text:
    BOARD OF EDUCATION OF ITAWAMBA COUNTY, MISSISSIPPI, et al. v. Bill LOAGUE, et ux.
    No. 52834.
    Supreme Court of Mississippi.
    Oct. 28, 1981.

      Holland, Ray & Upchurch, Robert K. Up-church, Reed Hillen, Tupelo, Sam M. Reedy, Fulton, for appellants.
    Brown & Bishop, T. Victor Bishop, Fulton, for appellees.
    Before SMITH, P. J., and BOWLING and HAWKINS, JJ.
   SMITH, Presiding Justice,

for the court:

Suit was begun by appellee, Bill Loague, joined by his wife, Daisy Loague, in the Chancery Court of Itawamba County, seeking to confirm complainants’ title to certain real property, naming as defendant the Board of Education of Itawamba County and its individual members. Defendants answered and filed a cross-bill against complainants, in which exclusive ownership of the land by the County Board of Education of Itawamba County was asserted, and in which respondents and cross-complainants denied that the Loagues had or owned any right to, or interest in, the land in question.

The chancellor, after an extended trial, entered a decree which, in effect, awarded a portion of the land in question to the Loa-gues, depriving the Itawamba County School Board thereof, and the latter has appealed.

In 1926 the Itawamba County School Board acquired for school purposes by deed a tract of land, (adjacent to property already owned by it on which the main school building was situated), and went into possession of the area now in dispute as the property conveyed to, and acquired by it, under its said deed.

The deed to the county school board was placed into evidence, and, according to surveyors for both parties, it contains a description that will not “close” if followed literally. In deciding the case, the chancellor selected a call of the deed, apparently on the basis that it, (the call) at least, was specific, and decreed that the south line of the school property should be in accordance with it. The deed reads as follows:

Three acres, more or less, in the SW Vi of Section 27, Township 9, Range 8 East, described as follows:
Beginning on the North boundary line of said Vi 31 rods East from the Northwest corner of said Vi and running South 31 rods, thence in a northeastern direction or North 54V2 degrees East about 30 rods to the Fulton and Mantachie public road, thence North along said road I8V2 rods to the North line of said Vi, thence West 19 and Vi rods to the point of beginning.

This would require a substantial reduction of the distance call of “about 30 rods.” Moreover, it clearly conflicts with the buildings erected, including the teacher’s house (the line thus drawn bisects it), the teacher’s garage (the line cuts it off entirely) and the teacher’s garden site (partly excluded by the line). Williams v. Chaney, 236 Miss. 702, 112 So.2d 809 (1959), is clearly not in point here. In Williams this Court expressly limited its application to “the particular situation there involved.” In the present case the conclusion on the part of the chancellor ignored the fact that in so doing, the south boundary thus established cuts right through the site of the old teacher’s home (now removed), cuts off entirely the site of the old teacher’s garage, as well as the gravel drive thereto, and cuts through the old teacher’s garden site.

It appears that since the school property was acquired in 1926, by the Board of Education, the disputed area has been openly and notoriously used for public school athletics and for outdoor play and other school activities. Moreover, the teacher’s home, garage and gravel drive were constructed and used for many years. The lighted athletic field, used by the school and the public, enclosed by a fence, presently occupies a portion of the land.

Under the jurisdiction of the Board of Education after the main school building was closed, the property was placed under a public Board of Custodians in the late 1950’s, one of whom was Loague himself until 1978, when he resigned.

Appellee Loague, has no color of title to this property. He asserts, however, that he has always “claimed to own it”, although his testimony indicates that his claim does not extend to that part of the property “around the teacher’s home.” He also fails to specify any occasion when he made this claim of ownership to the Board of Education. He testified that people desiring to hold “mule pullings” on the ground would ask his permission to do so. He seems to admit, however, that, when he was on the board, any of the other board members could have granted permission as well as he.

It is beyond dispute that in one way or another this presently disputed area has been regarded as within the public domain, for years under the custody of the board (or trustees), and, from the late 1950’s, as a practical measure, looked after by a public board known as Board of Custodians. It is, and has been for a great many years, in possession of the Itawamba County Board of Education, openly used for public purposes, and substantial sums of public money have been expended upon its improvement.

An analysis of Loague’s own testimony seems to indicate that what he is really seeking to do is to establish ownership by adverse possession of a strip of land off of the east side of the school property, which he says is a strip which lies between the present Highway 863 and an old Fulton Mantachie road, no longer in existence. His “acts of ownership” of this strip seems to have consisted mainly in his claim that he “bush hogged” it from time to time, allowed a neighbor or friend to make a garden at some spot or spots on it, and by being asked at various times by people for permission to use it.

As to the location of the “old” road, the chancellor was justified in finding from the evidence:

. . . Complainants (Appellees) attempted to establish the location of the old road by witnesses who knew it was west of the present road, but they differed as to its exact location. The old road was not established by proof of complainant and the Court cannot speculate as to its location in 1926. (Emphasis added)

We think the evidence that, regardless of the description contained in the 1926 deed to the Board of Education of Itawamba County, the grantee, the Board of Education, considered that there had been conveyed to it, and it had acquired, the property in question, and accordingly entered into possession of it, under claim of ownership as long ago as 1926, and used it for school athletics, playground and other school purposes. There appears to have been no dispute about it until the Loagues made their present claim. Loague, apparently relying upon what he regards as the “weakness” of the Board of Education’s title (because of the description in the 1926 deed) claims to have acquired title and to be entitled to dispossess the Board of Education. The evidence, however, which supports his acquisition of title by adverse possession is wholly insufficient to support a finding that he has done so.

Moreover, section 104 of the Mississippi Constitution provides:

Statutes of limitation in civil causes shall not run against the state, or any subdivision or municipal corporation thereof.

In Gibson v. State Land Commissioner, 374 So.2d 212, 217 (Miss. 1979), complainant filed suit for confirmation of title against the State Land Commissioner, private individuals and Board of School Trustees for Lauderdale County. The Court in that case said:

There being no presumption of lost grant and no written instrument evidencing a claim or color of title in Mrs. Gibson or her predecessors in title to this 80 acres of 16th Section land, Section 29-3-7, Mississippi Code Annotated (1972), (the 25-year adverse possession statute), would not be applicable and could not be invoked against the State.

If there be any conflict between Section 104, Mississippi Constitution of 1890, which provides:

Statutes of limitation in civil causes shall not run against the State, or any subdivision or municipal corporation thereof.
and Section 29-3-7 (we do not think there is any), there would be no question as to which takes precedence.
Our latest pronouncement on this subject was made in Newell v. State, 308 So.2d 71 (Miss. 1975):
We believe no citation of authority is needed for the universally accepted principle that if there be a clash between the edicts of the constitution and the legislative enactment, the latter must yield. (308 So.2d at 77).

Since admittedly Loague has no color of title and has entirely failed to establish title in himself by adverse possession to any specific area or boundaries to which his “adverse possession” is claimed to have extended (even if the statute of limitations ran against the Itawamba County Board of Education), the chancellor was manifestly wrong in fixing the south boundary of the school property, so as to cut off a portion of it, and in awarding it to Loague.

There is and can be no dispute that the south line of the school property as fixed by the chancellor cuts through the site of original buildings erected by the school board, and excludes other tangible evidences of good faith possession under claim of ownership for more than 21 years. This is true without regard to discrepancies which may have appeared in the board’s 1926 deed. The possession by the Board of Education has been open, and has been physically evidenced by erecting buildings upon the land, using it for school athletics and playgrounds and, a highly significant, and perhaps controlling fact, is that the school board constructed a gravel driveway from the highway to the teacher’s home and to the teacher’s garage, such driveway paralleling a ditch long and generally known as the “school ditch.” The construction of this driveway, in the circumstances, must be considered as indisputable physical evidence and demarcation of the extent southward of the land occupied and claimed by the board, and afterward possessed and continuously used for school purposes.

Daniels v. Jordan, 161 Miss. 78, 134 So. 903 (1931), involved a controversy over a strip of land lying between lots belonging to Daniels and Jordan. Daniels claimed that the statutory limitation of ten years had expired and that therefore he had gained title through adverse possession. It is undisputed that Daniels had erected a fence on the lots he had purchased some years prior and he claimed this to be the line between his land and the land purchased by Jordan. The Court found:

On the second proposition, we think the proof clearly shows that Daniels was in possession of the lot, exercising ownership over it, and claiming the right to it from 1915 to the bringing of this suit, which was over ten years after the erection of the fence and the beginning of the acts of ownership over the strip of land involved. It does not matter in such case that the line claimed as being the real line is not, in fact, such, and that the owner believes that he is occupying the land within the calls of his deed. It is the fact of adverse possession and a claim of ownership for the statutory period that confers title, and not the real fact as to the existence of the line, nor does the fact of the payment of taxes by the plaintiff, during this period, on the land by proper description, alter the defendant’s rights of adverse possession. Jones v. Gaddis, 67 Miss. 761, 7 So. 489; Greer v. Pickett, 127 Miss. 739, 90 So. 449; Schuler v. McGee, 127 Miss. 873, 90 So. 713; Evans v. Harrison, 130 Miss. 157, 93 So. 737.
We reiterate what this court said in McIntyre v. Harvey, 158 Miss. 16, 128 So. 572, 573: ‘We think the majority of the courts and the sounder reason hold that there must be something more than a protest to interrupt the running of a claim of right followed by actual users: there must be at least an interruption of the use ... by the opposing person who opposes such claim. Where another is asserting a claim of right and using a passageway under such claim, a party must do something more than merely verbally protest; there must be a physical interruption or a court proceeding or some unequivocable act of ownership which interrupts the exercise of the right claimed and being used by the opposite parties.’ (161 Miss, at 84-85, 134 So. at 904).

The overwhelming weight of the evidence requires that the south line of the school property must be so drawn as to parallel and include the former gravel driveway and the “school ditch.”

Therefore, in this respect, the decree is reversed, and the description of the school property is amended, based upon and using the scale of the survey and map prepared by Charles R. Fears, Registered Land Surveyor, introduced into evidence by the Ita-wamba Board of Education, to read as follows:

3V2 acres, more or less, in the SW Vs of Section 27, Township 9, Range 8 East, described as follows:
Beginning on the North boundary line of said quarter 31 rods East from the Northwest corner of said quarter and running South 31 rods, thence in an easterly direction, about 4V2 rods, to a ditch known as the “school ditch”, thence along said ditch, about North 62V2 degrees East to Hwy. 363, thence North along said highway to the North line of said quarter, thence West to the point of beginning.

Title to the above described land, which includes land lying within the literal calls of the 1926 deed to the School Board of Ita-wamba County, as well as land adjacent thereto title to which clearly was acquired by said board through adverse possession for longer than 21 years, is quieted and confirmed in the Board of Education of Itawamba County and all right, title, claim and interest therein or thereto of Bill Loa-gue and Daisy Loague, either or both, is cancelled and removed as a cloud upon its title. That being so there is no merit in the cross-appeal.

REVERSED AND DECREE HERE ON DIRECT APPEAL. AFFIRMED ON CROSS-APPEAL.

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


source: Caselaw Access Project

author: SMITH, Presiding Justice,

license: Public Domain

text:
    Cozy CULBERSON v. STATE of Mississippi.
    No. 52846.
    Supreme Court of Mississippi.
    Oct. 28, 1981.

      Eaves & Eaves, G. Jyles Eaves, Louisville, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

Cozy Culberson was indicted on two counts of aggravated assault, the first count charging aggravated assault upon, and wounding of, Richard Ford with a shotgun, and the second, charging an attempt to cause bodily injury (assault) upon David Patterson, also with a shotgun.

Following a trial in the Circuit Court of Attala County, the jury returned a verdict of guilty on the first count and of not guilty on the second. From his said conviction, and sentence of six years imprisonment, Culberson appeals, assigning several grounds for reversal.

Since this is a case that must be reversed and remanded for a new trial a detailed discussion of the evidence is considered unnecessary.

A sufficient statement of the facts may be obtained from the following summary:

At a place known as “Ford’s One Stop”, where groceries and beer were sold and pool tables and pinball machines were available for entertainment, in the early hours of an evening, Culberson and several of his friends, as well as the victim, Ford, who was the proprietor of the place, Ford’s wife and others were present. In the course of a discussion of beer prices, one of Culberson’s friends cursed Ford’s wife, angering Ford, who thereupon physically ejected the offender from his store. It does not appear that Culberson himself was a participant in argument that provoked this encounter, apparently having previously left the store and gone outside with his friends.

Ford escorted the objectionable person out of his store and to an automobile where Culberson and others of Culberson’s friends were gathered. As Ford started to walk back to his store, a shot was fired, apparently toward one Patterson, but Patterson was not hit. There was testimony that a gun was “propped” upon the roof of the automobile and that it was in the hands of Culberson. At the shot, people, including bystanders, ran for cover. Ford returned from his store and with a pistol shot at the tires of the automobile, deflating one or two of them. Four shots then came from the car, including, beside shotgun blasts, small arms fire. From one, or possibly two, of the shotgun blasts, whether fired by Culberson or not, a few pellets struck Ford in his arm and leg.

The evidence shows that these events developed into a miniature war, with both sides armed with a variety of weapons, and that considerable firing on both sides ensued. Fortunately, either intentionally or because of poor aim, casualties were few. Ford, the proprietor, as stated, was struck by several shotgun pellets in the arm and leg and the State’s theory is that these came from a shotgun fired by Culberson. The evidence, with the inferences which reasonably may be drawn from it, supportive of this theory was sufficient to withstand a request for a directed verdict of not guilty.

After the State and the defense had rested and closed in chief, the State called a certain constable as a witness in rebuttal, to testify that Culberson had admitted to him that he, Culberson, had fired the shots that had struck Ford. Since the State had failed to disclose (in response to the defense’s motion to produce) the existence of this testimony regarding an alleged confession on the part of Culberson to this witness, an objection was made to the admission of the constable’s testimony. The trial court overruled the objection, and the testimony went in. The testimony of course, that Culberson had admitted that he shot Ford, the act with which he was charged in the indictment, was extremely damaging to say the least. The objection having been overruled and the testimony having gone to the jury, the defense then offered Culberson as a witness in his own behalf in surrebuttal, to rebut the constable’s testimony that he, Culberson, had made the incriminatory admission attributed to him by the constable. This the trial court refused to allow, ruling that “surrebuttal testimony is unknown” in Mississippi practice. This act on the part of the trial court was error and requires a reversal of the conviction and a remand of the case for a new trial.

In Nicholson v. State, 243 So.2d 552 (Miss. 1971), this Court held:

Second, the lower court erred in refusing the appellant the right to put on surrebuttal witnesses. The rule is well settled in this state that where rebuttal evidence is introduced, surrebuttal should be allowed, particularly where to fail to do so would be prejudicial. Riley v. State, 248 Miss. 177, 157 So.2d 381 (1963); Clark v. State, 181 Miss. 455, 180 So. 602 (1938); and Roney v. State, 167 Miss. 827, 150 So. 774 (1933).
This was a hard fought case and is true, but melancholy, proof that, “Wine is a mocker, strong drink is raging: and whosoever is deceived thereby is not wise.” (Proverbs 20:1.)

(243 So.2d at 555).

Objection to the two counts of indictment, complained of on this appeal, requires no discussion. Culberson having been acquitted of the second count, on retrial of the case he will be confronted only with a one count indictment.

The remaining assignment which should be mentioned is the introduction into evidence by the State over objection of a pistol which was not proven to have been used in the commission of the offense charged. The admission of this evidence under such circumstances was error and should not be repeated on retrial. Other alleged errors assigned are without merit or are such as reasonably may not be expected to recur on retrial.

REVERSED AND REMANDED.

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


text:
    S. W. CRAFT v. W. L. THOMPSON.
    No. 52927.
    Supreme Court of Mississippi.
    Oct. 28, 1981.

      Phillip M. Nelson, Ridgeland, for appellant.
    Tullos, Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

S. W. Craft appeals from a decree of the Chancery Court of Smith County enjoining Craft from interfering with W. L. Thompson’s land, and confirming title to Thompson’s land as alleged in his bill of complaint, and establishing a boundary line in accordance with the survey of the land presented into evidence by complainant.

Suit was filed by Thompson in order to settle a dispute between himself and Craft as to the location of the boundary between their adjacent properties. Thompson testified that Craft had removed his fence several times, thereby necessitating the current action to confirm title and enjoin such interference with his property. In order to establish the correct boundary line between properties, in 1978, Thompson had a survey of his land made, and erected a fence upon this survey line. This survey, which platted the lines in dispute, was admitted into evidence, over the objection of Craft, even though one of the corners was not exactly located. It was admitted because the quality of the instruments that the surveyor used, as well as the surveyor’s qualifications, were established, and also the survey- or testified that he initiated the survey at a government corner stone.

In response, Craft claimed that the establishment of a boundary line by the 1978 survey interfered with his ownership of certain lands to which he claims ownership under three titles. The description of the real property involved was stipulated to by the parties as follows:

(a) Craft is owner of (Parcel I):
2V2 acres in the SW corner of the NE Vi of SW Vi further designated as commencing at the SW corner of NE V* of SW Vi and running East 447 links, thence North 559 links thence West 447 links, thence South to a point of beginning all of the above in Section 2, Township 2 North, Range 8 East, Smith County, Mississippi;
(b) Craft is owner of (Parcel II):
All of the SE Vi of SW Vi of Section 2, Township 2 North, Range 8 East, Smith County, Mississippi, lying east of the cen-terline of the Old Forest and Taylorsville Road.
(c) Craft owns, jointly with others, (Parcel III):
The North 33 feet of the NW Vi of the NE Vi, Section 11, Township 2 North, Range 8 East, Smith County, Mississippi.

The defendant also claimed the disputed property by adverse possession, and furthermore, raised numerous equitable defenses, which were without merit.

On appeal Craft does not contest the propriety of the chancellor’s permanent enjoining of his interference with fences erected by Thompson. Rather, Craft claims that the chancellor erroneously confirmed title in Thompson as alleged in his bill of complaint and, erroneously established boundaries in accordance with the survey offered into testimony by Thompson.

It is the opinion of this Court that the decision of the chancellor was based upon substantial evidence and was correct, except as to determination of the property rights involving parcel III, since the persons with whom Craft jointly owns the property were not joined in the suit.

With respect to parcels I and II, the chancellor did not admit the survey into evidence erroneously even though the survey was not closed. As this Court has held in the past, testimony by a surveyor, and his plat of the property surveyed, is admissible so long as the qualifications of the surveyor are established, as well as the quality of the instruments used by him. Factual questions relating to the making of the survey are for the resolution of the chancellor. See Mabry v. Winding, 229 Miss. 88, 90 So.2d 175 (1956); Bell v. Percy, 214 Miss. 456, 59 So.2d 76 (1952); Moses v. Weaver, 210 Miss. 228, 49 So.2d 235 (1950). Therefore, based upon the substantive evidence, the chancellor’s use of the survey in determining where the boundary between the properties owned by Craft and Thompson should be established, was not unwarranted. Furthermore, Craft at no time had the property surveyed which he claimed under title (parcels I, II and III). Craft merely testified in court that his property extended to an old fence which had existed prior to 1978, and therefore never conclusively established the location of parcels I, II and III.

The chancellor also correctly found that Craft had not met the burden of proof imposed on him and therefore failed to establish ownership of the disputed area by adverse possession; Eady v. Eady, 362 So.2d 830 (Miss.1978); Kayser v. Dixon, 309 So.2d 526 (1975). Craft failed to show the boundaries of the area within which he claimed to have exercised control by adverse possession. To constitute adverse possession the acts of the claimant must be sufficient to put another on notice, actual or imputable, of an adverse claim to his property. Without such notice, possession will never ripen into title. Further, mere possession is not sufficient to satisfy the requirements of open and notorious possession. See People’s Realty & Development Corp. v. Sullivan, 336 So.2d 1304 (Miss. 1976).

It is undisputed that Craft is merely joint owner of parcel III. Thompson has made no allegations that all necessary and proper parties are joined or that all necessary and proper parties that could be found with diligent inquiry are joined. This failure requires reversal of the chancellor’s decree confirming title insofar as it affects parcel III; Warren v. Clark, 230 Miss. 873, 94 So.2d 323 (1957). Also, the failure of the appellant to raise this point during trial, although raised in his demurrer and recognized by the chancellor in his opinion, does not amount to waiver of an objection to nonjoinder of necessary and indispensable parties on appeal; Moore v. Jackson, 247 Miss. 854, 157 So.2d 785 (1963); Warren v. Clark, supra.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


author: PATTERSON, Chief Justice,

text:
    A. C. LAMBERT, Sr., Chairman, Mississippi State Tax Commission v. MISSISSIPPI LIMESTONE CORPORATION.
    No. 52910.
    Supreme Court of Mississippi.
    Oct. 28, 1981.
    James H. Haddock, Joe D. Gallaspy, Bobby R. Long, Jackson, for appellant.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Charles M. Merkel, Clarks-dale, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

The Mississippi State Tax Commission appeals from a decree of the Chancery Court of Coahoma County, wherein the trial court determined the Tax Commission must refund to Mississippi Limestone Corporation the amount of $14,980.06 plus interest from date of payment because Limestone was not operating a public warehouse subject to 5% sales tax as provided by Mississippi Code Annotated § 27-65-23 (Supp.1981).

The State Tax Commission contends the trial court erred: (1) in failing to find the activity taxable under § 27-65 — 23; and (2) in accepting parol evidence to contradict the terms of a written contract which on its face were clear, correct, and constituted the entire agreement between the parties with no understandings not specifically set forth therein.

The facts show that Mississippi Limestone Corporation, pursuant to an audit conducted by the State Tax Commission auditors, was assessed sales tax in the amount of $14,980.06 for the period January 1, 1976, to December 31, 1978. During this time, Limestone, based on a written agreement, furnished a storage facility located near Friars Point, Mississippi and certain handling services to MisCoa, a partnership composed of Mississippi Chemical Corporation and Coastal Chemical Corporation.

We are of the opinion the chancellor correctly determined that Limestone was not a public warehouseman subject to state sales tax. Although Limestone was operating a warehouse, Limestone had entered into an exclusive rental agreement with MisCoa and was not operating a warehouse open to the public within the purview of § 27-65-23 as quoted in pertinent part:

Upon every person engaging or continuing in any of the following businesses or activities, there is hereby levied, assessed and shall be collected a tax equal to five per cent of the gross income of the business, except as otherwise provided:

Public storage warehouses;

It is the well settled rule that “[t]ax laws are to be strictly construed against the taxing powers and all doubt resolved in favor of the taxpayer.” State Tax Commission v. Overstreet Investment Co., 194 So.2d 236 (Miss.1967). In construing § 27-65-23, we refer to the State of Mississippi 1980 Sales and Use Tax Laws, Rule 67 which provides the following definitions:

RULE 67. Public Storage Warehouses. Storage Warehouses:
A storage warehouse is a place where tangible personal property is kept and stored for a fee in the custody of a person operating a commercial business.
Rental of Storage Facilities:
Income derived from the rental of real property for the purpose of storing tangible personal property wherein the lessee has control of the facilities and the property stored is not subject to tax. Example—mini storage facilities.

This rule does not define the word “public” but explains what constitutes the operation of a storage warehouse. When strictly construing the statute and Rule 67, we are of the opinion Limestone was not operating a public warehouse. This was an exclusive storage contract for 5 years with an option to renew. The storage facility was built for the primary purpose of entering into an exclusive contract with MisCoa. MisCoa agreed to pay an annual rental fee of $3.00 per ton for 15,000 tons storage, and the fee remained the same regardless of the amount of fertilizer stored. Also, MisCoa could terminate the contract if Limestone stored the products of others.

We think Limestone was leasing the facility to MisCoa and thus was a non-taxable lease as defined in Rule 67. We reach this conclusion because the fee was a fixed annual payment which did not vary based upon the amount of personalty stored.

Turning to the second assignment of error that the trial court erred in accepting parol evidence to contradict the terms of the written contract which on its face was clear, correct and constituted the entire agreement between the parties, we are of the opinion it was proper to introduce parol evidence to explain the contradiction between the introductory paragraph of the agreement, paragraph six, and paragraph eleven as quoted below:

WHEREAS, Mississippi Limestone intends to erect a warehouse on the Missis- , sippi River near Friars Point, Mississippi, with capacity for the bulk storage of 15,-000 tons of fertilizer, and will have available storage facilities, personnel and equipment to unload, transfer into storage in the building to be built, act as warehouseman for the goods while in storage, remove from storage and load urea and mixed fertilizers; and

6. Subject to the provisions herein set forth, MisCoa agrees to pay to Mississippi Limestone, as an annual charge, the sum of $3.00 per ton of storage space actually available for the storage of product, for the following estimated capacity:

Two — 3,000 ton bins; six — 1,500 ton bins; total storage capacity to be furnished — 15,000 tons.
11. MisCoa is leasing only a portion of the facilities owned by Mississippi Limestone at that location. It is expressly understood and agreed that Mississippi Limestone will not store finished blended fertilizers in the remaining storage space. If such finished blended fertilizers are stored, MisCoa shall have the option, at its sole discretion, of terminating this agreement.

In paragraph 11, it appears MisCoa leases only a portion of the storage premises when, in fact, parol testimony explained the agreement was for rental of the entire storage capacity of 15,000 tons. The building was constructed to store about 15,000 tons. Thus, in fact, MisCoa leased the entire building at an annual set fee.

While parol evidence is inadmissible to contradict a written instrument, we think the parol evidence in this case served to explain the ambiguities existing in the written agreement and since it served to explain rather than vary or contradict the written instrument, we are of the opinion the chancellor did not err on this point. Clow Corp. v. J. D. Mullican, Inc., 356 So.2d 579 (Miss.1978).

AFFIRMED.

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


author: ADAMS, Justice. ADAMS, Justice. EMBRY, Justice TORBERT, Chief Justice

text:
    F. A. ASPINWALL, Old Southern Life Insurance Co., a Corporation, F. G. Compton, Roy T. Epperson v. Mattie GOWENS.
    79-587.
    Supreme Court of Alabama.
    May 1, 1981.
    Rehearing Denied Oct. 2, 1981.

      James W. Webb and Dan E. Schmaeling of Webb, Crumpton & McGregor, Montgomery, and H. Wayne Love of Burnham, Kline-felter, Halsey & Love, Anniston, for appellants.
    Betty C. Love of Love, Love, Lawrence & Wood, Talladega, and Charles L. Parks, An-niston, for appellee.
    Lanny S. Vines of Emond & Vines, Birmingham, amicus curiae, for Alabama Trial Lawyers Ass’n.
   ADAMS, Justice.

The plaintiff-appellee, Mattie Gowens, sued the defendants-appellants, Old Southern Life Insurance Company and its agents, for three million dollars for: (1) breach of contract, (2) fraud, (3) tort of outrage, and (4) fraudulent failure to pay an insurance policy. The plaintiff was the owner of two policies with Old Southern Life Insurance Company, when its agent, F. G. Compton, paid her a visit on July 19, 1977, for the purpose of selling her additional coverage in the form of a major medical policy. Although disputed by Old Southern Life Insurance Company, Mrs. Gowens testified, in answer to questions on the company’s application form, that she previously had suffered from diabetes, kidney stones and high blood pressure. In response to this statement, Compton said he could “fix it where it would definitely pay,” in the presence of a witness. Ten months later, the plaintiff suffered a heart attack and was hospitalized, incurring a bill of $2,702.80. The policy had a $500.00 deductible provision. Pursuant to Code 1975, § 27-14-7, Old Southern Life voided plaintiff’s policy and refunded her premiums, claiming it would not have issued the policy if it had known about the diabetic condition.

The Circuit Judge of Calhoun County submitted the case to the jury on each of plaintiff’s theories of recovery and against all defendants, and the jury returned a verdict for $2,702.80, for breach of contract and one million dollars for fraud against all defendants. Defendants duly filed a motion for judgment notwithstanding the verdict, new trial or remittitur, which were all denied by the Circuit Court.

On appeal, the defendants raised several issues. They are as follows:

1. Did the jury award excessive damages under the evidence?

2. Did the trial court err in its charges to the jury recognizing actions for fraudulent refusal to pay, tort of bad faith and tort of outrage?

3. Did the court err in not directing a verdict for the defendants, Aspinwall and Epperson?

4. Did the court err in allowing evidence of wealth of a defendant?

5. Did the court deny defendants their constitutional rights by allowing the jury to determine liability and damages in the same sitting?

In the light of our resolution of this case, we will not attempt to give an extensive analysis of each issue, and as to issues 4 and 5, we pretermit discussion.

At the outset, we agree with the defendants that a directed verdict should have been entered in favor of defendants Aspinwall and Epperson on all counts. The facts do not support any theory of fraud or contract liability on the part of these defendants. See 19 C.J.S. Corporations § 839 (1940). Epperson’s name appears on the contract of insurance, and Aspinwall wrote a letter denying the claim and rescinding the policy, but there is not a scintilla of evidence that these acts were done in any capacity other than as officers of the corporation. The judgment below is reversed and rendered as to Aspinwall and Epperson. Likewise, the verdict of the jury on the contract count is contrary to the evidence. The only pecuniary loss that the plaintiff suffered was $2,702.80. The undisputed testimony is to the effect that plaintiff had a $500.00 deductible policy. Applying this deductible to the pecuniary loss results in a maximum possible judgment of $2,202.80. The plaintiff will be required to remit $500.00 of the contract judgment on pain of reversal if she does not do so. Code 1975, § 12-22-71.

As to plaintiff’s fraud count, we are persuaded that there was substantial evidence to support a verdict for the plaintiff on this count. Plaintiff claims that although she told Old Southern’s agent that she had diabetes, kidney stones and high blood pressure, he said that he would “fix it where it would definitely pay.” The company did not pay and plaintiff was upset by receiving duns from the hospital. The company denied these allegations, but the jury believed the plaintiff. We cannot disturb the jury’s verdict under the facts in this case. Decker v. State Nat. Bank, 255 Ala. 373, 51 So.2d 538 (1951); Indemnity Ins. Co. of North America v. Holiway, 233 Ala. 100, 170 So. 329 (1936); Hughes v. Cartwright, 222 Ala. 4, 130 So. 550 (1930).

The defendants raise as an issue that the court below erred in charging the jury on actions for fraudulent refusal to pay, tort of bad faith and tort of outrage. Having determined that plaintiff did have the cause of action in contract and fraud, we find defendants’ argument in this regard without merit. In Trammell v. Robinson, 34 Ala.App. 91, 98, 37 So.2d 142, 148 (1948), we said:

[I]f there is a good count in the complaint, although other counts may be defective, and a general verdict in favor of the plaintiff is returned, the judgment will be referred to the good count if there is evidence to sustain it, and the judgment will not be reversed because of the court’s erroneous ruling on demurrers to the defective counts.

We turn now to the more serious issue raised by the defendants — the issue of whether damages on the fraud count are excessive. Our polestar is Mr. Justice Simpson’s opinion in Carlisle v. Miller, 275 Ala. 440, 444, 155 So.2d 689, 692 (1963), in which he said the following:

It is almost platitudinous to restate the guiding rules, but here they are: The verdict of a jury should not be interfered with merely because in the opinion of the court the jury gave too little or too much (Vest v. Gay, supra, [275 Ala. 286, 154 So.2d 297]; Airheart v. Green, 267 Ala. 689, 104 So.2d 687; Alabama Great Southern Ry. Co. v. Baum, 249 Ala. 442, 31 So.2d 366); and the authority vested in the courts to disturb a verdict of the jury on the ground of excessiveness is one which should be exercised with great caution. Airheart v. Green, id.; McLaney v. Turner, 267 Ala. 588, 104 So.2d 315; Louisville & Nashville Ry. Co. v. Tucker, 262 Ala. 570, 80 So.2d 288, 298. Where, as here, there is no set standard for the admeasurement of damages but the damages to be awarded are left to the sound discretion of the jury, a remittitur or a hew trial should not be ordered on the ground of excessiveness of the jury’s verdict except in those cases where the court can clearly see that the verdict has been reached on account of bias, passion, prejudice, corruption, or other improper motive or cause. Airheart v. Green, supra; Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447. And only where the damages allowed are so excessive as to warrant the belief that the jury must have been misled by some mistaken view of the merits of the case should the court interfere and set the verdict aside (National Surety Co. v. Mabry, 139 Ala. 217, 35 So. 698); also, where the trial court refuses to grant a new trial because he does not believe the verdict is excessive the favorable presumption attending the jury’s verdict is thereby strengthened. International Union, etc. v. Palmer, 267 Ala. 683, 104 So.2d 691; Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So.2d 830.

Suffice it to say that we are most reluctant to set aside a jury verdict awarding punitive damages in a fraud case. In Ridout’s-Brown Service, Inc. v. Holloway, 397 So.2d 125 (Ala.1981), we allowed a judgment to stand in the amount of $220,000.00, where the custodian of a dead body misrepresented the condition of the dead body to the bereaved sister. We allow punitive damages, otherwise called “sweat money,” in fraud cases in the interest of deterring the defendant and as an example to others who may have contemplated similar actions. Southern Life & Health Ins. Co. v. Whitman, 358 So.2d 1025 (Ala.1978); Old Southern Life Insurance Company v. Woodall, 348 So.2d 1377 (Ala.1977); Loch Ridge Construction Company, Inc. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973). Nevertheless, applying the test of the Carlisle case to the facts of the instant case, we are of the opinion that the judgment of a million dollars against the corporate defendant, Old Southern Life Insurance Company, and F. G. Compton cannot stand. As an overseer court, we cannot allow our justice system to do injustice in the name of doing justice. Fortunately, we have an escape hatch on the appellate level in Code 1975, § 12-22-71, which reads as follows:

When an appeal is taken to the appropriate appellate court from the judgment of any court and the appellate court shall be of the opinion that the case should be reversed because the judgment of the lower court is excessive and that there is no other ground of reversal, the appellate court shall notify the appellee of the amount which it deems in excess of the just and proper amount of recovery and require the appellee, within a time to be stated in said notice, to remit such amount upon penalty of a reversal of the case. If the appellee does not, within the time stated in such notice or within such further time as may be granted by the court for good reason file a remittitur of such excessive amount, the appellate court shall reverse and remand the case; but, if the appellee shall file with the court a remittitur of the amount deemed excessive by the court, the appellate court shall reduce the amount of the judgment accordingly and shall affirm the case and enter a judgment for such reduced amount, which judgment so entered shall be and remain the judgment of the lower court and shall date back to the time of the entry or rendition of the judgment in the lower court.

Although we are of the opinion that the evidence below was sufficient to sustain a jury verdict in favor of the plaintiff on the fraud and contract count (as reduced) against the corporate defendant and F. G. Compton, we are not of the opinion that it is supportive of an award of a million dollars. Consequently, based on the authority of Code 1975, § 12-22-71, we affirm the judgment of the trial court on the fraud count conditioned upon appellee’s filing with this court within 14 days of this opinion a remittitur in the amount of $750,-000.00, affording plaintiff a judgment on the fraud count of $250,000.00. Furthermore, we affirm the judgment on the contract count against the corporate defendant and F. G. Compton, conditioned, however, upon the appellee’s filing with this court within 14 days of this opinion a remittitur in the amount of $500.00, thereby affording plaintiff a judgment in the amount of $2,202.80 on the contract count; otherwise, the judgment appealed, both on the contract as well as the fraud count, is reversed and the cause is remanded for a new trial. Judgment against Aspinwall and Epperson is reversed and rendered.

REVERSED AND RENDERED AS TO ASPINWALL AND EPPERSON.

AFFIRMED CONDITIONALLY AS TO THE CORPORATE DEFENDANT AND F. G. COMPTON ON THE FRAUD AND CONTRACT COUNTS.

TORBERT, C. J., and FAULKNER, JONES and EMBRY, JJ., concur.

On Application for Rehearing

ADAMS, Justice.

Petitioners, Old Southern Life Insurance Company and F. G. Compton, call to our attention that, among other things, our opinion is in error as to a procedural matter. In the opinion we say:

The defendants raise as an issue that the court below erred in charging the jury on actions for fraudulent refusal to pay, tort of bad faith and tort of outrage. Having determined that plaintiff did have a cause of action in contract and fraud, we find defendants’ argument in this regard without merit. In Trammell v. Robinson, 34 Ala.App. 91, 98, 37 So.2d 142, 148 (1958), we said:
[I]f there is a good count in the complaint, although other counts may be defective, and a general verdict in favor of the plaintiff is returned, the judgment will be referred to the good count if there is evidence to sustain it, and the judgment will not be reversed because of the court’s erroneous ruling on demurrers to the defective count. (Footnote omitted.)

The petitioners contend that the reasoning in Trammell deals only with a pleading problem and does not extend to the facts in this case where petitioners are claiming not that a count was defective, but that there was insufficient evidence to charge the jury on the tort of outrage and the tort of bad faith refusal to pay an insurance claim. Since the opinion was released in this case, we have had occasion to review in depth the substance of petitioner’s contention in another case. Ex parte Nix, 401 So.2d 64 (Ala. 1981). Our Court of Civil Appeals, as well as this Court, has not always been clear on its application of Trammell. On some occasions the doctrine has been applied to fact situations similar to that in this case. On reconsideration, we believe the better view to be that if 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.

The question in this case is: Did the petitioners challenge by motion for directed verdict the failure of the plaintiff to make out a case under the tort of outrage and the tort of bad faith refusal to pay an insurance claim, and argue the motion with specificity? We have carefully reviewed the record and we do find that the defendants filed a motion for directed verdict as to these two counts, but they did not preserve error as to the tort of outrage because the insufficiency of the evidence was not argued with sufficient specificity. However, as to the tort of bad faith refusal to pay an insurance claim, we find the defendant did argue with sufficient specificity. On the other hand, our review of the evidence leads to the conclusion that there was ample evidence to support the judge’s submission of this count to the jury.

We do not find merit in petitioners’ other objections to the court’s opinion.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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

EMBRY, J., concurs specially.

TORBERT, C. J., dissents.

MADDOX and ALMON, JJ., not sitting.

EMBRY, Justice

(concurring specially on rehearing):

In order to explain that there is no inconsistency between concurring with the majority in^this case and dissenting in Chavers [v. National Security Fire & Cas. Ins. Co., 405 So.2d 1], I would note that the facts in this case are greatly more probative of the tort of bad faith than are those in Chavers. I would also note that, although the trial court made no express determination as a matter of law that the facts in this case justified submitting to the jury the question of whether those facts satisfied the standards of recovery set forth in Chav-ers, and in this writer’s dissent in Vincent v. Blue Cross-Blue Shield of Alabama, Inc., 373 So.2d 1054 (Ala.1979), such determination was implicit in the trial court’s submission of the case to the jury under proper instructions.

TORBERT, Chief Justice

(dissenting).

In its extended opinion on application for rehearing, a majority of this Court addresses a procedural matter, and states the following:

[W]e believe the better view to be that if 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 the grounds upon which the particular count is not supported by the evidence with specificity.

I have no quarrel with that statement.

The majority then writes, “[A]s to the tort of bad faith refusal to pay an insurance policy, we find that defendant did argue with sufficient specificity.” Again, I think the majority is correct.

However, I differ with the majority when it concludes: “On the other hand, our review of the evidence leads to the conclusion that there was ample evidence to support the judge’s submission of this [bad faith] count to the jury.” Unfortunately, the majority does not set out in its opinion a summary of the evidence it feels supports a claim of bad faith refusal to pay an insurance claim, but only that evidence supporting a fraud count. My own review of the evidence compels me to conclude that it simply does not support a claim for bad faith refusal to pay.

I agree that there is evidence in this case which, if believed by the jury — and the jury apparently did believe the plaintiff’s evidence — would support a finding of fraud. In short, the plaintiff says she told the company’s agent, when answering questions on the policy application, that she had previously suffered from diabetes, kidney stones, and high blood pressure. The majority notes that this was “disputed” by the defendants. The plaintiff then says the company’s agent told her he could “fix it [the policy] where it would definitely pay.” Again, the majority notes, the defendants “denied” this contention. So we have a classical case for a jury’s determination: an everyday courtroom swearing match where plaintiff says “You did” and defendant says “I didn’t either.” As the majority says, the jury believed the plaintiff. That is sufficient to support plaintiff’s fraud claim; but all of that hardly approaches the question of a bad faith refusal to pay an insurance claim as that cause of action has been recognized by this Court and by other courts.

Proof of a fraud in this context merely shows that a defendant took a plaintiff’s premium payments without in fact insuring the plaintiff; it does not establish that the defendant either has refused to settle a lawful claim while having “no lawful basis for refusal coupled with actual knowledge of that fact” or has made an “intentional failure to determine whether or not there was any lawful basis for such refusal.” Chavers v. National Security Fire & Cas. Ins. Co., 405 So.2d 1 (Ala.1981).

One should not conclude, in a case like the present one, that because there has been a tort of fraud there must ipso facto be also the tort of bad faith failure to pay. Indeed, there may not be room in such a case for both torts, for the essence of a fraud is a misrepresentation which plaintiff relies on to his or her detriment — in this context, that means that plaintiff must have relied on a representation that she was getting insurance when she in fact was not getting insurance. The essence of the tort of bad faith is that the defendant has failed, without good reason, to pay a claim it knows is valid. If the proof of fraud shows there was in fact no insurance provided to the plaintiff, by what reasoning can the defendant be found to have willfully failed to pay an unquestionably valid claim? It would seem that in a case like this, proof of the fraud will disprove the other tort — for if the plaintiff has suffered a detriment by reliance on the misrepresentation, it is because the defendant has in fact not insured her, and if there is no insurance there can be no wrongful failure to pay an insurance claim; on the other hand, if plaintiff proves a bad faith failure to pay a valid claim, it can be only because plaintiff got her insurance, and if she did then she apparently did not suffer as a result of the alleged fraud.

In other words, I am not certain that both theories can be factually supported in the same case. It appears, however, that the majority has assumed that the very facts which show fraud also prove a bad faith failure to pay a claim. It would probably be logically inconsistent for the jury to find both torts in the context of this case.

However all of those matters may be, I am certain that in this case the evidence proving fraud cannot be used to prove the tort of bad faith failure to pay an insurance claim. In this case the plaintiff’s claim to any entitlement at all was dependent upon her claim that she informed the agent of her pre-existing health impairments — and this claim was disputed by defendants’ evidence — and possibly upon her further claim that the agent said he could “fix it” so the policy would pay anyway — and again, this claim was also disputed by defendants’ evidence. There is no doubt that the jury, on the same evidence, could have found for the defendants. Thus, until the jury found for the plaintiff, it could not be said that there was a valid claim which the defendant insurer could have wrongfully failed to pay. See Gulf Atlantic Life Ins. Co. v. Barnes, 405 So.2d 916 (Ala.1981) (Maddox, J., dissenting in part). If it could not be said until after the jury’s verdict that the insurer had any liability, then how could the insurer be held to have knowingly and wrongfully denied a valid claim long before the lawsuit: was filed?

The rule in other jurisdictions in regard to bad faith cases such as this is well stated in a Louisiana case:

Where the insurer has a reasonable ground to believe that its defense is valid, its refusal to pay a claim is not considered as “without just cause” subjecting it to penalties, even though the defense is subsequently not upheld by the court.

Mistric v. Republic Nat. Life Ins. Co., 314 So.2d 472 (La.App.1975). That Louisiana court was dealing with a statutory penalty, as was the Missouri court which wrote:

An insurer may question an issue and contest an issue of fact relating to its liability if it has reasonable cause to believe and does believe that there is no liability under its policy and that it has a meritorious defense. Of course, the mere fact that the judgment is adverse to the defendant is not a sufficient reason for imposing the penalty.

Welch v. Western Cas. & Surety Co., 567 S.W.2d 743, 748 (Mo.App.1978). This principle is not altered by its application in the present case, which does not involve a statutory penalty. “The ... penalty is not to be imposed merely for the reason that it turned out at the trial ... there was, in reality, no reason for denial of liability,” Koch v. Prudential Ins. Co., 205 Kan. 561, 470 P.2d 756 (1970).

It is clear that in this case the jury hearing the facts could have found for either side. The courts in other jurisdictions dealing with this problem have applied the principle that where the evidence at trial presents a jury question as to the insurer’s liability, there is a reasonable ground for the defense and thus there can be no “bad faith” finding — unless, of course, the defense itself was made in bad faith. For example, the Georgia Court of Appeals has written:

Since there was a jury issue as to whether Mr. Wilson was mentally competent to execute the release, and a verdict was authorized for either plaintiff or defendant on that issue, it cannot be said that the defense of Gulf Life was frivolous or unfounded, or that it did not have a reasonable ground for contesting the claim. No bad faith appears in making the defense, and the award of penalty and attorney’s fees was unauthorized.

Gulf Life Ins. Co. v. Wilson, 123 Ga.App. 631, 181 S.E.2d 914 (1971). There can be no “bad faith” liability where the evidence indicates a legitimate controversy as to whether benefits are due. Lee v. Insurance Co. of North America, 397 F.Supp. 426 (E.D.Tenn.1974).

The matter has been stated very simply: “If the evidence authorized a verdict for the defendant, or to put it another way, if the verdict could have gone for either party it does not authorize a finding of bad faith.” Gulf Life Ins. Co. v. Wilson, 123 Ga.App. 631, 181 S.E.2d 914 (1971). See also, Icklone v. Travelers Indemnity Co., 345 So.2d 202 (La.App.1977). I submit that this is the case here; the evidence was disputed and the jury’s verdict could have gone either way.

Since the record in this case does not disclose any evidence of the elements of a bad faith refusal to pay under our decisions in Chavers and Barnes, it was error to submit this claim to the jury. The jury could not possibly have made a finding of “bad faith” without hearing evidence directed toward that question. The fact that the defendants lost on the disputed fraud issues is not proof of bad faith, Welch v. Western Cas. & Surety Co., supra; yet that seems to be what the majority concludes.

For these reasons I must respectfully dissent.

      . In accord, Morgan v. Embry, 17 Ala.App. 276, 85 So. 580 (1919); Lang v. Leith, 16 Ala.App. 295, 77 So. 445 (1917); Turnipseed v. Burton, 4 Ala.App. 612, 58 So. 959 (1912); Bessemer Liquor Co. v. Tillman, 139 Ala. 462, 36 So. 40 (1904).


author: BEATTY, Justice. TORBERT, Chief Justice

text:
    W. T. RATLIFF COMPANY, INC. v. Irby C. HENLEY.
    79-632.
    Supreme Court of Alabama.
    Sept. 25, 1981.

      Daniel A. Pike and Mary Elizabeth Hurm of Sintz, Pike, Campbell & Duke, Mobile, for appellant.
    Joseph C. McCorquodale, III, of McCor-quodale & McCorquodale, Jackson, and Thomas M. Galloway, Jr. of Collins, Galloway & Smith, Mobile, for appellee.
   BEATTY, Justice.

The defendant, W. T. Ratliff Company, Inc., appeals from an adverse judgment based upon a jury verdict finding it liable for continuing trespass and from the denial of its motion for new trial. We affirm.

Irby C. Henley filed this action in Clarke Circuit Court against W. T. Ratliff Company, Inc. (Ratliff), Thomas Bradley, Sr., and fictitious parties, seeking to recover damages for injury to real property. Ratliff leased the property from Henley in 1972, and began surface mining operations thereon. In 1973 Henley complained to Ratliff’s representatives about sand and gravel washing onto his other property as a result of the mining .operations. Ratliff’s representatives assured constructive action but failed to alleviate the problem and the washing of sand and gravel onto Henley’s property continued.

Henley’s complaint alleging damage to his property contained four counts: 1) negligence; 2) wantonness; 3) continuing trespass; and 4) nuisance. During the trial, motions for directed verdicts as to count one, sounding in negligence, and count four, sounding in nuisance, were granted in favor of Ratliff. At the close of Henley’s evidence, Ratliff filed a motion to strike Henley’s claim for punitive damages, which was denied. The jury returned a verdict in favor of Henley for $75,000.00. Ratliff’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial, was denied. Ratliff appealed on May 15, 1980.

On January 6, 1981, this Court ordered that the appeal be dismissed. 394 So.2d 369. The suit had been filed against Ratliff and Thomas Bradley, Sr., yet the judgment had not disposed of the suit insofar as Thomas Bradley, Sr. was concerned. Because there had been no compliance with Rule 54(b), ARCP, this Court found that the judgment was not final and dismissed the appeal.

Subsequent to the dismissal, the trial court entered a directed verdict in favor of Thomas Bradley, Sr. on all counts. On April 7, 1981, we determined that the judgment was final as to Ratliff and reinstated the appeal.

Ratliff raises five issues on appeal:

(1) Whether proper jurisdiction and service of process was obtained over Ratliff, a dissolved foreign corporation.

(2) Whether the action sued upon is trespass on the case and, therefore, barred by the applicable one-year statute of limitations.

(3) Whether the evidence justified submitting the case to the jury on the wanton count, thereby allowing recovery of punitive damages.

(4) Whether it was error to allow plaintiff Henley’s witness to testify concerning value of Henley’s property and the amount of damage suffered.

(5) Whether the trial court’s charge to the jury on the measure of damages relative to injuries to real property was erroneous.

I. JURISDICTION

On May 2, 1975, approximately a year and a half before Henley filed this action, Ratliff filed a statement of intent to dissolve with the Secretary of State of Kentucky. Ratliff argues that a dissolved foreign corporation is incapable of suing or being sued in Alabama.

Section 10-2-212 (repealed by Acts 1980, No. 80-633, § 192 effective January 1, 1981) of the Code of 1975 provided that “[cjorporations whose charters have expired or which have been dissolved otherwise than by judicial order continue to exist as bodies corporate for a period of five (5) years after such dissolution for the purpose of prosecuting or defending actions . ...” In Ex parte Davis, 230 Ala. 668, 162 So. 306 (1935), we found that section to be inapplicable to foreign corporations. Absent proof to the contrary, however, the trial court could have reasonably assumed that a provision like § 10-2-212 exists in other states (including Kentucky, Ratliff’s state of incorporation), George D. Witt Shoe Company v. Mills, 224 Ala. 500, 140 So. 578 (1932), and that Ratliff could be sued for some stated period of time after its dissolution. On public policy grounds, it would be unconscionable to allow a foreign corporation to do business in our state and then permit it upon its own volition and without any time limitation to leave those whom it has damaged with no recourse after its subsequent dissolution.

Ratliff also asserts that service of process was never perfected upon it, thereby depriving the trial court of jurisdiction. However, the record reveals that service was made upon Ratliff by certified mail to Edwin L. Tomppert and Wilma B. Hei-mann, two of the three directors of the former corporation, whose names and addresses appeared on Ratliff’s statement of intent to dissolve. In Railway Fuel Company v. Ackerman, 269 Ala. 460, 114 So.2d 142 (1959), we held that in a suit against a dissolved domestic corporation service of process, absent express provision for it in § 10-2-212 (repealed 1981), Code of 1975, is properly had upon one of the directors-trustees. That rule is equally applicable to service upon dissolved foreign corporations. Henley, then, perfected service upon Ratliff when he served two of the directors of the former corporation.

II. STATUTE OF LIMITATIONS

Ratliff argues that the allegations of Henley’s complaint show an action in trespass on the case, as distinguished from trespass, thereby barring Henley’s claim by the one-year statute of limitations set out in § 6-2-39(a)(5), Code of 1975. The statute of limitations for an action in trespass is six years. Section 6-2-34(2), Code of 1975. If this action is one for trespass, the record shows that the filing of the suit in 1976 was well within the six-year period which began in 1973, the time damage was first incurred. The resolution of this issue, then, depends upon a close examination of the recent decisions of this Court addressing the distinctions between trespass and case.

Initially, we note that the historical distinction between trespass and case was that trespass involved a direct act done with force and immediately injurious to the person of another or to property in his possession. If any of the elements requisite to compose a trespass was lacking, the remedy was in an action on the case. That is, case would lie when the detriment to the plaintiff resulted from the wrongful act only indirectly and through a consequence occasioned by some intervening agency. Case would not require possession by the plaintiff nor immediate injury. C. Keigwin, Cases in Common Law Pleading 100-122, 159-179 (2d ed. 1934).

If we were to apply the strict historical distinctions, the facts of the case at bar would show an action for trespass on the case, rather than trespass. The record clearly states that sand and gravel flowed from Ratliff’s operations onto Henley’s property whenever it rained. Thus, the consequential damage to the property was occasioned by an intervening agency, the rain. No direct act of force on the part of Ratliff caused the damage. The strict common law distinctions between the two remedies, however, have been modified during the past decade.

In Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974), the defendant emptied asphalt on its own land. The asphalt ran downhill onto another tract and into a stream which carried it to the plaintiff’s pond, resulting in pollution and other damage. This Court found that the defendant’s act constituted trespass and relied upon the Restatement (Second) of Torts, § 158, Liability for Intentional Intrusions on Land (1965), as the authority for the holding. In particular, we emphasized a portion of the comments from that section, which explains an actionable trespass as follows:

In order that there may be a trespass ... it is not necessary that the foreign matter should be thrown directly and immediately upon the other’s land. It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter. Thus one who so piles sand close to his boundary that by force of gravity alone it slides down onto his neighbor’s land, or who so builds an embankment that during ordinary rainfalls the dirt from it is washed upon adjacent lands, becomes a trespasser on the other’s land. [Emphasis added.]

The facts in the present case clearly fit within the definition of trespass as expressed above.

Our analysis in Rushing could not be interpreted as totally overruling the direct/indirect distinction between trespass and case that had always been adhered to in cases preceding Rushing. See, e. g., Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973). Instead, Rushing merely pointed out that a direct injury may be found even though the trespassing matter was not placed directly on plaintiff’s land, as long as the flow to plaintiff’s land was direct. In Borland v. Sanders Lead Co., Inc., Ala., 369 So.2d 523 (1979), however, we went a step beyond Rushing and clearly stated that “the law presently allows an action to be maintained in trespass for invasions that, at one time, were considered indirect.” Id. at 529. Bor-land established four elements which a plaintiff must prove in order to recover for an indirect trespass:

1) an invasion affecting an interest in the exclusive possession of his property; 2) an intentional doing of the act which results in the invasion; 3) reasonable foreseeability that the act done could result in an invasion of plaintiff’s possesso-ry interest; and 4) substantial damages to the res. [Id. at 529.]

Each of the above elements has been satisfied in the instant case. Henley’s pos-sessory interest in his land was invaded by the sand and gravel flowing from Ratliff’s operations. Certainly, Ratliff, as well as any reasonable person, could foresee that it might rain at some point in time in Clarke County and, thereby, wash sand and gravel onto Henley’s property. And, as the record shows, Henley’s property was substantially damaged by the invasion. Ratliff argues, to no avail, that the second element of the test for an indirect trespass, an intentional doing of the act which results in the invasion, was not proven. We pointed out in Born v. Exxon Corp., Ala., 388 So.2d 933 (1980), that Borland and Bushing clearly indicate that in order for one to be liable to another for trespass, direct or indirect, the person must intentionally enter upon land in the possession of another or the person must intentionally cause some “substance” or “thing” to enter upon another’s land. 388 So.2d at 934. That is, the intent do to the act which leads to the trespass is the requirement, not the intent to actually trespass. Thus, when Ratliff placed the sand and gravel on its own leased property with knowledge to a substantial certainty that such action could lead to trespass when it rained, the element of intent was satisfied.

From the foregoing discussion, it is apparent that the facts of this case support an action for trespass and that suit was timely filed within the six-year statute of limitations.

III. WANTONNESS

Although Ratliff contends that the trial court erred in refusing to grant a directed verdict in favor of it on the wantonness count, the evidence in the record reveals otherwise. All that need be shown to prove wantonness in a trespass action is knowledge on the part of the defendant of his invasion of the plaintiff’s rights. Calvert and Marsh Coal Co., Inc. v. Pass, Ala., 393 So.2d 955, 956 (1980).

Obviously, Ratliff knew about the washing of sand and gravel onto Henley’s property, for testimony revealed that Henley complained frequently to Ratliff’s representatives, who replied that they would take care of the problem. Thus, the submission to the jury of the wantonness court was proper.

In view of our holding that there was evidence supporting the wantonness count, Ratliff’s further contention that the trial court erred in refusing to grant its motion to strike Henley’s claim for punitive damages is without merit. In fact, the verdict itself does not appear to reflect punitive damages since $115,000.00 damages were attested to and the verdict was returned for $75,000.00.

But, assuming arguendo that the verdict encompassed punitive damages, such an award is warranted when the trespass is attended by wantonness or recklessness. Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974). The jury could have easily found that Ratliff’s acts were of the nature described above.

IV. TESTIMONY ON DAMAGES

Henley’s witness, Joe Courtney, testified that the exact amount of damage done to Henley’s land was $115,000.00. Courtney based his assessment of the damages to the whole on his opinion as to the value of the land before and after the sand and gravel deposits. Ratliff argues that Courtney was not qualified to form an opinion relative to the value of the property and that, even if qualified, Courtney’s opinion as to the damages invaded the province of the jury.

The record shows that Courtney had appraised property for twenty-seven years in Clarke, Mobile and Baldwin Counties in Alabama. He has been familiar with the Henley property for six to eight years and viewed the Henley property five or six times before reaching his appraisal. Even if Courtney does not qualify as an expert, we held in Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974), that a witness who undertakes to speak in regard to the value of a piece of land need not be an expert. If he has given special attention to land values, he should be able to say, at least, what his opinion as to the value of the particular tract of land is, provided, of course, he shows a means of knowledge about the tract in question. 292 Ala. at 51, 288 So.2d at 768. See also Sanford v. Sanford, Ala., 355 So.2d 365 (1978). It was appropriate, then, for Courtney to testify as to the value of the land.

Ratliff is correct in asserting that a witness may not testify that the damage to plaintiff’s land was a certain sum. Instead, the witness should state the condition of the property and leave the conclusion to the jury. Alabama Great Southern R. R. Co. v. Russell, 254 Ala. 701, 48 So.2d 249 (1949). Courtney’s testimony that the damages to-talled $115,000.00, however, was harmless error, Rule 45, ARAP, particularly since the jury reached a different conclusion from Courtney by finding that the damages amounted only to $75,000.00.

V. MEASURE OF DAMAGES

Ratliff claims that the trial court's oral charge to the jury on the measure of damages for trespass was erroneous. The court instructed the jury as follows:

The general rule in the measure of damages is difference between the value of the land before and after the trespass is subservient to the underlying theory of damages. That is, plaintiff is entitled to an amount which would compensate him for actual damages sustained [sic].

That charge essentially follows our recent statement of the appropriate measure of damages for trespass found in Borland v. Sanders Lead Company, Ala., 369 So.2d 523, 530 (1979), and doubtless follows the principles approved therein. Consequently, the trial court committed no error in giving that instruction.

The trial court also properly instructed the jury that damages for continuous trespass are limited to those which have occurred before and up to trial. Code of 1975, § 6-5-217.

In conclusion, we note that a jury’s verdict is presumed to be correct, and will not be set aside as excessive, unless the amount is so great as to plainly indicate that it was the result of passion, bias, prejudice or improper motive. Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, Ala., 394 So.2d 912, 915 (1981). No such indication is present here. Moreover, that presumption is strengthened when the trial judge refuses to grant a motion for new trial. S. S. Kresge Co. v. Ruby, Ala., 348 So.2d 484, 488 (1977).

The judgment appealed from is affirmed.

AFFIRMED.

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

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

My concern in addressing the trespass issue is to make sure that the present direction of the law is clear. Justice Beatty’s opinion correctly states the present law of this state as developed in Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974), and Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979). Accordingly, reliance on Cochran v. Hasty, 378 So.2d 1131 (Ala.Civ.App.1979), even though it was decided subsequent to Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979), is now inappropriate.

      . Section 10-2A-203 of the new Alabama Business Corporations Act makes several changes in the prior law and reduces the time for bringing the action from five years to two years.

      . Sections 10-2A-31 and 10-2A-237 of Code 1975 described the procedure today for service of process upon domestic and foreign corporations; however, there is still no express provision for service upon dissolved corporations.


author: SCRUGGS, Retired Circuit Judge.

text:
    Charles LOYD, Jr. and Brenda J. Loyd v. CENTRAL BANK OF ALABAMA, N.A.
    Civ. 2758.
    Court of Civil Appeals of Alabama.
    Sept. 30, 1981.

      Kathleen M. Warren, and J. Richard Carr, Gadsden, for appellant.
    James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   SCRUGGS, Retired Circuit Judge.

This case involves an action by the Loyds for the conversion by the bank of certain items of personal property which were situated in the Loyds’ automobile when the vehicle, admittedly, was lawfully repossessed by the bank.

The undisputed value of the missing items was $235.75. The jury returned a verdict favorable to the Loyds for $5,235.75.

The bank duly filed a nine ground motion for a new trial. After a hearing, the trial court set aside the verdict of the jury and ordered a new trial without recording any specific reason for such action. The correctness of the granting of the motion for a new trial is the issue now before this court. We affirm.

Several rules govern our review of a trial court’s judgment granting a new trial, among them being the following: when a trial court grants a motion for a new trial without stating the ground upon which it is based, the ruling must be sustained if any valid reason is presented by the motion. Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973). A trial court has a wide judicial discretion to grant a new trial, and the exercise of that discretion carnes with it a presumption of correctness. Hill v. Cherry, 379 So.2d 590 (Ala. 1980). Where the reason or basis for the trial court’s action is not stated by that court in its judgment granting a new trial motion, we must presume that a new trial was allowed because the verdict of the jury was contrary to the preponderance of the evidence or that the verdict was unjust under the evidence presented. 2A Ala. Digest Appeal & Error Key No. 933(4). If there is a conflict in the evidence and the reviewing court cannot “say that the great weight of the evidence plainly and palpably supports the verdict, then the grant of a new trial should not be disturbed. (Citation omitted.)” Hamilton v. Dueringer Corp., 370 So.2d 1046 (Ala.Civ.App. 1979).

Learned and respected counsel each have filed an excellent brief on behalf of their respective clients. For us to detail the evidence would not be meaningful since it would neither add to nor detract from any present applicable law. We have carefully read and studied the entire transcript of the evidence as well as the briefs of both parties. It is adequate to state that there is conflicting evidence to the extent that this court cannot declare that the verdict of the jury is plainly supported by a great preponderance of the evidence. The trial court did not abuse its discretion in ordering a new trial: Accordingly, we affirm, for we cannot disturb the judgment from which the appeal was taken.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Pamela JOHNSON, alias v. STATE of Alabama.
    5 Div. 555.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      J. Tutt Barrett of Samford, Denson, Horsley, Pettey, Martin & Barrett, Opelika, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for the State.
   TYSON, Judge.

On September 10, 1980, the Grand Jury indicted Pamela Johnson charging that she “did, in the course of committing a theft of $1200.00 in lawful paper currency of the United States of America, the exact denominations of which are unknown to the Grand Jury, the property of Winn Dixie of Montgomery, Inc., a corporation, with the intent to promote or assist the commission of the Theft of Property First Degree, aid or abet Willie Davis, alias, who did threaten the imminent use of force against the person of Mary Johnson, with the intent to compel acquiescence to the taking of or escaping with the property, while the said Willie Davis, alias, was armed with a deadly weapon or dangerous instrument, to-wit: a pistol, in violation of § 13A-8-41 of the Code of Alabama.” The jury found the appellant guilty of first degree robbery. After a presentence investigation and hearing the trial court sentenced appellant to 25 years’ imprisonment.

On February 5, 1980, the appellant, two other women and three men drove from Montgomery, Alabama to Auburn, Alabama to do some “boosting” (shoplifting).

While in Auburn they stopped at a local shopping area where there was a sporting goods store and a Winn-Dixie supermarket. While appellant and the other two women were in the sporting goods store one of the men, Willie Davis, went in the Winn-Dixie store to “check it out”. After they had all returned to the “van” (i. e., the automobile in which they were traveling), Willie Davis convinced the other two men that “everything looked sweet” inside the Winn-Dixie store. Consequently, the three men returned to the grocery store and at gun point took approximately $1,200.00 in cash from the assistant manager and the cashiers. They ran back to the “van” where the appellant and the other two women were waiting. Willie Davis told appellant to drive and gave her directions.

During their escape the “van” had a “blow-out” which had to be repaired. Appellant stopped the vehicle and while the three men tried to repair the tire, the appellant and the other two women left the scene. The women were later apprehended by police officers in an upstairs closet of a vacant home where they had apparently sought refuge from the rain and cold.

Appellant was subsequently arrested as an accomplice in the robbery of the Winn-Dixie store. While in custody and after she was advised of her Miranda rights, the appellant made separate statements to both the Opelika Police Department and the Auburn Police Department. She did not sign the former statement, claiming that she was afraid of the three men involved in the robbery, but she did sign the statement made to the Auburn police.

Jerald Sparks, the Auburn Police Officer who transcribed the second statement by the appellant, testified that appellant’s statement was not the result of threats, coercion, or intimidation and was therefore voluntary, and was taken only after appellant had been properly informed of and had signed a waiver of her Miranda rights.

Appellant openly admitted at trial that she was present at the time of the robbery. The only material fact in controversy was whether or not she knew before hand that the three men with her intended to rob the Winn-Dixie supérmarket.

Appellant testified that she was “along for the ride”, that she knew nothing of the robbery until after the fact, and that when she then tried to part company with the robbers, they forced her at gunpoint to drive the “get-away” vehicle (the “van”).

One of the men involved in the robbery, Lumon Layton, testified that the appellant was present when the three men decided to go back in and rob the store. His testimony was confusing and self-contradictory, however, as to whether or not appellant overheard the robbery plans and as to whether or not she was forced to drive the “van”.

The jury was convinced that appellant did know what was happening because they found her guilty of robbery as an accomplice under § 13A-2-23, Code of Alabama 1975.

I

Appellant’s primary contention on appeal is that the trial court erred in denying appellant’s “oral demurrer” to the indictment. Appellant claims that the indictment, quoted herein, is defective in that it alleges “intent to promote or assist the commission of the Theft of Property First Degree,” but charges actual aiding and abetting in a “robbery”. Appellant points out that to be consistent with the complicity statute, § 13A-2-23(2), Code of Alabama 1975, the indictment must charge the defendant with “the intent to promote or assist the commission of” the same crime for which it alleges the defendant “aids or abets such other person in committing.” Since “theft” under § 13A-8-3 and “robbery” under § 13A-8-41 are separate crimes, appellant asserts that her “oral demurrer” to the indictment for failure to charge a crime should have been sustained.

In order for this court to rule on the validity of the indictment we must first determine the validity of appellant’s “oral demurrer” as a vehicle for challenging an allegedly defective indictment.

A

Appellant correctly asserts the current rule in Alabama that a “demurrer” is the proper procedure to contest defects in an indictment. Andrews v. State, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977); Crews v. State, Ala.Cr.App., 374 So.2d 436 (1979); Edwards v. State, Ala.Cr.App., 379 So.2d 336 (1979), cert. denied, Ala., 379 So.2d 339 (1980). Undoubtedly, the form of “demurrer” contemplated by this rule is a “written demurrer” not an “oral” one. In § 15-15-4, Code of Alabama 1975 the forms of pleas, replications, rejoinders and “demurrers” to be used in criminal proceedings are set out. Subsections (2) through (9) specify the writings required and do not mention the possibility of an oral form. Only subsection (10) mentions the possibility of an oral form, stating that “guilty pleas” may be made either orally or in writing. By negative implication we take this to mean that all other pleas, replications, rejoinders and “demurrers” in criminal proceedings must be in writing.

Recently, in Hancock v. State, Ala.Cr. App., 368 So.2d 581, cert. denied, Ala., 368 So.2d 587 (1979), Judge Harris in a holding consistent with this interpretation stated that “oral pleas are unknown in our practice” and reasoned that such oral pleas do not preserve anything for appellate review. This conclusion follows the principle expressed in 42 C.J.S. Indictments and Infor-mations § 221 (1944) that a “demurrer” to an indictment must be in writing either under a statute so requiring or under the common law of a jurisdiction requiring written pleadings generally. Also, 41 Am. Jur.2d Indictments and Informations § 288 (1968) states that “written demurrers” are undoubtedly the general, if not universal, practice, independent of statute.

The reasons for requiring a writing are that a writing evidences notice to the opposing party and preserves the proceedings for the record. At least one jurisdiction with a statute specifically requiring a writing has, nevertheless, held that where the two reasons for the writing are satisfied anyway, a trial court’s ruling on an “oral demurrer” may be reviewed. State v. Tucker, 252 Or. 597, 451 P.2d 471 (1978). Likewise, a New York appellate court “overlooked” the fact that a “demurrer” to an indictment was “oral” but ruled that the indictment was, nevertheless, sufficient to withstand the “demurrer” challenge. People v. Morgan, 229 N.Y.S.2d 128, 34 Misc.2d 804 (1962).

It is our opinion that an “oral demurrer” is by nature a defective procedure that would not under usual circumstances preserve for our review the issue concerning the validity of the indictment.

However, under the peculiar facts of the case before us, where the oral demurrer and the trial court’s rulings thereon are recorded in the transcript and there is no claim of insufficient notice to the opposing party, we are persuaded by the rationale in State v. Tucker, supra, and People v. Morgan, supra, to “overlook” the imperfection in the “demurrer” and reach the indictment issue. This decision is in accordance with our increasing interest in substance over form in modern pleading.

B

As stated above, the specific defect in the indictment contested by the appellant is the insertion of the phrase “intent to promote or assist the commission of the Theft of Property First Degree” which is inconsistent with a charge of “robbery”.

We would agree that this could be somewhat ambiguous under usual circumstances, but having reviewed the indictment and the transcript we are impressed with the reasoning of the trial court which stated at R. 16 and 17 that:

“It is true that the indictment is not worded in the best manner possible, but under the new procedures now, both civil and criminal, it’s the opinion of the Court that the Court should look to the substance of the pleading and not to the mere technical aspects of it.... The docket sheet shows that she is charged with robbery; the back of the indictment shows the charge of robbery; there has never been any question in anybody’s mind what she is charged with and in reading the indictment as a whole, taking in all aspects of the indictment, there is no question in the Court’s mind that this defendant is charged with robbery and anyone reading the indictment as a whole could certainly tell that she is charged with robbery and this specific robbery.”

We would not encourage trial courts to take it upon themselves to resolve indictment defects in all situations, but where, as here, such a defect is merely surplusage and does not prejudice the defendant, the trial court is certainly justified in upholding the indictment thereby expediting the defendant’s trial.

We have often held that unnecessary averments in an indictment do not impair its validity, although they may hold the prosecution to the proof of them. McDaniel v. State, 20 Ala.App. 407, 410, 102 So. 788 (1924), cert. denied, 212 Ala. 415, 102 So. 791 (1925); Fitzgerald v. State, 53 Ala.App. 663, 303 So.2d 162 (1974).

As long as the remaining portions of the indictment validly charge a crime, the existence of surplusage in the indictment will not effect the validity of a conviction. United States v. Hyde, 448 F.2d 815, 839, (5th Cir. 1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972).

In the case before us the “intent to promote or assist the commission of” language was an apparent attempt by the drafter of the indictment to charge the defendant as an accomplice under § 13A-2-23, Code of Alabama 1975. This is no longer necessary because in Alabama the distinction between accomplices and principals has been abolished. Section 13-9-1, Code of Alabama 1975. Therefore, all persons concerned in the commission of the crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, must be indicted, tried and punished as principals. Watkins v. State, Ala.Cr.App., 357 So.2d 156 (1977), cert. denied, Ala., 357 So.2d 161 (1978); Williams v. State, Ala.Cr.App., 383 So.2d 547 (1979). United States v. Vines, 580 F.2d 850 (5th Cir. 1978), cert. denied, 439 U.S. 991, 99 S.Ct. 591, 58 L.Ed.2d 665 (1978).

We therefore hold that the indictment, as quoted above, when read as a whole, omitting the surplusage, fairly and adequately charges the appellant with the crime of “robbery”. We uphold the trial court’s ruling that the appellant was sufficiently informed by the indictment of the nature of the charge against her and that she was in no way prejudiced by the unnecessary phrase.

Of course, the trial court’s ruling that the indictment was sufficient did not relieve the burden on the prosecution of proving the elements of complicity, including “knowledge” on behalf of the appellant that the three men were going to commit the “robbery” and appellant’s “intent to promote or assist in” its commission. Whether or not this burden was satisfied was a question which was fairly put to and resolved by the jury.

II

Appellant also contends that her Miranda rights were not obeyed because the form read to her by Detective Sparks of the Auburn Police Department did not clearly state that she had a right to an attorney then and there but instead stated that “[t]he police cannot furnish me with a lawyer, but one will be appointed for me, if I wish, by the court.” (R. 240). Consequently, appellant insists that the statement elicited from her at the time should not have been admitted into evidence at trial.

Appellant cites several cases for the proposition that Miranda type warnings which convey the impression that appointed counsel is available only at some time in the future are insufficient. Lathers v. United States, 396 F.2d 524 (5th Cir. 1968); Wilson v. State, 44 Ala.App. 570, 216 So.2d 741 (1968); Square v. State, 283 Ala. 548, 219 So.2d 377 (1968).

We need not question this principle derived from the Miranda decision, because, having reviewed the warnings given in the instant case and the surrounding circumstances in totality, we find that there was no inference that an appointed attorney could only be provided in the future, and that appellant’s statement admitted into evidence as “Exhibit I” was understandingly, voluntarily, knowingly and intelligently made. Gibson v. State, Ala.Cr.App., 347 So.2d 576 (1977); Love v. State, Ala.Cr.App., 372 So.2d 414 (1979); Davis v. State, Ala.Cr.App., 401 So.2d 187 (1981).

In Lathers, supra, the 5th Circuit pointed out that an individual held for interrogation must be adequately informed that he is entitled to a “government-furnished counsel here and now”, and that such phrases as “in the event he was arrested” [see Windsor v. United States, 389 F.2d 530 (5th Cir. 1968)] and “when he went to court” [see Fendley v. United States, 384 F.2d 923 (5th Cir. 1967)] when given in conjunction with a statement of appellant’s “right to appointed counsel” render this Miranda warning insufficient.

We find no such destructive phrases in the warnings given to appellant in this case. The record reveals at (R. 132) that Detective Sparks read and the appellant read and signed a Miranda waiver form which included:

“I have the right to talk to a lawyer for advice before I answer any questions and to have him with me during questioning. I have this same right to the advice and presence of a lawyer even if I cannot afford one. The police cannot furnish me with a lawyer but one will be appointed for me if I wish by the Court.” Emphasis added.

This language is not inconsistent with the waiver form approved by the 5th Circuit in Hodge v. United States, 392 F.2d 552 (5th Cir. 1968). Furthermore, the appellant was read a waiver form identical to the Hodge form by Detective Moss of the Opelika Police Department prior to the questioning by Detective Sparks. Finally, appellant testified at (R. 175) of the record that she understood her right to have a lawyer present during questioning.

Ill

Appellant’s final argument on appeal is that the trial court erred by allowing into evidence those parts of appellant’s pre-trial statement which evidenced both her intention to shoplift in Auburn on the day of the robbery and her previous shoplifting activity in Auburn with the same partners using the same technique two weeks earlier.

The appellant’s “knowledge” of the activities she was involved in on the day of the robbery and her “intent” to participate were crucial issues in this case. During the trial appellant denied any “knowledge” of the unlawful purposes of the group she was with, and denied any “intent” to participate in shoplifting or the robbery in question. It was incumbent upon the prosecution to prove that she not only knew what was going on but also intended to “promote or assist” such activities. The evidence contested here went to the proof of this “guilty knowledge or scienter” and “intent” and was properly admitted under the exceptions to the general rule excluding evidence of prior criminal activity. Bobo v. State, 56 Ala.App. 622, 324 So.2d 336 (1975); McDonald v. State, 57 Ala.App. 529, 329 So.2d 583 (1975), cert. denied, 295 Ala. 410, 329 So.3d 596, cert. denied, 429 U.S. 834, 97 S.Ct. 99, 50 L.Ed.2d 99 (1976); Pope v. State, Ala.Cr.App., 365 So.2d 369 (1978).

For the reasons outlined above, this case is due to be and is affirmed.

AFFIRMED.

All the Judges concur.