text:
    Sue PETERS v. Lanny PACE.
    No. 53258.
    Supreme Court of Mississippi.
    July 7, 1982.
    James H. Mathis, Corinth, for appellant.
    Mitchell, Eskridge, Voge, Clayton & Beasley, Claude F. Clayton, Jr., Tupelo, for appellee.
    Rehearing Denied July 28, 1982.
   Appeal from Circuit Court, Alcorn County; Neal Biggers, Judge.

Before PATTERSON, C. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    James B. NELSON v. STATE of Mississippi.
    No. 53518.
    Supreme Court of Mississippi.
    July 7, 1982.
    Colom, Mitchell & Colom, Beverly B. Mitchell, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.

AFFIRMED.


text:
    BURTON TIMBER COMPANY & Georgia Casualty & Surety Co. v. Larry C. BURTON and J. & J. Timber Company.
    No. 53264.
    Supreme Court of Mississippi.
    July 7, 1982.
    Butler, Snow, O’Mara, Stevens & Canna-da, Dan McCullen, Jackson, for appellant.
    James W. Nobles, Jr., Jackson, Terry L. Jordan, Joe Mulholland, Laurel G. Weir, Philadelphia, for appellee.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.

AFFIRMED.


text:
    Larry FULGHAM v. STATE of Mississippi.
    No. 53540.
    Supreme Court of Mississippi.
    July 7, 1982.
   Appeal from Circuit Court, Webster County; Clarence E. Morgan, Jr., Judge.

Liston, Crull & Gibson, Morgan Brackeen, Eupora, for appellant.

Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


author: WALKER, Justice, HAWKINS, Justice,

text:
    Eddie Gene BRIGGINS v. STATE of Mississippi.
    No. 53147.
    Supreme Court of Mississippi.
    July 14, 1982.
    Willie L. Rose, Lexington, Mel Davis, Leonard McClellan, Oxford, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and DAN M. LEE, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from the Circuit Court of Lafayette County wherein the appellant, Eddie Gene Briggins, was convicted of manslaughter and sentenced to serve a term of eighteen years in the custody of the Mississippi Department of Corrections.

On August 31, 1980, appellant and his wife drove to the Eastview Apartments in Oxford, Mississippi. When a friend informed appellant that the taillights on his car were not working, he asked his wife to go upstairs and borrow some tinfoil to wrap the fuse. Appellant’s two sisters-in-law lived in the apartments.

Appellant testified that after his wife went upstairs, he heard the deceased, Edward Junior Houston, the boyfriend of appellant’s sister-in-law, cursing at his wife. Appellant told the decedent not to speak to his wife that way, and the decedent then came downstairs and began arguing with appellant. Shortly thereafter appellant and Houston both left in their automobiles. The appellant drove to his house, put his loaded shotgun on the backseat and returned to the apartments to wait for Houston to return.

Appellant testified that when the decedent arrived, he told Houston that he wanted to talk to him and at that time decedent got something from his car. Appellant testified he could not determine what the decedent removed from the car but that he then fired one shot in the air. Houston then yelled at appellant “go ahead and shoot me” and appellant shot and killed him. Photographs taken at the scene showed a hammer lying near the decedent’s body. Later that night appellant turned himself in to the Lafayette County sheriff.

Appellant’s first assignment of error is that the trial court permitted the introduction of a color photograph of the deceased. This assignment has no merit. The photograph had probative value in that it showed the location of the gunshot wound and therefore should have been admitted. Moreover, in this State the trial judge is granted much discretion to determine the admissibility of photographs, and we find there was no manifest abuse of that discretion.

Appellant’s next assignment of error concerns the court’s refusal to grant certain instructions dealing with various theories of self-defense. The jury was amply instructed as to the theory of self-defense in Instruction D-10. This instruction clearly stated that if appellant had reasonable grounds to apprehend that he was in imminent danger of serious bodily harm at the hands of the decedent, the self-defense doctrine would apply. Instructions D-4, S-2 and S-4 all stated that the prosecution must disprove the claim of self-defense beyond a reasonable doubt when that issue has been sufficiently raised. Pierce v. State, 289 So.2d 901 (Miss.1974). When read together we find the jury was properly instructed on the doctrine of self-defense.

Appellant's final assignment of error is that the trial court erred in not instructing the jury to consider prior threats made by the decedent against the appellant. Appellant requested the following instructions:

The Court instructs you that in reaching your decision as to whether Mr. Brig-gins had reasonable cause to believe the decedent was about to attempt to inflict great bodily harm upon him at the time of the shooting, you are to consider the previous arguments that occurred earlier that date between the parties, as well as, all threats that the decedent may have made, if any, toward Mr. Briggins. (Emphasis added).
In reaching your decision as to whether Mr. Briggins had reasonable cause to believe the decedent was about to attempt to inflict great bodily injuries against him, the Court instructs you to consider all previous arguments, hostility and difficulties between Mr. Briggins and the deceased. (Emphasis added).

These instructions singled out and gave undue prominence to parts of the testimony and as worded would have amounted to a comment on the weight of the evidence contrary to our well established rule. Ceary v. State, 204 Miss. 299, 37 So.2d 316 (1948). Therefore, the trial judge properly refused both instructions.

For the above reasons, the appellant’s conviction and sentence are affirmed.

AFFIRMED.

PATTERSON, C. J, SMITH and SUGG, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., concur.

HAWKINS, J., dissents.

HAWKINS, Justice,

dissenting:

I respectfully dissent. In my opinion, reversible error was committed by the circuit judge’s refusal to grant certain instructions requested by the defense.

The issue of self defense was submitted to the jury. Although the defendant’s claim of self defense was very weak, it was properly submitted to the jury. McMullen v. State, 291 So.2d 537 (Miss.1974); Ellis v. State, 208 So.2d 49 (Miss.1968); Tate v. State, 192 So.2d 923 (Miss.1966); Brown v. State, 186 Miss. 734, 191 So. 818 (1939); Lofton v. State, 79 Miss. 723, 31 So. 420 (1902).

The facts from the defense standpoint are as follows:

Approximately one or two hours prior to the slaying, Briggins and his wife, Annie, went to the apartment complex where Annie’s two sisters lived in an upstairs apartment. Houston lived with one of them, Emma Grace.

Briggins remained outside, and heard Houston profanely abusing Emma Grace and Annie. Houston, it later developed, had a butcher knife he was brandishing. Briggins yelled to Houston, warning him not to insult his wife. Houston came downstairs and a vigorous “cuss fight” ensued between the two. Houston returned upstairs, following which Emma Grace came downstairs and warned Briggins not to turn his back on Houston, that he had a knife.

Briggins, unarmed, drove to his home some distance away and got a shotgun. He then returned for his wife.

In the second, and fatal encounter at the apartment complex, Briggins upon returning waited for the return of Houston, who, in the meantime, had also driven away from the apartment complex.

After Houston returned, Briggins testified he saw Houston go to his car, reach under a seat, and Briggins shot his shotgun into the air. Houston dared Briggins to shoot him, and Houston then raised his arms. Briggins thereupon shot and killed him. Briggins stated he thought he was in danger from either a pistol or a sawed-off shotgun.

No pistol or shotgun was found in the possession of Houston following the killing. A hammer was found near his body.

Because a jury question was presented as to whether Briggins acted in lawful self-defense, Briggins was clearly entitled to have the jury specifically instructed that they could consider (1) threats made against Briggins by Houston, if any, and (2) that the danger did not have to be actual, but reasonably apparent.

There were general instructions granted the State and defendant on the law pertaining to self-defense. None of them, however, addressed either of the specific issues of previous threats made on Briggins, or reasonably apparent danger as opposed to actual danger.

Briggins’ requested instructions on both these issues were refused by the circuit judge.

When self-defense is a proper issue before the jury, the state of mind of both the decedent and the accused become proper subjects for the jury in determining whether the accused at the time of the slaying had “... reasonable ground to apprehend (from the deceased) a design ... to do some great personal injury,” and whether there was, “. . . imminent danger of such design being accomplished.” Miss.Code Ann. § 97-3-15(f) (1972).

As an aid to the jury in making its determination whether the slaying was in lawful self-defense, this Court has consistently held previous difficulties between the parties, as well as threats, should be admitted into evidence before the jury (so long as they are not too remote in time). For the same reason, even though the accused may not have been in actual danger from the deceased when he killed him, movements or conduct on the part of the decedent at the time which caused the accused to be reasonably fearful of either losing his life or suffering serious bodily harm at the hands of the deceased are proper evidence to be considered by the jury.

Cases holding previous difficulties as well as threats are admissible for both the State and the accused are: Wilson v. State, 390 So.2d 575 (Miss.1980) (threats were competent for a different reason); Murphy v. State, 232 Miss. 424, 99 So.2d 595 (1958); Hardy v. State, 143 Miss. 352, 108 So. 727 (1926); Clark v. State, 123 Miss. 147, 85 So. 188 (1920); Leverett v. State, 112 Miss. 394, 73 So. 273 (1916); Burks v. State, 101 Miss. 87, 57 So. 367 (1911); Echols v. State, 99 Miss. 683, 55 So. 485 (1911); Godwin v. State, 73 Miss. 873 (1896).

Cases of this Court holding that the accused is not required to be in actual danger, but may act upon reasonable appearances of danger of losing his life or suffering great bodily harm from the decedent at the time of the slaying are: Bell v. State, 207 Miss. 518, 42 So.2d 728 (1949); Scott v. State, 203 Miss. 349, 34 So.2d 718 (1948); McNeal v. State, 115 Miss. 678, 76 So. 625 (1917); Johnson v. State, 79 Miss. 42, 30 So. 39 (1901); Godwin v. State, 73 Miss. 873 (1896).

In this case the circuit judge gave wide latitude to the accused, offering him full opportunity to offer into evidence before the jury the previous difficulties and threats, and also all facts which might have shown he acted when he was in “reasonably apparent” danger as opposed to any actual danger. Having done so, however, he enigmatically refused to specifically instruct the jury on either of these issues, although requested to do so.

Regarding the previous difficulties and threats, the circuit judge refused the following instructions requested by the defendant:

INSTRUCTION D-17
The Court instructs you that in reaching your decision as to whether Mr. Brig-gins had reasonable cause to believe the decedent was about to attempt to inflict great bodily harm upon him at the time of the shooting, you are to consider the previous arguments that occurred earlier that date between the parties, as well as, all threats that the decedent may have made, if any, toward Mr. Briggins.
INSTRUCTION D-25
In reaching your decision as to whether Mr. Briggins had reasonable cause to believe the decedent was about to attempt to inflict great bodily injuries against him, the Court instructs you to consider all previous arguments, hostility and difficulties between Mr. Briggins and the deceased.

While both of these requested instructions are subject to a technical objection, in that the jury is instructed to consider such previous difficulties or threats rather than stating either that it had a right to consider or that they were proper factors to be taken into consideration in determining the issue of self-defense, the circuit judge rejected them outright.

In Leverett v. State, 112 Miss. 394, 73 So. 273 (1916), the trial court refused to grant the defendant the following instructions:

“The court instructs the jury for the defendant that, if you believe from the evidence that on a day prior to the killing defendant found a letter from his wife to the deceased, Bradley, and that the defendant and deceased, Bradley, got into a difficulty on account of same, if you believe when defendant and deceased, Bradley, separated Bradley said to the defendant: ‘You be God damned sure you are ready the next time we meet; I’ll never give you this chance again’ — or words to that effect, then you may take this into consideration in determining who was the aggressor in the difficulty at Richton.”

Id. at 409-10, 73 So. at 275-76.

In that case we held refusal of this instruction was reversible error.

On the issue of reasonably apparent appearance of danger as opposed to actual danger of losing his life or suffering serious bodily harm at the hands of Houston, the defendant requested the following instructions:

INSTRUCTION D-9
To justify a homicide as self-defense, the danger need not be actual, but only reasonably apparent and imminent so as to raise a reasonable doubt of guilt. Mr. Briggins is not required to prove that he acted in justifiable self-defense.
INSTRUCTION D-ll-A
If Mr. Eddie Gene Briggins had reasonable grounds to believe and actually did believe that he was in imminent danger of death or serious bodily harm, he would be justified in using deadly force in self-defense, even though it may afterwards have turned out that the appearances were false. If these requirements are met he could use deadly force even though there was in fact no purpose on the part of the other person to kill him or to do him serious bodily harm, and even though there was no actual necessity that deadly force be used in self-defense.
If there is any doubt in this regard, you must return a verdict of not guilty.

As to D-9 the circuit judge stated in the record he would include it in other instructions, but D-ll-A was simply refused.

Again, while these instructions may have been subject to a technical objection of redundancy of certain statements, or containing statements which were not the law, both of them clearly stated that, to justify the slaying as self-defense, it was not necessary that the danger to Briggins be actual, but only reasonably apparent, and that if he acted when he had reasonable grounds to believe and actually believed his life to be in danger or that he was about to suffer serious bodily harm, he had a right to shoot even though he was in no actual danger. To this extent, these instructions were clearly the law, in my view. With slight modification, both could have been made to properly enunciate the law in this case. The circuit judge modified other instructions. He should either have told defense counsel he would give the instructions in modified form, or modified them himself. They both contained sufficient statement of the law to have been given in some form.

In the cases of Godwin v. State, 73 Miss. 873, 19 So. 712 (1896), and Ingram v. State, 62 Miss. 142 (1884), this Court has held the defendant' was entitled to such an instruction.

In Godwin the defendant was refused the following instruction:

9. If you believe, from the evidence, that Carter, a short time before the shooting, had threatened violence to the defendant, of which the defendant was informed, and that he struck defendant a blow with his fist and threw his hand behind him as if to draw a pistol, then defendant had a perfect right to interpret this act of Carter’s in the light of such threats; and, if you believe, under these circumstances, that defendant reasonably believed his life in peril, then he was perfectly justifiable in shooting Carter, even though you may believe Carter was wholly unarmed, and the defendant was in no real danger at his hands.

Id. 73 Miss, at 876, 19 So. at 713.

Upon appeal, this Court held the defendant was entitled to this instruction, and the trial court’s refusal to grant it was one of the grounds for reversing the case.

On the issue of reasonable appearance of danger as opposed to actual danger, I do not believe any other given instructions adequately cover this point, as suggested in the opinion.

On the issue of instructing the jury on previous threats and difficulties I disagree with the majority opinion that specifically instructing the jury on such difficulties or threats amounts to a comment on the evidence. If this Court is going to hold the circuit judge properly refused them simply because they were not precisely proper as requested — in other words that he was under no duty to either modify them himself or tell defense counsel he would give them if modified — the opinion should so state.

In my view the opinion does not adequately address two assignments of error properly urged on appeal. The attorneys representing the accused have properly raised and argued two assignments of error: (1) refusal of instruction that danger to the accused need not be actual if reasonably apparent, and (2) refusal of instruction as to previous threats and difficulties. The majority opinion brushes aside without discussion the first and dismisses the other upon a hypertechnical, if not false, basis. Serious, well-reasoned argument deserves better treatment than this.

The instructions referred to in the majority opinion and this dissent which are not otherwise set forth are attached as an appendix.

APPENDIX

INSTRUCTION NUMBER S-2

In the event that you fail to find Eddie Gene Briggins guilty of murder, you may in the alternative find Eddie Gene Briggins guilty of the lesser included offense of manslaughter. Manslaughter has been defined as when a person in the heat of passion, and in a cruel or unusual manner, causes the death of another.

If you find from the evidence in this case, beyond a reasonable doubt that the deceased, Edward Houston, Jr., was a living person, and he died as a result of the Defendant shooting him with a shotgun which was a cruel or unusual manner, and while the Defendant was emotionally upset and mad at the victim, to the point of uncontrollable rage, and not in necessary self defense, then you shall find the Defendant, Eddie Gene Briggins, guilty of manslaughter.

INSTRUCTION NUMBER S-3

Deliberate design to kill is all that is required by Mississippi Law to make a homicide a murder. Deliberate design means intent to kill, without authority of law and not being legally justifiable, legally excusable or under circumstances that would reduce the act to a lesser crime.

INSTRUCTION NUMBER S-4

If a death is inflicted upon a person with a deadly weapon in a manner calculated to destroy a life without authority of law and not in necessary self-defense, then malice may be inferred from the use of the weapon.

INSTRUCTION NUMBER D-4

The Defendant has been charged by indictment with the crime of murder for having intentionally caused the death of one Edward Houston, Jr. without the authority of law. To reach a guilty verdict of murder in this case, you must be satisfied that the evidence presented in this case has proven beyond a reasonable doubt all of the following elements of the crime of murder:

1. That Mr. Briggins intentionally shot Edward Houston, Jr.,
2. for the designed purpose of killing him, and
3. not in necessary self-defense.

If you find that any of these three elements of the crime of murder is not present in this case, then you are bound by law to find Mr. Briggins not guilty of murder.

INSTRUCTION NUMBER D-10

Self-defense is a law of necessity. Every human being has a right to defend himself against death or serious bodily harm. But in order to justify the use of deadly force in defense, it must appear that the person attacked was so situated and endangered that he honestly believed, and that he had reasonable grounds for believing, that he was in imminent danger of death or serious bodily harm.

The circumstances under which he acted must have been such as to produce in the mind of a reasonably prudent person, similarly situated, the belief that the other person was then about to kill him, or to do him serious bodily harm.

Therefore, if you the jury, believe that the actions, if any, of Edward “Junior” Houston gave Briggins reasonable grounds to fear that Briggins’ life was in danger or that there was imminent danger of serious personal injury to Briggins; and that Brig-gins’ used no more force than was necessary under the circumstances then and there existing to protect himself from such imminent danger, then you may find the Defendant not guilty.

INSTRUCTION NUMBER D-21

The defense of self-defense applies in this case if you find either that Mr. Briggins was in imminent danger of receiving great personal injury from Edward Houston, Jr. or had reasonable cause to believe that such was about to occur.

      . The question of whether a self-defense instruction was warranted by the evidence was not raised by the State and is not addressed in this opinion.

      . This opinion only addresses the admissibility of the two instructions as they are worded.

      . In an exchange between the defendant and the district attorney, he was asked:
      Q. You just shot from the hip when he said shoot me and you accommodated him, didn’t you?
      A. I wasn’t going to let him accommodate me.

      . Instructions D-10 and D-21 partially instructed the jury on apparent danger in telling them Briggins had a right to shoot Houston if he was “. .. so situated and endangered that he honestly believed, and that he had reasonable grounds for believing, that he was in imminent danger ...” (D-10), or, if Briggins “. .. was in imminent danger of receiving great or personal injury ... or had reasonable cause to believe that such was about to occur.” (D-21). These instructions omitted, however, a key addition that in determining whether he acted in reasonable self-defense, it was not necessary that the danger be actual, but only reasonably apparent. This point was specifically addressed in the instructions refused, infra. By this omission, the given instructions could well have confused the jury on the issue of whether the danger had to be actual as opposed to reasonably apparent.

      . It is interesting that in Ingram, the State’s sixth instruction, as in this case, arguably included the element of apparent danger as opposed to actual danger, however, the Court held in Ingram that this was not enough.


text:
    Willie Lee BRUNSON v. STATE of Mississippi.
    No. 53476.
    Supreme Court of Mississippi.
    July 14, 1982.
    Charles E. Webster, Thomas H. Pearson, Richard B. Lewis, Clarksdale, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Coahoma County; Elzy J. Smith, Judge.

Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.

AFFIRMED.

PATTERSON, C. J., SUGG, P. J., and BOWLING, HAWKINS, and DAN M. LEE, JJ., concur.


text:
    ARMOUR AND COMPANY v. Albert Lee DAVIS.
    No. 53272.
    Supreme Court of Mississippi.
    July 14, 1982.
    Daniel, Coker, Horton & Bell, Gary K. Jones, J. Wyatt Hazard, Jackson, for appellant.
    Paul D. Snow, III, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before SUGG, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED ON DIRECT AND CROSS-APPEALS.


text:
    Willis D. BURTON and Lois S. Burton v. Eloise P. RAY, John H. Evans, Thomas Scott Evans and Sammy Ray Evans.
    No. 53596.
    Supreme Court of Mississippi.
    July 14, 1982.
    Wright & Phillips, A. R. Wright, Jr., Morris C. Phillips, Jr., Carthage, for appellants.
    Montgomery, Smith-Vaniz & Stater, C. R. Montgomery, Canton, Vernon Cotten, Carthage, for appellees.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge. '

Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.

AFFIRMED.


text:
    Beneal MATTHEWS v. STATE of Mississippi.
    No. 53616.
    Supreme Court of Mississippi.
    July 14, 1982.
    Beneal Matthews, pro se.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Webb Franklin, Judge.

Before PATTERSON, C. J., WALKER, P. J. and DAN M. LEE, J.

DENIAL OF CLARIFICATION OF SENTENCE AFFIRMED.


author: BEATTY, Justice.

text:
    BUCYRUS-ERIE COMPANY, et al. v. Larry VON HADEN.
    80-811.
    Supreme Court of Alabama.
    May 21, 1982.
    Rehearing Denied July 2, 1982.

      Bibb Allen of London, Yancey, Clark & Allen, Birmingham, and Reggie Copeland, Jr., Mobile, for appellants.
    R. Ben Hogan, III of Hogan, Smith & Alspaugh, Birmingham, for appellees.
   BEATTY, Justice.

Plaintiff, Larry Von Haden, filed this action in Jefferson Circuit Court against defendant, Bucyrus-Erie Company, and others, seeking to recover damages for personal injuries sustained as the result of an industrial accident. The complaint alleged negligence and liability under the Alabama Extended Manufacturer’s Liability Doctrine. During the course of the trial, two of the defendants, No. 5 Auto Parts and J. E. O’Toole Engineering, entered into pro tanto settlements with plaintiff for $140,-000 and $5,000, respectively. Thereafter, the jury returned a verdict against defendant Bucyrus-Erie in the amount of $105,000. Defendant filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied. Defendant appeals. We affirm.

Defendant claims that the trial court committed reversible error:

(1) By overruling defendant’s motion for mistrial relative to the presence of plaintiff’s counsel in the jury room with a juror;

(2) In allowing into evidence photographs showing the blood-stained crane involved in the accident and photographs depicting plaintiff’s injuries; and

(3) In prohibiting defendant’s counsel from arguing the effect of the pro tanto settlements to the jury and by giving the jury an incomplete charge on the effect.

I

Defendant filed a motion for mistrial on the second day of trial during the .course of jury selection. The motion was based upon circumstances involving the presence of plaintiff’s counsel in the jury room during a noon recess while a prospective juror was also present and using the rest room facilities inside the jury room. When the juror exited the rest room into the jury room, the attorneys, followed by the juror, left the jury room. Defendant claims that the contact was potentially prejudicial to the interests of the litigants and to the appearance of objectivity and that the trial court erred by overruling its motion for mistrial.

Our holdings in Preferred Risk Mutual Insurance Company v. Stuart, Ala., 395 So.2d 980 (1981), and Edwards v. Seaboard Coast Line Railroad Company, 384 So.2d 96 (1980), enunciate the standard by which officers of the court are to strive for the appearance of impartiality:

“ ‘Whether or not injury or injustice has resulted to the litigants by reason of the conduct, is not our primary concern. Rather, our concern is with the implication that attaches to the administration of justice under these circumstances. Confidence in our judicial system is imperiled if such conduct is countenanced in jury trials. Conduct which if proved would give rise to doubt and disrespect, or the mere appearance of such conduct as will not meet with the approval of public opinion, must be severely condemned. It is only through the granting of a new trial in situations like this, as well as vigilant efforts by the officers of the court to prevent such occurrences, that public confidence in the jury system may be preserved. Rasmussen v. Miller, 268 Wis. 436, 68 N.W.2d 16, 18.’ [Quoting from Daniels v. Bloomquist, 258 Iowa 301, 138 N.W.2d 868, 872 (1965).]” Preferred Risk, 395 So.2d at 987; Edwards, 384 So.2d at 104.

Applying those statements to the present case, we do not find any implication of conduct which would lead to “doubt or disrespect” for the “administration of justice.” And, the facts before us are distinguishable from those in Preferred Risk and Edwards.

Preferred Risk concerned extensive discussion following a jury verdict between plaintiff’s counsel and one of the jurors. The issue on appeal was whether the trial court erred by recalling the jury to correct its verdict after plaintiff’s counsel had talked to the juror. Edwards involved discussions during the course of a trial between the trial judge and individual jurors without counsel for either side being present. We held in both cases that the communications in question were of such prejudicial nature as to require reversal. In the case at bar, however, no communication transpired between plaintiff’s counsel in the otherwise empty jury room and the prospective juror inside the rest room facilities. Furthermore, the record reveals that when plaintiff’s counsel offered to strike from the venire the juror who had been present in the rest room defendant’s counsel objected. That objection to the removal of the juror clearly indicates that even the defendant saw no impropriety in the situation of which it now complains.

The trial judge is vested with a wide, discretion in determining whether incidents which occur during the course of a trial affect the rights of either party to have a fair trial, and his action may not be reviewed unless it clearly appears that his discretion has been abused. Boudrow v. H & R Construction Company, 284 Ala. 60, 222 So.2d 154 (1969). The trial court is in a better position than this court to determine the probable effect of such incidents. The record here does not, in our opinion, justify a holding that the trial court abused its discretion in refusing to grant the motion for mistrial.

II

Defendant claims that the trial court abused its discretion and committed reversible error by allowing photographs of the blood-stained crane involved in the accident into evidence. Defendant concedes that the photographs may have been helpful in showing the jury the condition of some of the pieces of equipment from the crane at a point in time near the accident, but argues that other photographs showed the same things without the presence of blood. However, the record does not substantiate that argument. The trial court did not abuse its discretion in finding that the probative value of the photographs outweighed their alleged prejudicial nature.

Defendant contends that the photographs depicting plaintiff’s injuries shed no light on the issues in the case and should not have been allowed into evidence. We respectfully disagree. In Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975), we stated:

“A photograph is ‘generally relevant and admissible for the purpose of explaining and applying the evidence’ when it enables the jury ‘to have a better understanding of a person, place, object or conditions.’ Thompson v. Magic City Trucking Service, 275 Ala. 291, 296, 154 So.2d 306, 311 (1963).
“Nevertheless, the application of the rule to a particular photograph offered for admission remains a matter within the sound discretion of the trial court. The trial judge is vested with discretion not only in his determination as to the preliminary proofs offered to identify the photograph or to prove that the photograph is an accurate representation of the objects it purports to portray (International Union, etc. v. Russell, 264 Ala. 456, 88 So.2d 175 (1956), aff’d 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958)), but also in his determination of whether the picture will aid the jury or tend to confuse or prejudice it (International Union, etc. v. Russell, supra). The discretion of the trial court in such matters is not reviewable in the absence of a gross abuse of that discretion. Godwin v. Jenkins, 282 Ala. 11, 208 So.2d 210 (1968).” 294 Ala. at 458-59, 318 So.2d at 693.

We have examined the photographs in question and find that they were relevant to the issue of damages as an illustration of plaintiff’s pain and suffering. See Austin v. Tennessee Biscuit Company, 255 Ala. 573, 52 So.2d 190 (1951). We find, therefore, no abuse of discretion in the inclusion of those exhibits.

Ill

Before closing arguments, defendant requested direction from the trial court on the manner in which it would allow counsel to argue the effect of the pro tanto settlements. Defendant expressed to the court its intention to argue that “No. 5 Auto Parts is liable, solely liable, for the accident and that they are not any longer in this lawsuit.” The court permitted defendant “to argue anything on liability,” but admonished counsel from arguing that No. 5 Auto Parts was “no longer in the lawsuit.” The court prohibited counsel from making “any references to the fact that this settlement constitutes an admission of fault.” Defendant contends that the trial court abused its discretion in disallowing the requested argument. However, we find no prejudicial error for the reasons which follow.

It is well settled that a person injured by joint tort-feasors may release one or more pro tanto and proceed against the others. The tort-feasors may plead the release as a bar to that amount paid by the released tort-feasor or may place it in evidence showing payment for the injury up to the amount shown in the release. Anderson v. Kemp, 279 Ala. 321, 184 So.2d 832 (1966). In lieu of allowing defendant to place the pro tanto settlements into evidence, the trial court properly informed the jury of the total amount of the settlements and instructed them to subtract that figure, $145,-000, from the full amount of damages, if any, sustained by plaintiff. When defendant objected that the initial charge was misleading in that it implied to the jury that, in assessing damages, it had to arrive at a figure greater than the amount of the pro tanto settlements, the court gave an additional charge to the jury:

“This jury may find that sum [damages] to be less than $145,000. If that’s the case, then when you would subtract $145,000 from it, you would come to the zero figure. I would want that on it.”

Although defendant contends that the explanatory charge was also subject to misinterpretation, we find that the instruction was complete. The jury, which returned a verdict in accord with the court’s instructions ($250,000 minus $145,000 credited from pro tanto settlements), doubtless understood the charge. Defendant was not prejudiced by the restriction placed on its closing argument nor by the court’s oral charge. Furthermore, we note that defendant does not claim that the amount of damages was excessive; hence, the alleged error would be rendered harmless. Rule 61, Alabama Rules of Civil Procedure.

It is a fundamental principle that the appellant (defendant) has the burden of proving prejudicial error. Southern Haulers, Inc. v. Martin, Ala., 382 So.2d 491 (1980). The appellant has failed to meet this burden.

Let the judgment be affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: TORBERT, Chief Justice.

text:
    Sheila REYNOLDS v. Sammy McEWEN, and The First National Bank of Columbiana.
    80-519.
    Supreme Court of Alabama.
    June 25, 1982.

      Robert L. Austin, Birmingham, for appellant.
    William R. Justice and William T. Harrison of Harrison, Conwill, Harrison & Justice, Columbiana, for appellee First Nat. Bank of Columbiana.
    Oliver P. Head of Wallace, Ellis, Head & Fowler, Columbiana, for appellee Sammy McEwen.
   TORBERT, Chief Justice.

On or about December 14,1974, appellant Reynolds cashed a check at a store operated by appellee McEwen. The check was payable to cash in the amount of sixty-five dollars ($65.00), drawn on appellee First National, and was signed “M. B. Kelley.” Reynolds endorsed the check.

The check was drawn on an account which Kelley had closed because he had found some of his blank checks were missing. Then, Kelley opened a new account with First National. He told them to charge all the checks written on the old account to the new one but to scrutinize his signature on all of his checks to notice a dash between the “M” and the “B” of his signature. Kelley told First National he would put a dash between his first two initials when he signed his checks as a precaution against forgery. If a check was received without the dash, First National was to contact him for further instructions. The signature of Kelley on the check cashed by Reynolds at McEwen’s store did not contain a dash between the “M” and the “B.”

As the check proceeded through the collection process, problems developed. The computer used by First National to process checks rejected the check as “no account found.” The bookkeeper then had to handle the check specially. The bookkeeper used a microencoding machine and placed a little white sticker with Kelley’s new account number on the check and sent it back to the computer. The computer rejected the check again, this time for insufficient funds. In the meantime Kelley made a deposit to the account. The check was charged to Kelley’s new account, but because the check was old and did not contain the required dash between the “M” and the “B,” Kelley was contacted by First National. The Bank’s representative testified that Kelley told her not to pay the check because he did not sign the check. The check was returned to McEwen as “signature does not agree with one on file.” McEwen testified he contacted Reynolds and she said “she would take care of the check.” Reynolds stated that she told McEwen to contact Kelley; that her mother, who had formerly been married to Kelley had given her the check. She further testified that her mother had filled in the word “cash” and the sixty-five dollar amount, it having been previously signed by Kelley.

McEwen never received the $65.00 from Reynolds or Kelley. Approximately fourteen months after the check was returned to him, McEwen signed a sworn affidavit accusing Reynolds of forgery. Reynolds was tried on the forgery charge before a jury, which found that she was not guilty.

Thereafter, Reynolds filed a complaint alleging that First National was guilty of negligence and wantonness and that McEwen was guilty of malicious prosecution.

The case came to trial on February 10, 1981. At the close of plaintiff’s evidence, the court granted a motion for directed verdict in favor of First National on the issues of negligence and wantonness.

The court submitted to the jury the issue concerning the allegation against McEwen for malicious prosecution. After the court charged the jury on the malicious prosecution allegation, the following transpired:

“MR. AUSTIN: Your Honor, we would object in that the Court did not give the charge regarding abuse of process. We submit that the evidence has been presented and gives rise to the giving of the charge of abuse of process, and in fact by Mr. McEwen’s own testimony, there was an abuse of this process. The reason he instituted this criminal charge, criminal action was for the sole purpose of attempting to collect the civil debt.
“THE COURT: Satisfied with that objection, Mr. Austin?
“MR. AUSTIN: With that exception, yes, sir.
“THE COURT: All right, bring the Jury back in, please.”

Reynolds did not request a written charge on abuse of process. The jury returned a verdict in favor of McEwen on the issue of malicious prosecution.

Appellant raises two issues on appeal: (1) Whether the trial court erred by granting First National’s motion for a directed verdict and (2) whether the trial court erred in refusing to give a jury instruction for abuse of process.

Reynolds contends that actions by First National causing the check to be returned marked “signature does not agree with one on file” began the series of events which resulted in the warrant for forgery being issued for her arrest. Appellant submits that her case against First National should have been decided by a jury because “the changing of an account number on a check and the returning of that check as ‘signature does not agree with one on file’ against the new account number would foreseeably be seen to possibly cause injury to the endorser of that check by a reasonable and prudent person.”

“In every case involving actionable negligence, there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) A failure by the defendant to perform that duty; and (3) An injury to the plaintiff from such failure of the defendant. When these three elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these renders a complaint bad or the evidence insufficient.”

Calvert Fire Insurance Co. v. Green, 278 Ala. 673, 677, 180 So.2d 269 (1965).

The dispositive issue in this case is whether First National owed a duty to Reynolds. Under the facts presented here, we find that no duty was owed by First National to the plaintiff. The check was payable to “cash,” allegedly signed by Kelley, and drawn on First National. Reynolds endorsed the check and presented it to McEwen at his store. McEwen accepted the check, endorsed it, and deposited the check at his bank. When First National refused to pay the check, it was returned to the last endorser, McEwen. Having lost the amount of the check, sixty-five dollars, McEwen looked to the next endorser, Reynolds, for payment. Reynolds refused. The relationship between First National and its depositor Kelley did not extend a duty to Reynolds as endorser of the check.

A bank and its depositor have a debtor-creditor relationship. Southern Hardware & Supply Co. v. Lester, 166 Ala. 86, 52 So. 328 (1910). In this case, the failure by the bank to pay this check concerns only the bank and its depositor. For example, if the bank had failed to honor a valid check drawn on Kelley’s account, the bank would have been liable to Kelley for wrongfully dishonoring his check. See, Code 1975, § 7-4-402; Macrum v. Security Trust & Savings Co., 221 Ala. 419, 129 So. 74 (1930).

Under the evidence in this case, First National was obligated to handle its depositor’s ordinary business transactions as directed by the depositor. First National owed no duty to Reynolds. Reynolds did not present the check for payment at the bank. It is elementary that where there is no duty there can be no breach. Calvert, 278 Ala. at 677, 180 So.2d 269.

On appeal after a directed verdict, this Court must examine the record to see if there was any evidence in support of the theory of the complaint which would render the directed verdict improper. See, Perdue v. Mitchell, 373 So.2d 650 (Ala.1979). Because we have found no duty was owed by the bank to Reynolds, the decision of the trial court to grant First National’s motion for directed verdict is affirmed.

The only allegation against McEwen in the complaint reads as follows:

“On or about March 22, 1976, Defendant Sammy McEwen did maliciously, and without probable cause therefor, cause the Plaintiff to be arrested under a warrant issued by F. E. Lansford, Warrant Clerk, Shelby County Inferior Court, on a charge of forgery. The case was tried in the Circuit Court of Shelby County, Alabama, on January 25-26 of 1977 at which time a verdict of not guilty was rendered in favor of Plaintiff Sheila Reynolds.”

Reynolds’s complaint alleges a claim for malicious prosecution. It contains no claim for abuse of process. The tort of malicious prosecution and the tort of abuse of process are two distinct torts.

In order to prove malicious prosecution the following elements must be shown:

‘[T]he institution or continuation of original judicial proceedings, either civil or criminal; (2) by, or at the instance of, the defendant; (3) the termination of such proceedings in plaintiff’s favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; and (6) the suffering of injury or damage as a result of the action or prosecution complained of’ Turner v. J. Blach & Sons, 242 Ala. 127, 129, 5 So.2d 93, 94 (1941).”

Wilson v. Brooks, 369 So.2d 1221, 1222 (Ala.1979).

The essential elements of abuse of process are: (1) An'ulterior purpose and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding. See, Duncan v. Kent, 370 So.2d 288, 290 (Ala.1979); Clikos v. Long, 231 Ala. 424, 165 So.2d 394 (1936); Dickerson v. Schwabacher, 177 Ala. 371, 58 So. 986 (1912). “The chief distinction between abuse of process and malicious prosecution is that the former rests upon the improper use of a regularly issued process, whereas the latter has to do with the wrong in the issuance of the process or in causing the process to be issued.” Wilson v. Brooks, 369 So.2d at 1222.

In his treatise on torts, Prosser explains the tort of abuse of process:

“Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.... The ulterior motive or purpose may be inferred from what is said or done about the process, but the improper act may not be inferred from the motive.”

W. Prosser, Handbook of the Law of Torts, § 121 (4th ed. 1971).

Since plaintiff only made a claim for malicious prosecution, and not for abuse of process, it was not error for the trial court to decline to charge the jury as to the latter.

Moreover, even if abuse of process ■ had been properly alleged and evidence had been presented to support the claim appellant did not properly preserve for review any alleged error of the trial court in refusing to give a jury instruction regarding the claim of abuse of process. Appellant’s only objection at the close of the trial court’s instruction to the jury was “that the Court did not give the charge regarding abuse of process.” Appellant did not, however, offer a written requested charge regarding abuse of process.

The law of this state requires that an objection to the failure to charge on a particular subject (in this case, abuse of process) must be by way of a requested written charge. City of Birmingham v. Wright, 379 So.2d 1264, 1266 (Ala.1980). See, ARCP 51. No prejudicial error was committed by the trial court and the judgment is affirmed.

AFFIRMED.

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

      . M. B. Kelley was originally a defendant in this suit. A summary judgment was granted in his favor on September 23, 1980. Kelley was deceased at the time of trial. There was no appeal filed as to the granting of Kelley’s summary judgment.

      . In her statement of the case on appeal Reynolds stated a claim for misrepresentation. However, only negligence and wantonness were alleged in her complaint.


author: JONES, Justice. TORBERT, Chief Justice

text:
    Willie FLEMING and Julia C. Fleming v. Homer WATSON and Mae Hughes.
    80-922.
    Supreme Court of Alabama.
    June 25, 1982.

      Edward T. Hines of Garretts, Thompson & Hines, Brewton, for appellants.
    William R. Stokes, Jr. of Stokes, Jernigan & Stokes, Brewton, for appellee Homer Watson.
    Billy Earl Cook, Brewton, for appellee Mae Hughes.
   JONES, Justice.

This is an appeal from an order of the circuit court vesting title, ownership, and possession of certain real property in Appel-lee Mae Hughes by virtue of prescriptive adverse possession, and rendering null and void a mortgage foreclosure deed which purported to convey title to the same property to Appellants Willie and Julia Fleming.

The disputed property consists of 4 lots in the town of Dixie, Alabama. On August 28, 1948, Appellee Homer Watson and his wife conveyed the land to A. H. Worley; Worley and his wife, in turn, executed a purchase money mortgage to Watson. The deed and the mortgage were recorded. On November 5,1949, Worley and his wife (the stepfather and mother of Appellee Hughes) conveyed the same property to Appellee Hughes, which deed was also recorded.

(ín March 6, 1980, Appellee Watson foreclosed on the Worley mortgage by publication. At the mortgage foreclosure sale on April 2, 1980, Appellants were the successful bidders and purchased the property for $1,400.00. Appellants recorded the mortgage foreclosure deed conveying title to them.

On September 29, 1980, Appellee Hughes filed a petition to quiet title in the property in herself. That petition alleges that Hughes is now 76 years old and that she is the rightful owner of the property by virtue of the recorded warranty deed executed by her mother and stepfather. The petition also alleges that Hughes has resided on the property since 1949, and that she has paid taxes on the property until she became exempt from such tax liability because of her age. Appellee Hughes contends that she has been in “actual, open, continuous, peaceable, exclusive, adverse, and notorious possession” of the property for more than 30 years, and that the mortgage in question is “more than twenty years old before the foreclosure sale and thus raise[s] a conclusive presumption by statute and case law that the mortgage [can] not be enforced because of a twenty year prescription right that ripens in favor of Mae Hughes,” which “render[s] the mortgage null and void.” The petition also states that, because of the age of the mortgage, the equity defense of laches should have prevented foreclosure. The final averment of the petition is that Mae Hughes “has receipts of payments made on said mortgage” and that the mortgage “has been paid, thus making [Mae Hughes] the rightful owner” of the property-

Appellants’ and Appellee Watson’s answers to the petition alleged that because a recorded mortgage existed at the time of the conveyance of the land to Mae Hughes, she had notice of that mortgage and, therefore, her possession of the property was permissive rather than adverse.

Appellants also filed a counterclaim against Hughes and a cross claim against Watson alleging, in both instances, that, because they were bona fide purchasers of the property, title should be quieted in them or, alternatively, that Appellants should be reimbursed for the purchase price of the property if the court were to find that the foreclosure deed is void.

Appellee Hughes’s motion for summary judgment was denied; but partial summary judgment was entered in favor of Appellee Watson on the cross claim.

After a hearing on all pending issues, the court entered its order vesting title to the property in Hughes and ruling that the foreclosure deed issued to Appellants was null and void.

Appellants filed a motion for a new trial, attacking the order on the grounds that 1) the evidence was insufficient to grant summary judgment to Watson on the cross claim and the court erred in its application of the doctrine of caveat emptor to that issue; 2) the evidence was insufficient to support an order quieting title in Appellee Hughes; and 3) the evidence did not support a finding that Hughes had disclaimed subordination to the mortgage, either expressly or by her actions (thereby indicating an intention of hostile possession), because of the sworn statement in Hughes’s petition which acknowledged the existence of the mortgage and claimed that payments had been made thereon, and because of Hughes’s later affidavit which denied any acknowledgement of either the mortgage or the payments.

The trial court, denying the motion for new trial, held that the doctrine of caveat emptor had been correctly applied, and that the court had been correct in quieting title in Hughes, because she had acquired title to the property by virtue of adverse prescriptive possession.

We affirm.

Most authorities agree that the doctrine of caveat emptor is properly applied to mortgage foreclosure sales. It is not unreasonable to presume that the purchaser at such a sale is aware of the condition of the title of the property on which he bids. It is important, however, to keep in mind that the notice with which the purchaser at a mortgage foreclosure sale is charged is that notice which would have resulted from a careful and diligent inquiry into the recorded history of the mortgaged property. C. Wiltsie, Real Property Mortgage Foreclosure § 734 (1939). “Indeed, these sales would be impossible if a purchaser were not allowed, in good faith, to accept, as presumptively true, the mortgagee’s recital, as contained in his deed, as to the regularity of his procedure in accordance with the terms of the mortgage.” G. Glenn, Mortgages § 109.1 (1943).

Further, purchasers at foreclosure sales “have been treated as bona fide purchasers for value, and protected against secret claims or equities, whether existing in favor of third persons against the mortgagor, or in favor of the mortgagor ... against the mortgagee;” and “the mortgage appearing of record to be valid, a purchaser without notice does acquire title.” L. Jones, Law of Mortgages of Real Property § 2441 (1928). See, also, 92 C.J.S. Vendor and Purchaser § 326 (1955).

This Court, however, has held:

“The elements of a bona fide purchase include a purchase of the legal title to the property in good faith, for an adequate consideration, and without notice of any claim of interest in the property by any other party. [Cites omitted.] Notice of a claim of interest in real property can be inferred from knowledge of facts sufficient to put a reasonably prudent person on inquiry, which if followed up, would lead to the discovery of the title asserted by some other party. [Cites omitted.] or as otherwise stated, knowledge of facts which would lead an ordinarily prudent person to further inquiry of the title of the vendor. [Cites omitted.]” (Emphasis supplied.)

Murphree v. Henson, 289 Ala. 340, 352, 267 So.2d 414, 425 (1972).

Possession of the property to be sold at a foreclosure sale by one whose name does not appear on the mortgage document is an obvious “fact [which] would lead an ordinarily prudent person to further inquiry,” which inquiry would reveal the claimed interest of the possessor.

In Strong v. Strong, 128 Tex. 470, 98 S.W.2d 346 (1936), although dealing with facts distinguishable from those of the instant case, the Texas commission of appeals correctly summarized the legal principles which guide our resolution of the issue now before us:

“A purchaser of land must search the records, for they are the primary source of information as to title and he is charged with knowledge of the existence and contents of the recorded instruments affecting the title. [Cites omitted.] He must also make inquiry as to the rights or title of the possessor, for possession is equivalent to registration, in that it gives constructive notice of the possessor’s rights. [Cites omitted.] ‘The rationale seems to be, that as the occupant’s title is a good one, and as his possession is notorious and exclusive, a purchaser would certainly arrive at the truth upon making any due inquiry. The purchaser cannot say, and cannot be allowed to say, that he made a proper inquiry, and failed to ascertain the truth. The notice, therefore, upon the same motives of expediency, is made as absolute as in the case of a registration.’ Pomeroy’s Equity Jurisprudence (4th Ed.) § 615, Vol. 2, pp. 1166, 1167.
“The value and effectiveness of the registration statutes are to an extent impaired by the rule that possession gives constructive notice of title, but the rule is justified, or at least supported, as suggested by Mr. Pomeroy, by the fact that ordinarily the truth as to title may be readily obtained from the person in possession.”

Strong v. Strong, 98 S.W.2d at 348.

Mae Hughes’s continuous and notorious possession of the property at issue for over 30 years was the constructive notice necessary to cause Appellants to make further inquiries as to the source, extent, and duration of Hughes’s claim to the land. Indeed, the recorded conveyance of the property to Hughes and her recorded tax transactions add strength to our conclusion that notice to Appellants of Hughes’s claim was readily ascertainable.

The burden of a diligent search into the history of property one purposes to buy is not an onerous one, nor is it unfair to apply the doctrine of caveat emptor to mortgage foreclosure sales. The purchaser at a mortgage foreclosure sale should be in no better position than buyers in all situations who claim to be bona fide purchasers for value without notice of unascertainable defects or secret equities.

We hold, then, that the trial court was correct in its denial of Appellants’ motion for a new trial and in quieting title to the property in Appellee Hughes. The judgment appealed from is affirmed.

AFFIRMED.

MADDOX and BEATTY, JJ., concur.

TORBERT, C. J., and SHORES, J., concur specially.

TORBERT, Chief Justice

(concurring specially).

I agree that the trial court was correct in quieting title to the property in the appellee Mae Hughes and in denying the appellants’ motion for a new trial. It is my view, however, that the trial court’s judgment should be affirmed for the reason that the provisions of Code 1975, § 35-10-20, are dispositive. That section provides in pertinent part:

“As to third parties without actual notice or knowledge to the contrary, the indebtedness secured by any recorded mortgage, or reservation of vendor’s lien, either in deed of conveyance or note, bond or contract of purchase covering real estate 20 years past due according to the original maturity date, or some new date fixed by a duly recorded extension agreement, shall be conclusively presumed to have been paid unless the record of such mortgage or lien shows a credit by the mortgagee, or lienee, or owner of the debt, or his assignee of one or more payments upon such indebtedness within the 20 years last passed. And if the final maturity date of the debt is not shown by the mortgage or lien, or a recorded extension agreement, or cannot be determined by calculation from the recitals contained therein, then the time shall run from the date of the mortgage or lien.
“The notation of credits mentioned in the next preceding paragraph may be made upon the record of any such mortgage, or vendor’s lien, by the owner of the indebtedness, or someone holding a duly recorded power of attorney authorizing it. Such notation must show the date of the payment made, the date the entry was made upon the record, and be witnessed by the probate judge of the county, or his duly authorized clerk.”

Code 1975, § 35-10-20.

Several cases have construed this section to mean exactly what it says: that is, “that the indebtedness secured by any recorded mortgage is conclusively presumed to have been paid if 20 years past due, unless the record shows some payment by a mortgagor within the 20 year period.” Bonner v. Pugh, 376 So.2d 1354 (Ala.1979). In Staten v. Shumate, 243 Ala. 261, 9 So.2d 751 (1942), the Court, in addressing this issue, likewise stated that without further evidence to the contrary the mortgage would be conclusively presumed paid.

When it is shown that the mortgage is over twenty years old, thus raising the presumption, the complainant has the duty to allege facts to show that payments had been made within the twenty-year period or some facts that would overcome the presumption and show that the mortgage was still in existence. Kilgore v. Gamble, 253 Ala. 334, 44 So.2d 767 (1950). No such facts were shown in this case. Thus, the burden was not met and the twenty-year presumption would control.

Several other eases have also construed this statute in the same manner. While the trial court did not focus on the applicability of this statute, the appellee did call it to our attention in brief. Since it is my view that § 35-10-20 is clearly dispositive of the issues of this case, I would forego a discussion of the more complex issues involving the doctrines of caveat emptor and adverse possession. For this reason I agree that the judgment of the trial court is due to be affirmed.

SHORES, J., concurs.

      . While our affirmance is grounded on the issues and contentions as framed and argued below, and in the context of the trial court’s ruling, we perceive no reason why Code 1975, § 35-10-20, is not dispositive of this case. See the specially concurring opinion per Chief Justice Torbert.


author: JONES, Justice.

text:
    Paul L. HARRISON, Jr., as Executor of the Last Will and Testament of Denzil W. Jones, Deceased v. Jewel J. HENDERSON.
    81-260.
    Supreme Court of Alabama.
    June 25, 1982.

      J. Gorman Houston, Jr. of Houston & Martin, Eufaula, for appellant.
    Horace G. Williams, Eufaula, for appel-lee.
   JONES, Justice.

Appellant Paul L. Harrison, Jr., as executor of the last will and testament of Denzil W. Jones, deceased, filed this action on June 18, 1981, in the Circuit Court for Barbour County, Alabama, removing the estate from the probate court, and seeking construction of item eight of the last will and testament of Denzil W. Jones, deceased:

“ITEM EIGHT. Because of her integrity, faithful service, and loyalty through the years, I give, devise, and bequeath unto Jewel J. Henderson the business owned by me and known as Dean’s Insurance Agency, including all assets and liabilities of every kind, character, and description.
“Mrs. Henderson is familiar with the method in which the J. R. Barr Estate was handled; and I request that she work with my Executor, hereinafter appointed, in closing my estate in a similar manner.”

Because of one of the executor’s contentions, as hereinafter discussed, we also set forth item ten of Jones’s will:

“ITEM TEN. I hereby nominate, constitute, and appoint my nephew, Paul L. Harrison, Jr., to be the Executor of this, my Last Will and Testament; and I do hereby expressly direct that he shall not be required to give any bond for the performance of his duties as such, nor to make any accounting or settlement, partial or final, of my estate in any court of any state, nor to file any inventory of the same.
“In the event my said nephew, Paul L. Harrison, Jr., shall not survive me or for any reason fail to qualify as such Executor, then I nominate, constitute and appoint my nephew, Robert F. Mobley, Jr., as such Executor, in his place and stead; and I do hereby expressly direct that he shall not be required to give a bond for the performance of his duties as such, nor to make any accounting or settlement, partial or final, of my estate in any court of any state, nor to file any inventory of the same.”

Appellee Jewel J. Henderson, through her answer, joined in the request for a construction of item eight of Jones’s will.

The trial court interpreted item eight to encompass surplus monies in a checking and a savings account, as well as a 1977 Chevrolet automobile. From the ensuing final judgment, the executor appeals. We affirm.

In order to understand and appreciate the issues presented in the context of the executor’s alleged error, we set forth the following facts:

J. R. Barr, who is referred to in the second paragraph of item eight of Denzil W. Jones’s will, was the former owner of the sole proprietorship known as Dean’s Insurance Agency. Louise M. Jones, wife of testator Jones, deceased, had worked in the agency for Barr, as Henderson later worked for Jones.

Upon his death, Barr willed to Louise M. Jones a 40% interest in and to Dean’s Insurance Agency. That specific bequest was item III in Barr’s will and, in pertinent part, reads:

“I will and bequeath to Louise M. Jones, in consideration for her assistance after my death to my wife, Nell E. Barr, a forty percent (40%) interest in and to Dean’s Insurance Agency, an insurance business now owned by me and now operating under that name in the City of Eufaula, Alabama, after all legal claims against and all debts of said Agency are paid and after all monies due and owing by said Agency shall have been paid in full, and also after all surplus and certificates of deposit, if any, shall have been paid into my Estate....” (Emphasis supplied.)

The executors of Barr’s estate sold the remaining 60% interest in Dean’s Insurance Agency to Louise M. Jones within four or five weeks after Barr’s death. The bill of sale contained the following description of the assets:

“That certain business or insurance agency in Eufaula, known and doing business as Dean’s Insurance Agency, who are located at 118 North Randolph Avenue, together with the name, Dean’s Insurance Agency, all furniture and fixtures remaining in said agency, and the good will of said agency.”

Louise M. Jones willed her entire estate to her surviving husband, Denzil W. Jones. At the time of Mr. Jones’s death, there was $5,845.00 surplus in the checking account of Dean’s Insurance Agency, as well as $10,-000.00 surplus, plus accrued interest, in a savings account. Additionally, the business was using and maintaining a 1977 Chevrolet automobile, titled in Jones’s individual name. The evidence further reflects that upon Barr’s death, Mrs. Jones assisted the executors and accountant of that estate in working toward its final closing.

Against this factual backdrop, the executor’s counsel’s primary argument may be summarized as follows: The definition of “Dean’s Insurance Agency” in item III of J. R. Barr’s will, and in the bill of sale from Barr’s executors’ to Louise M. Jones was incorporated by reference in item eight of the will of Denzil W. Jones. Counsel then proceeds to develop his rationale in the argument section of his brief:

“To fathom out Jones’s true intention, it is necessary to know what he meant by:
“ ‘Mrs. Henderson is familiar with the method in which the J. R. Barr estate was handled; and I request that she work with my Executor, hereinafter appointed, in closing my estate in a similar manner.’
“and by Jones’s own words [in a memorandum preparatory to the formal drafting of his will]:
“ T leave the business of Dean’s Insurance Agency (to operate as her own). She will work with Paul L. Harrison, Jr., in closing my estate in the similar manner Louise M. Jones did when the J. R. Barr Estate was closed out.’
“What do J. R. Barr, Louise M. Jones, Dean’s Insurance Agency, and Henderson have to do with each other? Why is the ‘closing of my estate’ in the paragraph of Jones’s note and the Item of Jones’s will concerning the bequest of ‘Dean’s Insurance Agency’ and not in the paragraph or Item concerning the appointment, rights, duties, etc. of the executor?
“It is obvious from the evidence that ‘Dean’s Insurance Agency,’ J. R. Barr, and Louise M. Jones were all related in Jones’s mind.
“J. R. Barr owned Dean’s Insurance Agency. Louise M. Jones, who was Jones’s wife, worked at Dean’s Insurance Agency for J. R. Barr. When Barr died, he left her 40% of ‘Dean’s Insurance Agency.’ Within five weeks after Barr’s death, Barr’s executors sold Louise M. Jones the remaining 60% of Dean’s Insurance Agency.
“The pertinent part of Barr’s will is as follows:
“ T will and bequeath to Louise M. Jones a forty (40%) percent interest in and to Dean’s Insurance Agency, .. ., after all legal claims against and all debts of said agency are paid and after all monies due and owing to all insurance companies represented by said Agency shall have been paid in full, and also after all surplus and certificates of deposit, if any, shall have been paid to my estate... ’
“Within five weeks after Barr’s death, the other sixty (60%) percent of Dean’s Insurance Agency was sold by Barr’s executors to Louise M. Jones for sixty (60%) percent of the value of the furniture and fixtures and good will (insurance renewals).
“Therefore, in the J. R. Barr will, and in the sale of the balance of Dean’s Insurance Agency (which was the closing of this part of the J. R. Barr Estate), ‘Dean’s Insurance Agency’ means the furniture, fixtures, and good will (insurance renewals) of a debt-free insurance agency.
“If this was what Jones intended, then the $5,845.00 surplus in the checking, account, the savings account, and the automobile would not be included in the bequest of Dean’s Insurance Agency.”

Lying at the core of this argument is the executor’s insistence that the Barr estate was “closed” insofar as Dean’s Insurance Agency was concerned by transferring to Mrs. Jones the furniture, fixtures, and good will, including renewals, of a debt-free 100-year-old agency. This fact acquires relevancy, however, only if Jones intended to incorporate by reference the words describing the agency in item III of Barr’s will, and the words describing the agency in the bill of sale given by Barr’s executors to Mrs. Jones in “closing out” the agency portion of Barr’s estate.

The difficulty arises, however, when the “assistance” given by Mrs. Jones in closing out the Barr estate is juxtaposed with the phrase “in a similar manner,” as set forth in paragraph 2 of item eight of Jones’s will. The executor interprets the phrase “in a similar manner” to mean the “way” in which Barr’s estate was distributed to Louise M. Jones. Henderson’s contention, to the contrary, is that the phrase concerns only the “assistance” given Barr’s estate by Mrs. Jones, and not the share of its distribution to her.

The argument of counsel for the executor is ingenious; and we confess that our high regard for his professional competence enhanced its persuasiveness. But our interpretation of the basic rules of will construction compels us to agree with the trial court and reject the incorporation doctrine under the circumstances of the instant case.

I. INCORPORATION BY REFERENCE

The executor’s position, as we have already stated, is that Jones intended to incorporate by reference into item eight of his will, those words of item III of Barr’s will, delineating the bequest of Dean’s Insurance Agency to Louise M. Jones. Additionally, according to the executor, the description of Dean’s Insurance Agency in the bill of sale from Barr’s executors to Mrs. Jones should also be incorporated into that same paragraph of item eight. Under this interpretation, assets of the Jones estate, specifically the checking and savings account surpluses and the 1977 Chevrolet, would become part of the residuary estate of Jones, as opposed to passing as a portion of Dean’s Insurance Agency to Henderson.

The executor cites Arrington v. Brown, 235 Ala. 196, 178 So. 218 (1938), for the proposition that any paper, not properly executed, but incorporated by reference in a properly executed will and identified by clear and satisfactory proof in that will as the paper referred to, takes effect as part of the will. While we are quick to accept this as a proper rule of law, we find one fatal flaw with its application to the facts before us. Item eight of the Jones will does not refer to the will of J. R. Barr, much less identify it by “clear and satisfactory proof” as a paper to be incorporated by reference into the Jones will. There is no description of the Barr will, and no reference to it whatsoever. Additionally, there is no mention of the bill of sale from the executors of the Barr estate to Mrs. Jones. Neither the Barr will nor the bill of sale to Mrs. Jones was mentioned or identified in item eight of the Jones will. Consequently, the facts preclude this case as one evidencing incorporation by reference.

II. THE SURPLUS CASH AND 1977 CHEVROLET

Premised upon his incorporation by reference argument, and the description of Dean’s Insurance Agency in the will of J. R. Barr and the bill of sale to Mrs. Jones, the executor contends that the checking surplus and savings account monies, as well as the 1977 Chevrolet, were not assets of Dean’s Insurance Agency, and, therefore, not property rightfully passing to Henderson. The crux of this contention is that no surplus cash or automobile was part of the “Dean’s Insurance Agency” inherited by Mrs. Jones. Likewise, as submitted by the executor, the same should apply to that agency acquired by Jewel Henderson. We disagree.

The checking account signature card was signed by both Denzil W. Jones and Jewel J. Henderson, and was in the name of Dean’s Insurance Agency.

The savings account was opened, initially, with a $10,000.00 deposit from the agency checking account, with both Jones and Henderson signing the signature card. The name on the account was “Dean’s Insurance Agency.” The federal identification number assigned to Dean’s Insurance Agency was on the savings account, and not Jones’s social security number. Either Jones or Henderson could make withdrawals.

The 1977 Chevrolet automobile was bought with funds from Dean’s Insurance Agency’s checking account. The agency purchased the tag and paid for the insurance with funds from its own account. The car was maintained with funds from the agency and was depreciated for tax purposes through the business of Dean’s Insurance Agency. Additionally, Jones owned two other vehicles, one a 1980 model.

Where an interest or estate is given in one clause of a will in clear and decisive terms, the interest cannot be taken away or diminished by raising a doubt upon the extent and meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate. Sewell v. Byars, 271 Ala. 148, 122 So.2d 398 (1960).

The executor urges that the checking and savings surpluses, as well as the 1977 Chevrolet, should be governed by item ten of the Jones will, instead of by item eight as determined by the trial court. If Mr. Jones had intended the second paragraph of item eight to be a directive to the executor, says the instant appellant, it should have been in item ten. “[C]onsistent with its search for a construction which reconciles inconsistent clauses and thus upholds the will, a court may transpose or rearrange the clauses in order to give effect to the testator’s intention.” Smith v. Smith, 387 So.2d 134, 136 (Ala.1980).

Our interpretation, consistent with that of the trial court, is that the second paragraph of item eight of the Jones will is merely precatory language by the testator that Jewel J. Henderson “work with” his executor in gathering information, data, records, etc., and not a directive that she acquire by such endeavors those assets of Dean’s Insurance Agency originally passing to Louise M. Jones upon the death of J. R. Barr.

Accordingly, this judgment appealed from is due to be, and hereby is, affirmed.

AFFIRMED.

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

      . According to testimony from a co-executor of the Barr estate, that estate could not be closed completely until either the death or remarriage of Mrs. Barr — events which, at the time these proceedings originated, had not transpired.


text:
    Culley Max BRAGG v. STATE of Alabama.
    81-371.
    Supreme Court of Alabama.
    June 25, 1982.

      Jake B. Mathews, Jr. of Merrill, Merrill, Mathews & Allen, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   JONES, Justice.

The sole issue raised by this appeal is the propriety, vel non, of the juvenile court’s transfer of Culley Max Bragg, a juvenile 14 years of age, to the circuit court for criminal prosecution as an adult. The complaint filed against Bragg charged that he was delinquent in that he did intentionally cause the death of another person in violation of Code 1975, § 13A-6-2.

Because our affirmance mandates a subsequent trial of this cause before the Calhoun Circuit Court, we deem a full recitation of the facts untimely and improvident. It is sufficient for the purposes of this review to set out a portion of the juvenile court’s order effecting the transfer:

“The Court considering the results of that report, testimony taken on December 8, 1981, and the other matters as set out above, finds as follows:
“1. That probable cause exists that the offense of Murder as alleged in the petition was committed and that said child committed said offense.
“2. That said child at the time the alleged offense occurred was over 14 years of age and the act he was alleged to have committed would be a felony had he been an adult.
“3. That the evidence is insufficient to show that the child is committable to an institution or agency for the mentally retarded or mentally ill.
“4. That said child has an extensive juvenile court record.
“5. That said child is a small 14 year old white male.
“6. That there has been little benefit of the past treatment efforts on the part of the Juvenile Court.
“7. That it would be in the best interest of the public to grant the motion.
“The Court considering the above and each aspect of 12-15-34(d), Code of Alabama, 1975, including the nature of the present offense, the child’s demeanor, the extent and nature of the child’s physical and mental maturity and the extent and nature of the child’s prior delinquency record and the nature of the past treatment efforts and the child’s response to such efforts as set out in the probation officer’s report, and for cause shown,
“It is therefore ORDERED, ADJUDGED AND DECREED that the said Culley Max Bragg be and is transferred to the Circuit Court of Calhoun County for criminal prosecution as an adult and is bound over to the grand jury for further investigation.”

Transfer hearings are “probable cause” hearings, and the transferring court should not be reversed unless its ruling is clearly erroneous. Duncan v. State, 394 So.2d 930 (Ala.1981); Terrell v. State, 379 So.2d 1238 (Ala.1980); Williams v. State, 361 So.2d 1157 (Ala.1978).

Probable cause, in the context of transfer hearings, has been defined as “that which would warrant a man of reasonable prudence and caution in believing that the offense has been committed and that the person in question is the offender.” Duncan, supra, quoting Vincent v. State, 349 So.2d 1145 (Ala.1977). The trial court’s ruling may be found to be clearly erroneous if the order issued does not recite that the court has considered the six factors outlined in Code 1975, § 12-15-34(d). The objective of § 12-15-34(d) is to provide a “meaningful review” as mandated by Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). The mere recital in the transfer order, however, that the trial court has considered the six statutory factors is sufficient, Brown v. State, 353 So.2d 1384 (Ala.1978), where there is evidence to support the order.

Close analysis of the record shows what we believe to be more than sufficient evidence to uphold the juvenile court’s order of transfer. Consequently, the judgment appealed from is due to be, and it hereby is, affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Brenda J. REEVES and Alexander Reeves v. PROPERTY MANAGERS, INC.
    81-478.
    Supreme Court of Alabama.
    June 25, 1982.
    Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellants.
    Robert L. Williams of Norman, Fitzpatrick & Wood, Birmingham, for appellee.
   PER CURIAM.

Plaintiffs Brenda and Alexander Reeves are husband and wife. They filed suit against Property Managers, Inc., which is the rental agent for the owner of the apartments in which the Reeveses are tenants. The suit sought damages for injury allegedly suffered by Brenda Reeves when a part of a brick veneer wall adjacent to the back door of her apartment fell on her knee as she was leaving through the back door. The portion of brick wall which fell was described as decorative veneer, serving no functional purpose. It is located on the exterior wall of the apartment’s kitchen.

The trial court granted a summary judgment in favor of the defendant, and the plaintiffs appealed. We reverse and remand.

The defendant relies on the following provisions of the lease and contends that these contractual provisions exonerate it from liability:

“8. The Lessor shall in no event be liable for damages for stoppage of elevators or heat or electricity or water or for the machinery or appliances pertaining to the building breaking or getting out of order, or being out of repair. The Lessor or Lessor’s Agents or Employees shall, in no event be liable for injury to any person or property caused by any defect in the heating, gas, electrical, water or elevator apparatus. The Lessor (including Lessor’s Agents or employees) shall in no event be liable to any person for any damages of any nature which may occur at any time on account of any defect in said building, premises, improvements thereon, or appurtenances thereto, whether such exists at the date of Lease or arises subsequently thereto, or whether such defect was known or unknown at the time of such injury or damage, or for damages from wind, rain or other cause whatsoever, all claims for such injury or damage being hereby expressly waived by Lessee. Should any of the electrical, water, plumbing, heating, or other equipment belonging to the premises become unserviceable, the Lessor shall have a reasonable time after notification in writing to determine the responsibility and in the event the Lessee is not liable for repairs, and/or replacement, then to have the same repaired within a reasonable time without any liability, however, to the Lessee for damage or inconvenience.
“14. As a part of the consideration hereof, the Lessee hereby covenants and agrees to hold the Lessor, the Lessor’s Rental Agents and the Servants and Employees of either, free and harmless from any and all liability for claims for damages or other claims for personal injury, or death, sustained by Lessee, or sustained by any other person, while on the leased premises or adjacent thereto during the terms of this lease as the result of negligence, or other conduct, of the Lessor, or of the Lessor’s Servants, Agents or Employees.”

Although this Court has declined on two recent occasions to invalidate exculpatory clauses in leases, Matthews v. Mountain Lodge Apartments, Inc., 388 So.2d 935 (Ala.1980), and Walston v. Birdnest Apartments, Inc., 395 So.2d 45 (Ala.1981), it has held that an exculpatory clause does not exonerate the landlord from liability for concealment of a known latent defect which subsequently causes injury. Taylor v. Leedy and Company, Inc., 412 So.2d 763 (Ala.1982); Gardner v. Pepper Tree Apartments, 413 So.2d 1077 (Ala.1982).

In both of these cases, there was some evidence that the landlord knew of the defect prior to the incident causing injury. In both cases, the Court reversed a summary judgment in favor of the landlord. In this case, there is some evidence that the landlord had inspected the brick wall with a contractor some days prior to the incident made the basis of this suit and had noticed that the caulking was loose.

It was, therefore, error to grant summary judgment in favor of the landlord.

REVERSED AND REMANDED.

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