author: BOWLING, Justice,

text:
    GRENADA MUNICIPAL SEPARATE SCHOOL DISTRICT v. JESCO, INC.
    No. 54224.
    Supreme Court of Mississippi.
    April 18, 1984.
    Christopher A. Shapley, Brunini, Grant-ham, Grower & Hewes, Jackson, for appellant.
    F.M. Bush, III, W. Scott Collins, Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, Bill Waller, Jr., Jackson, Phil Embry, Grenada, for appellee.
    Bill Allain, Atty. Gen., Susan L. Runnels and Frankie Walton White, Sp. Asst. Attys. Gen., Jackson, Roy D. Campbell, III, Campbell & DeLong, Greenville, Arthur F. Jerni-gan, Jr., Bacon, Jernigan & Martin, Jackson, for amicus curiae.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   BOWLING, Justice,

for the Court:

The question involved in this appeal is whether or not a municipal separate school district may bring suit for alleged damages resulting from the alleged faulty construction of a district’s school building against the contractor, the architect, the bonding company, the sub-contractors and the fur-nishers of building materials. We answer the question in the affirmative.

Appellant, Grenada Municipal Separate School District, through its duly designated officials, filed its suit alleging that it entered into a contract with appellee, Jesco, Inc., to construct a school building. It alleged that the contract required that the building, including the roof, be constructed according to designated specifications, in a workmanlike manner, and with proper materials, but that the defendants, all of whom were subject to the terms of the contract, constructed the building roof so that it was defective and had to be replaced. The declaration alleged that the breach of the contract was done in a negligent manner as well as the failure to perform the contract provisions.

Appellees answered and as a “First Defense” stated:

Plaintiff is a statutory entity, invested by statute with certain powers, and subject to certain liabilities, and it can neither sue nor be sued, except as authorized by statute; there is no statutory authority for the plaintiff to maintain this action and it should be dismissed. Defendants ask that this defense be considered as plea matter and heard separately and prior to trial on the merits.

At the outset, we note that the boards of trustees of municipal separate school districts are statutorily granted the same power and authority as are granted the boards of trustees of other school districts. [Mississippi Code Annotated, Section 37-7-619 (1972)] All school district trustees are then granted the power, authority and duty “to have responsibility for the erection, repairing and equipping of school facilities and the making of necessary improvements.” [MCA § 37-7-301 (1972) ]

We find that the Grenada Municipal Separate School District has been expressly and impliedly, both by statute and prior cases of this Court, authorized to file and pursue the claim set out in its declaration. MCA § 11-45-11 (1972) provides that “[t]he state shall be entitled to bring all actions and all remedies to which individuals are entitled in a given state of case”. The Grenada Municipal Separate School District is a subdivision of the state, and as such, comes within the terms of the statute without expressly in the declaration calling itself “The State of Mississippi.”

Furthermore, it certainly would be against public policy to authorize the separate school district as a subdivision of the State, to enter into a specific contract to spend the district taxpayer’s money to build a school, and leave that contracting party without the right to enforce its terms. In a construction contract involving thousands and millions of dollars, the parties to that contract should have mutual obligations and mutual rights to insist on its terms being enforced. This is so whether the breach of the contract is an intentional breach or a negligent breach.

In Cig Contractors, v. Mississippi State Building Comm’n, 399 So.2d 1352 (Miss. 1981), we said, through Presiding Justice Walker that:

The general rule is that when the legislature authorizes the State’s entry into a contract, the State necessarily waives its immunity from suit for a breach of such contract. 81A C.J.S. States § 172 (1977). Where the state has lawfully entered into a business contract with an individual, the obligations and duties of the contract should be mutually binding and reciprocal. There is no mutuality or fairness where a state or county can enter into an advantageous contract and accept its benefits but refuse to perform its obligations.

(399 So.2d at 1355).

In the recent case of Mississippi State Department of Public Welfare v. Howie, 449 So.2d 772 [1984], we said, through Justice Dan Lee:

Based on the authority in Cig, the general law of contracts and common sense, we now hold that when the legislature authorizes the state’s entry into a contract, the state necessarily waives its immunity from suit for breach of contract.

We realize that in both Cig and Mississippi State Department of Public Welfare, supra, a state agency was being sued and those defendants claimed immunity. We held in those cases that the doctrine of sovereign immunity did not apply. In the case sub judice, it is obvious that the argument for a valid cause of action is much stronger than in Cig and Welfare Department. The Grenada Municipal Separate School District is not trying to immune itself from suit as a defense, it is asserting its alleged valid claim for damages under its contract with appellees.

Appellees contend that its first defense is controlling by the opinion in Storey v. Rhodes, 178 Miss. 776, 174 So. 560 (1937), where the opinion made a statement that:

It is the settled rule in this state that public bodies or subdivisions of the state have only such powers as are conferred on them by law, and, unless the statute gives the power to sue and be sued, such boards or bodies have not such power.

We have already discussed the statute giving the State of Mississippi power to sue and, as stated, we hold that this can be done through its subdivisions, when that agency has been authorized to enter into a contract, and the contract is alleged to have been broken. Furthermore, in Storey, for some reason, the above quoted dicta has no bearing whatever on the facts of that case. Originally, the Pisgah Consolidated School District brought its bill of complaint in chancery against the county school board regarding the distribution of students between the school districts. Both parties were subdivisions of the state. This suit was amended and at the time it was dismissed in the lower court, the complainants were individual taxpayers and patrons of the school only. At the time of the appeal to this Court, there was nothing pending regarding the suit by a state agency. The opinion, therefore, is not controlling here and the above statement in the opinion did not apply to the case and was dicta.

Appellees further contend that the suit for damages growing out of the contract between the Grenada Municipal Separate School District and appellee could only be brought by the Attorney General pursuant to the provisions of Section 7-5-1, Mississippi Code Annotated (1972). This section provides that the Attorney General “is given the sole power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of state-wide interest.”

We note here that during the course of oral argument, the court was advised without objection that the Attorney General was requested to bring the suit by appellant, but that this request was denied. We can understand why. The “subject matter” of the allegations of the declaration apply solely to one isolated contract and its alleged breach resulting in a defective roof on a Grenada school building. It would be stretching the legal terms beyond comprehension to say that this was “of state-wide interest”. The latter term necessarily implies an interest in the outcome of the case by the state as a whole. We therefore find that this contention of appellees is not valid.

We find that the appellant, Grenada Municipal Separate School District, had authority to file suit alleging that there was a breach of obligations under the terms of the specific contract • entered into by the board.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Brenda LANGHAM v. Dorothy HERRINGTON.
    No. 54820.
    Supreme Court of Mississippi.
    April 18, 1984.
    Eugene C. Tullos, Tullos, Tullos & Tul-los, Raleigh, for appellant.

      Jerry L. Yeager, Raleigh, for appellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   BOWLING, Justice,

for the Court:

We consider here the authority of a chancellor to enjoin the removal of a body from its cemetery grave and place it in another cemetery. Appellees, sister and children of the deceased, secured an injunction from the Chancery Court of Smith County, prohibiting the appellant, widow of deceased, from disinterring and removing the body.

The original burial was at a place chosen by all parties.

The disposition of this appeal is controlled by the case of Hood v. Spratt, 357 So.2d 135 (Miss.1978). That opinion discusses fully the factors to be considered by the lower court in its discretion in decreeing whether or not a body should be removed. We said in Hood:

Factors to which various courts generally have given consideration in permitting disinterment and removal of a body have included public interest, wishes of the decedent, rights and feelings of those entitled to be heard by reason of relationship, rights and principles of religious bodies or other organizations which granted interment in the first burial site, arid whether consent was given to interment in the first burial site by the one claiming the right of removal.

We are governed by the opinion in Hood and can reach no conclusion other than that we cannot hold that the chancellor was manifestly wrong and rendered an erroneous decree.

AFFIRMED.

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


text:
    Edward Dewain ADCOCK v. Carol Jean ADCOCK.
    No. 54839.
    Supreme Court of Mississippi.
    April 25, 1984.
    Ross Barnett, Jr., Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.
    Helen J. McDade, Lowry C. Edwards, DeKalb, for appellee.
   Appeal from Chancery Court, Winston County; Edward C. Prisock, Chancellor.

Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.

AFFIRMED.

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


text:
    James C. HARDY v. STATE of Mississippi.
    No. 54832.
    Supreme Court of Mississippi.
    April 25, 1984.
    Robert Thomas, Alford, Thomas & Kil-gore, Philadelphia, for appellant.
   Appeal from Circuit Court, Choctaw County; Niles McNeel, Judge.

Bill Állain, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.

Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.


text:
    Clarence AYERS v. John REED.
    No. 54798.
    Supreme Court of Mississippi.
    April 25, 1984.
    William Walker, Jr., Walker & Walker, Jackson, for appellant.
    E.P. Lobrano, Jr., Jackson, for appellee.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.

REVERSED AND REMANDED.

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


text:
    Moses I. LEWIS, Jr. v. STATE of Mississippi.
    Nos. 54852, 54853.
    Supreme Court of Mississippi.
    April 25, 1984.
    Moses I. Lewis, Jr., pro se.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.

AFFIRMED.


text:
    Arthur HOLMES, Jr. v. BOLIVAR COUNTY SCHOOL DISTRICT # 6, BOARD OF TRUSTEES.
    No. 54829.
    Supreme Court of Mississippi.
    April 25, 1984.
    Tyree Irving, Walls, Buck & Irving, Greenville, for appellant.
    John Kirkham Povall, Jacobs, Griffith, Eddins & Povall, Cleveland, for appellee.
   Appeal from Chancery Court, Bolivar County; Harvey T. Ross, Chancellor.

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

AFFIRMED.


author: PATTERSON, Chief Justice,

text:
    Faye CUTCHENS, et al. and City of Laurel v. J.W. BRYANT.
    No. 54203.
    Supreme Court of Mississippi.
    April 25, 1984.
    Harold W. Melvin, Patricia Melvin, Laurel, for appellants.
    Thomas T. Buchanan, Billie J. Graham, Buchanan & Graham, Laurel, for appellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

Several landowners, residents of the City of Laurel, appeal from a judgment of the Jones County Circuit Court, Second District, reclassifying a tract of land adjacent to theirs from RS-100 (single family residence) to BG (general business).

On November 16, 1981, J.W. Bryant filed with the zoning board and the Mayor and City Commissioners of Laurel a petition to rezone 1.18 acres on the southeast corner of Bush Dairy Road and Mississippi Highway 15 North. After a public hearing on the issue, the zoning board on December 15, recommended that the city council grant the petition.

Aggrieved by this decision, Faye Cutch-ens and others requested a public hearing before the city council pursuant to Mississippi Code Annotated, § 17-1-17 (Supp. 1983). In lieu of conducting a hearing the city council on December 22, summarily and without explanation rejected the recommendation of the zoning board by denying the petition to rezone.

From that order Bryant appealed to the circuit court, alleging the decision of the Mayor and Board of Commissioners was unreasonable, arbitrary, discriminatory, capricious, illegal, confiscatory, an abuse of discretion and unsupported by any substantial evidence. After hearing oral argument and reviewing the briefs of the parties and the proceedings had before the zoning board, the reviewing court concluded the decision of the city council denying Bryant’s petition to rezone was not supported by any substantial evidence. The denial by the city council of the petition was therefore reversed and the property was reclassified from RS-100 to BG.

Since the City of Laurel elected not to appeal the circuit court judgment, taxpayers Cutchens, et al. are prosecuting this appeal at their own expense by authority of Mississippi Code Annotated, § 11-51-105 (Supp.1983).

We are of the opinion that this case must be remanded to the Mayor and Board of Commissioners of the City of Laurel for a full evidentiary hearing in accordance with Mississippi Code Annotated, § 17-1-17 (Supp.1983). This is what appellants requested when they ascertained the zoning board’s recommendation. However, the city council offered to deny Bryant’s petition in exchange for withdrawal of the request for hearing. Appellants logically chose to accept the offer, thereby obtaining a favorable decision without the bother of a hearing.

Two related problems arose from the city council’s procedure. The most glaring one is that Bryant was denied an opportunity to present his case to the city council.

Second, appellants have been penalized by the ease with which they received a favorable decision. This happened when the circuit court, finding that the decision of the city council was arbitrary and unsupported by evidence, held for Bryant.

Appellants, though favored at the time, are further disadvantaged in that the city council’s procedure prevented their making a record to support their position on this appeal.

While we agree with the circuit court that the city councils decision was unsupported by evidence, we are of the opinion fairness to all the parties requires the council to conduct a hearing in order to consider both positions and render the proper decision. Otherwise the reclassification of the property would occur by error or mistake rather than being based upon evidence presented in an open hearing as provided by statute.

REVERSED AND REMANDED TO THE MAYOR AND BOARD OF COMMISSIONERS OF THE CITY OF LAUREL, MISSISSIPPI, FOR A HEARING IN ACCORD WITH MISSISSIPPI CODE ANNOTATED, § 17-1-17 (SUPP.1983).

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.


author: MADDOX, Justice.

text:
    INDEPENDENT LIFE & ACCIDENT INSURANCE COMPANY v. Elliott PARKER.
    82-1006.
    Supreme Court of Alabama.
    March 30, 1984.
    Gary P. Wilkinson of Poellnitz, Cox, McBurney & Jones, Florence, for appellant.
    John C. McKelvey of McKelvey & Ken-nemer, Tuscumbia, for appellee.
   MADDOX, Justice.

The issue before the Court is whether the trial court erred in refusing to grant the defendant’s motion for new trial on the ground that the verdict was against the great weight and preponderance of the evidence in a suit for bad faith refusal to pay an “insurance claim.” The jury found for the plaintiff and awarded damages of $16,-000. We reverse and remand.

In 1977, Parker was a “crop duster” airplane pilot. Because of the hazardous nature of his occupation, he wished to purchase a hospitalization insurance policy and a term life insurance policy. D.E. Turren-tine, the local agent for Independent Life & Accident Insurance Company (hereinafter Independent) offered to take Parker’s application for the policies. Turrentine told Parker that he thought Independent would offer the same coverage offered by other insurers at a lower monthly rate. Turren-tine also advised Parker that his hospitalization insurance would be less expensive if Parker took a policy with a high deductible. Turrentine advised Parker that Independent had what was termed a “cash value deposit fund” (hereinafter CVDF) whereby Parker could deposit with Independent an additional $10.00 per month that would earn a variable rate of interest and could be withdrawn at any time to pay the deductible amount on the hospitalization policy. This $10.00 could be “paid” to Independent along with the monthly policy premium.

Turrentine testified at trial that he used rate tables provided by Independent, and estimated to Parker that the monthly life insurance “premium” would be $53.85. Parker testified that Turrentine advised him that the premium and CVDF deposit together “would run somewhere in the neighborhood of $45.00 to $50.00, give or take a few dollars.” After Turrentine had completed the applications, Parker gave Turrentine a check for $53.85, which was sent with the life insurance applications to Independent’s home office in Jacksonville, Florida. In the remarks column of the application for life insurance, Turrentine wrote: “$10.00 Cash Value Deposit Fund with Bank Draft. $7.50 per 1,000 extra rate in premium.” Turrentine also arranged for automatic monthly payments on the life insurance policy, through a draft from Parker’s local checking account.

Independent approved the hospitalization and life insurance coverage on Parker and returned the policies to Turrentine, who delivered them to Parker. The third page of the life insurance policy is set out below:

The actual amount drafted from Parker’s account for the policy of life insurance was $45.10 per month. The amount was reduced by three dollars per month “because of the convenience to [Independent] of the bank draft system.” The $45.10 draft included a $.05 fee for handling the CVDF. Parker received notices from Independent regarding the CVDF. Two of these notices are reproduced below:

Parker admitted receiving these notices from Independent, which show that he had no balance in the CVDF. In 1981 Parker ran short of funds, and decided to withdraw the money in the CVDF. Parker’s wife contacted Independent and was informed by letter on December 8, 1981, that Independent would not “honor this request as our records indicate there has not been a deposit since January of 1980. A total of $45.10 is drafted from your account each month representing payment of premium only. Therefore, there is no money in this fund.”

The Parkers were next contacted by Gene Williams, the salesman who had replaced Turrentine. Williams took Parker’s policy and sent it to Independent’s regional office. R.L. Carter, Independent’s regional office manager, checked with Independent’s home office in Jacksonville and found that no money had been withdrawn from Parker’s checking account for the CVDF.

David Hicks, the director of “ordinary services” at Independent’s home office testified as to what had occurred in the home office. The original $53.85 collected from Parker was applied to the first premium of $45.10. This left $8.75 over and above the premium cost. This $8.75 was held and applied to the next month’s premium. The amount withdrawn from Parker’s checking account for the second premium was $36.35. The $8.75 was “carried over” because $10.00 was the minimum amount that Independent’s system of accounts was designed to accept on CVDFs. Hicks further testified that no one at the home office had notified Parker or Turrentine of this fact. Hicks stated that because Parker would receive statements of his CVDF account balance as a matter of course, the home office decided not to contact Parker. Hicks further testified at trial about the internal procedure used by Independent and the CVDFs generally:

“When we established the CVDF fund and enabled that to be taken out of a bank draft, the agent didn’t write anything in the remarks section. We assumed if it was a bank draft that the CVDF would come out. We assumed wrong in a lot of cases and we ended up drafting people’s bank accounts for more than what they wanted to come out because they wanted to set up the fund, but they didn’t want us to take anything out right now, they wanted to have the liability [sic] to put it in later so it made a lot of .people angry, they had a lot of bounced checks, we ended up paying a lot of bank charges that we didn’t want to pay, but we felt it was only right to pay the charges since there was a misunderstanding. So, we decided to come up with a way that maybe we could get it a little closer so we could understand whether they wanted it to come out with the draft or not. So we asked the agents to write in the remarks section that they want the draft to come out. Again, we ran into problems, not as many, but we still had people saying, yes, I told them that I wanted the draft to come out of my account, the CVDF to come out of my account, but I did not expect him to start taking it now. Again, we had bounced checks and again we had to pay bank charges. So, we made it an internal idea that just before issue the underwriter would call the agent to verify exactly when that first CVDF payment was to come out of that draft. In this case there is no reflection that a phone call was made. Therefore, we opted not to take the additional money out of his [Parker’s] account, which would maybe have incurred bounced checks bank charges again. That’s the reason for it. We felt it best for the insured, and for us, that we not take more money out than we were sure was supposed to come out of the account. [Emphasis added.]”

Parker filed suit against Independent and Turrentine, alleging intentional misrepresentation, reckless misrepresentation, conspiracy to defraud, and bad faith refusal to pay a valid claim on the part of Independent. At the close of Parker’s case, the conspiracy count was dismissed by agreement of the parties. The defendants asked for a directed verdict on the remaining counts, which the trial court denied. At the close of all the evidence no motions were made by any party. The jury returned a verdict for Parker and against Independent on the bad faith count for $16,000.

Independent timely moved for a judgment notwithstanding the verdict (JNOV) or in the alternative a new trial, which the trial court denied. Independent appeals from these post-trial orders.

Independent failed to renew its motion for directed verdict at the close of all the evidence; therefore, we cannot review the claim that the court erred in not granting the JNOV. “[A] motion for directed verdict must be made at the close of all the evidence.... Failure to make the [directed verdict] motion at the close of all the evidence precludes the party complaining of the insufficiency of the evidence from later making a motion for JNOV.” Great Atlantic and Pacific Tea Company, Inc. v. Sealy, 374 So.2d 877, 881 (Ala.1979); see also Ala.R.Civ.P. 50; Casey v. Jones, 410 So.2d 5 (Ala.1981); Rush v. Eason Plumbing & Electrical Contractors, 361 So.2d 516 (Ala.1978); 5A J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice ¶ 50.-05 (2d ed. 1976).

In a motion for new trial, a party may assert that the verdict is against the great weight and preponderance of the evidence, without having filed any previous motions to that effect.

The scope of review is settled: “A post-judgment motion for a new trial, grounded on a claim that ‘the verdict is against the great weight and preponderance of the evidence’ should be granted only in extreme cases, when to let the verdict stand, though supported by some evidence, would be palpably wrong and manifestly unjust.” Casey, supra, at 8; Ala.R.Civ.P. 50; see Chavers v. National Security Fire & Casualty Co., 405 So.2d 1 (Ala.1981), for a discussion of the history of the standard, especially as it is applied to an alleged bad faith refusal to pay an insurance claim.

Further, we are aware that where a trial judge has overruled a motion for a new trial, this strengthens the presumption of correctness of the jury’s verdict. Casey, supra.

The law in bad faith cases is still in the formative stage. It is well established, however, that the following quote sets out some of the conditions and elements of the tort.

“National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179 (Ala.1982), is our most recent effort to define the recently recognized tort of bad faith refusal to pay a valid insurance claim. There we said:
“ ‘An insurer is liable for its refusal to pay a direct claim when there is no lawful basis for the refusal coupled with actual knowledge of that fact. Chavers v. National Security Fire Ins. Co., Ala. 405 So.2d 1 (1981). No lawful basis "means that the insurer lacks a legitimate or arguable reason for failing to pay the claim.” Gulf Atlantic Life Ins. Co. v. Barnes, Ala. 405 So.2d 916 (1981). When a claim is “fairly debatable,” the insurer is entitled to debate it, whether the debate concerns a matter of fact or law. Ibid.
“ ‘Under those authorities the plaintiff in a “bad faith refusal” case has the burden of proving:
“ ‘(a) an insurance contract between the parties and a breach thereof by the defendant;
“ ‘(b) an intentional refusal to pay the insured’s claim;
“ ‘(c) the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason);
“ ‘(d) the insurer’s actual knowledge of the absence of any legitimate or arguable reason;
“ ‘(e) if the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer’s intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.
“ ‘In short, plaintiff must go beyond a mere showing of a nonpayment and prove a bad faith nonpayment, a nonpayment without any reasonable ground for dispute. Or, stated differently, the plaintiff must show that the insurance company had no legal or factual defense to the insurance claim.
“ ‘The “debatable reason” under (c) above means an arguable reason, one that is open to dispute or question.’ ”

National Savings Life Insurance Co. v. Dutton, 419 So.2d 1357, 1361 (Ala.1982). See also Prudential Ins. Co. of America v. Coleman, 428 So.2d 593 (Ala.1983) (rejecting any cause of action based upon an insurer’s negligence in handling direct claims). The burden on a plaintiff in a bad faith case is a very heavy one. Dutton, supra.

Applying these rules to the facts of this case, we hold that the plaintiff failed to meet that burden.

Having determined that the plaintiff failed to prove a claim of bad faith refusal to pay, we must reverse and remand to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: C.C. Torbert, Jr. Chief Justice

text:
    OPINION OF THE JUSTICES.
    No. 307.
    Supreme Court of Alabama.
    May 2, 1984.
   To the Honorable Speaker and Members of

The House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs and Mesdames:

We are in receipt of House Resolution 305, which reads:

“BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending bill, H.B. 865 _
“Does H.B. 865, which provides (1) for salaries and allowances of certain officers of Madison County, and (2) which provides for certain of said offices to be full-time, even though item (2) is not reflected in the title of the said H.B. 865, conflict with Section 45 of the 1901 Constitution which states in pertinent part:
“... Each law shall contain but one subject, which shall be clearly expressed in its title.... ?”

We answer your question in the negative.

Section 45 of the Constitution of 1901 should be liberally and reasonably construed to permit the legislature to operate without undue strictures on its prerogatives. It should not be exactingly enforced to cripple legislation. Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So.2d 903 (1971). Its purpose is to prevent fraud and surprise on the legislature by prohibiting measures in a bill not reflected in its title. Opinion of the Justices, 294 Ala. 571, 319 So.2d 699 (1975). This purpose is served so long as the subject matter included in the bill is germane to, cognate with, or complementary to the idea expressed in the title. City of Birmingham v. Merchants Cigar and Candy Co., 235 Ala. 204, 178 So. 220 (1938).

In Grayson v. Stone, 259 Ala. 320, 66 So.2d 438 (1953), the Court held that an act which stated in its title that its subject was to fix the salary of circuit judges and which also dealt with contributions by the county to such salary did not violate Section 45. That case is persuasive here.

H.B. 865, the title of which provides for salary and allowances for certain officers of Madison County and the provisions of which also describe certain of those officers as full-time officers of the county, is not offensive .to Section 45.

Respectfully submitted,

C.C. Torbert, Jr. Chief Justice

Hugh Maddox

Janie L. Shores

Sam A. Beatty

Oscar W. Adams, Jr. Justices


text:
    OPINION OF THE JUSTICES.
    No. 308.
    Supreme Court of Alabama.
    May 3, 1984.
   To the Honorable Speaker and Members of

The House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs and Mesdames:

We are in receipt of House Resolution 308, which reads:

“BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we do respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions of the following important constitutional questions relative to pending House Bill 860, which bill provides for unifying and consolidating the offices of tax assessor and tax collector in Baldwin County and the referendum election pursuant to Amendment 412 [sic: 411] to the Constitution, 1901. Said bill is properly before the legislature with notice and proof. Copies of said bill are attached hereto and made a part hereof by reference.
“1. Under Sections 2 and 13 of pending H.B. 860, is the county governing body mandated to call and hold a special referendum on the question of consolidating and unifying the offices of tax collector and tax assessor in Baldwin County absent any other countywide election m Baldwin County prior to July 1, 1984?
“(a) If the county governing body is not so mandated under the provisions of Sections 2 and 13 of said pending bill, would an amendment, to further clarify legislative intent that a special referendum election is mandated to be held prior to July 1, 1984, on said question, supra, if there is no county wide election in Baldwin County from the effective date of this act to July 1, 1984, to provide such special election in the event there is no election held prior to July 1, 1984, violate Section 61 to [sic] the Constitution of 1901?”

Sections 2 and 13 of H.B. 860 read in pertinent part as follows:

“Section 2. The county governing body shall call a referendum on the question of combining the offices of tax assessor and tax collector into a new office of county revenue commissioner and abolishing the said offices of tax assessor and tax collector as provided by Section 13. Said referendum shall be held no later than any county-wide election in Baldwin County prior to July, 1984.
“Section 13. This act shall be inoperative and void unless it shall have been approved by a majority of the qualified electors of Baldwin County who vote thereon at a referendum election held for such purpose. Said election shall be held and conducted as nearly as may be in the same way as elections on amendments to the Constitution and elections for other county officers and shall be held on the same day as any countywide election held in Baldwin County, prior to July 1, 1984, next following final passage of this act.”

The code section which allows the governor or the legislature to obtain advisory opinions from the Justices of this Court specifies that the opinions must be “on important constitutional questions.” Code 1975, § 12-2-10. Because of this restriction, the Justices normally decline to answer questions which do not relate to the constitutionality of pending legislation. Opinion of the Justices, 384 So.2d 1056 (Ala.1980); Opinion of the Justices, 342 So.2d 916 (Ala.1977). The first question relates not to the constitutionality of the bill but to matters of statutory construction, which “cannot be considered by this court on request for an advisory opinion.” Opinion of the Justices, 291 Ala. 581, 585, 285 So.2d 87 (1973) (citations omitted).

“Important constitutional questions” must relate to matters of a general public nature and not to strictly local bills. Opinion of the Justices, 281 Ala. 231, 201 So.2d 103 (1967); Opinion of the Justices, 269 Ala. 127, 111 So.2d 605 (1959). The second question is also an improper subject for an advisory opinion because it is a hypothetical question, assuming both a negative answer to the first question and the introduction of an amendment to the bill. Opinion of the Justices, 267 Ala. 110, 100 So.2d 565 (1958); Opinion of the Justices, 384 So.2d 1054 (Ala.1980).

For the foregoing reasons, we respectfully decline to answer the questions propounded to us by House Resolution 308. Respectfully submitted,

C.C. Torbert, Jr. Chief Justice

Hugh Maddox

Richard L. Jones

Reneau P. Almon

Janie L. Shores

Sam A. Beatty

Oscar W. Adams, Jr. Justices ■


author: WRIGHT, Presiding Judge.

text:
    Karolyn O. MERSMANN v. James F. MERSMANN.
    Civ. 3995.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.
    Rehearing Denied Feb. 8, 1984.
    Susan Williams Reeves, Birmingham, for appellant.
    Stephen R. Arnold, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal of a denial of attorney’s fees. Karolyn 0. Mersmann and James F. Mersmann were divorced after an ore ten-us hearing. Although no transcript is contained in the record, it appears that, shortly after the conclusion of testimony, the trial judge asked Mrs. Mersmann’s attorney if she had any further evidence to present. When she responded that she did not, the judge adjourned the hearing. Immediately thereafter, the judge proceeded to inform Mrs. Mersmann’s counsel that, due to her failure to plead or present evidence regarding her request for an award of attorney’s fees and costs, no such fees would be granted. Consequently, Mrs. Mersmann filed a motion “to re-open evidence solely for the purpose of presenting evidence of attorney’s fees.” The motion was denied, and Mrs. Mersmann appeals here.

The lone issue on appeal is whether the trial court abused its discretion in denying Mrs. Mersmann the opportunity to present evidence as to attorney’s fees. As we previously stated in Cinader v. Cinader, 367 So.2d 487 (Ala.Civ.App.1979):

“It has long been case law in this state that §§ 30-2-50, 51, 52, Code of Alabama 1975 provide authority for a discretionary award of attorney’s fees to the wife. (Citation deleted.) Even so a request must be made, and evidence of financial need and performance of service shown before the authority of the court to grant such fees is properly invoked.”

The record before us shows no evidence presented in support of an award of attorney’s fees. There can be no error in failing to grant relief for which there has been no evidence presented. Cinader, supra at 488. We also find no error in the trial court’s refusal to reopen and take additional evidence. Although a trial court may reopen a case when it appears to be necessary to due administration of justice, the decision whether to reopen rests within the sound discretion of the trial court. Hancock v. City of Montgomery, 428 So.2d 29 (Ala.1983). Finding no abuse of discretion, we must affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Mary Earlda F. JACKSON v. Arthur Marshal JACKSON.
    Civ. 3826.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1984.
    Rehearing Denied Feb. 15, 1984.
    James A. Ward, III, Dothan, for appellant.
    William M. Jackson, Dothan, for appel-lee.
   BRADLEY, Judge.

This is a contempt proceeding for arrear-ages in child support.

On June 6, 1980 Earlda Jackson and Marshal Jackson were divorced. Mrs. Jackson was awarded $200.00 per month per child as child support commencing June 10,1980. In addition Mr. Jackson was ordered to pay $7,000 to Mrs. Jackson for financial rehabilitation continuously over the next four years. If Mrs. Jackson obtained a job with an annual salary of $18,000 or more, the financial rehabilitation payments would cease. The parties have two children, and legal custody was granted to Mrs. Jackson from the date of the original agreement.

On February 3, 1981 Mr. Jackson obtained temporary custody pendente lite. The petition for temporary custody and the court’s order granting Mr. Jackson custody made no mention of whether child support payments also were to be suspended pen-dente lite. There were, however, court modifications of child support to $150 per month per child in September 1981; an increase to $175 per month per child in February 1982; and another increase to $200 per month per child in September 1982.

In January 1983 Mrs. Jackson sought a contempt citation against her former husband, alleging that he was in arrears in payments of child support, lump-sum alimony, medical bills for the children, and certain school expenses that he was obligated to pay.

After an ore tenus hearing, the trial court found that Mr. Jackson was not in contempt of court and that he was not in arrears in his payments to his former wife. Mrs. Jackson has appealed that judgment.

In her first argument Mrs. Jackson says that the trial court erred in finding that Mr. Jackson was not in arrears in his payments to her, especially child support and school and medical expenses for the children, which amounted, so she says, to about $7,400.

We have held that a father may be “given credit for those periods in which he [or some third person] supports the child.” Nabors v. Nabors, 354 So.2d 277 (Ala.Civ. App.1978). Also, where a trial court hears the evidence ore tenus, its findings will be presumed correct unless it clearly appears that the court’s judgment is unsupported by the evidence or it is plainly and palpably wrong. Randolph v. Randolph, 45 Ala. App. 326, 229 So.2d 923 (Ala.Civ.App.1970).

There is evidence in the record that the father had custody of one or both of the children during two periods of the time in question which extended for several months during each period. The total period of time when the children were living with and being cared for by the father is in sharp dispute. The father’s version, however, is that he had the children in his custody for over a year and a half.

The evidence shows that the father was given temporary legal custody of the children by the trial court on February 3, 1981 and the temporary custody expired on December 9, 1981. From June 1980 until January 1981, the parties shared the physical custody of the children. From August 1982 until the date of the trial, i.e. March 30, 1983, each parent had the custody of one child. The evidence as to the amount of money given to the mother for the support of the children and herself and at what times is also in sharp dispute.

The husband testified that the total amount of support he was due to pay the wife, taking into consideration the various modifications of support made by the court, was about $8,500. He stated that he had paid the amounts due including the school expenses. The husband testified that the total amount of the payments made to the wife was $9,357.43. This amount, according to the husband’s testimony, included payments to the wife for house payments, utility bills, car payments, car insurance, doctor bills, clothes for and expenses of the children. The husband testified that he actually paid to the wife more than he was required to pay by the court’s decrees. Cancelled checks in support of the husband’s testimony were introduced into evidence.

Husband argues here that he had custody of both children for about half the time in controversy, and that the money that was given to the wife was for necessaries for the support of the children and the wife, and that he should be given credit for these expenditures. The trial court obviously believed the husband’s evidence because it gave the husband credit for the money given to the wife.

We find that the trial court’s decision to give the husband credit for the moneys paid to the wife for her support and the children’s support is fully supported by the evidence and is not an abuse of the trial court’s discretion.

Wife’s final contention is that the trial court erred in not holding husband in contempt.

We have held that it is for the trial court to determine whether its decree has been violated to such an extent that the violator is in contempt. Hallford v. Hallford, 390 So.2d 295 (Ala.Civ.App.1980).

Husband shows that he was unemployed for about seven months of the time in question and could not make any payments during that time. Additionally, the husband introduced proof that he had given the wife more money in the way of support than she claimed that he owed her.

Based on this evidence we cannot say that the trial court abused its discretion in refusing to hold husband in contempt.

For the foregoing reasons we affirm the judgment of the trial court.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J„ concur.


text:
    Christopher Meredith BONDS, By and Through his father and next friend, Ronald B. BONDS, et al. v. Douglas BUSLER, et al.
    Civ. 4193-X.
    Court of Civil Appeals of Alabama.
    April 4, 1984.
    Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellants.
    Edgar M. Elliott, III and Cynthia McGough of Rives & Peterson, Birmingham, for appellees.
   WRIGHT, Presiding Judge.

This is a negligent entrustment case.

On May 28, 1981, five-year-old Christopher Bonds was injured when he was struck by a van owned by Douglas Busier and driven by Busler’s fifteen-year-old daughter, Brenda Busier. He was taken to University Hospital in Birmingham, where he remained for treatment of a concussion • until June 2, 1981.

On January 7, 1982, Christopher, by and through his father and next friend, Ronald B. Bonds, filed suit in Jefferson County alleging (1) negligent operation of the van by Brenda Busier and (2) negligent entrustment of the van to Brenda by her father and mother, Douglas and Linda Busier. The complaint also included Ronald B. and Paulette Bonds as parties plaintiff and prayed for a total judgment of $115,000. Mrs. Bonds was subsequently dismissed.

In order to better understand’the line-up of the parties and the resultant verdicts, we adopt the outline in appellees’ statement of the case as follows:

The primary issue on appeal is whether the trial court erred in denying plaintiffs’ motion for new trial on the ground that the verdicts in favor of defendants Brenda Busier and her mother, Linda, and against the injured Christopher Bonds are inconsistent with the verdict against defendant Linda Busier and in favor of Ronald Bonds.

The appellant Bonds contends that the verdicts are inconsistent in that the en-trustor, Linda, was determined by the jury to be liable because of negligent entrustment of an automobile to the incompetent minor, Brenda, while the jury found Brenda not guilty of causing the injury to Christopher.

We find it settled law in this state that though an entrustor may be guilty of negligent entrustment of a vehicle to an incompetent driver, he may not be held liable for such negligence unless the injury is proximately caused by the incompetence of the entrustee. Keller v. Kiedinger, 389 So.2d 129, 131 (Ala.1980). Though there may be basis for questioning the authority of the opinion in Keller, supra, we consider it correctly speaks to the proposition that one who entrusts an automobile to an incompetent driver, incompetent as a matter of law or in fact, is guilty of negligent entrustment; however, the entrustor’s liability for such entrustment depends upon an injury proximately resulting from the incompetency of the entrustee.

The court said in Keller, supra:

“The rule is logical — in some cases the incompetence of the bailee may render him incapable of legal negligence. In other eases the entrustment may proximately result in injury without negligence on the part of the bailee. See Comment, Negligent Entrustment in Alabama, 23 Ala.L.Rev. 733, 751 (1971) (example). We find therefore, that negligence on the part of the bailee is not a necessary element of negligent entrustment.”

389 So.2d at 132.

We hasten to say that we consider that the court in the last sentence quoted above did not mean to convey that there need be no showing and determination of the incompetence of the bailee in the operation of the vehicle which was the proximate cause of the injury. Such incompetence may be manifested by active culpable negligence of the driver or it may be manifested by non-culpable, passive inability to function as a driver. Except in the latter instance, the liability of the entrustor must rest upon a consideration of the conduct of the bailee to establish the necessary element of incompetency as a proximate cause of injury.

The facts of this case do not bring it within the exception. The entrustee, Brenda, was a fifteen-year-old girl without a driver’s license and thus conclusively presumed an incompetent driver. McDermott v. Hambright, 286 Ala. 249, 238 So.2d 876 (1970); Paschall v. Sharp, 215 Ala. 304, 110 So. 387 (1926). However legally incompetent to drive the entrustee, Brenda, may be, her incompetency to drive must have manifested itself in causing the injury to Christopher. This was stated in the case of Rush v. McDonnell, 214 Ala. 47, 52, 106 So. 175, 178 (1925) as follows:

“Yet the injurious conduct of the bailee, resulting from his incompetency as a driver is a necessary factor to the liability of the owner or custodian, without which the wrongful bailment could not be said to be the proximate cause of the injury. Hence any consideration of the owner’s liability must involve also a consideration of the conduct of the bailee and of his legal culpability.”

Relating these principles to this case and the verdict returned by the jury, it is evident that the finding that the entrustee, Brenda, was free from culpable conduct causing injury to Christopher, legally prevented the finding of liability of her en-trustor, Linda. Such findings are inconsistent and are contrary to the court’s charge to the jury. We also agree with appellee that the awarding of a verdict in favor of the father against the entrustor mother is inconsistent with the failure to find for the injured Christopher against Linda. The finding for the father for recovery of expenses of treating the injury of the son, but failure to award damages to the son for such injury is irreconcilable. Lindsay v. Hackney, 283 Ala. 372, 217 So.2d 238 (1968).

Appellee contends that even though the verdicts be inconsistent, his motion to vacate the judgment should be granted because the jury found in all cases in favor of Brenda, upon whose culpability all others must rely.

We cannot accept appellee’s and cross-appellant’s contention. It appears to us that the finding against the entrustor and in favor of the entrustee, after a proper and specific charge, indicates misconception and confusion by the jury. They obviously intended that plaintiff father should recover and that defendant mother should pay. They just failed to follow the proper course to do it. We consider the case of Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965), authority for reversing all judgments in this case and remanding for a new trial.

Since we have directed a new trial, we consider now the second issue presented by plaintiffs-appellants: That is whether the court erred in its charge to the jury on damages. The specific charge complained of is:

“However, I do charge that if you should return a verdict in favor of plaintiffs in this case that you cannot base any award which you might make upon the possibility that the plaintiff, Christopher Bonds, may have trouble with his legs in the future or may have epilepsy in the future.”

That part of the charge was preceded by the following:

“If you are reasonably satisfied from the evidence that the plaintiff has suffered permanent injuries and that such injuries proximately resulted from the wrongs complained of, then you should decide in your verdict ... include in your verdict such sum as you determine to be reasonable compensation for such injuries.”

Appellant’s basis for his complaint to the charge relates to testimony in which physicians stated that the brain scar suffered by Christopher, though healed, might possibly, under extremes of demand, cause the left leg to function slightly different from the other leg. Further, there is a two percent possibility, as compared to a one percent possibility without the scar, that he could suffer from epilepsy at some time immediately after the injury, such possibility diminishing to normal over a ten-year period. There is a ninety-eight percent probability that he would never experience epilepsy.

It is to be noted that the above evidence was before the jury for their consideration of the claim of permanent injury and its present money value. It is stated in Armour & Co. v. Cartledge, 234 Ala. 644, 648, 176 So. 334, 338 (1937):

“It will be noticed that the problem is the present evaluation in money of his condition, existing after the accident. A possibility of certain results would not show as much present compensable condition as a probability or other more certain consequence. But such possibility would shed some light on the question of more or less value as explained by the expert. Not that plaintiff can recover for such possible consequences, and the charges were not so framed. But the evidence is admissible to shed light on the value of a condition then existing. The jury will take that along with the other evidence in justly appraising that condition.”

Reiterated in Zell v. Umphrey, 250 Ala. 107, 34 So.2d 472 (1948).

We consider that the court followed the lead of these cases and others, that mere possible future consequences not presently occurring, as opposed to reasonable probabilities are too speculative to measure in damages. Alabama Power Co. v. Smith, 409 So.2d 760 (Ala.1981). The court did not err in its charge.

For error in denying appellants’ motion for new trial, because of the inconsistency of verdicts, we reverse and remand for a new trial.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

      . We do not read the dissent in Keller to disagree with the proposition of law. The dissent appears to be only to the granting of summary judgment upon the issue of contributory negligence of the bailee,


author: HARRIS, Judge.

text:
    Franklin LEATHERWOOD v. CITY OF ALBERTVILLE.
    8 Div. 903.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Robert W. Hanson, Albertville, for appellant.
    William C. Gullahorn, Jr. of Gullahorn & Hare, Albertville, for appellee.
   HARRIS, Judge.

Appellant, Franklin Leatherwood, was convicted of the offense of reckless endangerment in the recorder’s court of the City of Albertville. He appealed the conviction to the Circuit Court of Marshall County, where he was tried before a jury. At the conclusion of the trial, the judge charged the jury that the elements of reckless endangerment had not been proven, and proceeded to charge on the lesser included offense of menacing. Appellant was found guilty and sentenced to six months’ imprisonment, with five months’ suspended sentence and two years of unsupervised probation.

Testimony at trial revealed that at about 1:00 a.m. on the last Saturday in October, 1982, Melanie Wade walked out of the Food World Grocery Store where she was employed and headed toward her car in the parking lot. She heard a car crank up and soon realized that the ear was following her in an unusual manner. The driver, a man, called out to her. She became frightened and hurried to get into her car. As she got in, the man pulled his car in beside her car and got out. He demanded that she open the door or roll down her window, and when she refused to comply, pulled out a gun and aimed it toward the side of her head repeating his demands for several minutes. She blew her car horn in a continuous manner and when some co-employees and bystanders came to her aid, the man got into his car and left. Two witnesses followed him and wrote down his tag number. Ms. Wade and another witness made in-court identifications of appellant as the man who accosted her, and another witness, though unable to identify appellant, rendered a description of him. Appellant, his wife and two of his sons testified that he was at home when the incident occurred.

The sole issue presented to this court on review is whether menacing can be a lesser included offense of reckless endangerment.

Section 13A-1-9, Code of Alabama (1975) specifies the following circumstances under which a defendant may be convicted of a lesser included offense:

“(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or “(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.”

This court, in Sharpe v. State, 340 So.2d 885, 887 (Ala.Cr.App.1976), construed “lesser included offense” as follows:

“Where all elements of an offense separate from offense charged are present in or included among elements of charged offense, such separate offense is a lesser included offense for which defendant may be convicted, though acquitted of the offense charged. To be necessarily included in the greater offense, the lesser must be such that it is impossible to commit the greater without first having committed the lesser.”

Section 13A-6-24 sets out the elements of reckless endangerment, the offense charged, as follows:

“A person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”

Section 13A-6-23 sets out the elements of menacing, the offense for which appellant was convicted, as follows:

“A person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury.”

It is evident to-us that because the mental state required by these two statutes is disparate, under § 13A-1-9, Code of Alabama (1975), and Sharpe v. State, supra, menacing cannot be a lesser included offense of reckless endangerment. See also Howell v. State, 431 So.2d 1328 (Ala.), on remand, 431 So.2d 1331 (Ala.Cr.App.1983). Furthermore, in Cordial v. State, 389 So.2d 170, 174 (Ala.Cr.App.1980), we reiterated the rule that “.... a man cannot be indicted for an offense, and under that indictment suffer a conviction of an offense not named in the indictment.”

The judgment of conviction is therefore reversed and judgment is here rendered discharging appellant from further proceedings in this cause.

REVERSED AND RENDERED.

All the Judges concur, except TYSON, J., who concurs in the result only.


author: TYSON, Judge.

text:
    Tommy Ray FAIRBANKS v. STATE of Alabama.
    8 Div. 26-A.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    John L. Sims, Hartselle, for appellant.
    Charles A. Graddick, Atty. Gen., Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Tommy Ray Fairbanks was indicted for trafficking in cannabis in violation of § 20-2-80, Code of Alabama 1975. The appellant entered a plea of guilty and the trial judge sentenced him to three years’ imprisonment in the penitentiary and fined him $25,000.

I

The sole issue which the appellant raises on appeal is that the sentencing scheme in §.20-2-80 and § 20-2-81, Code of Alabama 1975 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We do not agree with this appellant since this issue has previously been decided adversely to the appellant by this court in Williams v. State, 420 So.2d 91 (Ala.Cr.App.1982); Dickerson v. State, 414 So.2d 998 (Ala.Cr.App.1982); and Wheatt v. State, 410 So.2d 479 (Ala.Cr. App.1982).

For the reasons stated, this cause is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: ADKINS, Justice.

text:
    Richard Long CARLTON, Petitioner, v. STATE of Florida, Respondent.
    No. 62702.
    Supreme Court of Florida.
    March 8, 1984.
    Rehearing Denied May 23, 1984.
    Larry G. Turner and Robert S. Griscti of the Law Offices of Larry G. Turner, Gainesville, for petitioner.
    Jim Smith, Atty. Gen. and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for respondent.
   ADKINS, Justice.

This cause is before us on discretionary review of the Fifth District Court of Appeal’s decision in Carlton v. State which is reported at 418 So.2d 449 (Fla. 5th DCA 1982). That case conflicts with Pezzella v. State, 390 So.2d 97 (Fla. 3d DCA 1980); review denied, 399 So.2d 1146 (Fla. 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner was arrested for possession of a controlled substance known as phencycli-dine. The drug was seized by police from petitioner’s automobile under the authority of a search warrant which authorized the search of the automobile and the seizure of “all controlled substances and other matters of [sic] things pertaining or relating to said possessions and sale of controlled substance violations of chapter 893, Florida Statutes, ...” No restriction was placed on the executing officers as to what particular controlled substances were contemplated by the warrant’s command although the affidavit supporting the warrant specifically identified two separate alleged cannabis transactions by the petitioner inside the vehicle as the facts tending to establish probable cause for issuance of the warrant. The affidavit identified no controlled substances other than cannabis that were allegedly located in the vehicle and, in fact, only sought authorization “to search the described vehicle and the persons therein Reasonably expected to be involved with the illegal sale and possession of cannabis.” The warrant did not refer to the alleged cannabis violations as a basis for finding probable cause and made no reference to cannabis.

As a result of the seizure of the phency-clidine, petitioner was charged with the possession of a controlled substance. Petitioner filed a motion to suppress the evidence arguing, among other grounds, that the command portion of the warrant was overbroad in scope as to the things to be seized. The trial court denied the motion. Petitioner then entered a plea of nolo con-tendere to the possession charge expressly reserving the right to appeal the court’s order denying the petitioner’s motion to suppress. The Fifth District Court of Appeal affirmed petitioner’s conviction and upheld the trial court’s denial of the motion to suppress.

The Fifth District Court of Appeal noted that the description requirements of the United States and Florida Constitutions “must be given a reasonable interpretation consistent with the type or character of the property sought.” 418 So.2d at 450 (citing North v. State, 159 Fla. 854, 32 So.2d 915 (1947)). The court quoted from a federal district court decision, United States v. Quantity of Extracts, Bottles, 54 F.2d 643 (S.D.Fla.1931), for the proposition that a looser description is allowable where the property to be seized is not innocuous but is “prima facie contraband.” The court also discussed petitioner’s reliance on Pezzella v. State in which the warrant described the property to be seized as “possession of a controlled substance: in violation of F/S/S 896.13 [893.13].” The Pezzella court held that this description was unconstitutionally overbroad. The district court distinguished Pezzella from the present case on the ground that the Pezzella court was perhaps sensitive to the fact that the search involved in that case related to a home. The district court stated that the search of vehicles for contraband has and is a special problem and a special situation with respect to expectations of privacy. Concluding that “all ‘controlled substances’ are contraband which can be seized if found during an authorized search,” the district court held that the warrant sufficiently described the property authorized to be seized. We agree.

The thrust of petitioner’s argument is that our prior decisions and United States Supreme Court precedent require that when facts are available to a magistrate to identify with particularity the items to be seized, the magistrate is constitutionally obligated to authorize a seizure of only those particular items. Petitioner discusses a number of Florida Supreme Court and district court of appeal decisions as authority for his assertion that a warrant’s command must conform to its probable cause foundation. We do not believe that any of the cases relied on by petitioner mandate such a requirement. Our state constitution requires that search warrants particularly describe the property to be seized. Art. I, § 12, Fla. Const. This constitutional mandate has been further amplified by the Florida legislature in section 933.05, Florida Statutes (1981). That section provides, in part:

Issuance in blank prohibited. — A search warrant cannot be issued except upon probable cause supported by affidavit or affidavits, naming or describing the person, place or thing to be searched and particularly describing the property or thing to be seized.

We believe that the particularity requirement and its constitutionality must be judged by looking only at the information contained within the four corners of the warrant. We do not believe that the drafters of our constitution and this state’s legislators intended that the language of a warrant be scrutinized and compared to the knowledge of the officer seeking the warrant and/or the information contained in the supporting affidavit. We simply cannot uphold the argument that the validity of a search warrant should depend, in large part, on whether the issuing magistrate had the ability and information to describe the property with a greater degree of particularity than he did. A valid warrant is always based on an affidavit which particularly describes the place to be searched and the person and thing to be seized. § 933.-05, Fla.Stat. (1981).

The particularity requirement of warrants has a two-fold purpose. Perhaps the most frequently quoted statement in this regard is that of Justice Butler in Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927):

The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.

Thus, the particularity requirement stands as a bar to exploratory searches by officers armed with a general warrant. Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976). Additionally, the requirement limits the searching officer’s discretion in the execution of a search warrant, thus safeguarding the privacy and security of individuals against arbitrary invasions by governmental officials. See Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971); Berger v. New York, 388 U.S. 41, 53, 87 S.Ct. 1873, 1880, 18 L.Ed.2d 1040 (1967); Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967).

The analysis which petition seems to suggest is not only unprecedented, but is also implicitly rejected by this Court’s decision in North v. State. In North a warrant was issued for property described as “gambling implements and devices used for the purpose of gaming and gambling.” 32 So.2d at 917. The affidavit described the property to be seized as “numerous slot machines, roulette wheels, and other gambling devices and games of chance such as are commonly used in gambling games.” Id. This Court noted that the particularity requirement “must be given a reasonable interpretation consistent with the type or character of the property sought” and found the warrant’s description of the property to be seized as sufficiently particular. The Court quoted from State v. Nejin, 140 La. 793, 74 So. 103, 106 (1917):

[W]here the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other. On the other hand, if the purpose be to seize, not specified property, but any property of a specified character, which, by reason of its character and of the place where and the circumstances under which it may be found, if found at all, would be illicit, a description, save as to such character, place, and circumstances, would be unnecessary and, ordinarily, impossible; as, for instance, where a search is ordered for dies for the counterfeiting of money, or for opium, or gambling devices, or lottery tickets, or intoxicating liquors, alleged to be held in possession unlawfully, and the same is true though the illegality may consist in the intended use rather than the mere possession of the property.

32 So.2d at 917.

When we consider the circumstances involved in the present case and the type of property to be seized, we believe that North requires us to affirm the decision of the district court. We fail to see how justice is being furthered by mandating that a warrant specify which particular controlled substance is to be seized. In most instances where a warrant is issued with the objective to seize and thus build a case against an individual for whom probable cause exists to suspect that individual of possessing and/or trafficking in a controlled substance, there is a high probability that the offense involves more than one particular controlled substance. We do not believe that a valid purpose is being served by requiring our law enforcement personnel to name each particular substance rather than the term “controlled substances.” We do not think this is such a general term that it allows for abuse and unbridled discretion by law enforcement personnel or allows for a “general search” as that term is used in prior United States Supreme Court or Florida decisions. To hold otherwise would hamper law enforcement unjustifiably.

Today’s decision obviously disapproves the holding of the Third District Court of Appeal in Pezzella. We cannot distinguish Pezzella, as the district court more or less attempted to do in the present case, by drawing a distinction here between the search of a home and the search of an automobile. We agree that there are special problems and situations relating to automobiles which justify differing treatment when dealing with other issues such as probable cause, exigent circumstances, and the need for a warrant. However, the concerns which we have voiced to justify our holding and the law pertaining to this issue require us to disapprove Pezzella rather than distinguish it on such a basis.

We approve the decision of the district court.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, MCDONALD, EHRLICH and SHAW, JJ., concur.