author: ROY NOBLE LEE, Justice, WALKER, Justice,

text:
    ENTEX, INC. and City of McComb, Miss. v. Ray McGUIRE and Leah Elizabeth McGuire.
    No. 53067.
    Supreme Court of Mississippi.
    June 2, 1982.

      Gillis, Walman & Gillis, Robert W. Brum-field, McComb, Brunini, Grantham, Grower & Hewes, Jefferson D. Stewart, Newt P. Harrison, Jackson, for appellants.
    Mounger, Mounger & Mord, Tylertown, Keith Starrett, Magnolia, Mike Smith, McComb, for appellees.
    Before SUGG, P. J., and ROY NOBLE LEE and HAWKINS, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Three (3) suits were filed by Ray McGuire and Leah Elizabeth McGuire, his wife, in the Circuit Court of Pike County, Honorable Joe N. Pigott, presiding, for personal injuries and property damage, against En-tex, Inc. [Entex] and City of McComb [McComb]. The cases were consolidated for trial, verdicts were returned and judgments entered in behalf of Mrs. McGuire for eighty thousand dollars ($80,000), personal injuries; Mr. McGuire for thirty thousand dollars ($30,000), personal injuries; and the McGuires jointly for fifty-five thousand dollars ($55,000), property damage. Entex and McComb have appealed from those judgments.

On January 17, 1979, McComb sent a crew of men to repair a ruptured underground water line located on Locust Street in front of appellees’ home. Julius Conerly was in charge of the crew and arrived at the site with a backhoe shortly after 7:00 a.m. Conerly had begun to dig with the backhoe into the asphalt and soil underneath in an attempt to find the water leak, when he struck an object which “gave in" to the backhoe. Another workman jumped into the ditch and discovered that Conerly had hit a gas service line with the bucket of the backhoe. The service line, which led to the McGuire home, was bent in the shape of a downward “U”, but the pipe had not been ruptured at that point. Conerly then turned the backhoe around and proceeded to dig in the opposite direction.

Mr. McGuire saw the city crew when it arrived and began to work in the street. He went to his garden and worked for a time and then walked back inside his home for a cup of coffee. After drinking the coffee he went back to the garden. According to McGuire, he first smelled a strong odor of gas between 8:00 and 8:15 a.m. He thought the city crew had hit a pocket of trapped gas in the street, but was not alarmed. When the odor remained, he went back into his home and cut off the pilot on his heating unit. Later, he went outside and checked the gas meter, which was located approximately two and one-half (2Víj) feet from the front of the house near some bushes. The dials registering the inflow of gas did not move indicating no gas was flowing through the meter. He also saw the bushes moving near the ground and felt a strong rush of gas rising up from the surface.

McGuire went to the street where the city crew was digging and told Conerly that he had found a gas leak in front of his house. He told Conerly he thought the backhoe had struck a gas pipe. Conerly turned off the backhoe, examined the spot where the gas was rising up out of the ground, and asked McGuire to call the gas company and report the leak. McGuire went back into his house and told Mrs. McGuire to telephone the gas company and report that the city crew had struck a gas pipe while digging in front of their, home. Mrs. McGuire called the Entex office and reported the incident.

At this time the McGuires were not aware of the dangerous situation created by the escaping gas, thinking it was leaking outside their home. They went about their usual routines and Mr. McGuire began to walk back to his garden. Mrs. McGuire picked up a cigarette and, although she did not remember exactly what happened, apparently struck a match. Gas had become trapped in the house and the flame from the match ignited it causing an explosion. McGuire had walked fifteen (15) to twenty (20) feet from the house when it exploded. He turned and saw it engulfed in flames and heard his wife screaming for help. A huge gaping hole had been blown in the side of the house and Mr. McGuire helped his wife get outside before a second explosion occurred. A neighbor heard the explosion, saw the fire, and telephoned the fire department. At 9:06 a. m. a unit was dispatched to the scene, arriving at the McGuire property four (4) minutes later. When the fire truck arrived, the house had been totally destroyed by the fire.

The explosion occurred at approximately 9:05 a. m. Representatives of Entex arrived upon the scene at 9:26 a. m. and the service line was “squeezed off” approximately an hour after the explosion. Investigation by the City Fire Marshal indicated that the fire began in the rear bedroom, where the escaping natural gas had apparently collected, and quickly spread throughout the frame building.

The gas meter serving the McGuire residence was set at the front of the house. The vertical pipe to which the meter was attached, commonly known as a riser pipe, was connected to the service line with a six-inch dresser coupling. It consisted of a metal sleeve with a threaded nut and gasket on each end and was installed by loosening the nuts and gaskets, slipping in the two pieces of pipe to be joined and then tightening the nuts and gaskets around the pipe. The dresser coupling was manufactured by Dresser Industries, Inc., and had been installed and used at the McGuire residence for approximately twenty-three (23) years without incident.

I.

Did the lower court err in declining to grant the motions of Entex for a directed verdict and judgment notwithstanding the verdict?

The declarations charged that Entex was negligent in that (1) it used a dresser coupling in its service line at the McGuire residence, (2) the gas service line was at a negligently shallow depth, (3) the gas line was installed over and across the city’s watér main, (4) Entex failed to mark the service line, (5) Entex failed to provide a map indicating the location of its service lines to the City of McComb, and (6) Entex was not immediately prepared to cut off the gas from its service line. In overruling the motion for a directed verdict, the lower court stated the following reasons in support thereof: (a) The explosion and fire occurred within sixteen (16) minutes after Mrs. McGuire called Entex, and it could have responded in about five (5) minutes even though it did not do so until thirty-six (36) minutes'later; (b) Entex should have reasonably foreseen the accident might occur when it used the dresser coupling; (c) Entex failed to mark the gas distribution service lines; (d) Entex failed to furnish the city with copies of their map designating the locations of the distribution lines; and (e) Entex was negligent in laying the gas line over and across the water line.

At the request of the appellees, the lower court submitted issues of negligence to the jury in two instructions: (1) P-16, whether or not Entex failed to use due care to mark the existence of its lines when it should have reasonably foreseen that there would be digging or excavating in the street where the service line was located, and (2) P-31, whether or not Entex reasonably could have foreseen that there would be digging or excavation in the street and that, under those circumstances, the use of a dresser coupling was dangerous or hazardous.

Ap¡)ellees contend that Entex was negligent because it used the dresser coupling to connect the feeder pipe and service line at a point only 2V> feet from the McGuire house. Richard Sanders, Chief of Pipeline Safety for the Mississippi Public Service Commission; Clinton Moak, an Entex crew foreman with twenty-one (21) years’ experience; and Gerald Anderson, an engineer with fourteen (14) years’ experience in the use, design and manufacture of dresser couplings; all testified that the procedure En-tex followed in the installation and use of the dresser coupling is a normal and accepted practice in the natural gas industry. The uncontradicted testimony also established that dresser couplings are accepted and used extensively throughout the United States as permanent fittings and that the dresser coupling here was properly installed when it was originally put into service 23 years ago.

Mr. Pete Brogan, an expert witness called on behalf of appellants, testified he considered the couplings to be temporary fittings. However, he did not state the industry considered them to be temporary fittings and did not know whether or not other people used them as permanent fittings. Also, Brogan did not deny that they are manufactured and sold as permanent fittings. It was his opinion that the dresser coupling should not have been used to join the service line to the McGuire meter.

In Missisippi Power & Light Co. v. Thomas, 206 Miss. 201, 39 So.2d 759, on reh., 206 Miss. 229, 40 So.2d 597 (1949), Mississippi Power and Light Company had laid a pipeline using dresser couplings and a garage was constructed over the pipeline. Approximately one month later, Thomas was injured when gas escaped from the line and was ignited by a spark from her automobile, while being started in the garage. An investigation disclosed that the pipeline had separated at one of the dresser couplings beneath the garage. This Court held that the jury was justified in believing that the garage would not have caused the pipeline to separate, if the dresser coupling had been properly installed, but emphasized that the decision was not to be construed as a condemnation of the use of dresser couplings. The Court said:

Appellant’s concern rises above the usual interest in displacing an adverse verdict, and seems to involve an anxiety that an affirmance of the judgment would impliedly, if not directly, proscribe the use of the “Dresser Coupling,” which, he asserts, with testimonial support, has been widely used by this and other gas companies in uniting pipe sections. While we would not be privileged to share this concern as a troubling incident to a conclusion if compelled thereto by a legal necessity, we take occasion to state that neither the verdict nor our conclusions need carry such implication.
* * * * * *
To insure against a condemnation by the jury of the Dresser Coupling, per se, the defendant procured instructions that if such coupling was generally accepted and used (and there was ample testimony thereto) and was itself reasonably safe, there could be no recovery “even though you may believe that a welded joint or rigid screw joint would not have broken or would have broken at some other point, without injuring the plaintiff.”
It is evident, therefore, that the controlling issue was that of a proper installation in view of existing and reasonably foreseeable conditions.. .. [Emphasis added], [206 Miss, at 215, 219, 39 So. at 760, 762],

This Court affirmed the jury verdict which was adverse to the gas company. On suggestion of error, the Court again reiterated that its decision was not a condemnation of dresser couplings:

[T]he evidence in this case, and the reasonable inferences to be drawn therefrom, show that the Dresser coupling was not properly installed and connected.... The proof in this case justifies the conclusion that one of the service pipes was not so inserted into' the coupling. The “Dresser Coupling” in itself is recognized as a standard appliance which, when properly used, is perhaps as effective and safe as any other type of coupling, and its use by appellant is not prohibited or proscribed by our decision. [206 Miss, at 230-31, 40 So.2d at 597].

The expert witnesses in the case subjudi-ce all testified that the pressure exerted by the backhoe would have broken the line somewhere. Mr. Brogan testified that, if the service line had been welded solid he was sure the pressure from the backhoe would have pulled the meter down.

According to the evidence, McComb knew gas lines were buried beneath the streets, and, when it had done repair work in the past, at its request, Entex had marked its gas lines for the city. McComb knew that maps of the gas distribution system were maintained by Entex in the McComb office. The McGuire gas meter was situated at the front of the house and was visible to the crew working in the street.

The facts of Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex.1963) are similar to the case sub judice. While doing construction work along a highway for the Texas Highway Department, K & M Paving Co. struck Pioneer’s natural gas pipeline with a piece of earth-moving equipment. There was an explosion and fire which destroyed the equipment. In holding that the gas company was not responsible for the loss, the Court said:

As stated, there were along the pipeline right-of-way no signs stating a pipeline was there, but there were adjacent to the right-of-way many gas meters, gauges and regulators. These various pipeline apparatus were clearly visible to the men working on the road. Immediately across the intersection from the accident was a large regulator or Christmas tree, plainly visible, which Kerr’s men had inspected in an attempt to estimate the path and depth of the pipeline.
Kerr had not requested plats from either the Highway Department or from Pioneer showing the location of the pipeline. Neither the Highway Department nor Pioneer volunteered information or warning to Mr. Kerr of the path of the pipeline.
* * * * * *
... [T]he undisputed evidence is that the line was buried to such an extent that it took three or four passes of powerful digging or scraping machines to unearth the pipe.
Under these circumstances, the question is whether it is the duty of the pipeline company to continuously police its lines to keep others from interfering with them or being injured by them; or whether it is the duty of persons who do make an unusual or extraordinary use of the surface to find out where the lines are, and then either (1) avoid them or (2) request their relocation or that they be deactivated during operations, or to make reasonable inquiry so that it then becomes the duty of the pipeline company to make a disclosure of the location of its lines so that the other party may avoid striking the line.
* * * * * *
We think it sound, in the light of the cases hereinafter discussed, to hold that at least where the activity is in an urban street or road, and where an unusual or extraordinary use of the surface is necessary to unearth the pipeline, and where there is no contract, statute, ordinance or regulation governing the matter, the initial burden is upon the one who excavates or digs up the surface to avoid striking the line or to make reasonable inquiry as to the location of any line which might be encountered. The duty of the pipeline operator under these circumstances arises then, when it is requested to alter its lines or their use, when it is asked for information, or when it is otherwise put on such notice that it is required to take particular action to protect the line and projjerty of others. [Emphasis added]. 374 S.W.2d at 217, 218-219.

In Wideman v. Mississippi Valley Gas Co., 507 F.2d 658 (5th Cir. 1975), suit was brought against Mississippi Valley Gas to recover damages caused by an explosion and fire resulting when decedent hit an underground gas line while he was operating a small road grader. The Fifth Circuit Court of Appeals affirmed the district court’s judgment for the gas company stating:

There can be little doubt that had Beasley or decedent inquired about the location of the gas line or in any other way conveyed to Mississippi Valley any information from which it could have concluded that the easement was to be graded, Mississippi Valley would have been under a duty to take some action.... But the record is clear that no one did anything to place Mississippi Valley on actual or constructive notice of the possibility of this particular road grader activity. Without such notice, a duty for defendant to take action could arise only if this type of accident and injury could have been reasonably anticipated. No duty would arise as to any “unusual, improbable, extraordinary and freakish accident” that, even though possible, a reasonable man would not have considered probable. Larco Drilling, supra, 267 So.2d at 310. [507 F.2d at 661],

See also Larco Drilling & Exploration Corp. v. Brown, 267 So.2d 308 (Miss.1972); Mississippi Public Service Co. v. Cunningham, 189 Miss. 179, 195 So. 472 (1940).

In Hersum v. Kennebec Water District, 151 Me. 256, 117 A.2d 334, 53 A.L.R.2d 1072 (1955), the Court said:

The defendant then had a plain duty to notify the gas company so that further examination might be made to ascertain whether other serious and concealed damage had been caused. The defendant elected to rely wholly upon its own cursory examination of the bent pipe and proceeded to act upon the erroneous assumption that this was an abandoned pipe.... Under somewhat similar circumstances the California court recognized that it is the duty of one who, while excavating in a street, strikes and bends a gas service pipe, to notify the gas company of the accident. Failure to give such notification is negligence. Rauch v. Southern California Gas Co., 96 Cal.App. 250, 273 P. 1111. [117 A.2d at 340],

The record does not reflect that En-tex violated any statute, ordinance or regulation at the time of the McGuire explosion. We are of the opinion that Entex was under no duty to mark the natural gas lines in the urban area on Locust Street until notified of the excavation work; that there was no duty on Entex to follow McComb repair crews around the city to determine whether the gas lines would be damaged by them; and that Entex was under no duty to furnish maps or charts of the gas lines to McComb, unless requested by McComb. On the other hand, we think that it was the duty of McComb to notify Entex to mark its lines in the area of the repair work. De Vries v. City of Austin, 261 Minn. 52, 110 N.W.2d 529, 538 (1961); Willmar Gas Co., Inc. v. Duininck, 236 Minn. 499, 53 N.W.2d 225 (1953).

As stated before, the only issues of negligence submitted to the jury at the request of appellees were (1) the failure of Entex to mark the existence of its lines, and (2) Entex reasonably could have foreseen that there would be excavation in the street and the use of the dresser coupling at the meter was negligence under the circumstances.

We are of the opinion the evidence does not show that Entex was guilty of negligence which contributed to the explosion and fire and the lower court should have sustained the motion of Entex for a directed verdict.

II.

Were the verdicts of the jury excessive and should they be set aside?

To its credit, under the facts and circumstances of these cases, McComb concedes liability. However, it contends that the verdicts were contrary to the overwhelming weight of the evidence, were excessive, and show bias and prejudice on the part of the jury. At the outset, we note that the issue of whether or not the McGuires were guilty of contributory negligence was submitted to the jury.

(A) The $80,000 Award for Mrs. Leah McGuire.

Mrs. McGuire incurred medical expenses of twenty-six hundred dollars seventy-four cents ($2,600.74) and lost earnings of twelve thousand one hundred forty-four dollars sixty-four cents ($12,144.64). She is a registered nurse, sixty-five (65) years of age, and earned fourteen hundred dollars ($1,400) per month as Supervisor of Nursing Services at a McComb nursing home. She sustained fractures to three vertebra—C-12, L-l and L-2; burns on her neck, arms, ears and scalp; permanent scarring on her legs and back; and permanent injury to the sciatic nerve. She also suffered.excruciating pain at the time of the accident and following the accident and, according to Dr. Julian Janes, would continue to experience multiple back pains in the future.

This Court in Kinnard v. Martin, 223 So.2d 300 (Miss.1969) affirmed a one hundred thousand dollar ($100,000) verdict for personal injuries, and the Court said:

Each suit for personal injury must be decided on the facts shown in that particular case. The amount of physical injury, mental and physical pain, present and future, temporary and permanent disability, medical expenses, loss of wages and wage-earning capacity, sex, age and health of the injured plaintiff, are all variables to be considered by the jury in determining the amount of damages to be awarded. [Citations omitted]. [223 So.2d at 303].

On this evidence, we cannot say that the verdict of the jury was so excessive as to evince bias, passion and prejudice on the part of the jury, and we affirm the judgment for Mrs. McGuire.

(B) The $30,000 Award for Ray McGuire.

The record, which includes medical evidence, reflects that the explosions, fire and near loss of his wife was a traumatic experience for Mr. McGuire. Dr. John Perry, a clinical psychologist, diagnosed Mr. McGuire as having anxiety neurosis and depressive neurosis. The condition extended for weeks and months after the accident. Mr. McGuire suffers from Parkinson’s Disease and, according to Dr. Perry, his condition was aggravated by the anxiety neurosis and depressive neurosis. Dr. Julian Janes, Mr. McGuire’s family physician, also testified that his Parkinson’s Disease was aggravated due to the anxiety and resulting neurotic condition caused by the incident. He was unable to sleep at night and frequently had nightmares. He lost interest in doing things that he formerly enjoyed and he was seriously affected by the nervous condition. Mr. McGuire estimated his medical expenses, past and future, at approximately eleven hundred dollars ($1,100) and he had some loss of income.

In First National Bank v. Langley, 314 So.2d 324 (Miss.1975), the Court cited Robb v. Pennsylvania R.R., 58 Del. 454, 210 A.2d 709 (1965), where it was held:

“When negligence proximately caused fright, in one within the immediate area of physical damage from that negligence, which in turn produced consequences such as would the elements of damage if a bodily injury had been suffered, the injured party is entitled to recover under, an application of the prevailing principles of law as negligence and proximate causation.” 58 Del. at 464, 210 A.2d at 714-15. [314 So.2d at 333].

The Court further said:

We, therefore, abandon the “impact doctrine” heretofore followed by this Court, so that hereafter genuine cases of injury growing out of the negligent acts of another — which are reasonably foreseeable as in other negligent cases — will not be dismissed simply because there was no trauma nor impact on the body of the injured claimant.
We are of the opinion that the facts in the instant case established a genuine claim which was subject to the determination of the jury and that the judgment of the trial court based on the verdict of the jury should be affirmed. [314 So.2d at 339],

The reasoning of the California Court in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968) in setting out the following factors in this type of claim is persuasive:

In determining, . . . whether defendant should reasonably foresee the injury to plaintiff, or, . . . whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. [68 Cal.2d at 740-41, 69 Cal.Rptr. at 80, 441 P.2d at 920],

We are of the opinion that, under the facts of this case, the issue of damages sustained by Mr. McGuire was properly submitted to the jury and that the award was not so large or excessive as to evince bias, passion and prejudice on the part of the jury, and we affirm the verdict for him.

(C) The $55,000 Property Damage Award.

The only testimony as to value of the house and personal property was that of the appellees. Although extensive interrogatories were propounded to, and answered by, the appellees on the house and its contents, those interrogatories and answers were not introduced in evidence and the jury did not have the benefit of the damages itemized therein. Mrs. McGuire simply testified that the value of the house was thirty thousand dollars ($30,000) and the value of the contents was eighteen thousand dollars ($18,000). Property expert, Flynt Wilson, testified that the damage (value) to appellees’ home was nine thousand one hundred forty-two dollars ($9,142.00). Mr. McGuire testified that damage to a small trailer parked near the home at the time of the fire was two thousand dollars ($2,000), yet he stated that it was repaired for fifty dollars ($50.00).

We are of the opinion that the evidence does not support a verdict of fifty-five thousand dollars ($55,000), property damage, that the verdict is excessive under the proof, and that the judgment should be reversed and remanded for a new trial on damages alone.

Accordingly, judgments against McComb in the amount of $80,000 for Mrs. McGuire and $30,000 for Mr. McGuire are affirmed; judgment for property damages in the amount of $55,000 is reversed and the case is remanded for a new trial on the issue of those damages alone; and all the judgments for appellees against Entex are reversed and judgment is rendered here for Entex.

AFFIRMED IN PART AND REMANDED ON THE ISSUE OF PROPERTY DAMAGES AS TO McCOMB; REVERSED AND RENDERED AS TO ENTEX.

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

WALKER and BROOM, JJ., dissent.

WALKER, Justice,

dissenting:

I respectfully dissent from the majority upholding a $30,000.00 award in favor of Ray McGuire against the City of McComb.

In my opinion, this Court committed grievous error in adopting the rule announced in First National Bank v. Langley, 314 So.2d 324 (Miss.1975) and doing away with the physical impact requirement as a prerequisite to recovery in personal injury cases.

The stage is now set for multiple person recovery in virtually every situation where one person is seriously injured and the tragedy is witnessed by the children or spouse of the injured party. In such a case, if the children and/or spouse are emotionally upset for a substantial period of time, have nightmares, become nervous or overly sensitive, experience productivity loss at work or school in the case of children, and seek medical attention to correct these conditions, then recovery may be had by each of these persons for damages suffered themselves from witnessing the original accident involving the close relative. Recovery by several children and the spouse of a victim will not be uncommon under the holding in this case and Langley, supra.

In my opinion, far greater harm will befall the citizens, farmers and businessmen of this State by continuing on the course charted by Langley, than would result from overruling Langley altogether or severely restricting its application.

The cost of protecting a person’s home, farm or business from this liberal extension of liability arising out of simple negligence cases and resulting damage awards will rise sharply, and steadily increase to the point of being unaffordable by the masses whose livelihood depends on their automobile as a means of transportation. In short, a substantial portion of the average family’s income will necessarily be spent on liability insurance coverage — money that could better be spent on homes, education of children, food and clothing.

I would reverse the award to Mr. McGuire and overrule or restrict the application of Langley, supra.

We endured without the rule for over 150 years and would be better off without it now.

BROOM, J., joins this dissent.

      . A segment of the pipeline over thirty-three (33) feet in length had been bent and pulled by the backhoe eleven and one-half (IIV2) inches toward the street, thus causing a rupture at the point of a dresser coupling.

      . This probably would have resulted in gas escaping at the house.

      . Mr. McGuire literally pulled his wife from the burning home after the first explosion when practically one side of the house had been blown away.


source: Caselaw Access Project

author: ROY NOBLE LEE, Justice,

license: Public Domain

text:
    William Truly KELLY v. STATE of Mississippi.
    No. 53486.
    Supreme Court of Mississippi.
    June 2, 1982.
    Herbert W. Wilson, Robert Harry Walker, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   ROY NOBLE LEE, Justice,

for the Court:

William Truly Kelly was indicted, tried and convicted in the Circuit Court of the First Judicial District, Harrison County, Honorable J. Ruble Griffin, presiding, for kidnapping, and was sentenced to serve a term of twenty-five (25) years in the custody of the Mississippi Department of Corrections. Kelly has appealed here and assigns four (4) errors in the trial below. We address only one assignment of error and reverse.

The evidence reflects that on July 27, 1979, Ms. Rhonda Ann Smith was abducted by the appellant from the Hardy Court Shopping Center in Gulfport, Mississippi, during her lunch break. Through force and threats, the appellant took Ms. Smith on a hectic ride from Harrison County into the State of Louisiana. Near New Orleans, she attempted to jump out of the automobile, appellant grabbed her by the leg and they began to struggle. The car ran into a van vehicle and Ms. Smith was able to escape. The police were notified and approximately two (2) weeks later, appellant was apprehended in Baytown, Texas.

On August 10, 1979, appellant gave a statement to officers of the Baytown Police Department implicating himself in the kidnapping. The statement was taken by Detective James Glenn and appellant’s signature was witnessed by Officers Jimmie C. Cook and J. H. Gore.

Did the lower court err in refusing to sustain appellant’s motion to suppress the statement made to the Baytown police officers?

The motion to suppress was heard during the trial on the merits in the absence of the jury. Officer James Glenn testified on the hearing that the statement was made to him and that Officers Jimmie C. Cook and J. H. Gore of the Baytown Police Department signed the statement as witnesses to the signature of appellant. After the State rested on the motion, appellant testified that officers struck him with a machine gun, that they threatened him, and promised they would not pursue certain criminal charges against him, if he would sign a statement. He also testified that the signature on the statement was not his and that the instrument he signed was not the one proposed to be introduced in evidence.

After the appellant testified that the statement was not free and voluntary and that it was not the statement signed by him, Officers James Glenn and J. H. Gore testified that the instrument was free and voluntary and that appellant signed it in the presence of Officers James Glenn, J. H. Gore and Jimmie C. Cook. Officer Cook was not present at the hearing, and Detective Glenn gave the following explanation of his absence:

BY MR. NECAISE:

Q. I notice we have a Jimmie C. Cook, who witnessed this signature here. Did he witness the statement or just the signature?
A. He witnessed both of them, sir. The whole, in other words, he witnessed the statement as well as the signature.
Q. Okay. Where is Jimmie C. Cook now?
A. He’s on vacation. The last I heard he was on the river in, uh, in Texas with his four children.
Q. All right, sir. Did you try to make an effort, of course, you all was just contacted, I think, Thursday of last week to see if you could be here today, to come from Baytown to testify in this case?
A. I didn’t make a sincere effort because I knew he was gone at that time.
Q. All right, sir.
A. I didn’t know where to get in touch with him.
Q. You didn’t know how to get in touch with him?
A. That’s right, where he was at. I’ve been there and there’s not any phone system.
BY THE COURT:
Where is he, Mr. Glenn?
A. New., I heard he was supposed to go up there with his four children.
BY THE COURT:
All right.
Q. So, there wasn’t any way you could get in touch with him?
A. No, sir.

At the conclusion of the hearing on the motion to suppress, the court made the following finding:

I find and determine beyond a reasonable doubt that the Defendant’s statement was freely, voluntarily and intelligently made, uh, after he had been properly advised of his rights under the Miranda Warnings. Now, that’s a finding by the Court.
However, I don’t think the finding is necessary inasmuch as the statement has been denied and so the question now before the Jury would not be whether it was, uh, freely and voluntarily made, but whether it was, in fact, true. That would be the issue.

So, I will hold that it is admissible.

The procedure required to prove the voluntary character of an inculpatory statement has been clearly enunciated since 1966 in Agee v. State, 185 So.2d 671 (Miss.1966). In Miles v. State, 360 So.2d 1244 (Miss.1978), Sheriff Paul Barrett interviewed Miles in Tallulah, Louisiana, in the presence of Louisiana Officer Jackie Lott, and Miles admitted his participation in the crime charged and gave a detailed statement about it. Officer Jackie Lott did not testify at the trial. The sheriff stated that Lott was in the State of Arkansas and the district attorney explained to the court that Lott was on vacation in the State of Arkansas and that he would not be available for another ten (10) days or two (2) weeks. Miles’ motion to exclude the confessions given by him was overruled. Commenting upon two previous cases on the question, we said:

In Agee v. State, 185 So.2d 671 (Miss.1966), the Court stated the rule that when a defendant rebuts the presumption of voluntariness of a confession after a witness for the State has testified thereto, all officers present when the confession was made must be introduced, or an adequate reason for their absence must be given.
In Hicks v. State, 355 So.2d 679 (Miss.1978), one witness to part of the interrogation of the defendant was not present at the trial, and this Court said: “The mere statement by Payne that Hargrove was at the FBI Academy in Washington receiving some training, without more, does not negate his availability as a witness.” 355 So.2d at 680.
We are of the opinion that under the facts of this case, the explanation that Officer Lott was on vacation in the State of Arkansas was not a sufficient explanation of his absence, and that the State should not have announced ready for trial until the witness was present. [360 So.2d at 1245-46],

In Scott v. State, 382 So.2d 1091 (Miss.1980), Deputy Cooley and Deputy Whatley were present when Scott gave an incriminating statement. Scott contended that the statement was not voluntary. Deputy Cooley was one of the two deputies who testified that the statement was free and voluntary and no explanation was given as to why Deputy Whatley did not testify at the suppression hearing. The motion to suppress the statement was overruled and, in reversing and remanding the case for a new trial, we said:

It is clear from the above cited cases and others that the trial judge erroneously overruled appellant’s motion to suppress. We would hope that all trial judges and all prosecuting attorneys will soon become acquainted with this principle of law that has existed for a number of years and govern themselves accordingly. [382 So.2d at 1093].

The excuse and explanation that a vital witness on the voluntariness of the statement is on vacation do not constitute an adequate or sufficient reason for his absence. The principle requiring that all persons present at the taking of a confession must testify, when its free and voluntary character is in question, is basic and vital to Mississippi law and procedure. We again emphasize to prosecuting attorneys that they must have such witnesses present when motions to suppress confessions are made and that trial judges must not proceed with hearing such motions until all those witnesses are available. Otherwise, proceeding to trial when the voluntary character of the confession is questioned, is a waste of time, fruitless, in vain, and an expense to the county and state.

The State contends that the violation of Agee, supra, is a technical one, and, while recognizing the principle stated in Lee v. State, infra, cites Watson v. State, 267 So.2d 904 (Miss.1972), wherein Watson claimed the statement made by him was involuntary and then denied making the statement. In Watson, the Court said:

While it is true that the appellant strongly intimates that he was coerced by the presence of this policeman on the day of the alleged oral confession, the fact nevertheless remains that the appellant categorically denied making any confession whatsoever. This can be found on pages 230 and 333 of the record. This, of course, resolves the issue of whether or not the appellant freely and voluntarily confessed his participation in the robbery of the bank of Beaumont. [267 So.2d at 905].

This Court erred in the above statement and decision. The United States Supreme Court previously answered this question in Lee v. Mississippi, 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330 (1947). There, the Mississippi Supreme Court said a defendant could not rely upon the defense that a statement resulted from duress, coercion, and hope or promise of reward, and then deny having made such statement. The United States Supreme Court said: “Inconsistent testimony as to the confession should not and cannot preclude the accused from raising the due process issue in an appropriate manner. ... ” [332 U.S. at 745, 68 S.Ct. at 301],

On remand, the Mississippi Supreme Court conformed its opinion in Lee with that decision in the following words:

As will appear from our opinion rendered on the suggestion of error herein ([Lee v. State ] 201 Miss. 423, 30 So.(2d) 74, 75) “if the accused had not denied having made any confession at all, we would feel constrained to reverse the conviction herein because of the fact that” his confession was not freely and voluntarily made. But we were of the opinion that having denied making the confession he could not at the same time contend that it was made under the inducement of fear. The Supreme Court of the United States in reversing our judgment affirming this case, held that we were wrong in this and that the appellant’s denial of having made the confession does not bar him from objecting to its introduction in evidence on the ground that it was not free and voluntary. Therefore, in obedience to the judgment of that Court rendered herein and its mandate thereon the judgment of the court below will be reversed and the cause remanded to it for further proceedings not inconsistent with this opinion.

So ordered. [Lee v. State, 203 Miss. 264 at 264-265, 34 So.2d 736 at 736].

The question was presented to this Court again in Murphy v. State, 336 So.2d 213 (Miss.1976), and we said:

Defendant denied that she made an oral statement but this did not preclude her from maintaining that the statement was not made voluntarily. Lee v. State, 201 Miss. 423, 29 So.2d 211 (1947) cert. granted and case reversed, 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330 (1947), conformed 203 Miss. 264, 34 So.2d 736 (1948). [336 So.2d at 214].

No authority was cited for the ruling in Watson v. State, supra, and no reference was made to the Watson case in Murphy v. State, supra. We now hold that Watson was erroneously decided, and that case is now overruled insofar as it conflicts with Lee v. State and Murphy v. State, supra.

REVERSED AND REMANDED.

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

      . Unless a reasonable and adequate explanation is made.


text:
    John SMART v. STATE of Mississippi.
    No. 53553.
    Supreme Court of Mississippi.
    June 2, 1982.
    Colom, Mitchell & Colom, Wilbur O. Co-lom, Columbus, Gary Street Goodwin, Starkville, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., SMITH, P. J., and BROOM, J.
   Appeal from Circuit Court, Lowndes County; Joe O. Sams, Sr., Judge.

AFFIRMED.


text:
    Vera Hale Gibbons MATTHEWS v. Levi Patrick MATTHEWS.
    No. 53554.
    Supreme Court of Mississippi.
    June 2, 1982.
   Ap[>eal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

George Thomas Sullivan, Collins, for appellant.

Barnett, Montgomery, McClintock & Cunningham, Ross Barnett, Jr., Jackson, for appellee.

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

REMANDED.

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


text:
    Mark Eugene TARVER v. STATE of Mississippi.
    No. 53231.
    Supreme Court of Mississippi.
    June 2, 1982.
    James D. Shannon, Hazlehurst, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., and BOWLING and HAWKINS, JJ.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

Affirmed and remanded for a sentencing hearing and sentence therewith.

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


text:
    Earnest SMITH, Jr. v. STATE of Mississippi.
    No. 53477.
    Supreme Court of Mississippi.
    June 2, 1982.
    Dyer, Dyer & Dyer, Gaines S. Dyer, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., SMITH, P. J., and BROOM, J.
   Appeal from Circuit Court, Tunica County; Elzy J. Smith, Judge.

AFFIRMED ON THE MERITS: SENTENCE MODIFIED IN ACCORDANCE WITH THIS OPINION.

SUGG, P. J., and WALKER, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Betty CLEVELAND v. STATE of Mississippi.
    No. 53495.
    Supreme Court of Mississippi.
    June 2, 1982.
    P. Kent Stribling, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, C. J., and BROOM and DARDEN, JJ.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

AFFIRMED.

SUGG and WALKER, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


author:
PER CURIAM.
      MADDOX, JONES and ADAMS, Justices

text:
    Wayne Eugene RITTER v. STATE of Alabama.
    77-798.
    Supreme Court of Alabama.
    Dec. 11, 1981.
    Rehearing Denied Jan. 8, 1982.
    John L. Carroll, Montgomery and Joe McLean, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ed Carnes and Jack M. Curtis, Asst. Attys. Gen., for respondents.
   PER CURIAM.

The United States Supreme Court - U.S.-, 102 S.Ct. 376, 70 L.Ed.2d 200 has remanded this case to this Court for further consideration in light of Reed v. State, Ala., 403 So.2d 154 (1981), extended on rehearing (August 28, 1981), motion for clarification denied (October 7, 1981).

On June 12, 1981, this Court, 403 So.2d 154, extended its initial opinion in the present case to explain that our reversal and remand was compelled by the decision of the United States Supreme Court in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, Ala., 396 So.2d 645 (1980), and was “consistent with the interpretation of that decision” reached by the Fifth Circuit in Evans v. Britton, 639 F.2d 221 (1981). We adopt our previous opinion and now unequivocally hold that our previous opinion in this case was based upon federal constitutional grounds, not state law grounds. Moreover, our opinion in Reed v. State, supra, rather than altering our previous decision in this ease explained further why we felt compelled by federal constitutional considerations to reverse the conviction in this case.

ORIGINAL OPINION EXTENDED.

REVERSED AND REMANDED.

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

ALMON, J., concurs in the result.

MADDOX, JONES and ADAMS, JJ., concur in part and dissent in part.

MADDOX, JONES and ADAMS, Justices

(concurring in part and dissenting in part).

We agree that, on original deliverance, when the Justices ordered a new trial in this cause, they were of the opinion that the federal constitution, as interpreted by the Supreme Court of the United States in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), mandated a new trial as to both the issue of guilt and the issue of sentencing.

We still hold the view which we expressed in the original deliverance of the opinion in this cause, filed on May 8, 1981, and published under the rehearing date of June 12,1981, that Beck v. Alabama, supra, did not mandate a new trial as to the issue of guilt, only as to the issue of sentencing. See our special opinion, concurring in part and dissenting in part, in Ritter v. State, 403 So.2d 154 (Ala.1981).


author: MADDOX, Justice.

text:
    Delores TAYLOR and Hubert E. Taylor v. Clayton E. AUSTIN.
    80-891.
    Supreme Court of Alabama.
    May 21, 1982.
    Thomas A. Deas of McDermott, Deas & Boone, Mobile, for appellants.
    Fred W. Killion, Jr. and Patricia K. Olney of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellee.
   MADDOX, Justice.

This is an appeal from a denial of plaintiffs’ motion for a new trial following a jury verdict and judgment for the defendant in an action for personal injury, loss of income, loss of consortium and medical expenses allegedly sustained in an automobile accident in Mobile. We affirm.

Plaintiffs, Delores Taylor and her husband, Hubert Taylor, filed suit against defendant Clayton E. Austin, claiming they suffered damages as a proximate result of defendant’s negligence or wanton conduct in the operation of his motor vehicle. Plaintiffs made no claim for damage to the vehicle which Mrs. Taylor was driving at the time of the accident. Defendant claimed that plaintiff Delores Taylor was guilty of contributory negligence in that she slowed down too quickly and had no taillights or brake lights.

The testimony presented at the trial would have permitted the jury to find that the accident occurred when Mrs. Taylor entered Duval Street in Mobile from a parking lot around 11:00 p. m. and was proceeding in the right lane, when defendant Austin, who was driving in the right lane also on Duval Street behind Mrs. Taylor, ran into her car, causing her to hit a telephone pole. Defendant Austin testified that Mrs. Taylor did not have any taillights or brake lights on her car and that she had slowed down so quickly that there was no time for him to avoid hitting her.

A police officer who investigated the accident testified at trial that he administered a test to Austin which indicated that Austin had alcohol on his breath, but that the test in no way was determinative of Austin’s sobriety or his blood alcohol level. The officer testified as follows:

“Q Now, you gave him a — you gave him some kind of test, whatever it is. I know you said, but I don’t know what you said it is.
“A It’s hard for me to remember but it seems like that night I got Mr. Austin to blow through what we used to carry. It’s a little alka censor [sic]. It’s not worth anything, and it’s not a test. It just — it lets me know that he’d had some alcohol, be it one beer, or be it a swallow, it’ll tell you. And that’s all we know, that he had alcohol on his breath. And in a case like that we take ’em downtown.”

Austin pleaded guilty to a charge of DWI and paid the fine of $500. He testified at trial, however, that he was not intoxicated at the time of the wreck.

Plaintiffs’ claim that under the facts of this case there was a clear showing of liability, and that this Court should grant them a new trial under the rule of law announced in Gribble v. Cox, 349 So.2d 1141 (Ala.1977), which involved a rear end collision. In Gribble, this Court did hold that the defendant was liable, as a matter of law, for the “undisputed amount of damage to [plaintiff’s] auto.” Here, there was no claim made for property damage, and even assuming that we should find that there was negligence on the part of defendant as a matter of law, nevertheless, the jury could have found, under the evidence, that plaintiff was guilty of contributory negligence.

The defendant also claims that Mrs. Taylor failed to prove that she had suffered personal injury as a result of the automobile accident. The defendant points out that there was testimony by the investigating officer that he did not notice any injury to Mrs. Taylor, but defendant’s major claim is that the jury had a right to disregard all of Mrs. Taylor’s testimony concerning her injury, because she “lied under oath about her claimed injuries.” In brief, defendant states:

“On cross examination Mrs. Taylor was questioned extensively about testimony she had given under oath in a deposition for a personal injury case pending in New Orleans against a cab company. Time and again Mrs. Taylor denied her deposition answers, which minimized her alleged problems attributable to the Mobile accident in favor of the New Orleans accident, while her testimony at trial in Mobile minimized the problems from the New Orleans accident, placing the blame for her claimed continuing difficulties instead on the Mobile accident. Additionally, specific problems Mrs. Taylor claimed at trial on direct examination to have suffered from the Mobile accident were attributed in the New Orleans deposition to the New Orleans cab accident and not the Mobile accident. Cf. Mrs. Taylor’s description on direct examination of the pain and symptoms she allegedly suffered in May, 1979, which made her think she was having a stroke (TR 86, 87-8) with those which she testified in New Orleans she suffered after the August, 1979, accident and which also made her think she was having a stroke. TR 116. In the New Orleans deposition, on the other hand, she testified she had never had any problems like this after the Mobile accident. TR 116. Similarly, on direct examination in this trial Mrs. Taylor claimed substantial loss of income from the Mobile accident (TR 91-4), but in her New Orleans deposition she denied having lost any income from the Mobile accident. (TR 119). Mrs. Taylor was also impeached through a deposition given in the Mobile case in which she claimed she recovered from the New Orleans accident after eight to ten days (TR 121), while in the New Orleans deposition given in December, 1980, (16 months after the cab accident) she claimed to be suffering still from the New Orleans cab injuries as recently as five days before. TR 116.”

Under the facts of this case, we believe the oft-stated rule of review is due to be applied. That rule was set out in Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972), as follows:

“The appellants urge in their motion for a new trial, and also here, that the jury’s verdict is against the great preponderance of the evidence. A jury’s verdict, which is presumed to be correct, will not be set aside unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence is against the verdict, and is so decidedly so as to clearly convince the court that it is wrong and unjust. Tallapoosa River Elec. Co-op, Inc. v. Burns, 271 Ala. 435, 124 So.2d 672. The lower court’s refusal to grant a new trial strengthens the presumption in favor of the verdict’s correctness. Fairview Villa, Inc. v. City of Montgomery, 271 Ala. 360, 124 So.2d 67; Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441. No ground is more carefully scrutinized or rigidly limited than one charging that the verdict is against the weight of the evidence. Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785; Cobb v. Malone, 92 Ala. 630, 9 So. 738. We are unwilling to say that the preponderance of the evidence against the verdict’s correctness is so decided as to clearly convince us that it is wrong and unjust.”

288 Ala. at 252, 259 So.2d at 802.

The preponderance of the evidence in this case is not so decidedly against the verdict that it clearly convinces this Court that the verdict was wrong and unjust. In this case, there was ample evidence presented that supports the jury’s verdict and the verdict was strengthened when the trial judge refused to grant a new trial. After reviewing the pertinent facts and testimony in the record, we find no reversible error. The judgment of the trial court is due to be affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    AETNA CASUALTY & SURETY INSURANCE COMPANY v. STATE of Alabama, Ex rel. Ralph P. EAGERTON, Jr., as Commissioner of Revenue of the State of Alabama.
    81-100.
    Supreme Court of Alabama.
    May 21, 1982.

      John M. Milling, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and Thomas J. Groark, Jr. and Allan B. Taylor of Day, Berry & Howard and Peter Mear, Hartford, Conn., for appellant.
    Charles M. Crook of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellee.
   BEATTY, Justice.

This is an appeal by the defendant Aetna Casualty & Surety Insurance Company (Aetna) from an adverse judgment rendered against it in an action brought by the State of Alabama to recover funds under the Uniform Disposition of Unclaimed Property Act, Code of 1975, § 35-12-20 et seq. We reverse and remand.

In its original complaint the State sought judgment for the sum of $42,023.00 under §§ 35-12-23 and 35-12-29 of the Act; the State later amended its complaint by adding the allegation that defendant held property pursuant to § 35-12-22.

Section 35-12-22 refers to property “held or owing by a banking or financial organization or by a business association,” and specifically to:

“(3) Any sum payable on checks certified in this state or on written instruments issued in this state on which a banking or financial organization or business association is directly liable, including, by way of illustration but not of limitation, certificates of deposit, drafts, money orders and traveler’s checks, that, with the exception of traveler’s checks, has been outstanding for more than seven years from the date it was payable, or from the date of its issuance if payable on demand, or in the case of traveler’s checks, that has been outstanding for more than 15 years from the date of its issuance, unless the owner has within seven years, or within 15 years in the case of traveler’s checks, corresponded in writing with the banking or financial organization or business association concerning it, or otherwise indicated an interest as evidenced by a memorandum on file with the banking or financial organization or business association.”

Section 35-12-23 refers to unclaimed funds “held and owing ... unclaimed and unpaid for more than seven years after the moneys became due and payable.”

Section 35-12-29 is a catch-all section referring to “[a]ll tangible and intangible personal property, not otherwise covered . .. including ... amounts due and payable under the terms of insurance policies not covered by section 35-12-23.”

Aetna’s answer denied holding any property presumed abandoned under the Act’s provisions. Other defenses were also asserted. An ore tenus trial ensued following which the trial court, after making certain findings of fact, entered judgment in the amount of $28,217.08, together with accrued interest in the amount of $7,565.65, or a total of $35,782.73, for the State.

The property in question consisted of a number of drafts issued by Aetna’s Alabama field offices during the period April 27, 1965, through December 31, 1969. These drafts were identified by Alabama auditors who reviewed Aetna records which consisted of computer printouts of drafts on which payment had been stopped because these drafts had not been presented for payment within four years following issuance. These records established that 336 drafts had been issued by Alabama offices between 1965 and 1969 but not presented for payment within four years. The trial court found that drafts had been issued for the following types of claims:

“AMOUNTS ITEMS
“1. 1st Party $13,137.50 70
“2. 3rd Party 18,755.39 79
“3. Auto Medical Payments 211.75 5
“4. Compensation Indemnity 2,954.79 57
“5. Compensation Medical 1,519.61 87
“6. No Policy (P.R. or Ind. Adj.) 92.85 33
“7. Accident & Health 117.00
$36,788.89 336” “TOTALS

Under those types, first party claims are those by a policyholder for damage to his property. Third party claims are those of a person contending that a policyholder is liable to him for damage to him. As to these drafts, Aetna’s position below and on appeal is that these drafts were not evidence of liquidated claims but were issued as offers to settle claims and that, unless those offers were accepted by the payee’s endorsement of the draft, Aetna had no fixed obligation to the claimant. Aetna does not contest the trial court’s finding with respect to the five other types. The State of Alabama, on the other hand, contends that the evidence adduced below supports the trial court’s findings that the subject drafts were issued to claimants only after such claimants had provided Aetna with any necessary releases, thus that these drafts were unclaimed property subject to the provisions of the Uniform Act.

In its final judgment the trial court made findings with respect to the internal procedures utilized by Aetna in the issuance and payment of drafts:

“1. During the relevant period and to the present time, Aetna, which is an insurance company, paid the several types of claims made upon it by drafts. These drafts were issued by Aetna’s field offices to pay casualty claims, and expenses related thereto, including first party claims, third party liability claims, automobile medical payment claims, compensation indemnity claims, compensation medical claims, accident and health claims and expenses such as police reports and other incidental items of expense. In Alabama, Aetna’s field offices consist of its main branch office in Birmingham with a sub-office in Mobile.
“2. It has been shown that when a field office of Aetna issues a draft, it forwards a copy of the draft called an ‘advice’ to the company headquarters in Hartford, Connecticut. There, the advice is kept on file pending further action or procedures. It has been shown that after a draft is issued and it becomes necessary for a field office to cancel the draft or stop payment on it because of an error in the name of the payee, an erroneous amount, refusal of a payee to accept it in settlement or for miscellaneous other reasons, Aetna’s procedure provides that the field office send to the company headquarters a cancellation advice or an advice of stop payment which are matched with the copy of the advice first sent. Once issued, these drafts constitute unconditional, unrestricted obligations which the payee may cash at any bank or, otherwise, by merely endorsing them as any other negotiable instrument. It has further been shown that, according to company procedures, the drafts are honored automatically unless a stop payment has previously been entered into Aetna’s computer or the draft exceeds $10,000. In the latter instance, the draft is forwarded to the Claim Department of the Company for approval prior to payment. Except as stated, it appears that in all instances, the drafts are treated by Aetna as checks drawn upon an Aetna bank account.
“3. Aetna maintains permanent computerized records concerning all advices of drafts which have been issued by its field offices but were never presented for payment. Among the information encoded into Aetna’s computer is the ‘claim key’ appearing on each draft and each advice of draft. The claim key indicates the state to which the draft was sent by Aetna’s home office in the form of batch or bulk drafts that are forwarded in blank. The code number assigned to the Birmingham branch office and its sub-of-fiee is 76. In conducting their audit, the Alabama auditors, in reviewing the computer printouts provided by Aetna relating to unpresented drafts, extracted the unpresented drafts bearing the 76 claim key. These unpresented advices of drafts bearing the Alabama claim key number were transcribed and introduced into evidence in this action as Plaintiffs Exhibit 5. It has not been disputed that this exhibit is an accurate transcription of Aetna’s unpresented drafts bearing the 76 claim key.
“It has further been shown to the satisfaction of the Court the unpresented drafts bearing the 76 claim key were issued by agents of Aetna’s offices in Alabama to persons in the State with the following exception. Aetna’s sub-office in Mobile also handled claims in the Panhandle area of the State of Florida. The evidence shows that these claims constituted 23.3% of the claims paid by Alabama claim agents. It therefore appears that the drafts written for and delivered to Florida claimants were not issued in Alabama. The Court also concludes that the remainder of the drafts revealed by audit were issued in this State.”

The court then added:

“In each instance of the drafts involved here, they bear the writing ‘in satisfaction of_’ Testimony provided by employees of Aetna lacks definiteness and is in conflict in the matter of releases. Mr. John T. Bailey, who is an administrator in the claims procedure area of the Aetna Casualty Company testified that if a release or proof of loss was required by Company policy or procedure, such release or proof of loss was obtained by the Company prior to the issuance and delivery of a draft. He further testified that on all claims a payee had signed a release if it was necessary at the time the draft was signed and delivered, stating that if such had not been done the claimant could cash the draft and ask for a further payment if no release had been executed. Mr. Cecil Brown, an Aetna claims representative since 1966 in the Alabama area, testified that no releases were required in the instances of First Party claims but were required prior to approximately 1967 for Third Party claims. After such date, Mr. Brown testified that releases were discretionary in the instances of Third Party claims.
“The Court finds that the substance of this evidence is that if releases were desired or required by Aetna, such releases were obtained from the payee of a draft prior to the delivery of such draft.”

It should be noted that under Aetna’s procedures a draft not presented for payment within four years following issuance was the subject of a stop payment order and thus was not automatically paid, but was the subject of review to determine whether payment should ensue.

The crucial question before us is whether there is evidence supporting the legal conclusion that these unpresented and unpaid drafts represented “moneys held and owing more than seven years after the moneys became due and payable.”

Though not precisely on all fours with the facts of this case, the case of Allstate Insurance Company v. Eagerton, Ala., 403 So.2d 172 (1981), furnishes clear guidance. In that case the insurance company similarly settled first and third party claims by drafts. Allstate’s drafts provided on their faces that they were “void if not presented within six months after date of issue.” Additionally, each bore an endorsement legend as follows:

“Endorsement hereof acknowledges that this payment is offered and received in full satisfaction of the claim shown on the other side; and that upon acceptance and payment of this draft the Allstate Insurance Company is hereby released and discharged of said claim.”

Each also recited that it was in full settlement of all or a specified portion of the applicable claim.

After describing the internal accounting procedures which led to the issuance of drafts in partial or full settlement of claims, and which were never presented for payment, this Court explained, at 403 So.2d 176:

“Are the amounts represented by the unpresented drafts ‘moneys held and owing ... unclaimed and unpaid’ for more than seven years as the statute reads? We think not. It is true, as the commissioner argues, that for a period of six months after they are issued, Allstate is required to pay the drafts if properly endorsed and presented, and it can be argued that by failing to endorse and present the drafts for payment, the payee abandons the funds. However, it is equally true, as Allstate argues, that after the passage of six months, a payee has no claim on the draft, but simply has an unliquidated and unconceded claim on the underlying policy of insurance. Thus, Allstate by virtue of these drafts does not hold ‘moneys owing’ after the passage of six months. If the drafts were issued in payment of fixed amounts due under the insurance contract, such as the face amount of a life insurance policy, the face amounts might well be ‘unclaimed funds’ within the meaning of the act, but that is not the case before us. Here, the company retains the right to reject and litigate all claims not ‘settled’ by accepting and presenting the drafts within six months. This is true even though the drafts are negotiable, a fact which is irrelevant to the issue in this case. Under the stipulated facts, the drafts were issued for the purpose of settling unliquidated claims and do not constitute an acknowledgement by the company that it is liable to the payee in that amount.”

It is significant that this Court’s opinion in Allstate cited Kane v. Insurance Company of North America, 38 Pa.Cmwlth. 42,392 A.2d 325 (1978), as persuasive authority. In Kane the insurance company was shown to have issued, inter alia, first party and third party drafts as Aetna had done here. The evidence of their issue was shown to be advice copies sent to the company cashier to serve as comparisons or presentment of the original, also as Aetna had done here. That court found:

“ ‘.. . As a matter of practice, the company might issue these [third party] drafts . .. either as payment of an agreed settlement of a claim under one of its policies, or as an offer of settlement not later accepted by the third party or the policyholder, or [first party drafts] ... as payment for goods or services already received or as an offer to pay for goods or services to be received later.’ ”

In this case it was proved that Aetna was required to pay a third party claim only if Aetna’s policyholder had been found liable to the claimant for damages for an act or an omission of its insured covered by the policy. As to first party claims, Aetna was required to pay only when the claimant had established that he had sustained loss or expenses covered by an Aetna policy and the amount of loss sustained. And during the period in question drafts were issued by Aetna routinely in efforts to settle claims before any obligation to do so had been established.

We note also that, although Aetna’s draft did not on its face provide a voiding clause if not presented within six months, nevertheless Aetna did stop payment when the draft was not presented for payment within four years. According to the evidence, when such a stop payment entry was made, the draft was not thereafter paid but was subject to an internal review to determine whether payment should be made. At that point no accounting entry would be made because none were made when the drafts were issued.

It is apparent that the court below placed stress upon the negotiability of the drafts in question and upon its finding that “the substance” of the evidence was that “if releases were desired or required by Aetna, such releases were obtained from the payee of a draft prior to delivery of such draft.” As to the negotiability of the drafts, that fact is irrelevant here, as it was in Allstate, supra, at 176. Their negotiability was neither an acceptance nor a presentment for payment and, moreover, had no effect upon Aetna’s later determination to stop payment. The finding concerning possible releases is not a finding that these drafts were evidence of any underlying obligation, such as the kind we called attention to in Allstate, supra, at 176, when we stated:

“If the drafts were issued in payment of fixed amounts due under the insurance contract, such as the face amount of a life insurance policy, the face amounts might well be ‘unclaimed funds’ within the meaning of the act, but that is not the case before us”

The speculation that releases, if required, were obtained, fails to establish that, in fact, releases were obtained in each instance which converted an unliquidated claim to a liquidated one. And although containing different conditional language than the drafts described in Allstate, Aet-na’s drafts did on their faces announce that they were issued “in satisfaction of [the claim].” Such language does not necessarily import a liquidated obligation.

Finally, it cannot be reasonably argued that these drafts represented “moneys held and owing ... unclaimed and unpaid” for more than seven years when the company stopped payment on them after four years and subjected each to an internal review. Such a determination itself removed any previous opportunity to settle each claim by accepting the draft and presenting it for payment.

We have concluded, therefore, that the trial court’s application of the facts adduced below to the requirements of the statute as explained by our decision in Allstate, supra, was erroneous. The ore tenus rule in such an instance is inapplicable. Home Indemnity Company v. Reed Equipment Company, Inc., Ala., 381 So.2d 45 (1980). Accordingly, the judgment is reversed and the cause is remanded for an order not inconsistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Ex parte Eddie McTIER, II (Re Eddie McTIER, II v. ROLLINS PROTECTIVE SERVICES, INC., a corp., et al.)
    81-381.
    Supreme Court of Alabama.
    May 21, 1982.

      Thomas W.. Christian and Michael K. Beard, of Rives & Peterson, Birmingham, for petitioner.
    Stanley D. Bynum, of Bradley, Arant, Rose & White, Birmingham, for respondents.
   MADDOX, Justice.

This is a mandamus proceeding involving a plaintiffs right to discovery.

Petitioner, Eddie McTier, II, sued Rollins Protective Services, Inc., claiming that a salesman of Rollins fraudulently represented to him that he would own the home security protection system which was placed in his house by Rollins. McTier claimed that a Rollins salesman solicited him in an effort to sell him a burglar security system for his homes in Birmingham and in Verbena, Alabama. He contended that the Rollins salesman represented to him that, upon payment of a sum certain, he would own the security systems and that Rollins would service and repair the equipment for a monthly maintenance fee. The document McTier signed, however, was a lease agreement and not a sales contract. As a proximate result of the alleged' misrepresentations by the Rollins salesman, McTier claims that he has paid over $4,000 for the use of a security system that he believed he was purchasing.

McTier sought discovery and propounded interrogatories to Rollins, and specifically requested Rollins to answer the following interrogatory:

“State the name and address of each person, firm or entity who leased a Rollins Protective Services, Inc. protective system from this defendant (such as the one plaintiff leased) in 1976 and 1977 in Jefferson County, Alabama.”

McTier filed a motion to compel answers to this interrogatory to which Rollins had filed an objection. Rollins contended that answering this interrogatory would be unduly burdensome, involving hundreds of customers, four and five-year-old records, business secrets as to customers’ identities, the customers’ rights to privacy and also that the information sought would not reasonably lead to the discovery of admissible evidence.

McTier contends that the information requested by the interrogatory was necessary for him to prove a common scheme or plan by Rollins to induce customers to sign an agreement such as he had signed.

The trial judge held a hearing on McTier’s motion to compel, and after argument, denied the motion. It is from this ruling by the trial judge that McTier petitions this Court, asking this Court to order the trial judge to vacate his denial and compel Rollins to answer the question. We decline to do this.

Rule 26, A.R.C.P. states that “[pjarties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” but that the scope of discovery may be “otherwise limited by order of the court in accordance with these rules.” Rule 26(c) permits the trial court, for good cause shown, to “make any order which justice requires to protect a party .. . from annoyance, embarrassment, oppression, or undue burden or expense.”

Each request for a motion to compel answers to interrogatories must of necessity be decided on its own facts and circumstances, a determination which the trial court is in a better position to make than is this Court. The rule of law, on review of orders entered in matters involving discovery is that this Court will not reverse the trial court’s decision on discovery matters unless there is a clear showing that the trial judge abused his discretion in making his decision. This Court has delineated its scope of review of discovery matters on many occasions and particularly as to Rule 26 in Assured Investors Life Insurance Company v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978):

“It is well settled that the Rules on deposition and discovery are to be broadly and liberally construed.... Rule 26(c), supra, recognizes, however, that the right to discovery is not unlimited, and the trial court has broad powers to control the use of the process to prevent its abuse by any party. See Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962); and Delong Corp. v. Lucas, 138 F.Supp. 805 (S.D.N.Y. 1956). The Rule does not allow an arbitrary limit on discovery; instead, it vests the trial court with judicial discretion in the discovery process. The question on review, then, becomes one of whether, under all the circumstances, the court has abused this discretion. Campbell v. Regal Typewriter Co., 341 So.2d 120 (Ala.1976). An appellate court may not decide whether it would, in the first instance, have permitted the prayed for discovery. Furthermore, it is unusual to find abuse of discretion in these matters. Swanner v. United States, 406 F.2d 716 (5th Cir. 1969); Tiedman v. American Pigment Corp., 253 F.2d 803 (4th Cir. 1958); Ex parte Alabama Power Co., 280 Ala. 586, 196 So.2d 702 (1967); and 35A C.J.S. Federal Civil Procedure §§ 532, 592.”

We do not find from the record filed here that there was such a clear abuse of discretion by the trial judge in the case before us. The petition for writ of mandamus is, therefore, due to be denied.

WRIT DENIED.

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


author: DeCARLO, Judge.

text:
    Harold Edward HOPSON, Jr. v. STATE
    8 Div. 342.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.
    Robert Straub and Jerry R. Knight, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Second degree murder, sentence: thirty years.

On March 11, 1979, appellant was living in an apartment in Hartselle, Alabama, with Dean Puckett, the woman he later married. Appellant left the apartment on the evening of March 11, and when he returned he found Thomas Edward Ferguson knocking or beating on the door of the apartment and looking for Dean. The evidence most favorable to appellant indicates that appellant (who was in his car) and Ferguson (who was on foot) had words about Dean, and that Ferguson pulled a knife and tried to cut appellant through the partially open car window. Appellant drove his car towards Ferguson and tried to pin him between two vehicles. Ferguson then ran for his car and left, saying, “I will be back.” Appellant went inside the apartment, got his shotgun, returned to his car, and followed Ferguson to the Crestwood Shopping Center, where Ferguson stopped his vehicle and appellant pulled up alongside. Ferguson then got out of the car and began coming towards appellant. When appellant saw Ferguson put his hand in his pocket, appellant picked up his shotgun. Ferguson said, “Shoot me, mother, shoot me,” and appellant fired a shot which missed Ferguson and blew out the windows of Ferguson’s automobile. Ferguson then began moving towards the front of the car and appellant fired a second shot, hitting Ferguson. As Ferguson crouched and started to get up, appellant pulled around to the front of Ferguson’s car and shot Ferguson again. Appellant then left the scene and was arrested at his apartment shortly thereafter. Thomas Edward Ferguson died on March 13,1979.

I

Appellant maintains that the trial court erred in giving his oral charge to the jury and in refusing appellant’s two requested written charges. The court instructed the jury as follows:

“You have also heard evidence of the reputation of the deceased for turbulence and violence. The only place that that has in the case is in evaluating or calculating the conduct of the defendant at the time that he contends that he was in peril or in apparent peril. You will evaluate it from that standpoint.”

At the conclusion of the oral charge, the following occurred:

“MR. STRAUB: We except to that portion of the Court’s charge where he said in substance ‘The only time the bad character of deceased comes into play is in evaluating the actions of the Defendant.’ “THE COURT: All right. How would you want that corrected, what other aspect.
“MR. STRAUB: I don’t know. I just don’t think it makes a correct statement of the law.
“THE COURT: It is allowed for the purpose of — on the issue of whether or not the Defendant considered himself in actual or apparent peril, and that is the only purpose it is allowed for, and I will let that stand.
“MR. STRAUB: We except.”

The court refused the following written charges requested by appellant:

“1. The court charges the jury that if they believe from the evidence that the deceased was of a violent and bloodthirsty character they are to take such evidence into consideration in determining the degree of the defendant’s guilt, provided they find him guilty.
“17. If the jury believe from the evidence that the deceased was of a violent and bloodthirsty character, they are to take such evidence into consideration in determining the degree of the defendant’s guilt, provided they find him guilty.”

While it is our judgment that appellant was not entirely free from fault, and that, by arming himself and following the victim he may have become the aggressor in the instant case, appellant did offer “some evidence tending to show self-defense.” Aberhart v. State, Ala.Cr.App., 353 So.2d 4, reversed, 353 So.2d 6, 7 (Ala.1977). He was, therefore, entitled to present evidence of the violent and bloodthirsty character of the deceased, and was entitled to the two refused charges. Aberhart v. State, supra. For the erroneous oral charge and the refusal of the written charges, the judgment of conviction of the circuit court of Morgan County is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte State. (Re Harold Edward HOPSON, Jr. v. STATE).
    80-363.
    Supreme Court of Alabama.
    May 21, 1982.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for petitioner.
    Robert Straub and Jerry Knight, Decatur, for respondent.
   EMBRY, Justice.

The Court of Criminal Appeals ruled correctly in reversing defendant’s conviction for second degree murder based on the trial court’s refusal to give the following jury charges requested by defendant:

“1. The court charges the jury that if they believe from the evidence that the deceased was of a violent and bloodthirsty character they are to take such evidence into consideration in determining the degree of the defendant’s guilt, provided they find him guilty.
“17. If the jury believe from the evidence that the deceased was of a violent and bloodthirsty character, they are to take such evidence into consideration in determining the degree of the defendant’s guilt, provided they find him guilty.”

The only jury instructions given by the trial court which dealt with evidence of the deceased’s violent character related to the issue of self-defense, which the trial court instructed was a complete defense of justification. However, even if determined by the jury to be guilty, defendant was entitled to have the jury consider evidence of the deceased’s violent character as a mitigating factor in determining the degree of defendant’s guilt, since defendant could have been convicted of a lesser offense, namely, first degree manslaughter.

In Smith v. State, 88 Ala. 73, 7 So. 52 (1889), this court considered a trial court’s refusal of a requested jury charge identical to defendant’s requested charge number seventeen in the case at hand, and said:

“... Testimony is sometimes admissible only for a specific purpose; such as, the peaceable character of a defendant, who is accused of a crime involving violence; or, testimony impeaching or sustaining a witness; or, testimony of previous threats, communicated or uncommunicat-ed, made by the person on whom the injury was inflicted; or, testimony proving or disproving the character of the person alleged to have been injured, for turbulence, violence, or blood-thirstiness. In such cases, it is but right that the jury should be told to what extent this exceptional testimony should be weighed by them. In the last two of the cases supposed, if the jury finds the defendant guilty, the character of the deceased for violence or blood-thirstiness may be considered by them in determining the degree of the homicide. This, because in altercations with persons of such character, doubts are more readily indulged, and proper defensive measures may become necessary, than would be permitted between persons of peaceable habit. ‘On all doubtful questions as to who was the aggressor, the violent or blood-thirsty character of the deceased, if such be his character, enters into the account. More prompt and decisive measures of defense are justified, when the assailant is of known violent and blood-thirsty nature. But this principle is confined to defensive measures.’ It furnishes no excuse or palliation for aggressive action. — DeArman v. State, 71 Ala. 351, 361.” (Emphasis added.)

Smith was cited with approval by this court in Aberhart v. State, 353 So.2d 6 (Ala.1977), wherein this court found error in the trial court’s refusal of a requested charge identical to defendant’s requested charge number one in the present case. See also, Collier v. State, 57 Ala.App. 375, 328 So.2d 626 (1976); McMillon v. State, 37 Ala.App. 690, 74 So.2d 728 (1954); Jacobs v. State, 29 Ala.App. 388, 197 So. 67 (1940).

The State, nevertheless, contends that it was not error to refuse the charges because the undisputed evidence showed defendant was the aggressor. Contrary to this conclusion, however, the appellate court held:

“While it is our judgment that appellant was not entirely free from fault, and that, by arming himself and following the victim he may have become the aggressor in the instant case, appellant did offer ‘some evidence tending to show self-defense.’ Aberhart v. State, Ala.Cr.App., 353 So.2d 4, reversed, 353 So.2d 6, 7 (Ala.1977). He was, therefore, entitled to present evidence of the violent and bloodthirsty character of the deceased, and was entitled to the two refused charges... . ”

The State’s contentions that defendant was clearly the aggressor is a challenge to findings of fact by the appellate court. This court exercises supervisory powers over that appellate court only as to questions of law, and will not disturb its findings of fact. Ex parte Shoaf, 186 Ala. 394, 64 So. 615 (1914), denying certiorari Hagin v. Shoaf, 9 Ala.App. 300, 63 So. 764 (1913).

For the foregoing reasons, the writ of certiorari is due to be and is hereby quashed as improvidently granted.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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


text:
    Chester Orven RIVERS v. STATE.
    1 Div. 129.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    On Return to Remand June 23, 1981.
    Rehearing Denied Aug. 4, 1981.
    Certiorari Quashed, June 4, 1982 Alabama Supreme Court 80-804.
    Charles N. McKnight of McKnight & Noonan, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

The appellant was indicted for the unlawful sale of cocaine to Richard White. After a jury trial he was found guilty, fined $22,-500.00, and sentenced to ten years in the penitentiary.

On June 8, 1978, Deputies Jimmy Wyatt and Richard White of the Narcotics Division of the Mobile County Sheriff’s Department, along with an informant named “Don” and Don’s wife, were parked in a van outside a residence on Bellingrath Road in Mobile County. At approximately 8:30 P.M., the informant went inside the residence and, a short time later, returned to the van and gave Deputy White a package containing a white powder substance. White testified that he then said to the informant, “I’d have to deal with Chester personally myself.” At that point, White and the informant returned to the house and the appellant opened the door. White then told the appellant that he had been “ripped off” before, handed him the package of white powder and asked if it was “good stuff.” The appellant then responded that it was “good stuff and [White] could try it.” White refused to try it and appellant then responded that White could come back later and gave him a telephone number to call. At that point, White gave the appellant ninety dollars.

On cross-examination, White testified that he knew the informant only as “Don” and did not know for sure if that was his correct name. Further, he said that he had never dealt with the informant before the instance in question.

White recalled that at the time the informer had originally gone to the house he [White] saw three silhouetted figures on the curtain of the house. He could not distinguish the three figures, but did see one pass something to another. White searched the informant when the informant left the van. He admitted that the informant may have had an opportunity to pick up something before he went into the house, but it was unlikely because he had watched him from the time he left the van until he went into the house.

White stated that the main reason he went into the house with the package was to determine if the package he had received from the informant was the same package the appellant had given to the informant.

White testified that he and the informant returned to the van, and they drove to the Sheriff’s Department, where he. subsequently turned the package of white powder over to Deputy Jimmy Wyatt.

Deputy Wyatt testified that he took the packet, delivered to him by Deputy White, to the toxicologist’s office and turned it over to Miss Deborah Sennett on June 12, 1978.

Deborah Sennett, an employee of the Department of Forensic Science, testified that she performed certain tests on the powder that had been turned over to her by Deputy Wyatt, and the tests revealed the presence of cocaine.

At the close of the State’s case, the appellant requested the disclosure of the informant’s name or the acquittal of the appellant. From the record:

“MR. McKNIGHT: Judge, I had asked the District Attorney who was formerly charged with the responsibility of this case, Mr. Lloyd Copeland at a prior time, the exact date I’m not quite certain of. I am looking now, I have the notation, to disclose to me the name of the informant in this case, and he advised me that he did not know the name. I am quite satisfied he told me he felt I was entitled to have such disclosure made. In any event, he firmly agreed to make such a disclosure to me when he ascertained that name.”

Prior to making a ruling the court made the following comments:

“THE COURT: My only problem as I indicated to you in this particular case based on these particular incidents and these particular facts, he should be entitled to the name of the informant. However, my problem is the reasonableness of the request, the timing of the request. At the conclusion of or immediately prior to the conclusion of the State’s case. The Court has no problem in saying that if the request were formerly made of this Court, then the Court would be more than happy to so order it at a reasonable time. If the District Attorney failed to obey that order, I think the case easily could be dismissed on the knowledge of the District Attorney prior to this, but the request coming at this time would require formally for the Court to so act, when apparently it was known at the time of the preliminary hearing in November of 1978.
“MR. McKNIGHT: What was known, Sir?
“THE COURT: That there was an informant and that the name of the informant was in fact unknown. That fact was known apparently at the preliminary hearing in District Court on November 9, 1978.
“MR. McKNIGHT: That fact was known that an informant was utilized but no demand by me, for me at that point there was no reason for me to believe that I would have to make a demand, because I was in the process of trying to locate a possible person who may have been involved.
“THE COURT: Does the District Attorney state that they do not know the name of the informant and the investigation that the District Attorney has made that you have made a conscientious investigation and your officers made a conscientious investigation today to locate the informant and that you have been unable to do so? Is that what you are telling me?
“MR. BERTOLOTTI: I called Carol Norris who works for our office. She is our Trial Coordinator. Her job is to find witnesses, and I told her the situation, told her the officers on the case, suggested James Wyatt to her as the first one she should contact. I then, when we took a break in the trial, called her back and she told me that she has not been able to find out the name of the informer. Those are the efforts that have been made. Now, now that we have heard testimony to the effect that Sergeant Smitherman might know something about it, I can get Carol to try to get him at this time. I have called Carol Norris, who is a good, reliable person and whose business it is to find witnesses and she informed me that so far she hasn’t come up with anything. That was right after lunch break that I called her.
“THE COURT: Sergeant Smitherman’s name has been mentioned by the witness. I want you to contact Sergeant Smither-man and see if he knows the name of the informant. We’ll take a five minute recess for you to do that, or less time.
“(Recess).
“THE COURT: Let the record indicate that the Defendant and his counsel are in Court together with the District Attorney. Prior to our brief recess, you were to contact your office and have them contact Sergeant Smitherman.
“MR. BERTOLOTTI: Carol Norris of our office has just informed me that she has contacted Sergeant Smitherman and told her that he does not know who the confidential informant is in this case.
“MR. McKNIGHT: Your Honor, may I make a very brief statement. I would point Your Honor’s attention to this. There has been a default in the process of compiling this case, to record something which ultimately involved requirements which would have necessitated to be disclosed to the defense regardless of when I asked for it, it never could have been given. I don’t know if when I asked, how I asked, et cetera is really germane to the issue. If it does not exist, it never could have been produced.
“THE COURT: The Court will deny the motions of the Defendant. Mr. Canton, will you bring the jury in.”

After the appellant’s motions were denied, the appellant presented two witnesses, namely: a police officer who testified to the appellant’s good character; and the appellant himself.

Appellant stated that he was at the residence of Chester Patrick on Bellingrath Road on the date in question. He recalled that an individual came to the door that night inquiring about “Chester,” and the appellant directed him to the back bedroom where Chester Patrick was. Subsequently, the individual left, and, within minutes, Deputy White came to the door and handed the appellant some money.

According to the appellant, Deputy White did all the talking and he, the appellant, was unaware of what was going on. The appellant denied that he had knowledge of the circumstances and nature of the transaction which took place that night and denied selling cocaine to Deputy White.

I

The appellant’s only assertion of error is that the trial court failed to order disclosure of the informant or to acquit the appellant. He argues that the State is under an absolute duty to preserve and to disclose the identity of a participating informer. He insists that to permit the State to place the appellant on trial when the State has failed to make disclosure on the grounds that it did not know the name of the informer would “pervert” the process of criminal justice.

The rule is clearly established that, when an informer is a material witness on the issue of guilt, the State must disclose his identity or suffer a dismissal. Roviaro v. U. S., 353 U.S. 53, 77 S.Ct. 623. 1 L.Ed.2d 639; Hatton v. State, Ala.Cr.App., 359 So.2d 822; Davenport v. State, 50 Ala. App. 321, 278 So.2d 769. In the present case, the informer was both an eye witness and a participant in the sale of the cocaine, and, thus without question, he was a material witness on the issue of guilt. Under these circumstances, the State must disclose not only the informant’s identity, but also all other information it has that might assist the accused in locating the informant. Therefore, although the prosecution need not physically produce the informant as a witness, Taylor v. State, Ala.Cr.App., 371 So.2d 971, it cannot withold information which could be used to locate the informant.

From the record before us, we are unable to determine whether the State disclosed all the information it had on the informer. Although the statements of the assistant district attorney seem to indicate that an effort had been made to identify the informant, no witnesses were called or other evidence produced to attest to the State’s good faith efforts to determine the informer’s identity.

Therefore, this court directs the circuit court of Mobile County to conduct a hearing to determine what efforts the State made to determine the identity of the informant, and whether the State disclosed all the information it had. The course we plot today is dictated because no voir dire hear-mg was conducted at trial to determine the State’s ability to identify the informant. At the hearing we have directed today, the State should be given an opportunity to disclose all the information it has on the informant, and to determine, through the testimony of knowledgeable witnesses, the identity of the informant.

As a result of the hearing, the circuit court shall make a two-step determination, as follows: (1) whether the State has disclosed all information within its knowledge, and, if so, (2) whether such information is sufficient to identify the informant, taking into consideration all the circumstances of the case.

It does not seem plausible that the only information the State possessed about the informer was the nickname, “Don.” However, we recognize that almost nothing is impossible and there may be exceptional or extraordinary circumstances where this could happen.

It is our opinion that the State should be aware that, once it undertakes to use a participating informant in a case, the identity of that informant may later be sought and subject to disclosure. Roviaro v. U. S., supra. Furthermore, once the participation of the informant results in an arrest, the informant may be of no further use to the State in that case, and there may no longer be any need to protect his identity-

Therefore, it is our judgment that the State, absent a showing of exceptional or extraordinary circumstances, cannot satisfy its burden of disclosing the informant’s identity by revealing only the nickname, “Don.” The State should be able to disclose, not only the informant’s full name, but also some method by which the informant might reasonably be contacted, i.e., last known address, telephone number, place of employment, or the original source of contact used by law enforcement officers in their dealings with the informant.

The burden of proving these matters is upon the State and failure to make such proof will call for a dismissal after another trial. In the event the State sustains the burden, the appellant will not be entitled to relief.

We therefore direct that the Mobile Circuit Court make a record of the transcript of evidence of the hearing and submit it to this court as soon as reasonably possible so that the matter under consideration can be resolved.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

DeCARLO, Judge.

After a hearing on remand, the Mobile Circuit Court made the following determinations: (1) “that the State has in fact disclosed all the information within its knowledge;” and (2) “that the information so furnished ... is not ... sufficient to identify the informant, taking into consideration all the circumstances of this case.”

We have reviewed the transcript of the hearing on remand, and we agree with the circuit court’s conclusion that the information disclosed to appellant was wholly insufficient to identify the participating informant in this case. Roviaro v. U. S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. The judgment of conviction is therefore reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.