text:
    Clivis BRELAND, Sr. v. MISSISSIPPI STATE HIGHWAY COMM’N.
    No. 54053.
    Supreme Court of Mississippi.
    Feb. 9, 1983.
    Parsons & Matthews, Jack Parsons, Wiggins, for appellant.
    Samuel E. Farris, Hattiesburg, for appel-lee.
   Appeal from Special Eminent Domain Court, Perry County; Jack B. Weldy, Judge.

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

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    John S. WOFFORD v. STATE of Mississippi.
    No. 54062.
    Supreme Court of Mississippi.
    Feb. 9, 1983.
    Mose Lee Sudduth, Jr., Columbus, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Clay County; Joe O. Sams, Sr., Judge.

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

AFFIRMED.


text:
    Nathan KERN v. STATE of Mississippi.
    No. 53980.
    Supreme Court of Mississippi.
    Feb. 9, 1983.
    Joe C. Webster, Clarksdale, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Coahoma County; Elzy J. Smith, Judge.

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

AFFIRMED.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS and PRATHER, JJ., concur.


author: PATTERSON, Chief Justice, DAN M. LEE, Justice, WALKER, Presiding Justice,

text:
    Eddie Lee WILSON a/k/a Billy Wilson v. STATE of Mississippi.
    No. 54020.
    Supreme Court of Mississippi.
    Feb. 16, 1983.
    Carroll Rhodes, Hazlehurst, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   ON PETITION FOR APPEAL

PATTERSON, Chief Justice,

for the Court:

Eddie Lee Wilson, alias Billy Wilson, was convicted on March 7, 1978 of attempted rape and on March 14, 1978 of armed robbery. On March 14,1978 he was sentenced to serve thirty five years in the state penitentiary for the armed robbery conviction and ten years for the attempted rape conviction to run consecutively with the armed robbery conviction. Wilson filed Motions For a New Trial in both causes which were overruled on March 17, 1978, by the Circuit Court of Copiah County.

On March 27, 1978, Wilson filed a Notice to Appeal both convictions to this Court with the Circuit Clerk of Copiah County and with the official court reporter. He signed an Affidavit in Lieu of Bond for Appeal of the armed robbery conviction on March 9, 1978 (evidently this is a typographical error and should read May 9, 1978), and signed an Affidavit in Lieu of Bond for Appeal of the attempted rape conviction on May 9,1978. Both affidavits were filed with the circuit clerk on May 9, 1978.

On June 21, 1978, this Court sustained a Motion to Docket and Dismiss both appeals because they were not timely filed. Thereafter, February 26, 1981, Wilson filed a Petition For an Out of Time Appeal to this Court which was remanded to the Circuit Court of Copiah County for proceedings in accordance with Jones v. State, 855 So.2d 89 (Miss.1978). In compliance with the remand, a hearing was conducted in the Circuit Court of such county which denied the petitioner’s request for an out of time appeal.

Wilson was the only witness in the hearing proceedings. He testified that in both the armed robbery and attempted rape cases, he was represented by Attorney Fir-nist Alexander who had been retained by his father. Wilson testified he advised Alexander that he wanted to appeal the convictions at the time he was found guilty and again when he was taken to the Copiah County Jail, and that he repeated the request after his arrival at Parchman. He stated that Alexander advised him he had been retained to appeal the cases and repeatedly assured him his convictions were on appeal. With the passage of time he became concerned that nothing was being done and contacted the Attorney General of the State who, after investigation, advised him his cases were not on appeal.

The trial court denied Wilson’s Petition For an Out of Time Appeal finding that no misrepresentations had been made to Wilson concerning his right to appeal, his right to retained counsel, or his right to have court appointed counsel on appeal. The trial court was also justifiably concerned about the passage of time from the convictions until the hearing in this cause. However, the trial court expressed no finding as to whether Wilson had established by a preponderance of the evidence that Alexander misrepresented the status of the appeal.

There is no suggestion that the trial court did not adequately advise Wilson of his rights concerning an appeal, including his right to a court appointed attorney if he was indigent. Neither is there any question concerning the dismissal of the previous appeals because they were not timely filed.

The present problem arises from the directives of Jones v. State, 355 So.2d 89, 90 (Miss.1978), in which we held that an out of time appeal is warranted “where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court,” provided the above prerequisites are established by a preponderance of the evidence.

Wilson’s sworn testimony that Alexander misrepresented to him the status of the two appeals was uncontradicted by other testimony, the physical facts or facts of common knowledge. Moreover, in the context given, the testimony is not unreasonable. Under these circumstances we must accept his testimony as true. Edwards v. Mid-State Paving Company, 300 So.2d 794 (Miss.1974); Hearin-Miller Transporters, Inc. v. Currie, 248 So.2d 451 (Miss.1971); Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442 (1953). We therefore are of the opinion the petitioner presented a prima facie case for the relief he sought.

Unfortunately this conclusion presents another issue and that is whether this Court should reverse and direct the trial court to permit the appeals or whether the cause should be reversed and remanded for additional testimony to be taken. A majority of the court is of the opinion the cause should be reversed and the court directed to permit the appeals.

REVERSED. THE TRIAL COURT IS DIRECTED TO PERMIT THE APPEALS.

ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

DAN M. LEE, J., specially concurs.

WALKER and BROOM, P.JJ., dissent.

DAN M. LEE, Justice,

specially concurring:

I agree with the majority that this case should be reversed, there being no proof other than that appellant was misled by his attorney, therefore effectively denying his right to appeal. However, I also agree with Justice Walker in his dissent that Jones v. State, 355 So.2d 89 (Miss.1978), stands only for the authority that “through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.”

The record in this case does not disclose any contact with the attorney who was then representing appellant as to whether he effectively denied appellant his right to perfect his appeal.

The purpose of the evidentiary hearing under Jones is to develop the facts on both sides of the issue, not one side.

I would reverse and remand this case to the circuit court for a full evidentiary hearing as contemplated under Jones.

WALKER, Presiding Justice,

dissenting:

I respectfully dissent from the holding of the majority that Jones v. State, 355 So.2d 89 (Miss.1978) is authority for granting an appeal in this case, nearly four years after the 45-day period in which to appeal as prescribed by Mississippi Code Annotated section 11-51-5 (Supp.1982) expired. The failure of the attorney to appeal was the result of the attorney’s neglect and lack of attention to his business. The fact that he later told his client that he had appealed is of no consequence. I think that all litigants should be treated with some degree of consistency in our rulings. Since I have been on this Court literally dozens of cases have been dismissed for failure of the attorney to perfect the appeal within the 45-day limitation. The result of this case is to say to all future litigants, that if your attorney neglects to file an appeal within the 45 days prescribed by section 11-51-5, that you (the client) will not be charged with his neglect and that all you need to do is get another attorney to perfect an out-of-time appeal.

A strict rule sometime creates a harsh result. However, even more injustice will occur by allowing out-of-time appeals where the attorney was negligent in the first instance. For example, in this case it is not unlikely that Wilson, who was convicted of armed robbery and attempted rape, will successfully thwart justice and escape punishment because of absent or dead witnesses or lost evidence, now that four years have elapsed.

The Jones case clearly applies only in those cases where the attorney or the court advises a defendant within the period in which an appeal must be perfected that he does not have a right to appeal. It is not authority for covering negligent acts of attorneys.

If out-of-time appeals are allowed under the circumstances of this case, then out-of-time appeals should be allowed under similar circumstances in civil cases.

BROOM, P.J., joins this dissent.

      . The appeals permitted are in Cause Nos. 12,-928-A and 12,929-A. Mention is made in the record of Cause No. 12,930-A however it was not included in the Petition For Out of Time Appeal.


author: WALKER, Presiding Justice,

text:
    Walter THOMAS v. STATE of Mississippi.
    No. 54017.
    Supreme Court of Mississippi.
    Feb. 16, 1983.
    Jerry L. Mills, William J. Johnson, Clinton, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.
   WALKER, Presiding Justice,

for the Court:

The appellant, Walter Thomas, was indicted for murder but convicted of manslaughter and sentenced to twenty years in the custody of the Mississippi Department of Corrections by the Circuit Court of the Second Judicial District of Hinds County, Mississippi.

The appellant’s conviction was based primarily on statements given to the authorities.

At trial, the appellant denied he read the statements and denied their truth. He admitted signing them but contended that he had done so out of fear and the belief he would be released from jail.

At the conclusion of the case, the appellant requested the following instruction, which was denied- by the court:

The Court instructs the Jury that if you believe from the evidence that the alleged confession of the Defendant was untrue you should disregard it or, if you believe from the evidence that it was made under the influence [of] hope or fear, you may take this into account in determining what weight or credit, if any, you may attach to it as evidence.

There was no general instruction given by the court explaining to the jury that they were the sole judge of the weight and credibility of the witnesses, and that they could give testimony and evidence such weight as they deemed it justified.

We are, therefore, of the opinion that failure to grant the requested instruction was error and under the facts of this case are unable to say that it was harmless error.

During the trial it was brought out that a polygraph examination had been given to the defendant. This should not reoccur upon retrial.

For the above reasons, the judgment and conviction are reversed and this cause is remanded to the lower court for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

      . See Ellis v. State, 65 Miss. 44, 3 So. 188 (1887).


author: DAN M. LEE, Justice,

text:
    UNION CAMP, INC. and Liberty Mutual Insurance Company v. DEPENDENTS OF Steven Morris McCALL, Deceased.
    No. 53622.
    Supreme Court of Mississippi.
    Feb. 16, 1983.
    Mitchell, McNutt, Bush, Lagrone & Sams, John S. Hill, Tupelo, for appellants.
    Coleman & Coleman, Lee S. Coleman, West Point, for appellees.
    Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Chickasaw County which affirmed an order of the Workmen’s Compensation Commission awarding the parents of Steven Morris McCall, deceased, appellees, partial dependency death benefits. Decedent was killed on December 7, 1979, while employed by Union Camp, Inc., when he was caught in a piece of machinery on his employer’s premises. Union Camp, Inc., and its carrier, Liberty Mutual Insurance Company, appellants, have appealed from the circuit court’s order. We affirm.

On December 7, 1979, Steven Morris McCall, decedent, was killed when he was caught in a piece of machinery while in the employ of Union Camp, Inc. At the time of his death, decedent was twenty years old and had worked for Union Camp, Inc., for approximately six months. He earned approximately $200 per week.

Decedent had resided with his parents on their 13-acre farm prior to his death. His father is an employee of South Central Bell where he earns approximately $25,000 a year, while his mother is employed by Pep Industries where she earns approximately $10,000 a year.

Decedent performed the heavy manual labor around his family’s farm due to his father’s age and high blood pressure. He kept the thirteen acres mowed and cultivated a half-acre garden which provided the family with their fresh vegetables. Decedent also purchased a second car for the family which was used by each member for various functions. In addition to making these contributions, decedent paid $100 to $130 a week to help defray the expenses of his family. Decedent paid approximately one-third of the household expenses even though he did not generate one-third of the cost of operating the household.

Upon the death of Steven Morris McCall, his parents filed this action alleging partial dependency upon decedent and therefore they were entitled to death benefits. The administrative judge found that decedent’s parents were partially dependent upon him and entitled to death benefits in the amount of 15% of the wages of decedent for support of each parent during such dependency. The full commission affirmed the order of the administrative judge. On appeal to the Circuit Court of Chickasaw County, the order of the commission was affirmed.

Did the commission err in ruling that appellees were partial dependents of Steven Morris McCall, deceased?

Appellants contend in their first proposition that the evidence failed to support the commission’s findings that decedent’s monetary contributions and labor around the family’s residence were of such a nature and extent as to cause the loss of said contributions to result in a reduced standard of living by appellees.

Mississippi Code Annotated section 71-3-25(e) and (g) (Supp.1979) provides as follows:

71-3-25. If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following:
(e) If there be no surviving wife or dependent husband or child, or if the amount payable to a surviving wife or dependent husband and to children shall be less in the aggregate than sixty-six and two-thirds percent (66%%) of the average wages of the deceased, subject to the maximum limitations as to weekly benefits as set up in this chapter, then for the support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, fifteen percent (15%) of such wages for the support of each such person; and for the support of each parent or grandparent of the deceased, if dependent upon him at the time of the injury, fifteen percent (15%) of such wages during such dependency. But in no case shall the aggregate amount payable under this subsection exceed the difference between sixty-six and two-thirds percent (66%%) of such wages and the amount payable as hereinbefore provided to surviving wife or dependent husband and for the support of surviving child or children, subject to the maximum limitations as to weekly benefits as set up in this chapter.
(g) All questions of dependency shall be determined as of the time of the injury. A surviving wife, child or children shall be presumed to be wholly dependent. All other dependents shall be considered on the basis of total or partial dependence as the facts may warrant, (emphasis ours).

In Mid-State Paving Co. v. Farthing, 233 Miss. 333, 101 So.2d 850 (1958), this Court stated:

The term “dependent” must be liberally interpreted, and includes those partially dependent as well as those wholly dependent. So one is dependent if he relies upon the employee, in whole or in part, for his support. Deemer Lbr. Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634 (1951), in which a father was found to be partially dependent on his son, is on its facts persuasive in this case. Where reliance is placed upon the deceased employee to provide the applicant for compensation, in some measure or to some extent, with his or her future living expenses, it is not material that the contributions were made at irregular intervals or in different amounts. The statute’s purpose is to provide the workman’s dependent in the future with something in substitution for what has been lost by the workman’s death. Claimant must show that he had reasonable grounds to anticipate future support from the decedent. This reasonable expectation of continuing future support and maintenance is the principal criterion. 58 Am.Jur., Workmen’s Compensation, Sec. 162.
Dunn, Miss. Workmen’s Compensation, (1957) Sec. 136, makes this further observation: “However, if the test, above stated, is met by one claiming partial dependency, it is not material (1) that contributions are made or expected at irregular intervals, or (2) that the claimant was able to maintain himself, or (3) that claimant was possessed of some property, or (4) that claimant was supported in part by others or from other sources, or even (5) that the claimant had an income which exceeded that of the employee. The support requirement, moreover, does not mean that claimant must show that he will be destitute and without the bare necessities of life.” See also Bradshaw v. Rudder, [227 Miss. 143] 85 So.2d 778, (Miss.1956), where a father and mother were held to be dependents of a minor unmarried son. Cf. Fernwood Industries, Inc. v. Mitchell, 219 Miss. 331, 68 So.2d 830 (1953); Aultman v. Crosby Chemicals, Inc., 222 Miss. 98, 75 So.2d 458 (1954). (233 Miss, at 336-37,101 So.2d at 851-52).

See also Magnolia Construction Co. v. Sto-vall's Dependents, 250 Miss. 761, 168 So.2d 297 (1964); Bradshaw v. Rudder, 227 Miss. 143, 85 So.2d 778 (1956); Fernwood Industries, Inc. v. Mitchell, 219 Miss. 331, 68 So.2d 830 (1953); and Deemer Lbr. Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634 (1951).

In Mid-State Paving Co., supra, the parents were found partially dependent upon their deceased son’s earnings where the proof disclosed that the son claimed his parents as dependents on his federal income tax returns, made cash contributions to his parents on numerous although irregular occasions for many years, performed the heavy manual labor on the 60-acre farm and frequently bought groceries. Decedent had resided on the farm with his parents all his life except for a brief period of time when he married. In Bradshaw, supra, partial dependency of the parents of a deceased 18-year-old son were found where the father was regularly employed and earning $46.70 a week which was devoted to the payment of the family expenses. The deceased son lived with his parents and purchased an automobile for the family’s use. Although only $2.84 per week was left for contribution to the family’s expenses after the car note was paid and $12.50 per week retained for personal expenses, the court found that the commission was warranted in treating the payments on the automobile as a contribution to the family.

In Deemer Lumber Co., supra, this Court upheld a finding that a deceased son’s father was partially dependent on his earnings where the decedent had lived with his parents except during the last three or four months prior to his death. There the evidence revealed that in 1947 the son had farmed on his father’s 125-acre farm and spent a large amount of the $1040 he received from the government on the family and farm, including a $640 payment on the farm. In 1948 and 1949 the son helped his father plan and work the crops and gave his pay check and government check to his mother for the family expenses, keeping out only enough for spending money. The mother in return made payments on the son’s car which was used by the entire family. Although the father had some income from his farm in 1949, the parents were in very poor financial condition. The father was likewise in poor health and able to do little, if any, work.

In the present ease, the appellees had a substantial income; however, the evidence was undisputed that their son’s income was used to pay at least a third of the family’s expenses. Besides his cash contributions for groceries and expenses, the son’s automobile, which was purchased and paid for by him, was used by the family for family errands and business. In addition to his monetary contributions, decedent performed the heavy manual labor around the family’s small farm which his father was unable to handle. Since his death, the farm has gone virtually uncared for.

The rule is well established that the commission is the trier of fact. Day-Brite Lighting, etc. v. Cummings, 419 So.2d 211 (Miss.1982). Where the evidence substantially supports the order of the commission, this Court will not disturb its findings. Mississippi Research & Development Center v. Dependents of Shults, 287 So.2d 273 (Miss.1973). It is true that appellees enjoy a substantial income from their employment. However, upon this record, we are unable to say that the commission’s finding that appellees were partial dependents of decedent at the time of his death, was not supported by substantial evidence.

Appellants also contend that the benefits received by the deceased were substantially equal to his contributions so that the loss of his contributions did not reduce the appellees’ standard of living because decedent was doing nothing more than “pulling his weight.” See 2 Larson’s Workmen’s Compensation Law, § 63.12(b) (1981). We have previously rejected such an argument in Bradshaw, supra, wherein this Court stated:

The record fails to disclose that the parents intended to charge the son with the reasonable value of his board and lodging, and we do not feel justified in doing so ourselves. Moreover, he may have performed chores about the place that would have adequately compensated for his board and lodging, aside from any other contributions that he may have made for the support of his mother, (emphasis ours). (227 Miss. at 156, 85 So.2d at 783-84).

In the absence of any evidence that appel-lees intended to charge decedent with the reasonable value of his board and lodging, we find there is no merit in this contention.

Did the commission err in failing to prorate the death benefits upon a finding of partial dependency?

Although we do not believe this assignment of error is properly before the Court, appellants’ contention was answered by this Court in Bradshaw, supra:

The Legislature in drafting the Workmen’s Compensation Act was well aware of the various kinds of compensation statutes, yet it wholly failed to provide for any method of computing a reduced percentage of benefits for partial dependents. So we cannot assume that it intended to do so. (227 Miss. at 155, 85 So.2d at 783).

Since Bradshaw, supra, the legislature has failed to provide any method of computing a reduced percentage of benefits for partial dependents. We cannot assume the legislature intended to do so.

Based on the foregoing, this case is hereby affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.


text:
    Leroy RATLIFF v. The GADDIS FARMS, INC.
    No. 53619.
    Supreme Court of Mississippi.
    Feb. 16, 1983.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

Harry L. Kelley, Jackson, for appellant.

Keyes, Moss & Piazza, Joe B. Moss, Jack G. Moss, Jackson, for appellee.

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

AFFIRMED.


text:
    Frank FALSONE, III v. Eugene TAYLOR, et al.
    No. 53604.
    Supreme Court of Mississippi.
    Feb. 16, 1983.
    Jim Waide, West Point, for appellant.
    Wallace & Dean, Philip T. Dean, Columbus, for appellee.
   Appeal from Chancery Court, Lowndes County; Lenore L. Prather, Chancellor.

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

AFFIRMED.

PRATHER, J., takes no part.


text:
    Anthony HESTER v. STATE of Mississippi.
    No. 53939.
    Supreme Court of Mississippi.
    Feb. 16, 1983.
    Scales & Scales, James L. Farragut, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; John E. Ellis, Judge.

Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.

AFFIRMED.


text:
    Johnny L. JOHNSON v. STATE of Mississippi.
    No. 53609.
    Supreme Court of Mississippi.
    Feb. 16, 1983.
    Louie M. Bishop, Waynesboro, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Wayne County; Henry Palmer, Judge.

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

REVERSED AND REMANDED.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS and PRATHER, JJ., concur.


text:
    AMERICAN FLORAL SERVICES, INC. v. Bobbye STIGALL d/b/a The Delta Boll Weevil.
    No. 54034.
    Supreme Court of Mississippi.
    Feb. 16, 1983.
    Henley, Lotterhos & Henley, Will S. Henley, II, Jackson, for appellant.
    Clements & Clements, Rush M. Clements, Rolling Fork, for appellee.
   Appeal from Circuit Court, Sharkey County; John E. Ellis, Judge.

Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.

REVERSED AND THE DEFAULT JUDGMENT REINSTATED.

WALKER and BROOM, P.JJ., and BOWLING, HAWKINS and ROBERTSON, JJ., concur.

DAN M. LEE, J., takes no part.


author: PRATHER, Justice,

text:
    Samuel CALLAHAN, et al. v. STATE of Mississippi.
    Misc. No. 1445.
    Supreme Court of Mississippi.
    Feb. 16, 1983.

      McTeer & Bailey, Charles Victor McTeer, Greenville, for appellants.
    Bill Allain, Atty. Gen. by William S. Boyd, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
   PRATHER, Justice,

for the Court:

This cause involves (1) petitions for rehearing filed by both the appellants and the state on denial of petition for writ of error coram nobis filed by the above named seven petitioners, and (2) an application for bail filed by Eddie James Carthan. The prior opinion of the Court handed down the 10th day of November, 1982, is withdrawn, and the following is now the Court’s opinion.

The petitioners were convicted for the crime of assaulting a police officer in the Circuit Court of Holmes County. On appeal, we affirmed in a unanimous decision. Callahan v. State, 419 So.2d 165 (Miss.1982). No petition for rehearing was filed in the case (No. 53,361), and the time for filing such a petition has expired. Miss.Sup.Ct. Rule 14.

On October 1, 1982, the petitioners filed their post-conviction petition for relief (Mise. No. 1445), which was entitled petition for writ of error coram nobis. The assignments of error in the petition were concerned with both the trial and appellate proceedings, and may be summarized as follows:

1. Due Process — failure of trial court to instruct on powers and duties of may- or (requested instructions D-2 and D-3) and requirements for lawful appointment of a chief of police (requested instruction D-6).
2. Due Process — use by the state of false “facts and legal theories” to obtain a conviction.
3. Due Process — affirmation by this Court of petitioners’ convictions upon a theory different from that employed in the trial court.
4. Thirteenth, Fourteenth, and Fifteenth Amendments — use of the criminal process to disenfranchise black voters.
5. Sixth/Fourteenth Amendment — denial of effective assistance of counsel.

Carthan filed his additional petition for bail in order to obtain a release from confinement while this Court considered the petition for writ of error coram nobis.

I.

We first address the petition for writ of error coram nobis by recognizing a basic premise in this jurisdiction that such post-conviction petitions are limited in nature. Justice Ethridge, in the case of In re Broom’s Petition, 251 Miss. 25, 168 So.2d 44 (1964), set forth the circumstances in which a writ for error coram nobis would lie. His opinion states:

The general scope of a petition for writ of error coram nobis, or motion in the nature thereof, is to bring before a court a judgment previously rendered by it, for the purpose of review or modification. There must be some error of fact and not of law affecting substantially the validity and regularity of the proceedings, which was not brought into issue at the trial. Such motion or petition is an extraordinary and residual remedy to correct or vacate a judgment on facts or grounds not appearing on the face of the record, not available by appeal or otherwise, and not discovered until after rendition of the judgment, without fault of the party seeking relief. It is an attack on a judgment of conviction, valid on its face, but defective by reason of facts outside the record, which deprived accused without fault on his part of the constitutional right to a fair trial. [Emphasis added], [251 Miss. at 32-33, 168 So.2d at 48].

With this background in mind, our Court has since ruled that the writ of error coram nobis will not be allowed to relitigate questions of law or fact already decided by this Court. Auman v. State, 285 So.2d 146 (Miss.1973). Moreover, “a defendant in a criminal trial may not deliberately hold back matters known to him at the time of his trial until after the affirmance of his conviction and then, for the first time, use them to begin the whole process all over again.” Holloway v. State, 261 So.2d 799, 800 (Miss.1972).

IIA.

The petitioners’ first assignment of error concerns the failure of the trial court judge to grant certain jury instructions requested by the petitioners’ counsel. (D-2 and D-3 were instructions defining the powers and duties of mayors) (D-6 defined the requirements for the lawful appointment of the chief of police). This same issue was raised by the petitioners on appeal. 419 So.2d at 176. The proper time to reconsider such an issue would have been on a rehearing of the appeal, but the petitioners failed to file for a rehearing. They cannot now attempt to relitigate a question of law already decided on appeal by this Court through a petition for writ of error coram nobis.

IIB.

For the same reason, the petitioners’ fourth assignment is also an improper ground for granting a writ of error coram nobis. The fourth assignment alleged that the prosecution unconstitutionally chose to prosecute the petitioners in order to disenfranchise black voters. On appeal, the petitioners argued that the state selectively and arbitrarily chose to prosecute the petitioners. Id. at 171. It is readily apparent that the petitioners are simply attempting to relitigate the same question of law again. Consequently, this assignment does not meet the “error of fact” requirement.

IIC.

The petitioners’ second assignment alleges that the state used false “facts and legal theories” to obtain the convictions. This claim is based on an alleged admission by the state’s appellate attorney, during oral argument before this Court, that Jim Andrews was not a lawfully appointed officer when he was assaulted by the petitioners. As a result of this supposed admission, the petitioners additionally contend, in their third assignment, that their convictions were affirmed on “grounds alien to the theory upon which the prosecution proceeded at the trial level.”

The petitioners’ claims are totally devoid of merit because the prosecution proceeded, throughout trial and on appeal, on the theory that the petitioners had assaulted James Harris, a member of the Tchula police department. The indictment on which the petitioners were charged specifically accused them of attempting to cause serious bodily injury to James Harris. At trial, the facts revealed that both Harris and Andrews were assaulted during the incident in question. In fact, the petitioners claimed on appeal that they were entitled to a peremptory instruction because the state had allegedly failed to prove that Harris was a police officer acting within the scope of his duty. Id. at 174. On appeal, we noted that the case involved an attack on Harris. Id. at 177. Clearly, the prosecution proceeded on the basic premise that Harris was the victim of the crime charged, and did not proceed on the premise that Andrews was the victim. These assignments fail to supply the petitioners any basis for a writ of error coram nobis.

IID.

The petitioner’s final assignment involves a claim of ineffective counsel, an issue not asserted on appeal. We address it for the first time in this post conviction proceeding.

Since 1932, the United States Supreme Court has recognized that the constitutional right to assistance of counsel in criminal cases includes the right to effective assistance of counsel. Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955); Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). But, the Court has never fashioned a specific test for determining whether a defendant has received effective counsel. Comment, The Sixth Amendment Right to Effective Counsel: What Does It Mean Today?, 59 Neb.L.Rev. 1040 (1980); T. Fitzhugh, III, Providing Effective Assistance: The Duty of Defense Counsel, 4 Am.J. of Crim.L. 123 (1975-76). In McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), the Court stated that an attorney’s service must be within “the range of competence demanded of attorneys in criminal cases,” but that questions involving the effectiveness of counsel should generally be “left to the good sense and discretion” of the lower courts. 397 U.S. at 771, 90 S.Ct. at 1449. Beyond this general language, the United States Supreme Court has placed the responsibility of specifying standards for adequate representation by counsel upon the lower courts. This has resulted in several different standards by the various federal courts of appeal. Comment, Ineffective Assistance of Counsel: Who Bears the Burden of Proof?, 29 Bay L.Rev. 29 (1977).

In Mississippi, our Court has applied several different tests. See, e.g., Edwards v. State, 413 So.2d 1007 (Miss.1982) (“offensive to the common and fundamental ideas of fairness and right” test); Parham v. State, 229 So.2d 582 (Miss.1969) (“mockery of justice” test); Stewart v. State, 229 So.2d 53 (Miss.1969) (“reasonably likely to render and rendering reasonably effective assistance” test). We agree with the sentiment expressed by our Court in Stewart v. State, supra, and the expression of that principle in subsequent cases.

In MacKenna v. Ellis, 280 F.2d 592 (5th Cir.1960), the federal court employed for the first time the test of “counsel reasonably likely to render and rendering reasonably effective assistance.” Id. at 599. This test is now used regardless of whether counsel is appointed or retained. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). And, under this test, the court must not limit itself to a review of the counsel’s performance at trial. Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982).

In applying the test, the first line of inquiry is to determine whether the counsel was reasonably likely to render reasonably effective assistance. In Washington v. Watkins, supra, the court reviewed the counsel’s education, experience, and expertise in criminal cases. Recently, in Bell v. Watkins, 692 F.2d 999 (5th Cir.1982), the court considered the assistance reasonably likely to be rendered by a recent law school graduate. The court ruled that such assistance would not be held ineffective as a matter of law.

The second line of inquiry is to determine whether counsel in fact rendered reasonably effective assistance in that case. Bell v. Watkins, supra. In addition, if counsel failed to provide reasonably effective assistance, the defendant must show /that he was prejudiced in a way that would not have come about had his rights been constitutionally protected. Washington v. Watkins, supra at 1360. Thus, the petitioners must show that ineffectiveness of counsel resulted in actual and substantial disadvantage to the course of their defense. Washington v. Strickland, 693 F.2d 1243, 1262 (5th Cir.1982) (overruling Washington v. Strickland, 673 F.2d 879 (5th Cir.1982)). And, “even if the defense suffered actual and substantial disadvantage, the state may show in the context of all the evidence that it remains certain beyond a reasonable doubt that the outcome of the proceedings would not have been altered but for the ineffectiveness of counsel.” (emphasis ours). Id.

Addressing the first line of inquiry regarding whether counsel was reasonably likely to render reasonably effective assistance, we note that in the lower court counsel for the defendants were Alix H. Sanders and Fred Sanders of Greenwood. On the appeal phase to this Court, the file reflects counsel to be Alix H. Sanders and Charles Victor McTeer of Greenville. No background appears on education, experience, or expertise. In fact, the petition for writ of error coram nobis does not contend that counsel was reasonably unlikely to render reasonably effective assistance because of inadequate education, experience, or expertise in criminal cases. Therefore, we must conclude that both trial and appellate counsel were reasonably likely to render effective service.

As to the second inquiry, we must discuss the performance actually rendered to determine whether counsel provided reasonably effective assistance. Specific areas of alleged ineffective performance in this petition may be summarized as follows:

I.

ON PRETRIAL

1. Counsel’s failure to properly prepare and investigate the background of the case.

II.

DURING TRIAL

2. Counsel’s failure to subpoena available witnesses who could corroborate the defendant Carthan’s testimony as to the appointment of Andrews.

3. Counsel’s failure to object to hearsay testimony from Jewel McPhail on the appointment of the police chief.

4. Counsel’s failure to present evidentia-ry support on lawful appointment of a police officer.

5. Counsel’s failure to submit proper instructions.

6. Counsel’s failure to raise objections in constitutional terms.

III.

ON APPEAL

7. Failure to properly assign error in accordance with applicable state law and in constitutional terms with authorities cited.

In analyzing the allegations of ineffective assistance, we note that the petition assigns the above enumerated shortcomings in very broad general terms. No allegation with specificity is given as to which unnamed witnesses were available, what witness would corroborate testimony, what preparation or investigation was omitted, what testimony was hearsay, what instructions of the law were omitted, or what objections to testimony were overlooked by defense counsel.

In addition to the above inadequacies the defendants failed to show how their case was prejudiced by such omissions with specificity. The petitions make no such allegation of how the outcome of the proceedings would have been altered had counsel performed differently.

Since the application fails to state, with specificity, the grounds of ineffective assistance of counsel and the resulting prejudice to the petitioners’ defense, we are unable to grant the petitioners leave to file a petition for writ of error coram nobis with the lower court. Miss.Sup.Ct. Rule 38. However, the petitioners are granted leave to file a new application and affidavits showing more specific examples of ineffective counsel, if any, and of resulting prejudice.

III.

On the issue concerning the motion for bail filed by Eddie James Carthan, we must deny his request for relief, having denied the petition for writ of error coram nobis.

All Justices concur.

      . Each of the petitioners were sentenced to serve terms of three (3) years. However, the sentences of Callahan, Dale, Johnson, Common, Matthews, and McLaurin were suspended. Only Carthan was required to serve time in prison.

      . Law listings reveal that Alix H. Sanders was born in 1942 and received a B.A. Degree from Jackson State College, Jackson, and a J.D. Degree from University of Mississippi. He was admitted to the Bar in 1969. Charles V. McTeer was born in 1948. His B.A. was from Western Maryland College and his J.D. Degree was from Rutgers University.

      . Eddie James Carthan has also been convicted of the federal crime of obtaining loans from a federal bank through the making of false statements. His conviction for that crime has been affirmed as well. United States v. Carthan, 696 F.2d 994 (5th Cir.1983).


author: ALMON, Justice.

text:
    Ralph P. EAGERTON, Jr. as Commissioner of Revenue of the State of Alabama v. TERRA RESOURCES, INC., et al.
    81-128.
    Supreme Court of Alabama.
    Dec. 10, 1982.
    Rehearing Denied Feb. 11, 1983.
    Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr., Gen. Counsel, and John J. Breckenridge, Asst. Counsel, Dept, of Revenue and Asst. Attys. Gen., for appellant.
    Rae M. Crowe and Roy W. Scholl, III of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, and Euel A. Screws, Jr. of Copeland, Franco, Screws & Gill, Montgomery, for appellees.
   ALMON, Justice.

This appeal necessitates further interpretation of the oil and gas severance tax statute which was the subject of Eagerton v. Exchange Oil and Gas Corporation, 404 So.2d 1 (Ala.1981). The question is whether an exception in the statute swallows the rule as to gas producers. We hold that it does not, and reverse.

Terra Resources, Inc. (Terra), Petroleum Corporation of Texas (PETCO), and other companies filed suit to recover oil and gas severance taxes paid under protest. After a remand by this Court, the circuit court ordered a refund of substantial amounts of the tax paid on gas production. Ralph P. Eagerton, Jr., as Commissioner of Revenue of the State of Alabama (the Commissioner), appealed. The above-named companies filed briefs as appellees; we shall refer to them as the gas producers.

In 1979 the Alabama Legislature passed an Act, “To amend Code of 1975, Sections 40-20-2 and 40-20-8, so as to increase the rate of tax; to provide further for distribution of the proceeds of the tax; and to provide certain exemptions from the increased rate.” 1979 Ala. Acts No. 79-484, p. 687 (emphasis added). Prior to this act, the title of § 40-20-2 was “Levy and amount of tax upon business of producing or severing oil or gas from soil, etc., generally.” (Emphasis added.) Nevertheless, the gas-producing appellees argue that the “increase” enacted in Act No. 79-434 of the tax upon the business of producing oil or gas only applies to gas production if a gas well produces 26 barrels or more of oil per day.

In other words, Act No. 79-434 raised the four percent (4%) previously found in § 40-20-2 to six percent (6%). One of the exemptions mentioned in the title as set out above reads, “All wells producing less than 26 barrels of oil per day shall be taxed at the rate of four per centum (4%) of the gross value of said oil or gas at the point of production.” The gas producers herein contend that because this sentence refers to “all wells,” not “all oil wells,” and to “said oil or gas,” it exempts from the two percent increase of the statute gas produced at wells which do not also produce the stated amount of oil.

This Court, in Eagerton, supra, “agree[d] that the exemption in the Act refers to all wells producing either oil or gas.” 404 So.2d at 8. No analysis accompanied this remark, however, and the weight of the holding on this point rested elsewhere: “Since the trial court recognizes that one or two of the plaintiffs’ wells do produce more than 26 barrels of oil, it was improper to hold that Act No. 79-434 did not apply to those plaintiffs.” Id. Before we follow the above virtually obiter dictum agreement with the gas producers’ position, therefore, we feel obliged to examine the matter more closely.

That the statute as a whole proposes to increase the tax on gas as well as oil can be gleaned not only from the short titles set out above, but also from other language in the statute. For instance, the sentence immediately preceding the twenty-six barrel exemption reads, “The amount of such tax shall be measured at the rate of six per centum of the gross value of said oil or gas at the point of production.” It does not seem reasonable that a tax increase levied in one sentence should be effectively negated by an obscure reference in the following sentence. Statutes are to be construed as a whole and the parts thereof harmonized if possible. Darks Dairy, Inc. v. Alabama Dairy Commission, 367 So.2d 1378 (Ala.1979); In re Ashworth, 291 Ala. 723, 287 So.2d 843 (1974), Lee Optical Co. of Alabama v. State Bd. of Optometry, 288 Ala. 338, 261 So.2d 17 (1972).

Exemptions from taxation are to be strictly construed against the exemption and in favor of the right to tax, and the burden is on one seeking an exemption to clearly establish the right. Community Action Agency of Huntsville v. State, 406 So.2d 890 (Ala.1981); Title Guarantee Loan & Trust Co. v. Hamilton, 238 Ala. 602, 193 So. 107 (1940); Brundidge Milling Co. v. State, 45 Ala.App. 208, 228 So.2d 475 (1969). To be sure, there is a countervailing rule of construction that taxing statutes are to be construed strictly in favor of the taxpayer and against the taxing authority. State v. Hall, 278 Ala. 359, 178 So.2d 518 (1965); Gotlieb v. City of Birmingham, 243 Ala. 579, 11 So.2d 363 (1943). We regard the exemption rule as more specific, however, and more directly pertinent to this case.

Furthermore, we give favorable consideration to the Commissioner’s interpretation because he administers the statute and has expertise on the subject. This rule of construction applies only where the statute is of doubtful meaning — which is emphatically the case with this provision— and only to aid the court in determining legislative intent — which is also unclear here. The Commissioner’s interpretation is not binding on the Court, but is persuasive. See, Broadwater v. Blue & Gray Patio Club, 403 So.2d 209 (Ala.1981); Hulcher v. Taun-ton, 388 So.2d 1203 (Ala.1980); Employees’ Retirement System of Alabama v. Oden, 369 So.2d 4 (Ala.1979); Moody v. Ingram, 361 So.2d 513 (Ala.1978); Alabama Public Service Commission v. Continental Tennessee Lines, 284 Ala. 27, 221 So.2d 385 (1969); Buchanan v. State, 274 Ala. 592, 150 So.2d 200 (1962); Glencoe Paving Co. v. Graves, 266 Ala. 154, 94 So.2d 872 (1957); Dixie Coaches, Inc. v. Ramsden, 238 Ala. 285, 190 So. 92 (1939).

The Commissioner refers to the sentence in question as the “stripper well exemption.” He states that courts recognize the term “stripper wells” as referring to marginally productive wells, generally defined as producing less than 10 barrels of oil or a proportionate number of cubic feet of gas per day. See, e.g., In re Dept, of Energy Stripper Well Exemption, 520 F.Supp. 1232 (D.Kan.1981).

The Commissioner claims that by limiting the exemption to wells producing less than 26 barrels of oil per day, the legislature has provided an exemption for oil stripper wells. He contends that the words “or gas” in the sentence are mere surplusage, included here only in a formulaic repetition of the words “oil and gas” or “oil or gas” throughout the Act. This reasoning leaves gas stripper wells out of the coverage of the exemption, but the burden is on the gas producers to prove that they come within the terms of the exemption anyway. The Commissioner points out that an equivalence between oil volume and gas volume can be computed by converting both to BTU’s (one barrel of oil being roughly equivalent to 6,000 cubic feet of gas), and seems to suggest that this method could provide a definition for gas stripper wells under the statute. This question is not properly presented for review, so we decline to rule on it. We do feel that the presumption against exemptions would create a hurdle for the gas producers in seeking such an interpretation.

The gas producers argue that both the legislative history and a literal reading of the statute prove that the legislature did not intend to limit the exemption to oil wells. We do not agree.

The gas producers called Mr. Louis G. Green, the director of the Legislative Reference Service, to testify concerning drafts of the bill which became Act 79-434. Mr. Green’s office helped Representative Hines prepare the bill. Two of the drafts in Mr. Green’s file began the exemption in question with the words “all oil wells” instead of “all wells.” The gas producers assert that because the final bill did not say “All oil wells,” gas wells which do not produce 26 barrels of oil per day are exempt from the increase levied by Act No. 79 — 434.

This is clearly irrelevant evidence. Without any proof that the drafts beginning with “all oil wells” were ever introduced in the legislature, these documents are no indication of the legislative intent. Nor is the fact that Mr. Hines introduced a version without the word “oil” included evidence of legislative intent. The motives or reasons of an individual legislator are not relevant to the intent of the full legislature in passing the bill. James v. Todd, 267 Ala. 495, 103 So.2d 19 (1957).

Although there is some logic to the gas producers’ reading — that any well which produces less than 26 barrels of oil per day shall be taxed at four percent of the value of all oil and gas from the well— we find it implausible that the legislature would enact a statute to increase the severance tax on oil and gas and then obliquely exempt all gas from the increase except for gas which happens to come from wells which also produce substantial quantities of oil. Such a broad exemption should be clearly set out if such is the legislative intent. Nearly all of the gas producers’ wells would be exempt if we were to accept their reading of the statute. We do not find that they have met their burden of proving that they come within the exemption.

The statement by this Court that the exemption refers to all wells producing either oil or gas was made in conclusory terms after a long discussion of other complicated issues. After fuller consideration, we disagree with the position urged by the gas producers and hold that the “26 barrels of oil” exemption does not serve to exempt virtually all gas production in the state from the increase levied by the statute.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All the Justices concur.

      . Eagerton v. Exchange Oil & Gas Corp., 404 So.2d 1 (Ala.1981); various oil producing companies have also appealed after remand of the action.

      . Three other gas companies who were parties below adopted the position of the above-named appellees and all five filed motions to dismiss the appeal. In view of our decision on the merits, these motions are denied.

      . The legislature amended this code section again in 1980, but that act is not at issue here. Acts of Alabama 1980, Act No. 80-708.

      . Act No. 80-708 (see note 3) contains an identically worded exemption for wells producing less than 40 barrels of oil per day.


author: EMBRY, Justice.

text:
    Karen S. MORING v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    81-150.
    Supreme Court of Alabama.
    Dec. 10, 1982.
    Rehearing Denied Feb. 11, 1983.
    Joseph M. Matranga, Mobile, for appellant.
    Fred W. Killion, Jr. and Patricia K. Olney of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellee.
   EMBRY, Justice.

This is a case of first impression in Alabama. It involves the subrogation rights of an insurer against its own insured. For the reasons we will state, we reverse.

The facts are not in dispute. On 21 August 1977, plaintiff Karen S. Moring was injured in a single vehicle accident in Mobile County. The vehicle in which she was a passenger was being driven by Lawrence D. Phillips. Moring incurred in excess of $13,000 in medical expenses as a result of the injuries she suffered.

At the time she was injured, Moring’s father, Herbert Moring, had in full force and effect four policies of insurance issued by defendant State Farm Mutual Automobile Insurance Company. The four policies carried medical payment benefits in the aggregate amount of $8,000. State Farm also provided liability and medical payments coverage to Lawrence Phillips, under a policy insuring his father Anthony Phillips and his family. The liability limits were $25,000 per person while medical benefits limits were in the amount of $5,000 per person.

A settlement of $25,000 was reached between the Morings and the Phillipses, with the approval of State Farm, in satisfaction of all claims by Moring against Phillips, which was concluded by entry of a consent judgment.

Following this settlement, Moring made demand for payment of her $13,000 plus medical expenses under the coverage provided by both the Moring and Phillips policies. State Farm contends that Moring did not present a proper claim for medical benefits in accordance with the provisions of the policies and that it did not receive proper medical bills or information concerning her medical expenses. Moring contends, however, that a claim was submitted by letter to Pete Cobb, an employee at State Farm’s claims office. Moring also says that State Farm had knowledge of the medical expenses because of its preparation of its defense of her suit against Phillips.

State Farm eventually agreed to pay Moring the medical benefits on condition that Moring execute the documents as provided for in the policies that would protect State Farm’s subrogation rights. Moring refused to execute those documents when she learned that State Farm would be entitled to be reimbursed the medical benefits paid her out of $25,000 because of the consent judgment. She then filed this suit to recover her medical expenses under the medical benefits coverage provisions of the policies.

The case was tried to the court without a jury and judgment was entered in favor of State Farm. This appeal followed.

All the policies were identical except for the limits of coverage and each contained the following pertinent provisions:

“SECTION 1 — LIABILITY AND MEDICAL PAYMENTS INSURING AGREEMENTS
“COVERAGE C — MEDICAL PAYMENTS
“To pay reasonable medical expenses incurred for services furnished within one year from the date of accident:
“Division 2. to or for any other person who sustains bodily injury, caused by accident, while occupying the owned motor vehicle if such vehicle is being used by an insured; provided that no such payment shall be made unless the person to or for whom such payment shall be made unless the person to or for whom such payment is made shall have executed a written agreement that the amount of such payment shall be applied toward the settlement of any claim, or the satisfaction of any judgment for damages entered in Sis favor, against any insured because of bodily injury arising out of any accident to which coverage A applies.
. “POLICY CONDITIONS
“2. Action Against Company. No action shall lie against the company:
“(a) Unless as a condition precedent thereto there shall have been full compliance with all terms of this policy.
“3. Assistance and Cooperation of the Insured. The insured shall cooperate with the company and, upon its request, attend hearings and trials, assist in effecting settlements, ....
“4. Subrogation. Upon payment under this policy ... the company shall be subrogated to all the insured’s rights of recovery therefor and the insured shall do whatever is necessary to secure such rights and do nothing to prejudice them.
“Upon payment under coverages C and M of this policy the company shall be subrogated to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery which the injured person or anyone receiving such payment may have against any person or organization and such person shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. Such person shall do nothing after loss to prejudice such rights.”

State Farm’s position, adopted by the trial court, is that Moring breached the insurance contracts by refusing to execute the documents recognizing State Farm’s right to be reimbursed, to the extent of medical payments paid her, from the $25,000 settlement with Phillips; consequently, State Farm says, Moring is precluded from recovering under the medical payments provisions of the policies. State Farm also argues that this case does not deal with subro-gation rights, but rather reimbursement rights. However, the record shows that State Farm relied upon its subrogation rights when seeking to recover medical payments benefits made to Moring. An affidavit of Warren C. Harris, the claims superintendent of the Mobile office of State Farm, was incorporated into the record. It contained the following statement:

“... The plaintiff [Moring] in this present action has now presented to us as such a claim for medical pay coverage under the policy. We had advised the plaintiff prior to the settlement of her claim against Anthony Phillips that we would honor medical payment coverage under such policies provided the plaintiff execute the requested document as provided for in such policy which would protect State Farm’s subrogation interests with reference to the payment of such medical expenses.... ”

State Farm’s right to be reimbursed for the medical benefits paid Moring is derived from State Farm’s subrogation interests as stated in the policy. Therefore, State Farm is entitled to reimbursement only if it has a valid subrogation interest.

Moring takes the position that State Farm possessed no right of subrogation against the tort-feasor, Phillips, because Phillips was also insured by State Farm. Therefore, because State Farm’s refusal to pay was based upon Moring’s failure to execute the subrogation agreement, Moring argues that she should recover because State Farm had no right of subrogation and, thus, wrongfully withheld payment to her.

Both parties agree that where a tort-fea-sor is either uninsured or insured by a different insurer, the insurer’s right of subro-gation against the tort-feasor is valid. However, the facts in this case show the tort-feasor and the victim to be insured by the same insurer. Resolution of the question presented by the facts of this case, one of first impression in Alabama, requires a review of relevant and analogous authorities.

“No right of subrogation exists where the wrongdoer is also an insured under the same policy.” 44 Am.Jur.2d, Insurance, § 1794 (1982). This principle is illustrated by several cases where the tort-feasor was a named insured within the terms of the policy. See Graham v. Rockman, 504 P.2d 1351 (Alaska 1972); Miller v. Kujak, 4 Wis.2d 80, 90 N.W.2d 137 (1958); Pendlebury v. Western Gas. & Sur. Co., 89 Idaho 456, 406 P.2d 129 (1965); and E.C. Long, Inc. v. Brennan's of Atlanta, 148 Ga.App. 796, 252 S.E.2d 642 (1979).

In Couch on Insurance, 2d § 61:133 (1966), it is stated: “No right of subrogation can arise in favor of the insurer against its own insured, since by definition, subrogation exists only with respect to rights of the insured against third persons to whom the insurer owes no duty.” Courts in other jurisdictions have held that where both parties involved are insured by the same insurer, no right of subrogation exists against either insured.

In Stetina v. State Farm Mut. Auto. Ins. Co., 196 Neb. 441,243 N.W.2d 341 (1976), an action by Frank Stetina against State Farm, Frank’s daughter, Diane, was injured when the automobile in which she was riding was struck by a vehicle driven by one Lusins. Both Lusins and the Stetina family were insured by State Farm. A settlement of $50,000 in satisfaction of all Stetina’s claims against Lusins was procured with State Farm’s assistance. As part of this agreement Stetina entered into a covenant not to sue Lusins. Stetina’s insurance policy contained a provision, identical to the one in Moring’s policy, which allows State Farm to be subrogated for any payment made by State Farm from the proceeds of any settlement that the injured party received. Stetina presented medical bills to State Farm on behalf of his daughter Diane and demanded payment of $10,000 medical payments under coverage under -Stetina’s policy with State Farm. The claim was denied, State Farm contending the covenant not to sue destroyed its subrogation rights against Lusins and violated the terms of the policy. Stetina filed suit against State Farm. The trial court found that Stetina, by entering into the covenant not to sue Lusins, violated the provisions of his State Farm policies and, as a result, Steti-na’s right to recover medical payments was extinguished. The Nebraska Supreme Court reversed, holding that an insurer has no right of subrogation against its own insured; consequently, because State Farm possessed no right of subrogation against Lusins, the execution of the covenant not to sue by Stetina in no way harmed or prejudiced State Farm. This being the case, Stetina was allowed to receive $10,000 from State Farm under the medical benefits provisions of the policy.

Dupre v. Vidrine, 261 So.2d 288 (La.App. 1972), writ refused, 263 So.2d 48 (La.1972), was a case involving suit by a physician, Dupre, for medical services rendered to Vidrine, his wife and child. Southern Farm Bureau Casualty Insurance Company was brought in as a third party defendant by Vidrine on the ground that Vidrine had a liability policy with Southern Farm which included medical benefits payment coverage. Vidrine was in an automobile accident with Guillory, also insured by Southern Farm. A settlement between Vidrine and Guillory was reached as a result of which Vidrine executed a written release of all claims against Guillory. Southern Farm contended that such release destroyed its subrogation rights against the tort-feasor Guillory, thereby extinguishing Southern Farm’s liability to Vidrine for medical benefits payments. The Louisiana Court of Appeals rejected Southern Farm’s position and held that it could not subrogate its own insured, Guillory; that where both vehicles involved were covered by liability policies issued by the same insurer, the release of the tort-feasor by the other driver did not extinguish the insurer’s liability to that driver under the medical benefit payments coverage of the policy. This, because the release had destroyed the insurer’s right to subrogation against the party responsible for the damages.

The Dupre case was later clarified in Norris v. Allstate Ins. Co., 293 So.2d 918 (La.App.1974). The appellate court, distinguishing Dupre from Norris, determined that Southern Farm’s position in the Dupre case was one of dual responsibility; one in tort as the result of Guillory’s negligence; one in contract as because of the contract of insurance. Payment of one did not discharge the other. “Subrogation would not have taken place on payment of one obligation, since the co-existing obligation remained viable. Where no subrogation exists, there can be no impairment of subrogation rights.”

By applying these decisions to the facts of this case, it is apparent that State Farm has no right to subrogate against its insured, Phillips. If subrogation were allowed under such circumstances, an insurer could pass the incident of loss, either partially or totally, from itself to its own insured, thus, permitting the insurer to avoid coverage which its insured had purchased. See Home Insurance Co. v. Pinski Bros. Inc., 160 Mont. 219, 500 P.2d 945 (1972).

We hold that under the facts of this case, State Farm had no right of subrogation against the tort-feasor Phillips. Since no right of subrogation existed, Moring’s failure to execute the documents purporting to preserve that right in no way harmed or prejudiced State Farm. If there is no such right, there can be no harm done it. Norris, supra.

The judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, BEATTY and ADAMS, JJ., concur.


text:
    UNION OIL COMPANY OF CALIFORNIA, et al. v. Ralph P. EAGERTON, Jr., Commissioner of Revenue of the State of Alabama. EXXON CORPORATION, et al. v. Ralph P. EAGERTON, Jr., Commissioner of Revenue of the State of Alabama. GETTY OIL COMPANY, a Corporation, et al. v. Ralph P. EAGERTON, Jr., Commissioner of Revenue of the State of Alabama. PHILLIPS PETROLEUM COMPANY, Getty Oil Company, Placid Refining Company, Inc. and Union Oil Company of California v. Ralph P. EAGERTON, Jr., Commissioner of Revenue of the State of Alabama. The LOUISIANA LAND AND EXPLORATION COMPANY, et al. v. Ralph P. EAGERTON, Jr., Commissioner of Revenue of the State of Alabama.
    81-169, 81-207, 81-503, 81-643, 81-966, 82-32, 82-165, 81-538, 81-972, 82-33 and 81-742.
    Supreme Court of Alabama.
    Dec. 10, 1982.
    Rehearing Denied Feb. 11, 1983.
    Rae M. Crowe and Roy W. Scholl, III of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, and Euel A. Screws, Jr. of Copeland, Franco, Screws, & Gill, Montgomery, for appellants Exchange Oil & Gas Corp., Getty Oil Co., Placid Oil Co. and Union Oil Co. of Cal.
    Louis E. Braswell and C.B. Arendall, Jr. of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellants Exxon Cor. and Louisiana Land and Exploration Co.
    Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr., Chief Counsel, and Charles E. Crumbly and John J. Breckenridge, Asst. Counsel, and Asst. Attys. Gen., for appellee.
   ALMON, Justice.

This appeal comes after remand of these consolidated cases in Eagerton v. Exchange Oil and Gas Corporation, 404 So.2d 1 (Ala.1981) (Eagerton v. Exchange). The trial court entered a judgment in favor of Ea-gerton, as Commissioner of Revenue based upon a stipulation of the parties. We affirm.

Many of the issues that the oil company appellants raise herein are identical to, or are variations on, the issues decided in Eagerton v. Exchange, supra. The legislature amended the oil and gas severance tax subsequent to that decision, however, so this appeal presents a further question of statutory interpretation. The oil companies assert that the legislature changed the purpose of the new act during passage and thus violated § 61 of the Alabama Constitution.

In 1979 the legislature passed Act No. 79-434 to increase the severance tax on oil and gas production in Alabama. A number of oil companies paid the higher tax under protest and filed suit for refunds. The circuit court held Act No. 79-434 unconstitutional and ordered the refunds. This Court reversed and remanded. See Eagerton v. Exchange, supra.

In the 1980 legislature, Representative Hines, who had introduced the bill which became Act No. 79-434, introduced a bill (H.B. 909) with the following title:

“To repeal Section 40-20-2 and Section 40-20-8, Code of Alabama 1975, as amended by Act 434, Acts of Alabama 1979, and to reenact Section 40-20-2 and Section 40-20-8 as the same existed prior to enactment of Act 434, Acts of Alabama 1979, and to further provide for the rate of severance tax on the production of oil and gas on wells from 15,000 to 15,800 feet in the smackover formation that come into production after September 1, 1979, to provide further for distribution of the proceeds of the increased tax and to provide certain exemptions from the increased rate.”

In addition to the provisions directly alluded to in the title, the proposed bill refunded the increased taxes collected under Act No. 79-434 and stated that prior interpretations (i.e., Eagerton v. Exchange) of Act No. 79-434 were “void.” This bill was amended during passage so that it substantially reenacted Act No. 79-434 rather than repealing it. Acts of Alabama 1980, Act No. 80-708. The oil companies argue that this constitutes a change in purpose of the bill and so violates § 61 of the Alabama Constitution.

We disagree. The act as passed has the following title:

“To amend Section 40-20-2 of the Code of Alabama 1975, so as to further provide for the severance tax on the production of oil and gas.”

Thus, the bill as introduced and as passed dealt with the severance tax on oil and gas production and with amending § 40-20-2.

The established law of this state is that the “purpose” within the meaning of § 61 is the general purpose. State v. Docks Comm’n v. State ex rel. Jones, 227 Ala. 521, 150 So. 537 (1933). Opinion of the Justices, 383 So.2d 527 (Ala.1980); Opinion of the Justices, 361 So.2d 536 (1978). The general purpose of both versions of the bill was amending § 40-20-2 and providing for the oil and gas tax. Section 61 was not violated.

More particularly, in the field of revenue legislation, this Court has held that the purpose is the raising of revenues, and as long as a substitute bill has that same purpose, it does not violate § 61.

“... The bill was, therefore, essentially amendatory of the existing law, and it is not inapt to say that its purpose was to amend the existing law....

“... Upon its consideration by the house, it was found to be unsatisfactory to a majority of the members; and thereupon another bill was brought forward in its stead, and substituted for it by way of amendment of it. This substitute related to the same subject — the levy, the assessment and collection of taxes — the raising of revenue. It had the same general effect upon existing laws, i.e., the substitute operated the emendation of existing laws, as did the original.”

Southern Railway Co. v. Mitchell, 139 Ala. 629, 641, 37 So. 85 (1904).

The Court in Southern Railway Co. addressed a general revenue statute, but in Harris v. State ex rel. Williams, 228 Ala. 100, 151 So. 858 (1933), held the same principles to apply to a bill “to amend the revenue laws in respect to specific taxes,” Id., 228 Ala. at 102, 151 So. 858.

“While the court was dealing with a general revenue bill, it shows that the proposal to amend the state’s revenues is a single subject and that it has a single purpose, which purpose is not changed by a substitute different in many respects from the original bill. If the theory that a bill to raise revenue or to amend the revenue laws has but one subject and one purpose is sound, then the proposal to do so in one respect is not changed on its passage by the addition of an amendment of such laws in another respect, provided the title is not uncertain or misleading. So long as the original purpose of the bill is not changed it may be amended or a substitute enacted which will not take the status of a new bill.”

Id., at 104, 151 So. 858. (citations omitted).

Of course, this analysis should not be taken to mean the legislature can take liberties with revenue bills and violate the spirit of § 61. Here, however, the bill never deviated from the purpose of amending the oil and gas severance tax. The legislature chose to re-enact the amendment wrought by Act No. 79-434 with minor changes rather than repealing that amendment and re-enacting the prior law. Curiously, if the oil companies were to prevail and have us find that Act No. 80-708 contravened the Constitution, § 40-20-2 would stand as amended by Act No. 79-434. The changes in Act No. 80-708 are favorable to the oil companies — for instance, Act No. 79-434’s prohibition against passing the increase on to consumers was deleted from Act No. 80-708.

The oil companies further argue that the exemption of royalty owners from the increased tax violates the equal protection clause of the fourteenth amendment of the United States Constitution and § 35 of the Constitution of Alabama.

This Court rejected this argument in Eagerton v. Exchange, but the oil companies introduced affidavits into the record below to the effect that the lighter tax burden on royalty owners would not encourage oil and gas exploration and production. This testimony sought to contradict the statement in Eagerton v. Exchange that “it is conceivable that the exclusion of royalty owners from this increase in tax could encourage the development of new oil and gas wells.” Id., 404 So.2d at 5.

This issue is res judicata because it was litigated and decided in the first trial and this Court decided the issue against the oil companies on the first appeal. The Court held Act No. 79-434 “valid in its entirety.” Id., 404 So.2d at 8.

We do point out that the affidavits do not undercut the constitutionality of the royalty owner exemptions. The justification mentioned in Eagerton v. Exchange was not proposed as the only conceivable reason for the higher tax on working interest owners. The Court in Ray E. Loper Lumber Co. v. State, 269 Ala. 425, 113 So.2d 686 (1959), upheld a timber severance tax which effectively imposed a higher tax on those who convert timber into lumber within the state than those who ship the timber out of the state still in the form of logs. The Court held the higher burden justifiable because

“A severer of timber who merely severs it from the soil and ships it out of the State unconverted into lumber, enjoys merely the privilege of severing. One who severs from the soil and then converts the timber into lumber in Alabama enjoys not only the privilege of severing but also the privilege of manufacturing in this State.
“The difference in the two classes is based on the difference in the privileges enjoyed. He who manufactures in Alabama enjoys an additional or greater privilege. We do not think a classification, which requires a greater tax from the one who enjoys the greater privilege, is arbitrary or fanciful. Such a classification is based on a real and substantial difference. We do not undertake to set out other substantial reasons which justify the classification.”

Id., 269 Ala. at 433, 113 So.2d 686. The greater tax was not invalid even though a sawmill privilege license tax was also required. Id., at 430,113 So.2d 686. Similarly, oil companies enjoy the privilege of severing the oil and gas, whereas the royalty owners are not, as such, active participants in the process of severing.

We note finally that the United States Supreme Court has recently addressed attacks on a state severance tax on Commerce Clause (U.S. Const, art I, § 8, cl. 3) and Supremacy Clause (U.S. Const, art. VI, cl. 2) grounds and held the tax constitutional. Commonwealth Edison Co. v. Montana, 453 U.S. 609, 101 S.Ct. 2946, 69 L.Ed.2d 884 (1981). This case does not address the Equal Protection Clause of the Fourteenth Amendment, so the long-standing broad discretion given legislatures in classification for tax purposes, Heisler v. Thomas Colliery Co., 260 U.S. 245, 43 S.Ct. 83, 67 L.Ed. 237 (1922), still stands.

For the foregoing reasons the circuit court properly granted judgment for Commissioner Eagerton. That judgment is therefore affirmed.

AFFIRMED.

All the Justices concur.

      . We quote only the titles because the bill and the act are rather lengthy, and we think the above sufficiently sets out the substance of each.


text:
    Bonnie Pearl PARKER, Executrix of the Estate of Tom Dial, deceased, v. Willie Mae TATE, et al.
    81-47.
    Supreme Court of Alabama.
    Feb. 11, 1983.

      Frankie Fields Smith, Mobile, for appellant.
    Lee B. Williams, Grove Hill, for appellees.
   ALMON, Justice.

Mrs. Parker, as executrix, brought suit to set aside a deed executed by her deceased uncle, Mr. Tom Dial. The circuit court heard the case on its merits and entered judgment denying the relief sought. Mrs. Parker appeals from that judgment. We affirm.

Mr. Dial owned and lived on eighty acres of land in rural Clarke County. When his wife died in 1968, he was approximately eighty-eight years old. Mrs. Parker and her sister, Mrs. Cornelius Williams, were his nieces by marriage. Mr. Dial’s only child is an illegitimate daughter, Mrs. Velma Franklin. Mr. Dial continued to live in his home alone after his wife’s death until Mrs. Parker was appointed his guardian and he was put in a nursing home in 1972, where he died in 1974. Apparently Mrs. Parker, Mrs. Williams, and Mrs. Franklin were the beneficiaries under his will, which was probated before this action was filed.

On October 9, 1970, Mr. Dial conveyed approximately one-third of his land to Mrs. Willie Mae Tate. He conveyed one parcel of approximately one acre and another of approximately twenty-six acres by separate deeds. The remaining two-thirds of his land appears to have passed under his will to the above-named beneficiaries. Mrs. Parker filed this action to have the twenty-six acre conveyance set aside. Her complaint alleged that

“at the time of the execution and delivery of said deed, that the said TOM DIAL, deceased, was ill, and infirmed from old age which made him incompetent to handle his business affairs, and he was not of sound mind, and not competent to execute a conveyance of real property under the laws of the State of Alabama, and further, that the said Willie Mae Tate and Henry Tate, Jr., exerted against the said TOM DIAL undue influence in the execution of said deed.”

Mrs. Parker raises the following issues:

“A. A conveyance of land obtained for a grossly inadequate consideration, by unfair advantage taken of great mental weakness, though not amounting to absolute incapacity of the grantor, will, in equity, be set aside, on equitable terms, when application therefor is made seasonably by the grantor, his representatives or his heirs. Floyd v. Green, 238 Ala. 42, 188 So. 867 (1939).
“B. Undue influence may exist without either coercion or fraud and may result entirely from the confidential relation on the part of the beneficiary occupying the position of dominant influence. Floyd v. Green, supra; Groover v. Darden, 259 Ala. 607, 68 So.2d 28 (1953).
“C. When a confidential relationship is shown to exist and the one who was in a position to exert the influence claims the benefits of a contract with the person bestowing confidence, then the burden is cast upon the beneficiary to show affirmatively that the influence of his position was not unduly exerted and that the utmost good faith was exercised; and that all was fair, open, voluntary, and well understood. Burke v. Taylor, 94 Ala. 530, 10 So. 129 (1891); Gray v. Gray, 246 Ala. 627, 22 So.2d 21 (1945); Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (1960); cases cited, supra, and 6 Thompson on Real Property § 2673 (1962 Replacement).
“D. The Court erred in refusing to admit into evidence two cases out of that court, which were evidence as to the competency of Tom Dial to dispose of his property prior to and simultaneously with the conveyance which is the subject matter of this suit. Tucker v. Tucker, 248 Ala. 602, 28 So.2d 637 (1946); Watson v. Anderson, 11 Ala. 43 (1847); Shipman v. Furniss, 69 Ala. 555 (1881).”

The Tates do not take issue with the principles of law and authorities cited above, but state that the only disputed issues are issues of fact and that the trial court’s judgment should not be disturbed. We agree that all the issues quoted above, except issue “D,” hinge on disputed questions of fact.

Mrs. Parker introduced a considerable amount of testimonial evidence of Mr. Dial’s weakened mental condition. As the Tates point out, however, her witnesses were either interested parties or their relatives, except for Dr. Jack L. Dozier. Dr. Dozier testified that he treated Mr. Dial for heart trouble and hardening of the arteries for several years. In February 1972 he certified that Mr. Dial was of unsound mind, but he had no opinion as to Mr: Dial’s mental capacity in October 1970. He did say that the deterioration of Mr. Dial’s faculties was “a gradual thing” that did not happen overnight. Mrs. Parker testified that he started losing his mind before his wife died, but there was competent evidence that his mind was clear until some time after she died.

Mrs. Williams lived a mile or two from her uncle’s house; Mrs. Parker lived in Jackson, over forty miles away. Mr. and Mrs. Tate lived a little further down the highway from Mr. Dial’s house than Mrs. Williams did. For a while after his wife’s death, Mr. Dial ate at Mrs. Williams’s house or she would bring food to his house. He began stopping to visit the Tates and eating breakfast and lunch with them. At some point he stopped eating at Mrs. Williams’s house and would not eat what she brought him. Mr. and Mrs. Williams testified that Mr. Dial told them one day that Mrs. Tate had said Mrs. Williams was trying to poison him “to get what he had.”

Mrs. Tate testified that she did not tell Mr. Dial that Mrs. Williams was trying to poison him, but he had a falling out with Mrs. Williams for reasons unknown to her. She did say he asked her to write an attorney for him about retrieving $5000 of his money that Mrs. Williams and Mrs. Parker had in a bank account in their names.

Mrs. Tate and the witnesses for her case gave the following account of the conveyance in question: One day while Mr. Dial was visiting with Mrs. Tate, Moody Drin-kard, who worked with Pinebuilt Homes, came to her house to talk with her about finding a lot and having a house built for herself. After Mr. Drinkard left, according to Mrs. Tate, Mr. Dial told her he would give her an acre or two of his land to build her house on. Later he offered her one third of his property if she would live there and take care of him.

Mr. Dial went to Mr. Drinkard to see about having a survey made and deeds drawn up. After the survey, Mr. Drinkard had an attorney, Mr. Sidney M. Harrell, draft the deeds. The two men went to Mr. Dial’s house and witnessed him make his mark on the two deeds. Mr. Harrell testified that he explained to Mr. Dial what the documents were and asked if he understood; that Mr. Dial said he understood and appeared to have a clear mind; and that Mr. Dial said Mr. and Mrs. Tate were taking care of him and feeding him. Mr. Drin-kard testified that neither of the Tates was present when Mr. Dial signed the deeds. He also testified that Mr. Dial had personally directed the surveyor; that in his opinion Mr. Dial was of sound mind and signed the deeds of his own free will; and that Mr. Dial said he wanted to give the land to Mr. and Mrs. Tate.

As set out above and as more fully reflected in the record, the evidence was in dispute as to Mr. Dial’s mental condition at the time of the conveyance. Further, the testimony conflicted regarding Mr. Dial’s actions, whether they were the subject of undue influence by the Tates or were motivated by his own free will and his gratitude, affection, and desire to secure the Tates’ continued care and assistance. The Tates argue that their relationship with Mr. Dial was merely one of friendship, not rising to a confidential relationship such as would place the burden on them to prove the openness and fairness argued by Mrs. Parker in issue “C” above.

We find that, to the extent that Mrs. Parker raised the existence of a confidential relationship, the Tates introduced evidence that their influence was not unduly exerted and the transfer was voluntary and “fair, just, and equitable in every respect.” Jones v. Boothe, supra, 270 Ala. at 423, 119 So.2d 203. Mr. Dial contemplated the transaction over a period of time, as evidenced by the fact that the property was surveyed before the conveyance; he retained the majority of the land for his nieces and daughter; and the Tates fed him and cared for him to at least some extent before and after the conveyance. The record clearly shows that Mr. Dial did not want to leave his home, and the willingness of the Tates to move onto the land to look after him contrasts with Mrs. Parker’s act of placing him in a nursing home.

This is a close case, and for that very reason we decline to reverse the judgment of the trial court based on a review of the facts. Where the trial court hears a case presented ore tenus, its decision will not be reversed unless palpably wrong or manifestly unjust. First Alabama Bank v. Coker, 408 So.2d 510 (Ala.1982); see cases collected at 2A Alabama Digest, Appeal and Error, Key # 931(1).

Nor do we find reversible error in the trial court’s decision to exclude the records from the two prior proceedings in that court. One of those cases was a suit by Mrs. Parker to set aside the conveyance of one acre to the Tates. Judgment was entered on an agreement of the parties. “It was not an adjudication on the merits but was merely a pro forma acceptance by [the] court of an agreement between the parties to settle their controversy for reasons undisclosed.” Fuqua v. Patterson, 193 F.Supp. 313 (N.D.Ala.1961), affirmed 295 F.2d 509 (5th Cir.1961). The trial court did not err in excluding the record on the grounds that it was not probative and not relevant.

The other case was a contest by Mrs. Parker of a will filed for probate by Velma Franklin, Mr. Dial’s daughter. “[A] judicial record is not admissible ... where it is sought to be used as against one not a party or privy to the former proceeding.” 32 C.J.S. Evidence § 629 (1964); cf. Wilson v. Wilson’s Estate, 581 S.W.2d 729 (Tex.Civ.App.1979), reversed 587 S.W.2d 674 (Tex.1979), on remand 593 S.W.2d 789 (Tex.Civ.App.1979); Roemelmeyer v. Richard A. Marshall Ins. Agency, 223 So.2d 753 (Fla.Dist.Ct.App.1969).

The judgment is due to be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    Sam W. GROOMS, Jr. v. James B. MITCHELL and James H. Mitchell. Sam W. GROOMS, Jr. v. John Davis MANN and Laura Jane Mann.
    81-448, 81-447.
    Supreme Court of Alabama.
    Feb. 11, 1983.

      Michael C. Moore of Watson & Moore, Huntsville, for appellant.
    Aubrey 0. Lammons of Lammons, Bell & Sneed, Huntsville, for appellees.
   EMBRY, Justice.

This is a boundary line case. We affirm.

Plaintiffs James B. Mitchell and James H. Mitchell acquired title to certain real property located in Madison County on 6 November 1980. The north boundary of that property caused the controversy which resulted in the filing of these suits in the nature of ejectment under § 6-6-280, et seq., Code 1975. The Mitchells are record title holders of land bounded on the North by the North line of the Southeast Quarter of the Southeast Quarter of Section 32, Township 5, Range 2 East in Madison County, Alabama. Defendant Sam W. Grooms, Jr., owns adjoining land on the North. The deed to Grooms’s property describes its southern boundary adjoining the Mitchells’ property as being the quarter-quarter section line. It is described as two acres in the Southwest corner of the Northeast Quarter of the Southeast Quarter of Section 32, Township 5, Range 2 East. In other words, the common boundary between these two tracts of land, according to the parties’ deeds, is the quarter-quarter section line lying between the Northeast Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter of Section 32. Grooms claims to be the owner by adverse possession of a strip of property which lies between the quarter-quarter section line and an old fence line that runs in a general easterly and westerly direction south of the quarter-quarter section line. Thus, Grooms claims, by adverse possession, a strip of land on the south side of the quarter-quarter section line up to which the Mitchells have the record title.

Grooms argues the old fence line which he claims is the true boundary line was recognized as the boundary line between the properties for many years. However, when the Mitchells purchased the land described in their deed, there was no monument, marker or other visible evidence of a claim by Grooms except a single strand of telephone wire that was installed within the past five or six years, next preceding the filing of this suit, and a “No trespassing” sign posted by Grooms near the rear of the disputed property. Such property claimed by Grooms consists primarily of woodlands from which Grooms did clear underbrush from time to time over a period of several years. However, Grooms presented no evidence showing the actual occupancy was clear, definite, positive and notorious.

The Mitchells filed a complaint alleging they are the owners of the disputed property and that Grooms entered upon it, and unlawfully withheld and detained it. Grooms answered by denial and asserted his ownership of the property with a counterclaim asking the court to establish the disputed boundary line as being south of the quarter-quarter section line.

The trial court, after hearing the evidence ore terns, found the true boundary line between the Mitchells and Grooms to be:

“2. The North boundary of the lands owned by Plaintiffs, and described in their Complaint, is the North boundary of the Southeast Quarter of the Southeast Quarter of Section 32, township 5 South, Range 2 East, Madison County, Alabama.
“3. The South boundary of the lands owned by Defendant, and described in his Counterclaim, is the North boundary of the Southeast Quarter of the Southeast Quarter of Section 32, Township 5 South, Range 2 East, Madison County, Alabama.”

This appeal ensued.

Grooms’s sole claim to the property in dispute rests on adverse possession. The burden of proof rests upon him to prove his possession is actual, hostile, open, notorious, exclusive, and continuous for the statutory period. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964). The trial court found that Grooms had no color of title to the disputed tract of land and he had failed to establish adverse possession.

The property involved is woodlands which, when a claim of title by adverse possession is asserted to such, there must be shown a continuous and persistent cutting of timber or wood from the tract as evidence of the claim of ownership and thus an advertisement to the world that the claimant is occupying the entire tract, or some other continuous act, or acts of adverse possession must be proved. Rutland v. Georgia Kraft Company, Inc., 387 So.2d 836 (Ala.1980).

A judgment establishing a boundary line between coterminous landowners on evidence submitted ore tenus is presumed correct and must only be supported by credible evidence. Kirby v. Jones, 370 So.2d 250 (Ala.1979). In such cases, the trial court’s conclusions will not be disturbed unless plainly erroneous or manifestly unjust. Smith v. Nelson, 355 So.2d 359 (Ala.1978); Nelson v. Garrard, 403 So.2d 230 (Ala.1981).

We find ample evidence to support the judgment and, after review of that evidence, it is clear the judgment of the trial court is not plainly wrong or manifestly unjust; therefore, the judgment is due to be and is hereby affirmed.

AFFIRMED.

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

      . John Davis Mann and Laura Jane Mann also filed a complaint against Grooms. It was stipulated, before trial, that the issues and relevant facts in the case of Mann v. Grooms were identical to those presented in the case actually tried, Mitchell v. Grooms, and that the judgment of the court in the case actually tried would apply with equal force to both cases. This appeal involves both cases.


text:
    Shirley WALDREP v. Paul NOSRAT.
    81-449.
    Supreme Court of Alabama.
    Feb. 11, 1983.

      Thomas J. Knight, Anniston, for appellant.
    George Monk, Anniston, for appellee.
   EMBRY, Justice.

Shirley Waldrep appeals from a judgment dismissing her suit against Paul Nos-rat on a promissory note containing a security agreement. We reverse.

On 27 August 1981 a promissory note for $11,400 payable to Shirley Waldrep, containing an agreement securing payment of it, was executed by defendant Paul Nosrat and witnessed by Edwin Waldrep. Nosrat and Edwin were brothers-in-law and co-owners of Bynum Hardware Company in Calhoun County. Nosrat is an Iranian citizen who has been engaged in business in the United States for 11 years. It was stipulated that Nosrat can read and write English.

Nosrat claimed that Edwin brought him documents purporting to be applications for credit for the hardware store that he, Nos-rat, signed but did not read. One of the documents was the promissory note. It is unclear from the testimony as to who received the $11,400 but it appears that $10,-000 of that amount was wired by Nosrat’s wife to his brother in New York and the remainder used to pay various personal obligations of Nosrat’s wife.

The note was due on 25 November 1981. Shirley demanded payment on that date but was not paid. In the note was the following provision:

“To protect the said SHIRLEY WAL-DREP, or other holder of this Note, if the undersigned [Paul Nosrat] fail to pay this Note or any interest or other charges due hereunder, the undersigned grant to SHIRLEY WALDREP, or other holder of this Note, a security interest under the Uniform Commercial Code of Alabama in the following property: All inventory located at Bynum Hardware, Bynum CutOff Road, Bynum, Alabama and any proceeds from its sale or use and any insurance policies covering the said property and all insurance proceeds and premiums refunds. All of the property just described shall serve as collateral for this Note....”

On 23 December 1981 Shirley filed this action seeking to recover the sum of $11,400 together with interest, court costs, and attorney’s fees in the amount of $3,800. Shirley also sought possession of “all inventory located at Bynum Hardware.” A motion for a writ of seizure of the above-mentioned property was filed, together with the required affidavits and request for pre-judgment writ of seizure.

After a hearing, judgment was entered on 27 January 1982 which contained the following:

“This matter coming on to be heard is submitted for judgment on the pleadings and answer and testimony and exhibits presented in open Court and upon consideration thereof, the Court finds that both the plaintiff and the defendant were victims of fraud perpetrated by Edwin Wal-drep, and that the defendant, Paul Nos-rat, has no liability upon the promissory note and security agreement signed by him. Further, that Bynum Hardware Company appears to be a corporation and that there is no evidence to bind the corporation to this security agreement.
“It is therefore ORDERED and ADJUDGED that this action be and it hereby is dismissed.”

This appeal followed.

Nosrat gave no excuse for not having read the note before signing it. He testified he signed because Edwin told him it was one of the credit applications. That document was clearly entitled:

“PROMISSORY NOTE (SECURED) and Security Agreement”

The note is not vague or ambiguous. The general rule in Alabama is that one who has executed a written contract in ignorance of its contents cannot set up that ignorance to avoid the obligation absent fraud or misrepresentation. Gunnels v. Jimmerson, 331 So.2d 247 (Ala.1976).

Nosrat attempts to come within the fraud or misrepresentation exception set out in Gunnels by arguing that he was defrauded by the actions of Edwin and, thus, he is not liable on the note. The exception is stated thus:

“... [A] party who puts his signature thereto cannot avoid the obligations therein assumed by pleading his ignorance of its contents, unless his signature has been procured thereto by fraudulent representations of the other party or his agent as to its contents.... ”

State Building & Loan Association v. Bradwell, 227 Ala. 606, at 609, 151 So. 689 (1933). Shirley Waldrep was also defrauded in the same transaction. No evidence was offered to prove the “defrauder” was an agent for Shirley or that she had any knowledge of his actions.

When one of two innocent parties must suffer, even by a fraud perpetrated by another, the law imposes the loss upon the party who, by his misplaced confidence, has enabled the fraud to be committed. Dinsmore v. Cooper, 212 Ala. 485, 103 So. 460 (1925). See also East Gadsden Bank v. First City National Bank of Gadsden, 50 Ala.App. 576, 281 So.2d 431 (1973); and Dozier v. First Alabama Bank of Montgomery, N.A., 363 So.2d 781 (Ala.Civ.App.1978). It is apparent to this court that a closer examination of the document by Nosrat would have revealed the true nature of the document he signed. Nosrat submitted no evidence that he was unable to read the promissory note before he signed it. While we sympathize with Nosrat, we are bound by the principle that imposes the loss upon the party who, by his misplaced confidence, has enabled another to commit the fraud. J.R. Watkins Medicine Co. v. Hargett, 209 Ala. 165, 95 So. 811 (1923).

The judgment is reversed and this cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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