compliance with the second part of the test required a determination that allowing the permit would not tend to materially depreciate Ross Neely’s ability to serve the public. Testimony was presented to the hearing examiner which reflected that Ross Neely had 75 flatbed trailers at its disposal and had intrastate authority to haul general commodities between all points and places within a radius of 125 miles of Birmingham, although it could not directly serve Monroe-ville. Ross Neely has served Republic Steel in Gadsden for seventeen years. Its Gadsden facility adjoins Republic and relies heavily on Republic for traffic. It makes 40 to 50 hauls a week for Republic. In September, 1978, this traffic amounted to 5,504,055 pounds. During August, September, and October of that year it transported 451,480 pounds from Republic to Arvin’s Fayette plant. John Foster, Ross Neely’s traffic manager, testified that the company is primarily a small shipment distributor type carrier which serves small rural communities with small shipments. It loses money on approximately 69% of its shipments and makes its money on large truckload shipments such as those from Republic to Arvin. Ross Neely’s operating ratio for the first eight months of 1978 was 100.4, indicating that Ross Neely was operating at a loss. Foster further testified if Ross Neely lost these full truckload shipments, service provided to rural areas around Fayette could be cut back and/or otherwise hindered.

We conclude from our examination of the evidence that Hornady’s proposed service as a contract carrier from Republic to Arvin in Fayette would materially downgrade the ability of Ross Neely to serve as a common carrier pursuant to its certificate of convenience and necessity. This Court stated in Osborne Truck Lines, Inc. v. Alabama Public Service Commission, supra:

We might further comment that any erosion or impairment of the financial ability of the common carriers to perform by taking away from them lucrative business and giving it to a contract carrier, particularly to enable the customer to meet competition, or possibly to gain some advantage, is not consistent with public interest. Such public interest as related to the business world is dependent on an adequate and efficient motorized common carrier system which should not be potentially weakened or impaired by this issuance of contract carrier permits that have a tendency to decrease the volume and remuneration of such carriers that is needed to sustain efficient common carrier service. [284 Ala. at 170, 223 So.2d at 288.]

The APSC correctly determined that Hornady’s application for amendment of its Permit No. 166 was not consistent with the public interest. That order was not based on a finding of facts contrary to the substantial weight of the evidence nor did the APSC err to the prejudice of Hornady’s substantial rights in its application of the law.

This case is reversed and remanded with instructions to enter an order affirming the Alabama Public Service Commission’s order.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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