author: ROY NOBLE LEE, Justice, DAN M. LEE, Justice, HAWKINS, Justice,

text:
    Vernon SMITH, James G. Norman, Travis Wallace and Duran Barnes v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 53493.
    Supreme Court of Mississippi.
    Dec. 8, 1982.

      Smith, Downs, Ross, Trapp & Coleman, Donald Ray Downs, Corinth, for appellants.
    James P. Dean, Corinth, for appellee.
   ROY NOBLE LEE, Justice,

for the Court:

A Special Court of Eminent Domain in Alcorn County, Honorable Neal B. Biggers, Jr., presiding, entered judgment for Vernon Smith, James G. Norman, Travis Wallace, and Duran Barnes, landowners, against the Mississippi State Highway Commission [Commission] in the sum of ninety-three thousand four hundred twenty-five dollars ($93,425.00) as compensation for the taking of 33.62 acres of land. The landowners, being aggrieved at the judgment, have appealed here and assign four (4) errors in the trial below:

(1) The lower court erred in excluding the testimony of Betsy A. Hanson concerning the purchase of a lot in the subdivision.

(2) The lower court erred in excluding certain photographs of comparable housing.

(3) The lower court erred in granting Instruction P-2 which concerns inconvenience as an item of compensation.

(4) The lower court erred in allowing the jury to view the property in the absence of the trial judge and court reporter.

The appellants are owners and partners in the development of 207.5 acres in Alcorn County, known as the “Spring Valley Subdivision.” On May 23, 1980, the Commission filed an application for a special court of eminent domain, pursuant to Mississippi Code Annotated § 11-27-81, et seq. (Supp. 1981), to condemn 33.62 acres of said area and for the immediate possession of the property in order to construct a controlled access highway, together with an accompanying frontage road, in connection with U.S. Highway 45. The Commission’s original statement of values filed June 2, 1980, estimated the total just compensation for the taking at one hundred thousand four hundred fifty dollars ($100,450). The appellants’ statement of values states these same elements of damage at two hundred ninety-five thousand four hundred eighty-seven dollars ($295,487.00). The court appointed an independent appraiser to determine the compensation, and he fixed same at one hundred thirteen thousand dollars ($113,-000). Prior to the trial, the Commission amended its statement of values and lowered its estimate of compensation due the owners to sixty-three thousand three hundred fifty dollars ($63,350). During the trial, the Commission’s experts testified to a higher figure, and the lower court granted a motion by the landowners (appellants) that the Commission’s statement of values be amended to reflect the high amount of ninety-one thousand three hundred dollars ($91,300), which was sustained. The landowners were also allowed to amend their estimated compensation value to three hundred thirty-two thousand one hundred sixty dollars ($332,160).

Three qualified expert appraisers testified for the Commission. Their values follow:

Value Value Before After Taking_Taking Compensation
J. W. Dilmore $ 454,725 $ 391,375 $ 63,350
Fred Spencer 549,900 458,600 91,300
Houston Evans 523,432 439,450 83,982

In addition to the testimony of appellants and other lay witnesses, appellants introduced three qualified experts and appraisers (Vernon Smith, Landowner, being one of the witnesses) who testified to the value of the property:

Value Value Before After Taking_Taking Compensation
Janies R. Laughlin $1,067,392 $ 774,405 $ 292,987
Phil Atkins 1,081,340 762,330 319,010
Vernon Smith 1,365,000 1,041,260 323,640

The jury, having heard all the evidence, viewed the property, received the instructions of the court, heard arguments of counsel, and returned a verdict for compensation in the amount of ninety-three thousand four hundred twenty-five dollars ($93,-425.00).

I.

Did the lower court err in excluding the testimony of Betsy A. Hanson concerning the purchase of a lot in the subdivision?

During the Commission’s case in chief, one of its appraisers testified concerning the sell-off rate of lots in the Spring Valley Subdivision area, and compared their sale rates to other subdivisions. He gave his opinion that the causes for Spring Valley’s lower sell-off rates were poor asphalt, open ditches, and sewage system. In order to rebut that claim, the appellants attempted to call Mrs. Betsy A. Hanson as a witness. According to the offer of proof, she would have testified that she and her husband had agreed to purchase a lot, but when they learned that the highway was taking the property involved here, they decided against it for that reason. The court sustained an objection to her testimony, in the following words:

BY JUDGE BIGGERS: All right, gentlemen, it is already in the record before the jury by several witnesses including the property owners that the lots were not sold to some extent because of the impending construction of the highway. I think the jury is adequately apprised of that already and the previous ruling of the Court will stand sustaining the objection to any individual person coming in and testifying that that particular person would not buy a lot because of the highway. As I have previously stated, that would open up the door to the State being able to rebut this by finding someone who might come in and say that they would rather find a lot that was close to a four-lane highway, that it would put him on easy access to traveling somewhere. What we are dealing with here is the general situation and not individual preferences or individual persons, I don’t want to get into specific likes or dislikes of buyers, prospective buyers. I think the jury is adequately apprised of what the general situation is. That objection to the witness’ testimony will also be sustained.

We are of the opinion that the testimony of Mrs. Hanson would single out and show the preference of one individual, which is not competent on the issue of damages and compensation, when other people probably have different preferences. Mississippi State Highway Commission v. Hillman, 195 So. 679 (Miss.), sugg. of err. overruled, 189 Miss. 850, 198 So. 565 (1940).

In addition, Duran Barnes, a landowner, testified that no lots had been sold after he told prospective buyers about the highway, and Vernon Smith testified that the people he took to see the property didn’t want their house to be backed up on the highway. James Laughlin, an expert appraiser for the appellants, testified that the lots in Spring Valley Subdivision did not sell well because of the highway project. Therefore, the general situation, within the knowledge of persons who knew the property, was in evidence, and it was not error to exclude the testimony of Mrs. Hanson.

II.

Did the lower court err in excluding certain photographs of comparable properties?

The appellants offered in evidence photographs of two houses in Patrick Subdivision, which subdivision was used as comparable property by the Commission’s witnesses in arriving at compensation. Also, photographs of eleven houses that had been built in the Spring Valley Subdivision were offered. The court sustained objections to all said photographs.

The appellants contend that the photographs of the two houses in Patrick Subdivision showed that the property did not compare favorably with the quality of housing in the Spring Valley Subdivision, and that the houses in Spring Valley Subdivision were superior to those in the other area.

Neither the Commission nor the appellants offered in evidence any instrument constituting a restrictive covenant on either Spring Valley Subdivision or Patrick Subdivision. All appraisers for the Commission referred to the fact that there was a protective covenant on Spring Valley Subdivision. Appraiser Dillmore was vague as to the protective covenant and only stated that it was restricted to residential buildings, that some houses were restricted to not less than approximately fifteen hundred (1,500) square feet of heated space, some were restricted to about twelve hundred (1,200) square feet of heated space, that he believed the smallest house was approximately one thousand (1,000) square feet, and no mobile homes were permitted on the property.

Appraiser Spencer testified that he had examined the restrictive covenant but he didn’t recall it. He took into consideration, as a comparable, lots of the Spring Valley Subdivision which already had been sold. Appraiser Evans stated there was a protective covenant as to two hundred seven (207) acres but that covenants did not tend to increase or decrease the value of real estate.

The lower court, in sustaining objections to the photographs, said:

I don’t think we ought to clutter up the record any more with houses from another subdivision and show that another subdivision is less expensive than the one we are talking about any more than I would allow the State to bring in pictures of houses out in Chandler Park and show pictures of Dr. Davis’ house which the appraisers for the property owners used as a comparable subdivision, to show that they are more expensive, that there are houses in that subdivision that are more expensive than the houses in the subject subdivision. It is just so far removed from the issue that we are talking about, we are not taking any houses in this case, there are no houses being involved in the taking and I think it is just a little far removed from what we are really concerned with in the case and also as far as the photographs of the houses in the subdivision, the jury is going to see the actual houses themselves and that is better than the photographs and so all the photographs in those two offerings will be denied.

The property being condemned by the Commission constituted vacant lots and had no houses upon it. The jury viewed the property and could see houses which had already been built. The comparable sales used by the appraisal witnesses to support their estimates were adjusted upward. Appraiser Spencer for the Commission put values of four thousand dollars ($4,000) per lot on the property taken, which was the exact per lot value for lots in Spring Valley Subdivision testified to by the appellant landowner Vernon Smith.

The admissibility of photographs is within the sound discretion of the trial court and it has a wide latitude in admitting them. The trial court’s ruling will not be held error unless there is a clear abuse of discretion. Nelson v. Phoenix of Hartford Insurance, 318 So.2d 839 (Miss.1975); Butler v. Chrestman, 264 So.2d 812 (Miss.1972); Crawford v. City of Meridian, 186 So.2d 250 (Miss.1966); 29 Am.Jur.2d Evidence, § 785, at 859 (1967).

We are of the opinion that the lower court did not abuse its discretion in declining to admit the photographs in evidence and that it was not reversible error to sustain the objection to the photographs.

III.

Did the lower court err in granting Instruction P-2, which relates to inconvenience as an item of damage?

The court granted Instruction P-2, requested by the Commission, which follows:

The Court instructs the Jury that in arriving at your verdict, you shall not consider any elements of inconvenience or other elements of damage which are speculative or remote.

Mississippi cases are conflicting as to whether or not such an instruction should be granted, and, under what circumstances it may be granted. The facts and circumstances of each case must be considered to determine whether or not it is proper to give the instruction. State Highway Commission v. Day, 181 Miss. 708, 180 So. 794 (1938). Inconvenience to the landowner as a result of taking the land is not in itself an element of damage unless such inconvenience amounts to damage that is special to the landowner and does not apply to the public generally. In Mississippi State Highway Commission v. Colonial Inn, 246 Miss. 422, 149 So.2d 851 (1963) and Mississippi State Highway Commission v. Gipson, 240 So.2d 620 (Miss.1970), damages were allowed for elements that may be considered as inconvenience. In Colonial Inn, a 52-unit motel was situated on a small tract of land extremely close to the highway. This Court held that the defendants were entitled to compensation for injuries to it caused by noise, vibrations, and increased proximity to highway traffic, not as a distinct element of damages, but as affecting the market value of the property. The appraisal witness gave his opinion that the motel would suffer some inconvenience due to the close proximity of the highway.

In Gipson, the highway was constructed within fifty-three (53) feet of the defendant’s home, which was situated on a lot one hundred eighty-three (183) feet by one hundred forty-two (142) feet, and it was held that the market value of the property in that quiet residential subdivision would be adversely affected.

In New v. State Highway Commission of Mississippi, 297 So.2d 821 (Miss.1974), the Court said:

[Ejvidence offered by the landowners to the effect that they would have to travel further in one direction after a median strip was built in the highway is not admissible as an item of damage, since the landowners have an entrance into the highway and a mere inconvenience is not an item of damage in this case. [297 So.2d at 824].

See also Mississippi State Highway Commission v. Daniels, 235 Miss. 185, 108 So.2d 854 (1959); Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839 (1958).

This Court approved as an item of damages inconvenience due to diminution of access in Mississippi State Highway Commission v. Null, 210 So.2d 661 (Miss.1968), and Mississippi State Highway Commission v. Stout, 242 Miss. 208, 134 So.2d 467 (1961). In Null, the property involved was commercial property and in Stout the property that remained, 3.17 acres, was totally landlocked after the taking.

The Court held in Mississippi State Highway Commission v. Hurst, 349 So.2d 545 (Miss.1977), that:

[Testimony of damages sustained by reason of the construction of the median and damages for inconvenience resulting from increased noise, pollution, and dust .. . were general to the neighborhood and public, were not specific damages to appellees, and testimony thereasto should have been excluded. Daniels v. Board of Supervisors of Clarke County, 323 So.2d 748 (Miss.1975); Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839 (1958). [349 So.2d at 546].

See also Mississippi State Highway Commission v. Fleming, 242 Miss. 402, 135 So.2d 821 (1962).

In Mississippi State Highway Commission v. Hillman, 195 So. 679 (Miss.), sugg. of err. overruled, 189 Miss. 850, 198 So. 565 (1940), the Court said:

It was error to admit evidence with reference to inconveniences resulting to appellees from the establishment of the highway. State Highway Commission v. Chatham, 173 Miss. 427,161 So. 674; New Orleans, etc., Railroad Co. v. Brown, 64 Miss. 479, 1 So. [637] 673; Yazoo & M. V.R. Co. v. Jennings, 90 Miss. 93,43 So. 469, 122 Am.St.Rep. 312. Inconvenience is so speculative and unsubstantial that it is not an element of actual damage. It is not susceptible of proof with any degree of certainty. What would be an inconvenience to one person might not be to another. The measure of damages in a condemnation proceeding is the difference between the fair market value of the land before the taking and the fair market value of what remains after the taking. State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277; State Highway Commission v. Williamson, 181 Miss. 399,179 So. 736, and other decisions of our Court referred to in the opinions in those cases. The evidence of damages resulting from inconvenience was brought out in such a manner as that the jury might have reasonably reached the conclusion that it was to be added to the actual damages shown. [195 So. at 681].

The facts of the case sub judice and those in Rasberry v. Calhoun, 230 Miss. 858, 94 So.2d 612 (1957), are similar. In Rasberry, the lower court gave the exact instruction as in this case, and this Court held the instruction not to be reversible error.

In Mississippi State Highway Commission v. Stout, supra, the Commission condemned land for highway purposes and a 3.17-acre plot was left without access. The lower court refused to grant the identical instruction given here, and this Court held that the trial court acted properly and that “[appel-lee was not entitled to recover anything for inconvenience as a separate item of damage, but it would have been error to give the instruction.... This is especially true ... where some of the remaining land is rendered inaccessible to the owner, ...” [242 Miss, at 220, 134 So.2d at 471],

The lower court granted appellant’s Instruction D-3 and the Commission’s Instruction P-5 [See Appendix]. Those instructions properly instructed the jury on damages and, when all the instructions are read and considered together, we are of the opinion that the appellants could not have been prejudiced or confused by Instruction P-2, and that giving the instruction in this case does not constitute reversible error.

VI.

Did the lower court err in allowing the jury to view the property in the absence of the judge and court reporter?

During the trial, the Commission moved the court that the jury be permitted to view the property being taken together with adjacent property. The appellants objected and requested that the view be taken after both sides had completed the evidence. The lower court sustained the objection and granted the request of appellants.

After the parties had introduced all their evidence, the court directed that the jury be taken to the scene of the property and permitted to view the same, accompanied by the bailiffs. The trial judge, attorneys for the parties, and court reporter did not go with the jury to the property. They remained in the courthouse working on instructions. No objection was made by the appellants to such procedure. Before the jury left the courtroom to view the property, the court charged it in the following words:

The parties have made a motion to the Court that the Court allow you to be transported out to the scene of this property for the purpose of viewing it. That was made day before yesterday and I promised them that I would let you go take a look at it if it was not raining and they have stalled around long enough so that the rain has passed over, so I guess I will have to let you go. The purpose of this is to allow you to take a look at it and draw any conclusions that you can or you wish to from the observations of the property. There will be no testimony taken out there at the scene, the only conversation that would be had out there would be for the purpose of pointing out to you the boundaries of the property that will be taken. We will let the project engineer go along and point out to you where the right of way acquisition is going to be coming through this property. If you have any questions that you want to ask him about the boundaries of the property, feel free to do so, but that will be the extent of any dialogue between the jury and anyone else at the scene. Ladies and gentlemen of the jury, I am going to let you go back to the jury room and the bailiff will come back and get you and take you out there to the scene under the instructions that I have announced to you. They should be back very shortly, you may go back to the jury room.

When the jury returned from viewing the property, appellant still made no objection to the procedure followed and to the fact that the judge, court reporter and attorneys did not accompany the jury to the property. After the jury verdict was returned, appellants filed a motion for new trial and assigned as a ground that while the jury was viewing the property, the judge, court reporter and attorneys remained at the courthouse; that when the jury was upon the property, an alternate juror stated that “I do not see where they are hurting these good old boys” and “This sure is a pretty farm;” and that as the jury arrived upon the property, two black men and two white women were seen together in a romantic situation. The appellants claimed prejudice on account of these incidents.

There are two statutes which deal with a jury view of land. They follow:

§ 11-27-19. Evidence — award—arguments of counsel — instructions.
Evidence may be introduced by either party, and the jury may, in the sound discretion of the judge, go to the premises, under the charge of the court as to conduct, conversation, and actions as may be proper in the premises. Evidence of fair market value shall be established as of the date of the filing of the petition. Any judgment finally entered in payment for property to be taken shall provide legal interest on the award of the jury from the date of the filing of the petition until payment is actually made; provided, however, that interest need not be paid on any funds deposited by the petitioner and withdrawn by the defendants prior to judgment. At the conclusion of the trial, either party, by himself or counsel, may argue the case and the court shall instruct the jury as may be requested by counsel for the parties and as a court may consider proper in the premises. All instructions requested, whether given or denied, shall be clearly marked and filed and such shall be a part of the record as in other cases before the court. Miss.Code Ann. § 11-27-19 (1972).
§ 13-5-91. Jury may view the place.
When, in the opinion of the court, on the trial of any cause, civil or criminal, it is proper, in order to reach the ends of justice, for the court and jury to have a view or inspection of the property which is the subject of litigation, or the place at which the offense is charged to have been committed, or the place or places at which any material fact occurred, or of any material object or think in any way connected with the evidence in the case, the court may, at its discretion, enter an order providing for such view or inspection as is herein below directed. After such order is entered, the whole organized court, consisting of the judge, jury, clerk, sheriff, and the necessary number of deputy sheriffs, shall proceed, in a body, to such place or places, property, object or thing to be so viewed or inspected, which shall be pointed out and explained to the court and jury by the witnesses in the case, who may, at the discretion of the court, be questioned by the court and by the representative of each side at the time and place of such view or inspection, in reference to any material fact brought out by such view or inspection. The court on such occasion shall remain in session from the time it leaves the courtroom till it returns thereto, and while so in session outside the courtroom it shall have full power to compel the attendance of witnesses, to preserve order, to prevent disturbance and to punish for contempt such as it has when sitting in the courtroom. In criminal trials all such views or inspections must be had before the whole court and in the presence of the accused, and the production of all evidence from all witnesses or objects, animate or inanimate, must be in his presence. Miss.Code Ann. 13-5-91 (1972). (Emphasis added)

Effective January 1,1972, all the eminent domain statutes previous to that time were repealed and an entirely new eminent domain procedure became effective [Chapter 27, Mississippi Code Annotated (1972) ]. Section 11-27-19 repealed Section 2770, Mississippi Code Annotated (1942), which provided:

§ 2770. Jury may view property.
Either party to the suit, on application to the court, shall be entitled to have the jury view the property sought to be condemned and its surrounding under the supervision of the judge; or, the judge on his own initiative may so order.

Section 13-5-91 appears under Chapter 5 entitled “Juries,” Mississippi Code Annotated (1972). It is a general statute with reference to juries’ viewing property or the scene of the crime, or where any material fact occurred and the statute has been in existence since prior to 1892.

In Gunn v. Mississippi State Highway Commission, 229 So.2d 828 (Miss.1969), the case was tried in a special court of eminent domain in Kemper County. The judgment was appealed to the circuit court and a verdict was entered awarding damages in the sum of thirty-seven hundred fifty dollars ($3,750.00). Gunn appealed to this Court, and the question for decision was whether the lower court erred in allowing the jury to view the property in the absence of the judge and court reporter.

The landowners’ attorney requested the court to have the jury view the property, which was granted. Immediately after the jury viewed the property, the landowners’ attorney moved for a mistrial on the ground that neither the judge nor the court reporter went with the jury to view the property during which the highway department engineer answered questions propounded by some of the jurors.

This Court held Section 1800, Mississippi Code Annotated (1942) [Mississippi Code Annotated § 13-5-91 (1972) ] was the controlling statute with reference to the view of property by the jury, and quoted the section in part. The Court then said:

The trial court committed reversible error in allowing the jury to view the property in the absence of the judge and court reporter. The error is aggravated by the additional fact that the Highway Department engineer while at the view answered questions propounded by members of the jury. [229 So.2d at 829].

Gunn is distinguished from the case sub judice in that it was tried under the eminent domain statutes in effect prior to January 1,1971. Under the procedures then in effect, appeal from a special court of eminent domain was to the circuit court where the cause was tried de novo. Therefore, as held in Gunn, Section 1800, Mississippi Code Annotated (1942), [Mississippi Code Annotated § 13-5-91 (1972) ], was controlling on view of property and that statute required the organized court, consisting of the judge, jury, clerk, sheriff and deputy sheriffs to accompany the jury to the scene. This section was not complied with by the lower court in Gunn, and timely objections were made. Prejudice to the landowner Gunn was clearly shown.

Under the present eminent domain statutes, the appeal from a judgment in an eminent domain court is directly to the Mississippi Supreme Court. There is no de novo trial in circuit court as in Gunn. Therefore, the applicable statute for the jury to view the premises is Section 11-27-19.

The alternate juror who made two remarks at the scene of the property did not participate in the deliberation of the jury. We cannot see how those remarks and the incident involving mixed couples could have prejudiced the jury. No suggestion has been made to what the trial judge could have done had he been present, or what, if anything, the appellants would have requested him to do.

Regardless of the contentions and argument of appellants, their request for a jury view of the property at the conclusion of the evidence was granted, the trial judge charged the jury as to its conduct on the view and no objection was made to that procedure. After return of the verdict, for the first time appellants objected in a motion for new trial. We are of the opinion that appellants’ actions constituted a waiver of that point.

There being no reversible errors in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and BROOM and PRATHER, JJ., concur.

DAN M. LEE, HAWKINS and BOWLING, JJ., dissent.

APPENDIX

DEFENDANTS’ INSTRUCTION NO. D-3

The Court instructs the Jury that the measure of damages in an eminent domain proceeding is the difference in the value of the whole tract of property immediately before and immediately after the taking of the condemned property. In arriving at such value, you should award the defendants the amount of damages which has been proven to you by a preponderance of the evidence in this cause.

INSTRUCTION NO. P-5

The Court instructs the Jury that when a part of a larger tract of land is taken for public use, the owner should be awarded the difference between the fair market value of the whole tract immediately before the taking, and the fair market value of that remaining, without considering general benefits or injuries resulting from the use to which the land taken is to be put, that are shared by the general public.

DAN M. LEE, Justice,

dissenting:

Being unable to agree with the conclusions reached by the majority, I, therefore, respectfully dissent. Three errors were committed in the trial below, the combined effect of which requires reversal of this case.

The first error involves the exclusion of certain photographs of two houses in Patrick Subdivision which subdivision was used by all three witnesses for the highway commission as comparable property in determining an estimate of compensation. The photographs were properly authenticated but were denied admission solely on the grounds of relevancy. The photographs were relevant and admissible as rebuttal evidence to show the dissimilarities of the property compared so that the jury could decide whether or not to accept or reject the valuation of the property arrived at by the commission’s experts. The relevancy of this evidence was compounded by the fact that the Spring Valley Subdivision was subject to certain restrictive covenants while Patrick Subdivision was not.

The age-old rule found in 31 C.J.S. Evidence section 3 (1964) defines “Rebutting evidence” as follows:

Rebutting evidence. Rebutting evidence is that which is given to explain, repel, counteract, or disprove facts given in evidence by the adverse party. It is that evidence which has become relevant or important only as an effect of some evidence introduced by the other side. Rebutting evidence means not merely evidence which contradicts the witnesses on the opposite side, but also evidence in denial of some affirmative fact which the answering party has endeavored to prove. It embraces all testimony which tends to counteract or overcome the legal effect of the evidence for the adverse party, (emphasis ours.)

As a general rule, evidence may be introduced to impeach or contradict a skilled or expert witness or to lessen the weight of his expert opinion even after such witness has been excused by agreement of counsel and he has retired. Contradiction or impeachment may be shown by the use of exhibits, a showing that the expert is interested or biased, that others have, at a prior time, refused to accept the opinion expressed, or that he made inconsistent statements at another time, provided a proper foundation has been laid and the purpose for which the evidence is offered is made clear to the court. 32 C.J.S. Evidence § 571 (1964).

32 C.J.S. Evidence section 571 further provides:

The actual selling price of properties of which a witness testifying as to value claims to know the sale price may be shown, but the selling price of properties, the sale price of which the witness does not claim to know and on which he has not based his testimony as to value, cannot be shown. Where a witness has based his estimate of the value of certain property on the sale price of other property, the reason why such other property was sold at a reduced price may be shown. The amount of revenue stamps on a deed conveying land as to the value of which a witness has testified, or on the value of which a witness has based his testimony with respect to the value of other land, may be shown to test the basis of, and the weight to be given to, his conclusions....

Textbooks or treatises relied on by an expert witness may be used as a basis for impeaching on cross-examination. Harris v. Pounds, 185 Miss. 688,187 So. 891 (1939), and 32 C.J.S. Evidence § 574(1) (1964).

In Madden v. Pittman, 242 So.2d 691 (Miss.1970), which involved several consolidated actions stemming from an automobile collision, complaint was made of the admission of a photograph of one of the vehicles in a storage yard. Finding no error, this Court stated:

The jury was properly instructed on the law. There was no error in admitting into evidence for defendant the color photographs of the Pittman Cadillac in the storage yard. Plaintiffs introduced a photograph of the same car in the same yard, and any divergencies between these photographs as to the position of the left front wheel and tire were explored in detail on examination of the witnesses. (242 So.2d at 692)

The trial judge in the case sub judice concluded that because the photographs depicted houses while the land sought to be condemned was unimproved although the same had been platted into lots for home construction and restrictive covenants filed, the photographs were irrelevant. The photographs were relevant as rebuttal evidence and therefore admissible under the facts and circumstances of this case. This was error that had the effect of preventing the appellants from attacking the basis of ap-pellee’s expert witnesses’ credibility as to compensation.

The next assignment of error is that the highway commission was granted the following instruction

INSTRUCTION NO. P-2
The Court instructs the Jury that in arriving at your verdict, you shall not consider-any elements of inconvenience or other elements of damage which are speculative or remote.

The instruction is highly confusing and should not have been given for the following reasons. In Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565 (1940), this Court stated:

The owner of the land is not restricted to the recovery of damages to the remainder from the mere taking of a part thereof, but is entitled to recover all special damages that may result to the remaining land from the public use to which the part taken is to be put. Sullivan v. Board of Supervisors, 58 Miss. 790, 803. After announcing this rule, it was there said: “It may be necessary to throw up an embankment on appellant’s [the landowner’s] land to construct the highway, and this may, in seasons of rain or unusual high waters, cause the adjacent land to be submerged, in which event he would be entitled to compensation for that injury.”
The compensation awarded the landowner in an eminent domain proceeding is conclusively presumed to include all damages resulting to him from the proper use of the land taken, here specifically from the proper construction of the contemplated highway. Among the cases in which this Court has so held are Yazoo & M.V.R. Co. v. Davis, 73 Miss. 678, 693, 19 So. 487, 32 L.R.A. 262, 55 Am.St.Rep. 562; Columbus & G.R. Co. v. Taylor,-149 Miss. 269, 115 So. 200; and Robertson v. New Orleans & G.N.R. Co., 158 Miss. 24, 35, 129 So. 100. Injuries to the appellees’ remaining land from the use to which that taken is to be put affect, of course, its market value. Cf. Mississippi State Highway Comm. v. Prewitt, 186 Miss. 778, 192 So. 11. (189 Miss, at 868-69,198 So. at 570) (emphasis ours.)

See also Mississippi State Highway Comm’n v. Treas, 197 Miss. 670, 20 So.2d 475 (1945); Rasberry v. Calhoun County, Mississippi, 230 Miss. 858, 94 So.2d 612 (1957); and Mississippi State Highway Comm. v. Stout, 242 Miss. 208, 134 So.2d 467 (1961), overruled on other grounds at 390 So.2d 284.

In Mississippi State Highway Commission v. Crooks, 282 So.2d 232 (Miss.1973), this Court reiterated the before and after rule and what it encompasses:

The “before and after” rule swallows and absorbs all of the damages of every kind and character, and while it is proper to put on evidence of special items so that the jury can properly determine the “after” value, it is not proper to comment on any particular aspect of the damages in the instructions. Few, if any, attorneys are immune from the occupational hazard of committing errors in drafting of instructions. Particularly is this true when the instructions are prepared under pressure of time or in the crisis of a trial, when cool, analytical chambered reflection is improbable. Apparently this occupational mischief has again occurred here. In the hope that it may be avoided in the future, we point out that there is a lucid discussion in the Stout case of the error in presenting to the jury an instruction such as is under consideration here. In the Stout case the court, speaking through Justice Gillespie, made this succinct synopsis of the pertinent rule of law:
“The before and after taking rule is the ultimate measure of damages. It is not proper to prove as a separate item of damage any item, quality or specific injury; but this does not mean that a witness may not testify concerning any specific quality, item, or specific injury which affects the depreciated market value. ‘Although every factor affecting a depreciated market value may be put in evidence, the ultimate issue is the extent of their cumulative impact upon such total valuation.' Wheeler v. Mississippi State Highway Commission, 212 Miss. 606, 55 So.2d 225.” (242 Miss, at 219-200 [sic], 134 So.2d at 471.)
‘It should repeatedly be emphasized that subjects which are relevant as testimony are not thereby appropriate for instructions. Although every factor affecting a depreciated market value may be put in evidence, the ultimate issue is the extent of their cumulative impact upon such total valuation. When they are made subjects of special comment in instructions, there is not only a violation of Code of 1942, Section 1530, but this results in duplication of damages .... and the procedure in this sort of case would be simpler and safer if the juries could be instructed that the damage is to be computed upon the basis of the difference between the fair market value of the entire property affected before and after the taking. The several items of damage should be left to the fields of testimony and argument.’ Wheeler v. Mississippi State Highway Commission, 212 Miss. 606, 55 So.2d 225, 227.” (242 Miss, at 221-222, 134 So.2d at 472.) [(Mississippi State Highway Commission v. Hall) 252 Miss. (863) at 874-876, 174 So.2d (488) at 492-493.]
(282 So.2d at 235-36) (emphasis ours.)

Because the before and after rule swallows and absorbs all the damages, the ultimate measure of damages and instructions to the jury should not comment upon any particular element of damages. Mississippi State Highway Comm’n. v. Blackwell, 350 So.2d 1325 (Miss.1977).

In Rasberry v. Calhoun County, Mississippi, 230 Miss. 858, 94 So.2d 612 (1957), this Court approved the following instruction:

The jury was also instructed for the County “that in arriving at your verdict you shall not consider any elements of inconvenience or other elements which are speculative and remote.” This was approved in State Highway Comm. v. Treas., supra. See also 1 Alexander, Mississippi Jury Instructions (1952), Secs. 2172 and 1264. The instruction correctly stated that elements of inconvenience which should not be considered are those which are speculative and remote. (230 Miss, at 865, 94 So.2d at 615).

The Court relied upon State Highway Commission v. Treas, supra, as authority for approval of the instruction; however, the instruction cannot be found in that opinion nor does it even appear that such an instruction was at issue on appeal. See Mississippi State Highway Comm’n v. Stout, supra, 242 Miss, at 221, 134 So.2d 467.

Subsequently, in Mississippi State Highway Commission v. Stout, 242 Miss. 208,134 So.2d 467 (1961), this Court upheld the refusal of the same instruction approved in Rasberry. The Court stated:

Appellant assigns as error the lower court’s refusal to give the following requested instruction: “The Court instructs the jury for the State Highway Commission that in arriving at your verdict you shall not consider any elements of inconvenience or other elements which are speculative and remote.”
This was not error. Appellee was not entitled to recover anything for inconvenience as a separate item of damage, but it would have been error to give the instruction. Where land is taken for a highway and the remaining land is divided by the new highway, the severance damage may be substantial. This is especially true when the highway is a non-access facility and where some of the remaining land is rendered inaccessible to the owner, as in the present case. Severance damage is closely related to inconvenience, for the market value of the remaining land is reduced because of the inconvenience in going from one part to the other or because a part may be inaccessible. The instruction would deny the jury the right to consider an item affecting the after taking value of the remaining lands. The instruction is also objectionable for the reason that it has the effect of telling the jury that inconvenience is speculative and remote when in fact it is neither.
This instruction appears as Form No. 2172, Mississippi Jury Instructions, Alexander, and the footnote indicates that it was taken from Mississippi State High way Commission v. Treas, 197 Miss. 670, 20 So.2d 475. The instruction no doubt appeared in the record in the Treas case but there was no issue involving the instruction and it was not considered by the Court, and we know of no case where this instruction has been approved. (242 Miss, at 220-21, 134 So.2d at 471-72) (emphasis ours.)

See also Carney v. Mississippi State Highway Commission, 233 Miss. 598, 103 So.2d 413 (1958), holding the following instruction error:

In view of this holding we are of the opinion that the lower court was in error in granting the following instruction to the petitioner: “The Court instructs the jury for the petitioner that the defendant is not entitled to damages resulting solely from inconvenience, if any, entering and leaving his remaining property provided you believe that the public at large suffer the same inconvenience.” (233 Miss, at 607, 103 So.2d at 416) (emphasis ours.)

The authorities are clear that a landowner may recover all special damages that may result to his remaining land from the public use to which the part taken is to be put. These special damages should be explored in the fields of testimony and argument; however, the instructions to the jury should not comment on any particular element of damages.

The final error involves the viewing of the condemned property in the absence of the judge and court reporter. The court, after both sides had introduced all their evidence, directed that the jury be taken to the scene of the property for a view of the premises, accompanied by the bailiff. Before the jury left, the court charged it in the following words:

The parties have made a motion to the Court that the Court allow you to be transported out to the scene of this property for the purpose of viewing it. That was made day before yesterday and I promised them that I would let you go take a look at it if it was not raining and they have stalled around long enough so that the rain has passed over, so I guess I will have to let you go. The purpose of this is to allow you to take a look at it and draw any conclusions that you can or you wish to from the observations of the property. There will be no testimony taken out there at the scene, the only conversation that would be had out there would be for the purpose of pointing out to you the boundaries of the property that will be taken. We will let the project engineer go along and point out to you where the right of way acquisition is going to be coming through this property. If you have any questions that you want to ask him about the boundaries of the property, feel free to do so, but that will be the extent of any dialogue between the jury and anyone else at the scene. Ladies and gentlemen of the jury, I am going to let you go back to the jury room and the bailiff will come back and get you and take you out there to the scene under the instructions that I have announced to you. They should be back very shortly, you may go back to the jury room, (emphasis ours.)

The trial judge, attorneys and court reporter remained at the courthouse working on instructions while the jury left to view the premises. Appellant contends this action was error.

This Court has passed upon the question of the necessity of the presence of the court reporter and the judge during a viewing of the property by the jury. Gunn v. Mississippi State Highway Comm’n., 229 So.2d 828 (Miss.1969). In Gunn, the landowners’ attorney moved the court to have the jury view the premises, which motion was granted. Immediately after the jury viewed the property, the landowners’ attorney moved for a mistrial on the ground that neither the judge nor the court reporter went with the jury to view the property during which time the highway department engineer answered some questions propounded by some of the jurors. In reversing the case, this Court said:

The trial court committed reversible error in allowing the jury to view the property in the absence of the judge and court reporter. The error is aggravated by the additional fact that the Highway Department engineer while at the view answered questions propounded by members of the jury.
Section 1639 provides that except in cases involving less than $50 no party shall be required without his consent to stand trial in circuit court unless a court reporter is in attendance. This statute contemplates that the entire proceedings, including a view of the premises, must be conducted with the court reporter present. (229 So.2d at 829).

Viewing the property is spelled out in the following sections.

Mississippi Code Annotated section 13-5-91 (1972) provides as follows:

When, in the opinion of the court, on the trial of any cause, civil or criminal, it is proper, in order to reach the ends of justice, for the court and jury to have a view or inspection of the property which is the subject of litigation, or the place at which the offense is charged to have been committed, or the place or places at which any material fact occurred, or of any material object or thing in any way connected with the evidence in the case, the court may, at its discretion, enter an order providing for such view or inspection as is herein below directed. After such order is entered, the whole organized court, consisting of the judge, jury, clerk, sheriff, and the necessary number of deputy sheriffs, shall proceed, in a body, to such place or places, property, object or thing to be so viewed or inspected, which shall be pointed out and explained to the court and jury by the witnesses in the case, who may, at the discretion of the court, be questioned by the court and by the representative of each side at the time and place of such view or inspection, in reference to any material fact brought out by such view or inspection. The court on such occasion shall remain in session from the time it leaves the courtroom till it returns thereto, and while so in session outside the courtroom it shall have full power to compel the attendance of witnesses, to preserve order, to prevent disturbance and to punish for contempt such as it has when sitting in the courtroom. In criminal trials all such views or inspections must be had before the whole court and in the presence of the accused, and the production of all evidence from all witnesses or objects, animate or inanimate, must be in his presence, (emphasis ours.)

Mississippi Code Annotated section 11-27-19 (1972) also provides:

Evidence may be introduced by either party, and the jury may, in the sound discretion of the judge, go to the premises, under the charge of the court as to conduct, conversation, and actions as may be proper in the premises. Evidence of fair market value shall be established as of the date of the filing of the petition. Any judgment finally entered in payment for property to be taken shall provide legal interest on the award of the jury from the date of the filing of the petition until payment is actually made; provided, however, that interest need not be paid on any funds deposited by the petitioner and withdrawn by the defendants prior to judgment. At the conclusion of the trial, either party, by himself or counsel, may argue the case and the court shall instruct the jury as may be requested by counsel for the parties and as a court may consider proper in the premises. All instructions requested, whether given or denied, shall be clearly marked and filed and such shall be a part of the record as in other cases before the court, (emphasis ours.)

Furthermore, this Court has passed on this precise question in Gunn, supra.

The majority seeks to distinguish Gunn on the ground that our eminent domain statutes have been revamped following Gunn. I respectfully suggest that Gunn is on all fours with the facts in this case and cannot be distinguished therefrom, and was reversed and remanded solely due to the failure of the judge and court reporter to accompany the jury when it viewed the property.

The majority’s interpretation of section 11-27-19 is indeed strained when said section provides that the jury may, in the sound discretion of the judge, go to the premises, under the charge of the court as to conduct, conversation, and actions as may be proper in the premises. The court cannot be in charge of the conduct, the conversations, and the actions if the judge and the court reporter are several miles away. Furthermore, the majority opinion overlooks section 9-13-31 (1972) which was heavily relied upon for reversal in Gunn. It provides:

In all criminal cases, and (a) in all civil cases, and (b) matters in probate, and (c) in matters of special proceedings, wherein property or demands of as much as fifty dollars may be in issue, no party shall be required without his consent to go to trial in a circuit or chancery court unless the case is attended by a court reporter.... (emphasis ours).

This statute contemplates that the entire proceedings, including a view of the premises, must be conducted with the court reporter present. Gunn, supra.

Therefore, even if the appellant waived the attendance of the judge and attorneys to view the premises which he did not, the judge required that the court reporter remain behind to go over jury instructions. The failure of the court reporter to attend the view of the premises pursuant to Gunn is reversible error.

Perhaps, in our zeal to justify a given result we overlook some basics of our three-separate-branch form of government. We interpret statutes passed by our legislature, not rewrite them nor ignore them. The majority opinion has the effect of telling the trial judges of this state to ignore two plain and unambiguous statutes. Moreover, the trial judge in his charge to the jury prior to its viewing the premises, authorized the project engineer, a witness for appellee, to answer questions propounded by the jury as to the boundaries of the property. This is precisely what Gunn condemned. In my opinion, this alone is sufficient reason to reverse this case. However, when this error is considered in the light of the other two errors previously discussed, a new trial should be granted.

BOWLING and HAWKINS, JJ., join in this dissent.

HAWKINS, Justice,

dissenting:

I join in the dissent of Justice Dan Lee, with an additional observation on the fact that the trial judge was not in attendance when the jury viewed the premises.

Of course, error in trial proceedings can be waived by trial counsel. In this case we do not have simple error, however, but rather a conscious abandonment by the trial judge of an affirmative judicial duty in the conduct of trial proceedings.

I would ask, how could the trial judge know whether or not prejudicial error occurred when the jury inspected the premises since he was not there to observe? How could he exercise judicial discretion and rule thereon?

Is it really fair to place the entire burden for this failure on the part of the trial judge on the shoulders of trial counsel who must practice in his court? As an appellate court, insofar as we are able to do so, we have an obligation by our decisions to require judicial proficiency in trial proceedings. Do we best insure the attainment of this objective when we decide that a trial judge is free to do as he pleases so long as there is no objection by trial counsel? Where will we draw the line between error and license, or error and dereliction?

It is my respectful view we should draw the line in this case and reverse.

DAN M. LEE, J., joins this dissent.

      . Trial of the case sub judice consumed three (3) days. Trial judges are reminded and cautioned that, if they and court reporters are not present when a jury views premises, even though specifically charged, something may occur, which, in the absence of the trial judge, might require reversal.


source: Caselaw Access Project

license: Public Domain

text:
    AMERICAN DRUGGISTS’ INSURANCE COMPANY v. STATE, for the Use and Benefit of DEPOSIT GUARANTY NATIONAL BANK.
    No. 53987.
    Supreme Court of Mississippi.
    Dec. 15, 1982.
    Aultman, Tyner, Weathers & Gunn, Lawrence C. Gunn, Jr., Hattiesburg, for appellant.
    Courtney & Furby, Richard A. Courtney, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Dan Lee, Judge.

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

Reversed and County Court’s Order of Dismissal Re-Instated.

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

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


text:
    Annie Mary TALLIE v. Henry McMILLIAN, Jr.
    No. 53446.
    Supreme Court of Mississippi.
    Dec. 15, 1982.
    Rehearing Denied Jan. 12, 1983.
    Charles R. Brett, Tupelo, for appellant.
    Coleman, Coleman & Coleman, Lee Coleman, West Point, for appellee.
   Appeal from Chancery Court, Clay County; W.W. Brand, Jr., Chancellor.

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

AFFIRMED.


author: DAN M. LEE, Justice,

text:
    Jerry Randle SHEARER v. STATE of Mississippi.
    No. 53494.
    Supreme Court of Mississippi.
    Dec. 15, 1982.
    Rehearing Denied Jan. 5, 1983.
    Morgan & Morgan, Clarence E. Morgan, III, Kosciusko, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before SUGG, ROY NOBLE LEE and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Winston County wherein Jerry Randle Shearer, appellant, was indicated, tried and convicted for the September 29, 1980, murder of Margie Bowie. The victim was slain in her own home in Kilmichael, Mississippi, upon returning home from work between 5:30 and 6:00 p.m. Apparently, a burglary was in progress when decedent entered her home and in an attempt to flee the scene without being discovered, the burglar struck Mrs. Bowie in the head with a hammer which resulted in her death. Upon conviction, Shearer, a neighbor of Mrs. Bowie, was sentenced to life imprisonment.

Mrs. Margie Bowie was employed as a bookkeeper at the Sunflower Food Store in Winona. On September 29, 1980, Mrs. Bowie, during her lunch hour, purchased two gifts from Simmons Jewelry Store, both of which were gift-wrapped and delivered to Mrs. Bowie in a white paper bag. She returned to work and remained there until she left for the evening at approximately 5:30 p.m.

After leaving work, Mrs. Bowie went to the drug store, accompanied by Ruth Thrasher, appellant’s mother. Both women purchased a birthday card. Mrs. Bowie stopped back by Sunflower to retrieve her packages and then left for Kilmichael.

Mrs. Bowie arrived at her home in Kilmi-chael at approximately 6:00 p.m. When she entered her house, a neighbor noticed a light was turned on inside but was turned off shortly thereafter, in two or three minutes.

Mrs. Thrasher arrived at Mrs. Bowie’s home approximately ten minutes later to pick up and deliver the birthday presents purchased earlier that day. She first tried to gain entrance through a side door; however, the door was locked and her knocks brought no response. She then proceeded to the back door where she heard Mrs. Bowie groaning; however, the back door was also locked. Mrs. Thrasher then went to the front door, which was also locked. However, when she looked through the window, she noticed the back door was open about three inches. When she returned to the back door, she found the same had been opened.

Having become fearful of the situation, Mrs. Thrasher called Mr. Applewhite who was sitting on his porch next door. He and Mrs. Thrasher then returned to Mrs. Bowie’s residence, finding her lying in a pool of blood in a bedroom near the back door. Mrs. Thrasher tried to use the telephone to call for help, but the phone lines had been severed. The police and an ambulance were summoned from Mr. Applewhite’s residence.

Dr. L.C. Henson arrived at Mrs. Bowie’s residence around 6:15 p.m. His examination revealed she had been struck behind her right ear at least four times with some sort of blunt instrument. Dr. Henson asserted the wounds could have been produced by a hammer. A bloody hammer was found at the scene. A subsequent analysis of the blood and hair on the hammer revealed that the blood on the hammer was consistent with Mrs. Bowie’s blood and the hair found thereon was similar to Mrs. Bowie’s and could have had a common origin.

Mrs. Bowie was transported from the emergency room at Kilmichael Hospital to the Baptist Hospital in Jackson; however, she died before reaching Jackson. The cause of death was the lesion over the sagi-tal sinus (large blood vessel directly under the site of the wound). Mrs. Bowie bled to death.

The decedent was described as being like a mother to appellant who had been friends with her children. However, appellant’s fingerprints were found on several articles in decedent’s home, including a paper sack (allegedly from Simmons’ Jewelry), a receipt from Artman’s Jewelry dated 7-14-80, a receipt from Dr. Marasako dated 5-29-79, a ticket stub dated April 26, 1980, and a receipt from Davidson Marble and Granite Works dated 3-27-80. No prints were found on the hammer.

Appellant also, while incarcerated, allegedly confessed to Barry James, a cellmate, that he killed Mrs. Bowie because she saw him before he could get out of her house. Appellant offered no evidence to rebut the evidence presented by the state.

The jury returned a verdict of guilty as charged and appellant was thereafter sentenced to life imprisonment.

I. Did the trial court err in admitting appellant’s trousers into evidence and in permitting Johnette Gothard to testify there was blood on the trousers?

On September 30, 1980, Ronnie White, a criminal investigator with the Mississippi Highway Patrol, and Bobby White, also with the Mississippi Highway Patrol, questioned appellant at his residence concerning his whereabouts on the previous day. Ronnie White asked appellant what he had been wearing on September 29, 1980, and also asked if he could see the same. Appellant retrieved the clothing, whereupon investigator White examined the trousers. White then told appellant he thought the trousers contained blood around the cuff. He voluntarily allowed the pants to be taken by the officers for analysis.

The pants were subsequently analyzed at the Mississippi Crime Lab. The spots believed to have been blood turned out not to be blood; however, a small trace of blood was found around one of the pockets. The quantity of blood discovered was of such an insignificant amount that further testing could not be conducted. The pants were admitted into evidence at trial even though the blood found thereon had not been classified as human blood or typed.

Appellant contends the pants should not have been admitted into evidence because they were irrelevant and highly prejudicial. He argues that admitting the evidence and allowing the state to prove the pants contained traces of blood with no proof that it was even human blood, was prejudicial and constitutes reversible error. The state contends the trousers were relevant to the issue of guilt.

A trial judge enjoys a considerable amount of discretion as to the relevancy and admissibility of evidence. Unless his judicial discretion is so abused as to be prejudicial to the accused, this Court will not reverse his ruling. Page v. State, 295 So.2d 279 (Miss.1974).

We have carefully reviewed the record and find there was no abuse of discretion by the trial judge in admitting appellant’s trousers into evidence. However, the admission of this type of evidence in a different case may constitute reversible error.

II. Did the trial court err in admitting into evidence the photographs of the deceased?

Three pictures of decedent’s wounds were introduced into evidence over appellant’s objections. Appellant contends the gruesome nature of the pictures having no probative value as to his guilt or innocence, was reversible error. He argues that the pictures were not necessary to prove the corpus delicti and did not purport to depict a portrayal of the crime scene. Appellant avers there was no issue raised as to the cause of death, the fact of death, the weapon causing death or the number and placement of the blows that killed her. Therefore, the pictures were introduced solely to inflame the jury and prejudice the appellant.

Prosecutors, in their often over-zealous efforts to obtain a criminal conviction, seek the introduction of inordinately gruesome photographs where the photographs have little, if any, probative value. Such over-zealousness may in some instances, particularly in a weak case such as this one, often jeopardize a conviction where the photographs are not necessary to the state’s case. Perhaps some consideration might be given to the use of such photographs where it is only necessary to establish the cruelty or atrociousness of the act committed such as in the sentencing phase of a capital murder trial.

In this state, the trial judge is granted much discretion to determine the admissibility of photographs. Briggins v. State, 416 So.2d 691 (Miss.1982); Edwards v. State, 413 So.2d 1007 (Miss.1982); King v. State, 408 So.2d 1375 (Miss.1982); Sadler v. State, 407 So.2d 95 (Miss.1981); Tubbs v. State, 402 So.2d 830 (Miss.1981); Steed v. State, 396 So.2d 625 (Miss.1981); Cooley v. State, 391 So.2d 614 (Miss.1980); and Bullock v. State, 391 So.2d 601 (Miss.1980).

The mere fact that photographs of a victim are horrible and gruesome is not, in and of itself, reason why they should not be admissible. Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961). Photographs of the victim should ordinarily not be admitted into evidence where the killing is not contradicted or denied, and the corpus delicti and identity of the deceased have been well established. Williams v. State, 354 So.2d 266 (Miss.1978). However, the admission of photographs alone which have no probative value does not generally constitute reversible error. Williams, supra, and Stevenson v. State, 325 So.2d 113 (Miss.1975).

Although the photographs in the instant case were somewhat gruesome, we are not convinced that they were totally devoid of probative value. After a careful review of the record, we do not believe the trial judge abused his discretion in admitting into evidence the photographs depicting the wounds suffered by decedent.

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

Appellant contends the evidence presented by the state was insufficient to sustain his conviction. Appellant primarily contends that although his fingerprints were found on several small transportable items in decedent’s house, none of his fingerprints were found on any immovable objects which would have conclusively established he had been present in decedent’s home some time before the killing. Appellant also attacks the credibility of Barry James, asserting there was no reason advanced for his alleged confidence in James as well as the fact that James had dated appellant’s wife prior to trial.

In Sadler v. State, 407 So.2d 95 (Miss. 1981), this Court stated:

Among the alleged errors assigned is that the trial court should have sustained Sadler’s motion for a new trial on the ground that the jury verdict was not supported by sufficient credible evidence.
Considering the evidence, as we must, in the light most favorable to the state and accepting as true the evidence supporting or tending to support the verdict, with all inferences supportive of the verdict that reasonably may be drawn therefrom, we find no merit in this contention. Glass v. State, 278 So.2d 384 (Miss.1973). In Spikes v. State, 302 So.2d 250 (Miss.1974), this Court said:
On appeal, in this situation, in passing upon the sufficiency of evidence to support a verdict, this Court must accept as true the evidence which supports the verdict. Murphree v. State, 228 So.2d 599 (Miss.1969). [302 So.2d at 251],
The resolution of such conflicts as there were in the evidence in this case, was peculiarly for the jury. In Hankins v. State, 288 So.2d 866 (Miss.1974), it was said:
In Evans v. State, 159 Miss. 561,132 So. 563 (1931), we stated:
We invite the attention of the bar to the fact that we do not reverse criminal cases where there is a straight issue of fact, or a conflict in the facts; juries are impaneled for the very purpose of passing upon such questions of disputed fact, and we do not intend to invade the province and prerogative of the jury. (159 Miss, at 566, 132 So. at 564).
We conclude there was ample evidence to support the verdict of the jury and we decline to intrude into the factfinding office of the jury. [288 So.2d at 868]. (407 So.2d at 97).

Appellant offered no explanation as to how his fingerprints might have come into contact with those articles found in decedent’s house, nor did he deny making a confession to Barry James. The evidence was more than sufficient to sustain the jury’s verdict.

Based on the foregoing, this case is affirmed.

AFFIRMED.

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

      . Upon motion of appellant, venue was changed from Montgomery County to Winston County.

      . The pictures were taken after Mrs. Bowie’s body was transported to Oliver’s Funeral Home in Winona.


text:
    Kwasi SEITU (Clifton Joy) v. STATE of Mississippi.
    No. 53874.
    Supreme Court of Mississippi.
    Dec. 22, 1982.
    Hermel Johnson, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

AFFIRMED.

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


text:
    James H. SAMS v. Helen Sams PARKER.
    No. 53969.
    Supreme Court of Mississippi.
    Dec. 22, 1982.
    Thomas L. Kesler, Joe 0. Sams, Jr., Columbus, for appellant.
    Langston & Lott, Joe Ray Langston, Booneville, for appellee.
   Appeal from Chancery Court, Lowndes County; Michael Sullivan, Special Chancellor.

Before SUGG and WALKER, PJJ, and DAN M. LEE, J.

AFFIRMED.

PRATHER, J, took no part.


text:
    Eddie Lee BROWN v. STATE of Mississippi.
    No. 53963.
    Supreme Court of Mississippi.
    Dec. 22, 1982.
    Johnson & Mills, Jerry L. Mills, Clinton, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; L. Breland Hilbum, Acting Circuit Judge by Assignment.

Before PATTERSON, C.J, and BOWLING and PRATHER, JJ.

AFFIRMED.


author: PER CURIAM.

text:
    Eula Mae MARTIN v. Schley O’REAR, et al.
    80-556.
    Supreme Court of Alabama.
    Dec. 10, 1982.
    Robert H. Harris of Caddell, Shanks, Harris, Moores & Murphree, Decatur, for appellant.
    James C. King of Wilson & King, Jasper, for appellees.
   PER CURIAM.

This appeal comes to us from the Circuit Court for Walker County, Alabama. The action was brought by, or in the name of, eleven individuals (the O’Rear group) who are residents of the City of Jasper, seeking first a temporary restraining order, then a preliminary injunction and permanent injunction, to prohibit Eula Mae Martin (Mrs. Martin) from constructing a multi-family improvement on her property in Jasper. From the trial court order granting the TRO, preliminary injunction and permanent injunction, Mrs. Martin appeals.

Several issues are raised by the parties, but we find one issue dispositive of the appeal. The dispositive issue is whether, under the facts of this case, the amendment to the zoning ordinance of the City of Jasper is arbitrary and unreasonable, rendering it unenforceable against the defendant. We hold, that it is, and reverse the decision of the lower court.

The facts of the case are as follows:

On September 22, 1980, Mrs. Martin purchased the subject property, which was in a district of approximately twenty-four blocks that had been zoned R-4 residential for some twenty-five years. Mrs. Martin was a resident of this district, which contained structures of a general mixture of single family, apartment, and business usage, all permissible in an R-4 district. Many structures in the district which were originally single family dwellings had been remodeled into apartment units or businesses, and in other instances new apartment complexes or commercial buildings had been erected.

The day after purchasing the subject property, Mrs. Martin obtained a building permit for the construction of a seven unit condominium. She then proceeded with necessary excavation of the property and made financing arrangements.

On October 16, 1980, the O’Rear group appeared before the Planning Commission of the City of Jasper and petitioned that the block containing the subject property be rezoned from R-4 to R-2, permitting single family dwellings only. The Planning Commission suggested that the area be enlarged to include six full blocks and portions of six other blocks, and made a recommendation to the Board of Commissioners of the City of Jasper that the area be rezoned R-2. At that time there were numerous apartment units, business houses, and boarding houses within the area.

On October 21, the Board of Commissioners, acting on the request by the O’Rear group, authorized the publication of notice that on November 4, 1980, it would hold a hearing to consider the proposed rezoning. On October 28 the O’Rear group filed this action, and on that day, without hearing, the trial court issued a TRO restraining Mrs. Martin from proceeding with her construction. On November 4, 1980, the Board of Commissioners, over Mrs. Martin’s objection, created the new R — 2 district requested by the O’Rear group. A hearing was held on November 5, at which the trial court found that the Board had changed the zoning of Mrs. Martin’s property from R — 4 to R-2 and that such change was valid. Based on these findings, the court preliminarily enjoined her from constructing any improvements on the property inconsistent with the new zoning amendment. A hearing on the permanent injunction was set for January 30, 1981.

Prior to the date of the hearing on the permanent injunction Mrs. Martin filed a suit seeking to have the rezoning ordinance struck down on procedural grounds. Eventually, she was successful and that ordinance was declared void, but on February 24, 1981, the Board adopted, with correct procedure, a new rezoning ordinance identical to the void one. During this time the hearing on the permanent injunction was continued three times, finally coming before the court March 25, 1981. During all of this time the preliminary injunction against Mrs. Martin continued in effect. On March 25, the trial court, on the basis of the rezoning amendment of February 24, 1981, permanently enjoined Mrs. Martin from building an apartment or condominium complex on the subject property.

Come v. Chancy, 289 Ala. 555, 269 So.2d 88 (1972), states:

[T]he ultimate criterion] in determining the validity of zoning ordinances, and amendments thereto, is whether the ordinance creates zones in such manner that the classifications are consistent with the land use pattern of the area, and bear a substantial relationship to the public health, safety, morals, and general welfare. The size and location of the property would necessarily enter into a determination of this question, which is primarily for the governing body of a political subdivision whose conclusions in the premises should not be judicially disturbed unless [they] be arbitrary and capricious, and therefore palpably wrong.

In applying the above-quoted test to the facts of the case before us, we conclude that the zoning ordinance amendment upon which the injunction against Mrs. Martin was based is arbitrary and capricious, and the trial court was palpably wrong in concluding otherwise. A similar fact situation arising in Alabama was dealt with recently by the United States Court of Appeals, Fifth Circuit. Wheeler v. City of Pleasant Grove, 664 F.2d 99 (5th Cir.1981). In that case, plaintiffs were granted a permit under the existing zoning ordinance to build an apartment complex, and began preparatory work on the project. Then, as a result of citizen resistance to the proposed complex, a new ordinance was passed which forbade the construction of new apartments. The city then prohibited the plaintiffs from proceeding with the construction. The lower court held that the implementation of the new ordinance was arbitrary and capricious, and was specifically intended to prevent the plaintiffs from exercising their building permit. In affirming the lower court, the Court of Appeals held the enactment of the new ordinance to be “a bald attempt to revoke an already authorized building permit.” (664 F.2d at 100). That court held further:

[T]he city’s purpose in enacting the measure was not rational. A developer has its right to be free of arbitrary or irrational zoning standards. Arlington Heights v. Metropolitan Housing Development, 429 U.S. 252, 263, 97 S.Ct. 555, 562, 50 L.Ed.2d 450 (1977). Additionally, if a zoning ordinance is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare,” it must be struck down, Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926).

From the record before us, it is clear that the zoning amendment passed by the City of Jasper was instigated by neighboring landowners who opposed Mrs. Martin’s proposed building project. These same landowners were successful in obtaining a TRO and preliminary injunction preventing Mrs. Martin from actual construction for over four months, during which time there was no valid ordinance which such construction would have violated. When a proeedurally sound ordinance was finally passed, the permanent injunction was issued.

Exhibits entered into evidence show clearly that where the original R-4 district had been a transitional zone between B-2 (general business) and R-2 (single-family residential) zones, the new R-2 district creates an island restricted to single family dwellings, bordered on two sides by areas zoned for business (B-2) and on two sides by areas allowing multi-family dwellings (R-4). On one side there is a strip only one block long remaining zoned R-4, separating the new R-2 district from a pre-existing R-2 district. Also, there is evidence that a great many pre-existing structures within the new district were rendered non-eon-forming by the change in zoning classification. It is clear from this evidence that the new classification is not consistent with the land use pattern of the area. The attempts by the plaintiffs to show a substantial relationship of the zoning amendment to public health, safety, morals and general welfare amounted to speculative testimony by the plaintiffs that a seven-unit complex might cause traffic problems or parking problems, and general overcrowding of an old, quiet neighborhood. The plaintiffs introduced no documentary studies or expert witnesses to indicate that there was any factual basis to these fears. The mayor testified that to his knowledge no studies were made as to the effect on traffic, traffic patterns, or the general safety and welfare of the community by the rezoning of the property. The Chairman of the Planning Commission testified that in his opinion the change of zoning would in no way affect the public safety, health or morals of the community, and that the Planning Commission had recommended the change in zoning simply to satisfy Mr. O’Rear.

As often stated by this Court, the decree of a trial court in a case presented ore tenus carries with it a presumption of correctness and will not be disturbed unless palpably wrong. Farm Country Homes, Inc. v. Rigsby, 404 So.2d 573 (Ala.1981). In reviewing the record of this case, however, we find that this presumption of correctness has been overcome, and we reverse and remand to the lower court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

MADDOX, FAULKNER, ALMON, EM-BRY and ADAMS, JJ., concur.


author: ADAMS, Justice.

text:
    COFFEE COUNTY BANK, an Alabama Banking Corporation v. Tom HUGHES.
    81-106.
    Supreme Court of Alabama.
    Dec. 10, 1982.

      Charles B. Paterson and Clyde C. Owen, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellant.
    Paul A. Young, Jr., Enterprise, for appel-lee.
   ADAMS, Justice.

This appeal involves the priority of a creditor’s security interest under Code 1975, § 7-9-313 (Acts 1965, No. 549, p. 811), to chattel property which allegedly became a fixture to real property subject to a mortgage. Tom Hughes (plaintiff) commenced this action on July 22, 1980, against Coffee County Bank (defendant) in the Circuit Court for Coffee County. His complaint claims damages arising out of an allegedly unlawful removal of a mobile home located on property on which he held a mortgage. Plaintiff’s case withstood defendant’s motions for a directed verdict. The jury returned a plaintiff’s verdict with an award of compensatory and punitive damages in the amounts of $7,500.00 and $10,000.00, respectively. The trial court entered judgment accordingly. From the denial of its motion for judgment notwithstanding the verdict, or alternatively for a new trial, defendant appealed.

The dispositive issue on this appeal is whether defendant’s motion for a new trial was due to be granted. We hold that it should have been granted, and we reverse and remand.

The facts pertinent to this appeal are as follows. In October 1975, plaintiff sold a parcel of real property to Robert E. Kelley and Gayle L. Kelley. The Kelleys are not parties to plaintiffs action. At the time of the sale, the land had a building on it which the Kelleys used as a store and for living purposes. Plaintiff financed the sale for the Kelleys, who executed a note and mortgage to him on October 28, 1975. Plaintiff duly recorded the note and mortgage in the office of the Judge of Probate for Coffee County, Enterprise Division. Subsequently, in July 1976, the Kelleys purchased a 1973 model “Festival” mobile home to replace the existing mobile home located on the land. Defendant financed this purchase for the Kelleys. They executed a promisory note and security agreement in favor of the defendant on July 21, 1976. Defendant paid the loan money directly to the mobile home dealer. Subsequently, it recorded a financing statement for the mobile home. The Kelleys placed the mobile home on the land next to the building. A covered walkway provided access from the mobile home to the building. The mobile home was placed on a concrete block foundation and connected to utilities.

The Kelleys eventually defaulted on this loan from defendant. Defendant sued them, obtained a judgment, and secured a writ of execution which authorized the seizure of the mobile home and other items of personal property. According to plaintiff’s testimony, he informed defendant that he objected to its plan to seize and remove the mobile home. Defendant, allegedly, ignored plaintiff’s objection and removed it with the help of the sheriff’s department. They removed the mobile home from its foundation, disconnected the utilities, and transported it to property owned by defendant.

Plaintiff contends that his interest in the mobile home is superior to defendant’s interest. He theorizes that as mortgagee, once the mobile home was placed on a foundation and connected to the existing building, it became a fixture. Plaintiff, considering the mobile home to be a fixture, insists that his interest in it has priority over defendant’s. In his complaint, plaintiff claims various types of damages. He claims damages for physical injury to the mortgaged premises. In several counts plaintiff also claims, in effect, damages for diminution in the value of the mortgaged land due to the removal of the mobile home.

At trial, plaintiff testified, without objection, that the value of the mortgaged land before removal of the mobile home was $17,000.00 — $18,000.00, and that afterward it was $10,000.00.

Defendant moved for a directed verdict, calling Code 1975, § 7-9-313, to the trial court’s attention. In its motions, defendant argued that plaintiff failed to prove damages. We agree. Section 7-9-313, in pertinent part, provides:

(2) A security interest which attaches to goods before they become fixtures takes priority as to the goods over the claims of all persons who have an interest in the real estate except as stated in subsection (4).

The Official Comment on § 7-9-313 states:

3. When a security interest in the goods as chattels has attached before af-fixation, subsection (2) gives the secured party priority over all prior claims based on an interest in the realty. If the secured party perfects his interest by filing, which he may do in advance of affixation, he takes priority over subsequent realty claims as well. So long as he fails to perfect his interest he may, however, be subordinated to the subsequent claimants described in subsections (4)(a), (b) and (c). The last sentence of subsection (4) on purchasers at foreclosure sales clarifies a point on which prior decisions have been in conflict.

Under the undisputed facts, defendant’s security interest attached before fixation.

We first observe that a security interest attaches where:

there is agreement (subsection (3) of section 7-1-201) that it attach and value is given and the debtor has rights in the collateral. It attaches as soon as all of the events in the preceding sentence have taken place unless explicit agreement postpones the time of attaching.

Code 1975, § 7-9-204(1). Under the facts of this case, defendant and the Kelleys executed an “agreement” within the meaning of § 7-1-201(3), value was given, and the Kelleys acquired rights in the mobile home. It is undisputed that these events transpired prior to the time the mobile home allegedly became a fixture. Therefore, § 7-9-313(2) became operative and gave priority to defendant’s security interest over any interest that plaintiff had acquired.

Next, we observe that § 7-9-313(5) addresses the measure of damages due to one who has an interest in real estate from which collateral is removed:

When under subsections (2) or (3) and (4) a secured party has priority over the claims of all persons who have interests in the real estate, he may, on default, subject to the provisions of part 5, remove his collateral from the real estate but he must reimburse any encumbrancer or owner of the real estate who is not the debtor and who has not otherwise agreed for the cost of repair of any physical injury, but not for any diminution in value of the real estate caused by the absence of the goods removed or by any necessity for replacing them. A person entitled to reimbursement may refuse permission to remove until the secured party gives adequate security for the performance of this obligation. [Emphasis added.]

Applying the above-quoted statutory provisions, we conclude that plaintiff could not properly recover for diminution in the value of the mortgaged premises. Nevertheless, defendant’s motions for a directed verdict were not due to be granted. Plaintiff, legitimately, also sought damages for alleged physical injury to the mortgaged premises. He testified to various destruc-tions allegedly committed by defendant in its process of removing the mobile home. Under the language employed in § 7-9-313(5), “the cost of repair of any physical injury” is compensable, and plaintiff could have been awarded such damages by the jury.

Although defendant could have requested a directed verdict as to those counts by which plaintiff sought recovery for diminution in value, it did not. Therefore, the following rule applies:

[I]f a complaint has more than one count and the defendant believes that the evidence is not sufficient to support one or more of those counts, he must challenge this by motion for directed verdict, specifying the count which is not supported by evidence and detailing with specificity the grounds upon which the particular count is not supported by the evidence. If this is not done and all counts go to the jury and a general verdict is returned, the court will presume that the verdict was returned on a valid count.

Aspinwall v. Gowens, 405 So.2d 134 at 138 (Ala.1981). Applying the rule, plaintiff’s case was entitled to go to the jury because not all counts of his complaint sought recovery for diminution in value of the mortgaged premises. Nevertheless, if we refer the jury’s general verdict to a valid count, a new trial still must be granted. Although plaintiff testified to physical damage which the defendant allegedly committed, plaintiff presented no evidence as to the cost of repair for the injuries he sustained. Thus, even referring the jury’s verdict and award to a good count, we cannot affirm. The jury had no evidence before it upon which it could base an award for damages to which plaintiff was entitled under the applicable law. A new trial, therefore, is necessary.

REVERSED AND REMANDED.

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

      . The dispute between the parties is governed by the above-cited 1965 version of § 7-9-313, which was in effect at the time of the incident complained of by plaintiff. The legislature effected a major revision to § 7-9-313 by Acts 1981, No. 81-312, p. 399. Our citations are to § 7-9-313 as contained in the former act.

      . Neither party argues the application of § 7-9-313(4), which would, if applicable, effect a different result.


text:
    David Edward ALLEN, a minor who sues By & Through his father and next friend, Norman Earl ALLEN v. Joseph Daniell WHITEHEAD.
    81-379.
    Supreme Court of Alabama.
    Dec. 10, 1982.
    Don Beebe of Emond & Vines, Birmingham, for appellant.

      Joel W. Ramsey of Ramsey & Baxley, Dothan, for appellee.
   PER CURIAM.

On November 22, 1978, David Allen, then two years old, was playing on a porch at the Allen residence when a dog attacked him. The dog that bit David was later identified as the dog which had taken up at the home of Whitehead, the defendant and appellee herein, approximately one and a half years prior to the incident in question. As a result of the attack, David suffered facial cuts, a severed muscle in his left eye, a hole in his left ear, and scarring over his forehead.

After the attack, the dog was picked up by the Humane Society and placed in quarantine. Whitehead subsequently had the dog placed in a private veterinary clinic, from which the dog allegedly escaped. Following the dog’s escape, David underwent rabies treatment. Whitehead later found the dog and placed it in another veterinary hospital for the duration of the quarantine period.

On July 10, 1981, David, through his father, appellant herein, filed a complaint against Whitehead, the alleged owner of the dog. The complaint alleged that “as a proximate result of defendant’s negligence and violation of various state and municipal ordinances plaintiff’s child was injured ... . ” On November 5, 1981, Whitehead filed an affidavit and a motion for summary judgment based on the ground that there was no genuine issue as to whether Whitehead had any reason to believe his dog had vicious propensities at the time of the attack.

A hearing on the motion for summary judgment was scheduled for December 10, 1981. Appellant filed no counter-affidavit, but joined issue on the basis of law and the sufficiency of appellee’s affidavit. Appellant also filed an amended complaint. Appellant avers in the first claim of his amended complaint that the dog was trespassing on appellant’s property. In his brief, appellant argues that Whitehead is liable for the trespassing activities of the dog and cites Code 1975, § 3-1-5, to support his proposition that Whitehead should have confined the dog. In his second claim, appellant avers that “after the attack the defendant removed said dog from quarantine at the humane society and said defendant negligently allowed said dog to escape and this negligence caused plaintiff to undergo rabies treatment.” Appellant contends that Whitehead had a duty to comply with Code 1975, § 3-7-9, which deals with confinement of animals which have bitten humans. Appellant submits that this duty was breached and, as a proximate result, David was caused to undergo rabies treatment.

On December 22, 1981, the trial court granted Whitehead’s motion for summary judgment and, further, dismissed plaintiff’s amended complaint. We affirm the trial court’s order granting summary judgment directed to the claim in appellant’s original complaint and reverse the trial court’s order dismissing the claims of Appellant’s amended complaint.

This Court in Kershaw v. McKown, 12 Ala.App. 485, 68 So. 559 (1915), reiterated the common law rule that the owner of a dog is not liable for acts of the dog unless the owner had knowledge of the vicious propensities of the dog that resulted in the injury complained of. In McCullar v. Williams, 217 Ala. 278, 116 So. 137 (1928), the Court stated, “[pjrevious knowledge of the animal’s vicious habits must be alleged and proved,” although positive proof is not always necessary. 217 Ala. at 280, 116 So. at 138. This Court held in Owen v. Hampson, 258 Ala. 228, 62 So.2d 245 (1952), that the common law rule was still applicable in Alabama. The most recent case is Reddett v. Mosley, 45 Ala.App. 38, 222 So.2d 369 (1969), wherein the Court of Civil Appeals stated: “The rule is one of judicial notice and requires proof of the defendant’s knowledge (actual or imputed) of the domestic animal’s dangerous propensity as a sine qua non in the elements of the claimed negligence.” 45 Ala.App. at 40, 222 So.2d at 370.

Appellant cites Code 1975, § 3-6-1, which creates liability for the owner of a dog for injuries to a person who is bitten by that dog while on the owner’s premises, in support of its proposition that this Court should abandon the common law rule in favor of a rule imposing strict liability on the owner of a dog for its activities. Appellant questions the logic of a rule which imposes a greater burden on an owner whose dog attacks someone on the owner’s premises than it does on an owner whose dog attacks someone while the dog is trespassing.

We can only answer that this is a policy decision that has been made by the Legislature, Johnson v. Republic Iron & Steel Co., 212 Ala. 149, 102 So. 44 (1924), and unless the Legislature acts to extend the owner’s liability in situations such as the one before us, we are constrained to hold that the common law rule applies: that previous knowledge of the animal’s dangerous propensity, whether it be shown by positive proof or inferred from the circumstances, must be alleged and proved.

Next, we consider the issue of whether there was sufficient evidence to authorize the granting of summary judgment on the issue of scienter. A motion for summary judgment may be granted only when there is no genuine issue as to a material fact and the moving party is entitled to a judgment as a matter of law. Fountain v. Phillips, 404 So.2d 614, 618 (Ala.1981). The moving party is required to establish the absence of a genuine issue as to any material fact. Gray v. WALA-TV, 384 So.2d 1062, 1066 (Ala.1980), and all reasonable inferences from the facts are to be viewed most favorably to the non-moving party. Chiniche v. Smith, 374 So.2d 872, 873 (Ala.1979).

Appellant Allen asserts that there is a genuine issue of material fact relating to the alleged vicious propensities of the dog and the knowledge of appellee as to such propensities. Our examination of the record in its factual context reveals the following. In answers to interrogatories propounded by appellee, appellant stated in substance that (1) the dog was large and mean looking and frequently barked at neighbors; (2) the dog was allowed to run wild; and (3) the dog frequently chased cars and barked a,t them. On the other hand, appellee, by way of affidavit and also in answers to interrogatories propounded by appellant to him, in effect, stated: (1) the dog was friendly and “enjoyed” playing with his children and other children in the neighborhood; (2) appellee had never received any complaints from anyone nor had any reason to believe that the dog represented any kind of threat to anyone; (3) there was nothing aggressive or threatening about the dog’s manner or behavior, but on the contrary, his disposition was quiet and gentle, and the dog was affectionate and enjoyed being petted; and (4) that to the best of the knowledge and belief of appellee, the dog had never bitten anyone prior to the instance in question. Appellee admitted that the dog was not confined.

Considering the evidence submitted to the trial court on appellee’s motion for summary judgment most favorably to appellant, the nonmoving party, we cannot find that there existed a genuine issue of material fact. Accordingly, we hold as a matter of law that evidence that a dog was large and mean looking, chased and barked at cars, and frequently barked at neighbors is not sufficient to present an issue of fact as to the dangerous propensities of such an animal.

In support of his contention that Whitehead had notice of the dog’s dangerous propensities, appellant also points out that Whitehead has admitted in an affidavit that the dog had a playful nature. Appellant contends that Whitehead’s knowledge of the dog’s playful nature is sufficient evidence to present a jury question as to whether circumstances existed from which it could be inferred that Whitehead had notice of the animal’s “mischievous propensities.” Appellant cites Owen v. Hampson, in which this Court, quoting from a previous opinion, stated:

“Previous knowledge of the animal’s vicious habits must be alleged and proved. But positive proof is not always necessary. It may be inferred from the circumstances. But the knowledge of the vicious habits of an animal need not refer to circumstances of exactly the same kind. All that the law requires to make the owner or keeper liable is knowledge of facts from which he can infer that the animal is likely to commit an act of the kind complained of.”

258 Ala. 228, 232, 62 So.2d 245, 248 (1952), quoting Strouse v. Leipf, 101 Ala. 433, 438, 14 So. 667, 668 (1893) (emphasis added). In his treatise, Professor Prosser has also stated that notice of the character of the animal “must extend to the trait or propensity which caused the damage.” W. Prosser, Handbook of the Law of Torts, § 76 (4th ed.1971). Accordingly, notice of an animal’s playful character is not notice that it will viciously attack and bite a person. Liability is limited to the particular risk known to the defendant.

In Owen v. Hampson, 258 Ala. 228, 62 So.2d 245 (1952), the defendant’s dog ran out and overturned plaintiff’s motorcycle while plaintiff was riding on a public street. This Court stated that the law makes no distinction between an animal dangerous from playfulness and one dangerous from viciousness, but places on the owner a burden of restraint when he knows of the animal’s dangerous propensities. 258 Ala. at 232, 62 So.2d at 248. The crucial issue remains whether the owner knows or has reason to know of the animal’s dangerous propensities. This is not a case where the plaintiff was knocked down or injured in a manner traditionally associated with an overly friendly dog. The claim and the evidence is that David was attacked and bitten. Knowledge of an animal’s playfulness would not provide sufficient notice that the dog would be likely to act in the harmful manner alleged in this incident.

Next, we consider the trial court’s dismissal of appellant’s amended complaint. Whether or not the plaintiff will be successful in his efforts to make out a case on proof, he is entitled to proceed where his complaint states some legal theory which will support a claim for relief, particularly in a case such as this where the defendant has not filed a motion to dismiss under Rule 12(b)(6). Snyder v. Faget, 295 Ala. 197, 204, 326 So.2d 113, 119 (1976). It would be inappropriate, absent either a motion to dismiss or a motion for summary judgment as to the theories of appellant’s amended complaint, for this Court to speculate on whether appellant could prove a set of facts to support those claims. The Court concludes that the order dismissing the amended complaint is due to be reversed and the cause remanded for consideration of the claims stated in the amended complaint.

The judgment appealed from, therefore, is affirmed in part, and reversed in part, and the cause remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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