text:
    John T. HENDERSON v. STATE of Mississippi.
    No. 54973.
    Supreme Court of Mississippi.
    Aug. 1, 1984.
    Herman F. Cox, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

John T. Henderson was convicted of possession of cocaine in violation of Mississippi Code Annotated § 41-29-139 (1972), in the Circuit Court of the First Judicial District of Harrison County. He was sentenced to a term of three years in the Department of Corrections and fined Twenty Thousand Dollars. The fine was suspended conditioned upon Henderson serving the entire three year term.

Henderson appealed and assigned as error:

1. That the trial court erroneously refused jury instructions on the burden of proof in the circumstantial evidence case; and

2. That the verdict was against the overwhelming weight of the evidence.

We reverse and remand for a new trial because the case against Henderson was based on wholly circumstantial evidence and therefore the requested instruction should have been granted.

On the evening of November 27, 1981, Mrs. Lynn Wakefield arrived at her home in Gulfport and there found her son, Roger Garon, and his girl friend, Wendy Jackson, in Garon’s upstairs bedroom. Shortly before 9:00 p.m., two young men came to the house to see Garon. One of these men was Henderson. When she found her son’s door shut, Mrs. Wakefield called the Gulf-port police. One of the young men came downstairs before the police arrived. Mrs. Wakefield never saw Henderson leave her house that night.

Officer Steve Gorenflo was one of the policemen responding to Mrs. Wakefield’s call for assistance. She gave him permission to enter the house and accompanied him to the second floor, but did not enter her son’s room.

When Officer Gorenflo entered the room, Garon and Jackson were seated at the left side of the room and Henderson was standing next to a chest of drawers on the right side of the room with his back to the officer.

When Henderson turned to face Goren-flo, the officer saw four hypodermic syringes and glasses of water on top of the chest. Henderson made two efforts to push past Gorenflo; failing in this, Henderson dove headlong out the second floor window and thus exited the room. Gorenflo seized the four syringes, three of which contained cocaine, and also a spoon containing cocaine.

At the conclusion of the state’s case, Henderson moved for a directed verdict on the ground that the state had failed to prove its case. When the motion was overruled, the appellant proceeded to put on his proof. Garon, testifying for Henderson, substantially contradicted the testimony of his mother and of Officer Gorenflo. According to Garon, Henderson did not do drugs, and had only been in the room briefly when the police arrived. Garon also testified that Henderson did not know there was cocaine in the room, and that the cocaine was not visible on the chest of drawers when Officer Gorenflo entered the room. Garon did not offer any explanation for Henderson’s method of departure.

When Henderson proceeded to put on his proof, he waived his assignment of error that the trial court should not have overruled his motion for a directed verdict. This is in keeping with well-settled Mississippi law. Fields v. State, 293 So.2d 430, 432 (Miss.1974).

After all the evidence was in the appellant offered two jury instructions which vvere refused. Instruction D-10 reads:

The Court instructs the Jury that if you can reconcile the evidence upon any reasonable hypothesis consistent with the Accused’s innocence, you should do so and find him not guilty.

Instruction D-6 reads:

The Court instructs the Jury that if there be a fact or circumstance in this case susceptible of two interpretations, one favorable and the other unfavorable to the accused, when the Jury has considered such fact or circumstance with all other evidence, there is a reasonable doubt as to the correct interpretation, then you, the Jury, must resolve such doubt in favor of the accused, and place upon such fact or circumstance the interpretation most favorable to the accused.

The case against Henderson was based upon his constructive possession of cocaine found on premises that did not belong to him. He was never seen with the cocaine in his hands.

Constructive possession is discussed in Curry v. State, 249 So.2d 414 (Miss.1971):

What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of “possession” is a question which is not susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Id. at 416.

The state may show that the accused had knowledge of the presence and character of the contraband and was in constructive possession of it through the use of circumstantial evidence. Martin v. State, 413 So.2d 730, 732 (Miss.1982).

From the record, it is plain that the state attempted to prove the elements of constructive possession through evidence that was entirely circumstantial. The principal facts constituting the crime all had to be inferred from other facts proven by the state. First, the state relied upon the fact that Henderson was seen standing before a chest of drawers on which the syringes and spoon were found in order to prove that he was aware of the presence and character of the contraband. Officer Gorenflo admitted that he could not testify to his own knowledge that Henderson actually saw the syringes and spoon. The proof that the drugs were under his dominion and control was likewise indirect because the state established merely that he was standing in front of the chest of drawers where the drugs were found. Finally, the state depended upon the fact that there were three prepared syringes in the room with Henderson and two others for the additional incriminating evidence necessary to turn his proximity to the drugs into a connection amounting to constructive possession.

In this case the trial court erred in refusing to give these two instructions on circumstantial evidence. Where all the evidence tending to prove the guilt of the defendant is circumstantial, the trial court must grant a jury instruction that every reasonable hypothesis other than that of guilt must be excluded in order to convict. Sanders v. State, 286 So.2d 825, 828 (Miss.1973); Matula v. State, 220 So.2d 833, 836 (Miss.1969). Also where the evidence is purely circumstantial, the trial court must grant a “two-theory” instruction such as D-6. Johnson v. State, 347 So.2d 358, 360 (Miss.1977); Nester v. State, 254 Miss. 25, 29, 179 So.2d 565, 566 (1965).

For the same reason that the defendant’s circumstantial evidence instructions should have been granted, the objection to jury instruction C-13 should have been sustained. This instruction only required the state to prove the defendant was guilty beyond a reasonable doubt, and it did not set forth the burden or proof required in the circumstantial evidence case. For the reasons already set out, this error is well taken because the court’s instruction on the burden of proof was improper.

We do not reach the appellant’s other assignment of error as we have determined that this case should be remanded for a new trial because jury instructions required in a circumstantial evidence case were refused.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


source: Caselaw Access Project

author: WALKER, Presiding Justice,

license: Public Domain

text:
    Walter HARMON v. STATE of Mississippi.
    No. 55012.
    Supreme Court of Mississippi.
    Aug. 1, 1984.

      George L. Dorrill, Thornton, Guyton, Dorrill & Pettit, Kosciusko, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and BOWLING and HAWKINS, JJ.
   WALKER, Presiding Justice,

for the Court:

This case comes as an appeal from the Circuit Court of Attala County. Walter Harmon was convicted of aggravated assault and sentenced to twenty years without possibility of parole as an habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Supp.1983).

Walter Harmon and James Harmon were sitting in a car in front of the home of Mary Landingham, James’ mother-in-law, on January 2, 1983 at approximately 7:00 p.m.

The victim, James Harmon, testified that the appellant without cause or provocation said, “James, I’ll shoot your tongue out,” put a pistol into the victim’s mouth and fired the pistol. The victim’s nine-year-old son testified that he heard appellant say he was going to shoot the victim and the victim told him not to shoot the gun in the car. The son witnessed the shooting and saw appellant follow the victim out of the car and shoot at the victim again as he was going into the Landingham home.

James Harmon’s wife also testified that she heard Walter threaten to shoot James shortly before the shooting occurred.

Walter Harmon did not take the stand in his own behalf, and no one testified for him. The jury found him guilty of aggravated assault.

On appeal the appellant assigns three errors: the verdict was not supported by credible evidence establishing guilt beyond all reasonable doubt; the trial court erred in refusing to grant a mistrial when a witness for the state testified about a separate criminal offense purportedly committed by the defendant approximately one week prior to the incident in question; and the trial court erred in refusing jury instruction D-7 which states that if there was a reasonable doubt as to the correct interpretation of any fact the jury must resolve such doubt in favor of the accused.

As to appellant’s first contention, although there may have been some inconsistencies in the testimony of the witnesses, it is within the province of the jury to sift through the facts and determine which to accept and which to reject. See Luckett v. State, 354 So.2d 1119 (Miss.1978). There was ample evidence to support the verdict, absent any explanation by the defendant as to why he shot the victim.

The jury’s request for leniency must be disregarded as mere surplusage. Craig v. State, 208 Miss. 528, 44 So.2d 860 (1950). Appellant’s contention that this request shows the jury had a reasonable doubt as to his guilt is contrary to the instructions given the jury and the jury is presumed to follow its instructions. See Williams v. State, 427 So.2d 100, 103 (Miss.1983).

The appellant’s second assignment is without merit. The trial court sustained appellant’s objection to the testimony about the earlier incident and instructed the jury to disregard that testimony. The jury is presumed to have followed the instruction given by the trial judge and there is no reversible error. In the case cited by appellant, Massey v. State, 393 So.2d 472 (Miss.1981) the objection was not sustained and no instruction was given to the jury to disregard the improper testimony.

Appellant’s complaint that the court refused to grant instruction D-7 is not supported by any authority. This Court does not as a general rule consider unsupported assignments of error. Ramseur v. State, 368 So.2d 842, 844 (Miss.1979).

The refused instruction D-7 is similar to the “two-theory” instruction which is properly given only in purely circumstantial evidence cases. Bullock v. State, 391 So.2d 601 (Miss.1981). Because there was eyewitness testimony this is not a circumstantial evidence case. Reading all the instructions given, the jury was properly instructed on the law of the case.

For the above stated reasons, the judgment and sentence of the lower court are affirmed.

AFFIRMED.

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

      . Walter Harmon was convicted of manslaughter in Attala County, Mississippi in 1970 and of two counts of assault and battery by means of deadly weapon and one count of assault by means of deadly weapon in Plymouth County, Massachusetts in 1977.


author: PATTERSON, Chief Justice,

text:
    Albert “Pete” DAVIS v. Shaun Jerrell WASHINGTON and Shnita JoAnne Washington, Minors by Brinda Washington JOHNNY, Natural Mother.
    No. 54958.
    Supreme Court of Mississippi.
    Aug. 1, 1984.

      Karl R. Steinberger, Johnston & Stein-berger, Pascagoula, for appellant.
    John A. Banahan, Bryan, Nelson, Allen, Schroeder & Backstrom, Pascagoula, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.
   PATTERSON, Chief Justice,

for the Court:

In this paternity case the appellees, Shaun and Shnita Washington, minors, brought an action through their mother, Brinda Washington Johnny, in the County Court of Jackson County pursuant to Section 93-9-15, Mississippi Code Annotated (1972). They sought to have Albert “Pete” Davis declared their natural father. A judgment was entered in accordance with a jury verdict finding the appellant to be the father of the twin children.

The first of two assignments of error is that a reference to an alleged finding of paternity by the Youth Court of Jackson County was highly prejudicial to the defendant’s case. In 1974, about one year after the twins were born, Ms. Johnny brought a neglect proceeding against Mr. Davis in the Youth Court of Jackson County. The order issued by the Youth Court Judge states in pertinent part, “The father of said minors, Albert ‘Pete’ Davis should be ordered and directed to pay the sum of $15.00 per week to the Jackson County Welfare Department ... for the support and maintenance of his minor children...”

At trial, Ms. Johnny’s attorney, during re-direct examination, questioned her concerning the youth court order as follows:

Q. Would you look at this and tell me if this is the order that you are referring to?
Yes, it is.
Q. And does it state in there anyway that Albert “Pete” Davis is the father of these children?
A. Yes.
BY MR. BANAHAN: I would offer the order as an exhibit to Mrs. Johnny’s testimony.
BY MR. DORSEY: Any objections?
BY MR. DORSEY: Yes sir.
BY ,THE COURT: State your objection.
BY MR. DORSEY: I object on the grounds that is a purported order, that was not arrived at ... It states in there of the finding of fact ... Pete Davis is the father of said minors. If that is true, then we are going to give full faith and credit and should not be here now, because that is exactly what we are trying to determine now is the issue of paternity. This paternity was never held in Youth Court and it was (phonics) our defense to it. It never has been held there. Therefore, no purported order should be introduced here that would say he was the father when the proper procedure was not used.

The objection was sustained and the order was not admitted as an exhibit; however, this allegedly damaging testimony was before the jury without an instruction to disregard. Section 93-9-15, Mississippi Code Annotated (1972), places jurisdiction of paternity suits in “[t]he county court, the family court, the circuit court, or the chancery court, ...” Under this statute the youth court has no jurisdiction to determine paternity. The appellant claims this reference to the Youth Court Order was prejudicial to his case because no reasonable jury would render a verdict directly contrary to the final order of another court. This would especially be true if the jury did not know the youth court had no jurisdiction to determine paternity. We agree with this contention.

In Green v. State, 97 Miss. 834, 53 So. 415 (1910), a case dealing with an improper comment by a trial judge, this Court observed:

It is a matter of common knowledge that jurors, as well as officers in attendance upon court, are very susceptible to the influence of the judge. The sheriff and his deputies, as a rule, are anxious to do his bidding; and jurors watch closely his conduct, and give attention to this language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences their verdict,
97 Miss. at 838, 53 So. at 416.

In Young v. Anderson, 249 Miss. 539, 163 So.2d 253 (1964), the comment of a trial judge that the sun would be shining in a certain way at a specific place about 6:00 p.m. was held to be reversible error because it precluded the defendant froma fair opportunity to offer evidence to the contrary on a material point. See also, Travelers Indemnity Company v. Rawson, 222 So.2d 131 (Miss.1969).

The effect of Ms. Johnny's testimony concerning the Youth Court Order was to allow the Youth Court Judge to testify through his order that the appellant was the father of the twins. In our opinion, a jury is very likely to place great weight on the testimony of an officer of the court. Therefore, the admission of Ms. Johnny’s references to the Youth Court Order finding Davis to be the father of the twins was very prejudicial to him which requires reversal.

In his next assignment of error Davis contends it was error for the trial court to admit into evidence any references to blood tests performed on the parties. Prior to trial, Davis requested a paternity blood test pursuant to Section 93-9-21, Mississippi Code Annotated (1972). He signed a witnessed blood test consent form in which he agreed that the test results could be used in court to aid in determining paternity-

In Price v. Simpson, 205 So.2d 642 (Miss.1968), this Court held when blood tests are performed in a paternity case the results must be admitted in evidence. In the ease at bar, the blood tests results were admitted in evidence when the results were read to the jury because the trial judge would not allow the reports themselves to be introduced as an exhibit. However, Section 93-9-23, Mississippi Code Annotated (1972), requires the court to call as a witness the expert who conducted the blood tests. The trial court did not call such expert to testify to his findings as required by statute and, moreover the defendant was deprived of cross-examination. Therefore, the blood test result reports were not properly authenticated and constituted inadmissible hearsay under the facts of this case.

Although this Court is aware of the expense and trouble in calling expert witnesses in a paternity case, the statute requires it. We do not reach the interesting question of whether the parties to the suit might stipulate, with consent of the court, that the medical expert need not be called.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    CITY OF HUNTSVILLE v. Dannie R. CERTAIN.
    82-951.
    Supreme Court of Alabama.
    April 20, 1984.
    Rehearing Denied June 22, 1984.

      Charles H. Younger, Huntsville, for appellant.
    Jimmy E. Alexander of Steele, Alexander, Corder & Plunk, Athens, for appellee.
   PER CURIAM.

Dannie Certain, a former City of Huntsville police officer, filed this action against the City and Chief of Police Sal Vizzini. He sought damages from Chief Vizzini for allegedly defamatory statements Vizzini had made about Certain. Against the City, Certain asserted a contract claim for wages due and unpaid and a civil rights claim under 42 U.S.C. § 1983 for damages for alleged violations of his rights under the United States Constitution and federal laws. All other claims were dismissed pri- or to or during the trial. These counts were submitted to the jury. Verdicts were returned in favor of Chief Vizzini and against Certain on the defamation counts. These are not at issue on this appeal. The jury returned verdicts in favor of Certain and against the City on the contract count and the § 1983 claim. The City appealed from the judgment entered on these verdicts.

Following the entry of the judgment on the merits, Certain filed a motion for attorney’s fees pursuant to 42 U.S.C. § 1988, which allows the prevailing plaintiff in a § 1983 action to recover his “attorney’s fees as part of the costs.” This motion was outstanding at the time the City filed its notice of appeal, and the award was not made until six days after the appeal was taken.

Certain has moved to dismiss this appeal on the grounds that it is not from a final judgment. He argues that a final judgment is one which is the complete adjudication of all matters in dispute and, in the case of a judgment for damages, is a sum certain, determinable without looking at extraneous facts. Moody v. State ex rel. Payne, 351 So.2d 547 (Ala.1977); Newpark Shipbuilding & Repair, Inc. v. Roundtree, 698 F.2d 743 (5th Cir.1983); Gurule v. Wilson, 635 F.2d 782 (10th Cir.1980). He contends that the final adjudication of all matters in controversy did not occur until attorney’s fees were awarded, which was after the City filed its notice of appeal; he argues that the City, therefore, appealed from a nonappealable interlocutory judgment on the merits, and that the final judgment has never been appealed.

This is contrary to a recent statement by the United States Supreme Court on this point. In White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), the Supreme Court was asked to determine whether a post-judgment motion for attorney’s fees under § 1988 was a “motion to alter or amend the judgment,” under Federal Rule of Civil Procedure 59(e). The Court answered this question in the negative, and in a footnote added:

“There is implicit support for this view in decisions of the Courts of Appeals holding that decisions on the merits may be ‘final’ and ‘appealable’ prior to the entry of a fee award. See, e.g., Memphis Sheraton Corp. v. Kirkley, 614 F.2d 131, 133 (CA6 1980); Hidell v. International Diversified Investments, 520 F.2d 529, 532, n. 4 (CA7 1975); see also Obin v. District 9, Int’l Assn. of Machinists and Aerospace Workers, 651 F.2d, [574] at 583-584 [CA8 1981]. If a merits judgment is final and appealable prior to the entry of a fee award, then the remaining fee issue must be ‘collateral’ to the decision on the merits. Conversely, the collateral character of the fee issue establishes that an outstanding fee question does not bar recognition of a merits judgment as ‘final’ and ‘appealable.’ Obin v. District No. 9, Int’l Assn. of Machinists and Aerospace Workers, supra, at 584. Although ‘piecemeal’ appeals of merits and fee questions generally are undesirable, district courts have ample authority to deal with this problem.”

455 U.S. at 452, n. 14, 102 S.Ct. at 1167, n. 14.

Similarly, the Eleventh Circuit Court of Appeals in Rothenberg v. Security Management Co., 677 F.2d 64, 65 (11th Cir.1982), held that a request for attorney’s fees is a motion for costs, and noted that “[i]t is well settled in this circuit that costs may be taxed after a notice of appeal [from a judgment on the merits] has been filed.”

The final judgment in this case was entered on January 22, based on the jury verdicts. The City filed a motion for judgment notwithstanding the verdict, and then filed a timely notice of appeal within forty-two days after this motion wás denied. The outstanding motion for fees did not destroy the finality of the judgment on the merits. Certain’s motion to dismiss this appeal is, therefore, denied.

In the complaint, Certain made numerous allegations in support of his § 1983 claim. Generally, they can be divided into two groups. First, he alleged that the City wrongfully took action against him in retaliation for his exercise of his First Amendment rights. Second, he asserts that the City directly infringed upon rights protected by the Constitution, laws of the United States, and state statutes. However, we need not consider any contention, made in support of the § 1983 claim, that Certain’s rights secured by state law were infringed upon, because § 1983 provides a remedy for infringement of rights guaranteed by the Constitution and laws of the United States only. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Croy v. Skinner, 410 F.Supp. 117 (N.D.Ga.1976). The only state law claims, which included Certain’s allegations that his rights under state law were violated, were dismissed and are not subjects of this appeal.

We begin by examining Certain’s contention that the rules and regulations of the Huntsville Police Department are invalid under the United States Constitution and federal laws. The regulations to be considered state:

“1.3.4.24 [Employees of the department may be subject to dismissal, demotion, or suspension for] engaging in partisan politics.
“1.3.9.18 POLITICAL SOLICITATIONS — Members or civilian employees of the department shall not solicit contributions in money or any other manner, directly or indirectly on any pretext, to any person, committees or associations for partisan political reasons, nor shall they interfere or use the influence of their office for partisan political reasons.”

Certain argues that these regulations are vague and overbroad, infringe upon his First Amendment rights, and violate the Equal Protection Clause of the United States Constitution because they deprive him of a “substantive right to participate in the electoral process equally with other voters.”

This type of regulation of public employees has been challenged numerous times in the federal courts. Probably the best known case is United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), in which the United States Supreme Court upheld § 9(a) of the Hatch Act (5 U.S.C. § 7324), which made it “unlawful for any person employed in the executive branch of the Federal Government ... to use his official authority or influence for the purpose of interfering with an election or affecting the result thereof.” The Supreme Court recognized that this section interfered with a citizen’s rights under the First, Ninth, and Tenth Amendments “to act as a party official or worker to further his own political views.” United Public Workers of America v. Mitchell, 330 U.S. at 94, 67 S.Ct. at 566. Nevertheless, it upheld the statute because the legislation “leaves untouched full participation by employees in political decisions at the ballot box and forbids only the partisan activity of federal personnel deemed offensive to efficiency.” 330 U.S. at 99, 67 S.Ct. at 569.

“[Furthermore,] [i]t is only partisan political activity that is interdicted. It is active participation in political management and political campaigns. Expressions, public or private, on public affairs, personalities and matters of public interest, not an objective of party action, are unrestricted by law so long as the government employee does not direct his activities toward party success.”

330 U.S. at 100, 67 S.Ct. at 569. Not only was the act not overly broad, but it was found to be a reasonable and necessary limitation to protect the integrity and competency of the government services.

The concerns of the Supreme Court have been reiterated in detail by the Fifth Circuit in Wachsman v. City of Dallas, 704 F.2d 160 (5th Cir.1983); reh. denied, 710 F.2d 837 (1983), appeal pending in U.S. Supreme Court. Dallas city firemen and a police and fire action committee challenged a Dallas ordinance which prohibited city employees from circulating petitions and giving, soliciting, or receiving contributions in connection with non-partisan city council elections. The ordinance also prohibited city employees from managing, or soliciting contributions for, any partisan political campaigns. These were the only provisions before the Fifth Circuit. The court held that these were constitutional restrictions on city employees. It could find no basis for judging the validity of these provisions on the basis of whether they applied to partisan or non-partisan political activities. It found that “societal” interests could be adversely affected by unrestrained partisan or non-partisan political activities by government employees. The court identified four “societal” interests:

“[T]he interest in an efficient government; that in a government which enjoys public confidence; that in the right of individual citizens to be free of governmental discrimination based on their political activities or connections; and that in the right of governmental employees to be free of employer pressure in their personal political decisions. The potential conditions which would be harmful or injurious to these important societal interests include the following three. First, the condition could exist in which ‘employment and advancement in Government service’ is made to ‘depend on political performance’ rather than on ‘official effort’ or ‘meritorious performance.’ This not only impairs the efficiency of government directly, by depriving it of the services of the more capable for the positions so affected, but also indirectly, by its adverse effects on employee morale. This condition is also injurious to the governmental employees’ rights to be free of employer pressure to affiliate with a candidate they may personally abhor or ‘to perform political chores in order to curry favor with their superiors rather than to act out their own beliefs.’ Moreover, this condition obviously tends to undermine public confidence in government. A second harmful condition is that of governmental employees ‘practicing political justice,’ or exercising ‘political influence ... on others,’ or channeling ‘governmental favor’ ‘through political connections.’ Such a condition is seriously injurious to the rights of individual citizens to be free of governmental discrimination based on their political activities or connections. It also impairs public confidence in government. Governmental efficiency is also adversely affected in that governmental administration is deflected from the direct and purposeful implementation of the laws and policy choices made by those charged with that responsibility, generally the elected representatives, and is instead focused on furtherance of the political objectives of the civil servant. Third, the condition may occur under which ‘the political influence of federal employees’ is brought to bear without restraint ‘on the electoral process,’ or the governmental work force is employed to build a powerful ‘political machine.’ This condition undermines public confidence in government both because it tends to cast government in the light of master rather than servant of the people, and because it involves use of governmental power for purposes other than those for which the government was instituted. The latter factor also impairs governmental efficiency in the exercises of its proper purposes.”

704 F.2d at 166-167.

We hold that Regulation 1.3.4.24, which restricts the department’s employees from engaging in partisan politics, and the latter provision of Regulation 1.3.9.18, which forbids the use of the influence of the office for political reasons, are not unconstitutional violations of Certain’s First Amendment rights, or of his guarantees under the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. The regulations are admittedly infringements upon his rights and subject him to treatment different from other citizens. However, when tested by the standard set out in the federal cases, it cannot be denied that the purpose of the regulations is rationally related to the important governmental and societal interests discussed in the federal cases. The City has not been unreasonable in its enforcement of these provisions. There is evidence that officers who desire to assist a political campaign or candidate, or run for office themselves, have been granted a leave of absence in order to do so, and then allowed to return to the department with no discipline or threat of discipline.

With regard to the first provision in Regulation 1.3.9.18, which prohibits the solicitation of contributions for partisan political reasons, we hold that this regulation is also constitutional.

The constitutionality of this type of regulation was first decided in Ex Parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232 (1882). Curtis argued that a federal statute, which prohibited federal employees of the executive department “from requesting, giving to, or receiving from, any other officer or employe of the government, any money or property or other thing of value for political purposes,” was unconstitutional. The Supreme Court found the statute to be necessary to avoid the possibility that employment would be hinged upon a contribution to the “right” political candidate or party, rather than meritorious service. It reasoned that Congress had the power to regulate the political conduct of its employees so long as such regulation was necessary and reasonable. “The right to contribute money through fellow employees to advance the contributor’s political theories was held not to be protected by any constitutional provision.” United Public Workers of America v. Mitchell, 330 U.S. at 97, 67 S.Ct. at 568, discussing Ex Parte Curtis, 106 U.S. 371, 1 S.Ct. 381.

A provision more similar to the one before us, and broader than the one considered in Curtis, was upheld in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). That provision stated that “[n]o employee in the classified service [i.e., no classified state civil servant] ... shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment or contribution for any political organization, candidacy or other political purpose.” The Supreme Court upheld the statute “at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes.” Broadrick v. Oklahoma, 413 U.S. at 616, 93 S.Ct. at 2918. It relied on another decision handed down the same day, United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), which upheld § 9(a) of the Hatch Act and defined what is meant in the Act by “an active part in political management or in political campaigns.” For a definition, the Court in Letter Carriers referred to a list of “Prohibited Activities,” which appeared in the Civil Service Regulations. Among the forbidden activities listed was: “Directly or indirectly soliciting, receiving, collecting, handling, disbursing, or accounting for assessments, contributions, or other funds for a partisan political purpose.” The Supreme Court held that this provision was a valid restriction upon federal employees and was not vague or overly broad.

The regulations are challenged only as being violative of the federal Constitution. Our decision to uphold the Huntsville Police Department regulations is based upon these federal decisions. Applying the test enunciated in those cases, we do not find that the regulations are unconstitutional or overly broad. The Supreme Court in Broadrick addressed this last point. It noted that although the Oklahoma statute regulated a substantial spectrum of conduct, the acts of which the appellants were accused were clearly prohibited by the statute; therefore, it could not say that under those circumstances the act was overly broad. “We do not believe that § 818 [of the Oklahoma act] must be discarded in toto because some persons’ arguably protected conduct may or may not be caught or chilled by the statute.” Broadrick v. Oklahoma, 413 U.S. at 618, 93 S.Ct. at 2919.

Certain testified that he wanted to “participate in political activity,” while he was on the police force, but did not do so because of the regulations. This conduct clearly may be regulated by the City. There is no evidence that he intended to do, or was disciplined under the regulation for doing, something which is constitutionally protected, and which could not be regulated by the City. Furthermore, under Broad-rick, Certain has no standing to raise someone else’s rights, and we, accordingly, cannot strike down the regulations because “some other persons’ protected conduct” may be infringed upon. Against the challenge made, we must uphold Regulations 1.3.9.18 and 1.3.4.24.

The City moved for directed verdict on each individual “claim within the § 1983 claim,” including the claim that the above regulations were an unconstitutional infringement upon Certain’s rights. This motion was denied, and all claims were submitted to the jury, which was instructed to return a general verdict on the § 1983 claim if it found for the plaintiff. This it did. We hold that the court erred in denying the City’s motion for directed verdict on the plaintiffs claim that the Huntsville Police Department’s regulations violated the federal Constitution.

In view of our holding that these regulations are not unconstitutional infringements upon Certain’s rights guaranteed under the United States Constitution and federal law, it was also error to deny the City’s earlier motion to dismiss for failure to state a claim upon which relief could be granted. This error, however, would have been harmless had the trial court granted the City’s motion for directed verdict.

Under Alabama law, if two claims for relief are submitted to a jury, one supported and one unsupported, by the evidence and the law, and the defective claim has been specifically challenged by a motion for directed verdict, a general verdict cannot stand. Ex Parte Nix, 401 So.2d 64 (Ala.1981).

This rule of law is applicable to this case. It was error to deny the City’s specific motion for directed verdict on the claim challenging the regulations under the federal Constitution and to submit that claim to the jury. The jury may have found that the above regulations infringed upon Certain’s federal rights and based its verdict on this determination. If so, the verdict is incorrect, and the judgment entered on it must be reversed. Of course, the jury may have found that one or more of the other allegations in support of the § 1983 claim were true and rendered its verdict on that basis. Because the jury returned a general verdict on the § 1983 claim, as instructed by the court, it is impossible to know whether the verdict rests upon a proper or improper basis. Because of the possibility that the jury founded its verdict upon the claim having no basis in the law, we must reverse the judgment on the § 1983 claim.

We have not ruled on any of the other allegations made in support of the § 1983 claim or the contract claim, nor does our decision require us to do so. We reverse solely on the basis that the trial court improperly denied the City’s motion to dismiss and motion for directed verdict on the claim that the regulations specifically quoted were violative of the United States Constitution and federal laws. We emphasize that we have not ruled on the validity of the regulations if challenged under Alabama law, because there was no challenge under state law. We feel compelled to note that the regulations discussed may be proscribed by § 17-1-7 of the Alabama Code (1983 Supp.; formerly § 11-80-6 (1975)):

“(a)(1) No person in the employment of any city, whether classified or unclassified, shall be denied the right to participate in county and state political activities to the same extent as any other citizen of the state of Alabama, including endorsing candidates and contributing to campaigns of his choosing.
“(4) All persons in the employment of any city, county or state shall have the right to join local political clubs and organizations, and state or national political parties.
“(5) All persons in the employment of any city, county or state shall have the right to publicly support issues of public welfare, circulate petitions calling for or in support of referendums, and contribute freely to those of his choosing.”

That issue, however, is not before us.

REVERSED AND REMANDED.

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


author: JONES, Justice.

text:
    Larry Lee MALONE v. M. Preston DAUGHERTY, M.D., individually and Old Shell Road Orthopaedic Associates, P.A.
    83-170.
    Supreme Court of Alabama.
    May 4, 1984.
    Rehearing Denied June 22, 1984.
    G. Wayne Ashbee, Mobile, for appellant.
    W. Boyd Reeves of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees.
   JONES, Justice.

The sole issue presented on appeal from a summary judgment in this medical malpractice case is whether the trial court erred in ruling that Plaintiffs expert evidence failed to create a genuine issue of material fact as to Defendants’ alleged breach of the applicable standard of professional care. Plaintiff alleges that individual Defendant Dr. Preston Daugherty, as agent of the corporate Defendant, was negligent in performing surgery on Plaintiff and wrongfully failed to inform the Plaintiff of the risks involved in the surgery.

The motion for summary judgment, the grounds therefor, and the movant’s supporting evidence addressed only the Plaintiff’s claim for negligent surgical procedure. The trial court’s order, granting summary judgment as to this claim only, was made final, and thus appealable, pursuant to A.R.Civ.P. 54(b). Plaintiff’s claim for failure of informed consent is not presented for our review. Treating the Rule 54(b) certification as a partial summary judgment, we affirm.

Plaintiff/Appellant Larry Lee Malone, a 27-year-old married male, underwent a surgical procedure known as a laminectomy on May 18, 1979. Dr. Daugherty performed the operation, assisted by Dr. Eugene T. Saiter. During the course of the operation, the patient’s blood pressure dropped, necessitating an emergency procedure to repair the left common. iliac artery and vein, which had been lacerated during the lami-nectomy.

Malone urges us to reverse and remand this case for trial on the merits, claiming that there existed a scintilla of evidence that Dr. Daugherty breached the requisite standard of care during the surgery. In support of this contention, Malone relies on the testimony of his expert, Dr. Henry LaRocca, who testified on direct examination as follows:

“Q ... Were you familiar with that standard of care in May of 1979, which is the date that the surgery performed by Dr. Daugherty was done on Larry Lee Malone?
“A Yes.
“Q And, also, would orthopedic surgeons practicing in Mobile, Alabama, be expected to conform to that standard of care?
“A Yes.
“Q And would it be within the standard of care which you have previously testified to for a surgeon to lacerate the left common iliac artery and the left common iliac vein during the performance of a laminectomy?
“A Not as commonly done, no. It is a recognized complication of such surgery.
“Q Now I will ask you whether or not, based upon your review of the hospital and surgical records and the summaries prepared by Drs. Daugherty and Bowen, and based upon your education and your training and your experience in the field of orthopedic surgery, and particularly based upon your experience in performing lower lumbar laminectomies, do you have an opinion which you could state with a reasonable degree of medical certainty as to the cause of the laceration of the left common iliac artery and the left common iliac vein of Larry Lee Malone?
“A I can only surmise that the vessels were lacerated with an instrument known as a pituitary ronguer as it was inserted to remove disc tissue.
“Q And I will ask you whether or not, based upon your reading and review of those documents I just referred to, and based upon your education and your training and experience in the field of orthopedic surgery, do you have an opinion which you can state with a reasonable degree of medical certainty as to whether the laceration of the left common iliac artery and the left common iliac vein of Larry Lee Malone by Dr. Daugherty [done] in the performance of this laminectomy was a departure from the recognized standard of care in the medical community in the field of orthopedic surgery?
“A Well, certainly it was a departure in that it was not an intended occurrence.”

Later, also on direct examination, Dr. LaRocca testified:

“Q Even though this [laceration of the blood vessels] is a recognized complication of laminectomy surgery, for such an event to occur, would it still be a departure from the standard of care?
“A If the standard of care is to remove the disc without injury [to] either the nerve or blood vessel, then it is a departure, and that would depend on the definition of the standard of care.”

Despite some degree of equivocation on Dr. LaRocca’s part, we agree that this testimony, on its face, when viewed abstractly, independently, and separately from the balance of his sworn statement, would appear sufficient to defeat the motion for summary judgment. But our review of the evidence cannot be so limited. The test is whether Dr. LaRocca’s testimony, when viewed as a whole, was sufficient to create a reasonable inference of the fact Plaintiff sought to prove. That is to say, could a jury, as the finder of fact, reasonably infer from this medical expert’s testimony, or any part thereof when viewed against the whole, that the defendant doctor had acted contrary to the recognized standards of professional care in the instant case.

Thus, in applying this test, we must examine the expert witness’s testimony as a whole. On cross-examination, Dr. LaRocca testified as follows:

“Q And when you are saying that it could be a departure from the standard of care, I believe you said it depends upon what is the standard of care.
“A It depends entirely on the meaning of the term ‘standard of care.’ I think that the objective of the operation is the removal of the diseased disc tissue without at the same time producing damage to undiseased structures.
“Q Yes, sir.
“A Now [if] the objective of the operation is the same thing as the standard of care, then there would be departure in lacerating the vessels; but it’s an issue that I think must be resolved on the definition of standard of care. It s something that all of us who do this operation have in mind every time it’s done as a possibility and something that is to be feared, something that is to be thought about in the event that something precipitous like a blood pressure drop occurs so that proper action can be taken.
“Q In your review of the hospital records and medical records from the surgery which was performed on Mr. Malone, do you see anything in those records which would indicate to you that Dr. Daugherty was negligent in the performance of this surgery?
“A No, I don’t think so. I think that this is something that can happen during the conduct of the procedure under the best of circumstances. I think it could happen to me tomorrow.
“Q So, then, as I understand, is it your testimony that while a departure from the standards, depending upon how you define the standard, may be that a result occurs but it doesn’t necessarily mean that there was negligence on the part of the physician?
“A Well, here again negligence would have to be understood. If there were an accidental forward thrust of the arm beyond the force intended by the surgeon, then this could happen. If the operation were performed with anything less than absolute meticulous attention to the details of the procedure, then something like that could happen; and under such circumstances I would think that negligence would prevail; but I think that if in the normal conduct of the operation, without there being any untoward event, that this kind of thing stands as an accident and as an accident which has occurred a number of times, at least sufficiently frequently to end up in the literature to warn us all that it does occur.”

While it is true that conflicting inferences from the same testimony, when viewed most favorably to the nonmoving party, may establish the requisite scintilla of evidence, we agree with the trial judge that, when Dr. LaRocca’s testimony is viewed as a whole, as opposed to its isolated parts, no conflicting factual inferences exist. It is evident that Dr. LaRocca was confused by the use of the term “standard of care,” as that term is used in a legal sense. On direct examination, Dr. LaRocca seems to be saying that the laceration of the blood vessels during the laminectomy fell below the recognized standard of care. Instead, as we discover upon further reading, Dr. LaRocca is equating the term “standard of care” with the ultimate, most satisfactory result of the operation, i.e., “the removal of the diseased disc tissue without at the same time producing damage to undiseased structures.”

Here, it is clear, by the conclusion of his testimony, that this misunderstanding had been rectified, and that Dr. LaRocca’s testimony establishes that Dr. Daugherty, in his opinion, did not breach the standard of care for this particular operation, and that such an occurrence as the laceration of the blood vessels was a surgical accident, and did not equate with negligence.

In Moses v. Gaba, 435 So.2d 58 (Ala.1983), this Court observed:

“Physicians cannot be held to a standard of perfection. From time to time, even the most skilled physician, in the exercise of the utmost care, makes mistakes. These instances of human imperfection, including Dr. Gaba’s, do not rise to the level of medical malpractice. Malpractice occurs only when the physician’s actions or omissions are not within the required standard of care.” 435 So.2d at 60-61.

In keeping with the Moses principle, it is our view of the evidence that Dr. LaRocca termed what happened during the course of Mr. Malone’s operation “an accident.” After a thorough review of the record, we conclude that there was not a scintilla of evidence from which a jury could reasonably conclude that Dr. Daugherty’s actions in performing the surgery fell below the required standard of care. Therefore, the judgment of the trial court with respect to the negligence claim is due to be, and it hereby is, affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    G.D. WEBB, d/b/a Webb Real Estate and Sales Agency v. Billy R. RENFROW; Virginia Renfrow; Romey L. Renfrow; Gladys B. Renfrow; C.B. International, Inc., a Corporation; and Southeast Pizza Huts, Inc.
    82-1187.
    Supreme Court of Alabama.
    June 1, 1984.

      Douglas Corretti of Corretti & Newsom, Birmingham, for appellant.
    John Richard Carrigan and Eleanor S. Gathany of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, for appellees C.B. Intern., Inc. and Southeast Pizza Huts, Inc.
    Thomas L. Foster, Birmingham, for ap-pellees Billy R. Renfrow, et al.
   BEATTY, Justice.

This is an appeal from a judgment for the defendants based upon a jury verdict in an action arising out of a real estate commission contract. We affirm.

Plaintiff, G.D. Webb, d/b/a Webb Real Estate and Sales Agency, brought this action against Billy R. Renfrow; Virginia Renfrow; Romey L. Renfrow; Gladys B. Renfrow; C.B. International, Inc., a corporation; and Southeast Pizza Huts, Inc., a corporation. He sought several forms of relief: the unpaid proceeds from a real estate commission agreement which was a part of a ground lease, money damages for work and labor done as broker for the Renfrows, punitive damages against all defendants for fraud and conspiracy to defraud him of his broker’s commission, and a mandatory injunction ordering the corporate defendants to pay the rental payments directly to him for deduction of his commissions and forwarding of the balances to the lessors Renfrow.

By their answer, the Renfrows contended, inter alia, that plaintiff was not entitled to any damages or proceeds. Southeast Pizza Huts (Southeast) and C.B. International denied any liability.

Summary judgment motions of the Ren-frows, Southeast, and C.B. International were denied. Jury trial ensued. After plaintiff and the Renfrows had introduced evidence, the two corporate defendants moved for a directed verdict. Following arguments, the trial court granted the motion for a direct verdict against the plaintiff’s claims on fraud and conspiracy. Ultimately, the jury returned a verdict in favor of all the defendants and plaintiff appealed.

The only issue presented to us is whether or not the trial court erred in directing the verdict in favor of C.B. International and Southeast on the conspiracy to defraud and fraud claims.

C.B. International is a management company which owns Southeast. The latter corporation is engaged in the day-to-day operation of Pizza Hut restaurants.

The action was an outgrowth of a business relationship between plaintiff and Gordon Elliott, president of C.B. International. Elliott is also president of Southeast. At plaintiff’s motivation, plaintiff showed Elliott some potential sites for Pizza Huts in Jefferson County, and, as a result, Elliott became interested in real estate lots located in Gardendale, Leeds, and Hueytown. C.B. International eventually purchased a Hueytown tract and obtained leases for lots in Leeds and Gardendale. Plaintiff was the brokering agent in the transactions. The Gardendale tract is the one involved here.

Plaintiff secured a ground lease listing for the Gardendale property from its owners, the Renfrows. Negotiations between plaintiff and Elliott resulted in Elliott’s tendering a proposed lease to plaintiff for submission to the lessors Renfrow. Elliott’s letter to plaintiff explained one of the contingencies contained in the proposed lease concerning the existence of a sewer line:

“The sewer line is of course all important because the building could be complete and just sitting there waiting for sewer connection. We would not want to pay the cost of building plus the cost of rent for a business that can’t open because of the location of the property.”

The tendered lease contained the following provision:

“In the event the building permit cannot be secured on account of sewer lines not being in, or ground not passing percolation test, then this lease is null and void.”

This lease was executed by Elliott for C.B. International and by the Renfrows on April 11, 1978. Attached to the lease was a commission agreement providing for rental payments of $550.00 monthly, payable to Webb Real Estate Agency for its deduction of $50.00 brokerage commission and forwarding of the $500.00 balance to the Ren-frows. A bank check for $100 as earnest money, drawn by C.B. International, was delivered by plaintiff to the Renfrows.

It appears that in fact at the time of the lease no sewer line existed to service a building on the Gardendale lot. The Jefferson County public works department had surveyed the area in 1977 and initiated a sewer design, on paper, in April 1978. This design was completed in April 1980. Bids were taken, and work ultimately commenced on December 1, 1980. The sewer line was completed and accepted on August 28, 1981.

The record is unclear as to the exact time when funds were encumbered for beginning the sewer line, but it is clear that, for a year after the lease was executed and for some time thereafter, no sewer line existed to service the lot in question. It is also established that the Renfrows and C.B. International treated the lease as terminated because of the lack of sewer connection, with the result that the Renfrows returned the earnest money deposit to Elliott at his office in Kansas in August 1979. Thereafter, the Renfrows rented the lot to a mobile home dealer and later, sometime in 1980, placed a large wooden sign on the lot: “Commercial Property For Lease.” After that, the Renfrows were in contact with a number of prospective tenants. However, the record does not disclose that the Ren-frows initiated any contact with C.B. International or Elliott, or vice versa, after the return of the earnest money in 1979.

The controversy before us apparently springs from a new and separate lease of the lot in question made on June 3, 1981. This lease was executed between the Ren-frows as lessors and Southeast. Mr. Tom Hrabovsky, a vice-president of Southeast, with offices in Birmingham, was in charge of Pizza Hut operations in Alabama, including new construction. He and one of his area managers, Dan Martin, noticed the sign on the lot, and Martin telephoned the number given on the sign,. After that contact with the Renfrows, Hrabovsky began negotiating with the Renfrows concerning a lease of the property. Hrabovsky was living in Memphis in 1978 and became area manager of Alabama in 1980. He testified that he did not know of the 1978 lease until this lawsuit was brought in 1982. Meanwhile, the sewer line was nearing completion. Hrabovsky negotiated a rent of $8,400.00 per year for the property, and obtained a lease from the Renfrows on those terms. The lease itself was executed on a form furnished by the home office of Southeast located at Pittsburgh, Kansas. That location is also the home office of C.B. International. In fact, the 1981 lease, while executed between the Renfrows and Southeast, bore at its head the title: “C. B. International, Inc., Ground Lease,” and was executed by Gordon Elliott, as president of Southeast.

There is little doubt from the record that a close operating relationship existed between C.B. International and Southeast. Hrabovsky himself had been employed by C.B. International as early as 1976, and began employment with Southeast when the corporate structure was changed in 1978. The building permit for the structure, issued on August 11, 1981, was issued to “C. B. International.” The customer response cards located in this Pizza Hut are addressed to “C. B. International.” And it was brought out that both Elliott (who had negotiated the 1978 lease) and Hrabovsky had visited the site in 1981 prior to the time the 1981 lease was made. A “renewal” beer license for the Gardendale premises was issued in the name of C.B. International, Inc., by the Alabama Alcoholic Beverage Control Board in June 1981.

It bears repeating that the issue before us is not whether there was a breach of contract to pay a real estate commission, or whether Webb is entitled to recover damages for work and labor. Those issues were resolved by the jury adversely to plaintiff, and he has not made them an issue here. The only question before us is whether or not the trial court erred in granting the corporate defendants a directed verdict on the issues of fraud and conspiracy to defraud, i.e. whether there was any evidence of either or both requiring submission to the jury.

Actionable fraud in Alabama consists of (1) a false representation, (2) concerning a material existing fact, (3) reliance by plaintiff upon that false representation, and (4) damage to plaintiff as a proximate result. Code of 1975, § 6-5-101; International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977). Fraud may also be committed by the suppression of a material fact which the party is under an obligation to communicate, either because of an obligation to communicate arising from a confidential relationship or from the particular circumstances. Code of 1975, § 6-5-102; Jim Short Ford Sales, Inc. v. Washington, 384 So.2d 83 (Ala.1980). A civil conspiracy is a combination between two or more persons to accomplish by concert an unlawful purpose or to accomplish by unlawful means a purpose not itself unlawful. Barber v. Stephenson, 260 Ala. 151, 69 So.2d 251 (1954). The wrong committed is the gist of the action. Snyder v. Faget, 295 Ala. 197, 326 So.2d 113 (1976).

Plaintiff maintains that there was some evidence of a conspiracy existing between the defendants to defraud Webb of his broker’s commission. This evidence, he argues, is furnished by the memorandum of lease for recording purposes. That document was an agreement between the Ren-frows and C.B. International, executed by Gordon Elliott on behalf of C.B. International. This agreement, according to plaintiff, creates an inference of a conspiracy to defraud the broker. Additionally, plaintiff points to the similarity of the 1981 lease with the 1978 lease. Except for the amount of the rental payments and the deletion of the commission agreement, plaintiff argues, the leases are substantially the same, and thus, he says, there is an inference that the parties conspired to make it appear that a third party executed the 1981 lease and not the party procured by Webb, the plaintiff. To conclude otherwise, says plaintiff, was contra to the authority of Foote v. Moore, 342 So.2d 906 (Ala.1977), and Robbins v. Crawford, 438 So.2d 759 (Ala.1983).

We agree with the defendants that the facts in the instant case are distinguishable materially from those in the two cited cases.

In Foote, supra, the owners of the property listed for sale claimed that the commission contract with the broker had terminated before they effected a sale of the property to the buyer. The evidence, however, showed that the owners had continued negotiations with the same prospects introduced to them by the broker, and that the terms of the ultimate purchase and sale were substantially those initially discussed between the parties before the commission agreement had expired. This Court stated that a jury could have found that the parties were negotiating the sale while seller and broker were disputing the contract, and that therefore the sellers were guilty of bad faith. In the instant case, however, there was no evidence of continued negotiations in the interval between termination of the 1978 lease, which contained the “null and void” clause referring to sewer lines and percolation tests, and the execution of the 1981 lease.

Similarly, in Robbins, supra, the original sales contract between the seller on the one hand, and the buyers who were furnished by the broker, on the other hand, had terminated because the purchasers had conditioned their purchase upon the sale of their own property, and no such sale had occurred. The father of one of the buyers subsequently contracted to purchase the property, but on the day of closing the original purchasers bought the property “at the last minute.” The evidence disclosed that the ultimate purchase price was approximately equal to the price originally agreed upon, less the real estate commission, and, moreover, following the sale, the seller became the purchaser’s employee. There was also evidence from which the jury could have found that the purchasers had become financially able to buy the property because a prospect of their own had put up a binder. This evidence presented a conflict for the jury’s resolution. Both of those cases were controlled by the following rule as stated in the jury charge from Foote, supra, 342 So.2d at 909:

“A broker who procures a prospect who is ready, willing and able to buy under the terms of the contract during the existence of the contract, is entitled to his commission, although the sale may not have been concluded during the term of the contract. However, the seller is not bound forever by the contract. And unless the broker has procured a purchaser who is ready, willing and able to buy under the terms of the contract and during the existence of the contract, or unless the sellers were guilty of bad faith or guilty of fraud in their subsequent negotiations with the broker’s prospect, the broker would not be able to recover.”

In this case, the claim of fraud fails for at least two reasons. For one reason, Webb has failed to identify any false representation of a material fact made to him by either of the defendants. Section 6-5-101, supra. For another, Webb has not shown that he acted in reliance upon any such misrepresentation. Indeed, he himself testified that he did nothing more in connection with leasing the Renfrows’ property after he mailed the 1978 lease to C.B. International. Moreover, no suppression of material fact occurred in this case, § 6-5-102; nothing was shown to have required communication, nor was there established any confidential relationship between Webb and the Renfrows, or between Webb and Pizza Hut or C.B. International. Mr. Webb himself testified that his contract was with the Renfrows and that his commission was to come from them. That arrangement, for aught that appears from the record, was an arm’s-length transaction.

Evidence of a conspiracy between Pizza Hut and C.B. International, or either or both, with the Renfrows is equally lacking. Webb concludes that conspiracy is shown by the fact that Elliott executed the 1978 lease as president of C.B. International and the 1981 lease as president of Pizza Huts, as if to disguise the 1981 transaction as being between parties different from those in the 1978 lease. But both lease forms are identical. Both contemplated building a Pizza Hut. The 1981 lease’s lessee, Pizza Huts, actually operated a Pizza Hut. Gordon Elliott executed the 1981 lease for Pizza Huts. Clearly, there can be no reasonable inference of disguise or concealment of the identity of the parties, nor any reasonable inference of illegal means or purpose in the conduct of Pizza Huts or C.B. International. Speculations of misconduct fall short of proof thereof. Nor did the Renfrows conceal anything from Webb. They, like C.B. International, treated the 1978 lease as “null and void” in 1979 when there was no sewer line nor any assurance of when one would be connected. Indeed, it would have been to the advantage of both Pizza Huts and C.B. International to maintain the 1978 lease, because both the rent and the commission would have been substantially lower. Instead, however, the Renfrows and C.B. International terminated the lease, and the Renfrows publicly advertised the property and rented it to others. No reasonable inference of concealment upon either side was established.

Finally, no evidence was adduced to dispute the testimony of Hrabovsky, whose contact with the Renfrows derived from noticing the sign placed by the Renfrows upon the lot. According to the record, Hrabovksy did not know of the 1978 lease. In short, plaintiff has not shown any fraudulent purpose on the part of Pizza Hut or C.B. International to interfere with or prevent Webb’s operations on the terms under which he was to be paid a commission. Cf. Dancy v. Baker, 206 Ala. 236, 89 So. 590 (1921).

Because we have found that the trial court did not err in granting the directed verdict in favor of the corporate defendants, the order of the trial court must be, and it hereby is, affirmed.

AFFIRMED.

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


text:
    Celeste BARRETT, etc. v. ODOM, MAY AND DeBUYS, a Partnership composed of J. Edmond Odom, Jr., James W. May and John DeBuys.
    81-601.
    Supreme Court of Alabama.
    June 1, 1984.

      Carleton P. Ketcham, Jr., Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellant.
    James W. May, pro se and for partnership.
   ON APPLICATION FOR REHEARING

PER CURIAM.

After further consideration of this case, the original opinion is withdrawn, and the following is substituted as the opinion of the Court.

Celeste Barrett and Carolyn Allan formed a partnership, Cedar Bark Lot 14 (hereinafter “Cedar Bark”), which purchased a parcel of real estate containing a residential dwelling from Barrett Builders, Inc., a corporation apparently owned or controlled by Celeste Barrett’s then-husband, Raymond. In connection with the purchase Mrs. Barrett and Mrs. Allan executed and delivered a promissory note and a mortgage in the amount of $13,001.45, payable to the order of Barrett Builders, Inc. The note was due in one lump sum with interest at the rate of 8¾ per annum three years from the date it was executed. The maturity date was May 28, 1979.

Mrs. Allan and her daughter moved into the house and shortly afterwards, Mrs. Allan began noticing numerous defects in the structure. Although she requested Barrett Builders, Inc., to remedy the defects, they were never repaired.

In December 1977, Raymond and Celeste Barrett were divorced. As part of an agreement incorporated into their final decree of divorce, Raymond Barrett agreed to assume liability for, and to hold Celeste Barrett harmless from, claims made against Celeste Barrett arising out of the operation of Barrett Builders, Inc.

On November 20, 1979, (after the note had matured) Raymond Barrett, acting on behalf of Barrett Builders, Inc., assigned the note and mortgage to the appellee, Odom, May & DeBuys (hereinafter “Odom”). The assignment was made to assure payment of legal fees incurred by Raymond Barrett and Barrett Builders, Inc.

After the divorce, various parties made claims against Celeste Barrett arising out of transactions involving Raymond Barrett and Barrett Builders, Inc. On December 10, 1979, she made a written demand on him for indemnification under the terms of the indemnification agreement in the divorce decree. She testified that she spent $8,464.00 successfully defending the claims.

Prior to April 25, 1981, Odom published notice of the foreclosure of the mortgage. Celeste Barrett, individually and as a partner in Cedar Bark, filed an action against Odom seeking to enjoin foreclosure of the mortgage. The complaint asked that the court determine the amount which Cedar Bark, the partnership, and Celeste Barrett, individually, were entitled to set off against the indebtedness due under the note to Barrett Builders, Inc., which had been assigned to Odom. She prayed for a judgment satisfying and cancelling the mortgage on the property.

After taking oral testimony the trial court found and/or ordered as follows:

(1) That Odom was the assignee of the note;

(2) That Odom’s rights were governed by § 7-3-306 of the Code of Alabama (1975);

(3) That Cedar Bark’s claim of $6,880.00 against Barrett Builders, Inc., arising out of the construction of the dwelling, be set-off against the amount due on the note;

(4) That the individual claims of Celeste Barrett against Raymond Barrett could not be set-off against the amount due on the note; and

(5) That the full principal amount of the note should bear interest until the date of maturity; that all principal and interest accrued as of the maturity date should bear interest from the date of maturity until the date of assignment; that $6,880.00 should be subtracted from the total amount due on the date of assignment; and that the remaining sum should bear interest until the note is paid.

On appeal neither party questions the propriety of the judge’s order allowing Cedar Bark to reduce its obligation on the note by $6,880.00, the amount of its breach of warranty claim against the assignor. Celeste Barrett argues, however, that she should also be allowed to set-off the $8,464.00 claimed by her against Raymond Barrett under the indemnification agreement in their divorce decree. She also questions the trial court’s method of computing the interest due on the note.

The trial court did not specify the reasons that the individual claims of Celeste Barrett could not be set-off against the amount due on the note, but only made a general finding that such claims could not be allowed. When a trial court makes no specific findings of fact, but only a general finding that a claim will not be allowed, “[w]e will assume that the trial court made those findings which will justify the decree rendered.” Sims v. Reinert, 285 Ala. 658, 661, 235 So.2d 802, 805 (1970).

One reason that can be asserted as justifying the trial court’s disallowance of the individual claims is the fact that the note in question was executed to Barrett Builders, Inc., while Mrs. Barrett’s claims are against Raymond Barrett individually. However, the parties to this appeal in their original briefs to this Court did not raise the issue of a separate corporate existence, and appellant in her application for rehearing claims that Barrett Builders, Inc., was the alter ego of Raymond Barrett and that the corporation and the individual were treated as one by the trial court.

We generally accept the concept that a corporation is a separate legal entity, but when this concept is invoked in support of an end subversive of justice, it will be disregarded. Cohen v. Williams, 294 Ala. 417, 420, 318 So.2d 279, 280 (1975) (quoting 18 Am.Jur.2d Corporations § 14 at 559 (2d ed. 1965)). A separate corporate existence will not be recognized when a corporation is so organized and controlled and its business so conducted as to make it a mere instrumentality of another or the alter ego of the person owning and controlling it. Woods v. Commercial Contractors, Inc., 384 So.2d 1076, 1079 (Ala.1980). A corporation and the individual or individuals owning all its stock and assets can be treated as identical, even in the absence of fraud, to prevent injustice or inequitable consequences. Cohen, 294 Ala. at 421, 318 So.2d at 281.

The trial court, without a jury, heard ore tenus testimony on the separate corporate existence and the other issues in this case. Generally, when a trial court has heard ore tenus testimony, “every presumption will be indulged in favor of the trial court, and its findings will not be disturbed on appeal unless palpably wrong or clearly erroneous.” Morrow v. Wood, 411 So.2d 120, 122 (Ala.1982). However, “[wjhere the evidence before the trial court is undisputed, the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.” Samford v. First Alabama Bank of Montgomery, N.A., 431 So.2d 146, 149 (Ala.1983).

Undisputed testimony was offered at trial which showed that Raymond Barrett, without any authorization or authority other than his own, assigned the note in question to Odum, not only for the supposed debt of Barrett Builders, Inc., to the firm, but also for his own existing debt to the firm for services already rendered to him in the divorce and for services to be rendered to him on a pending petition to modify. The parties stipulated that the expenses incurred by Mrs. Barrett in defense of claims covered by the indemnity agreement were a result of debts owed not only by Raymond Barrett, but by Barrett Builders, Inc. The record also contains undisputed testimony which shows that Raymond Barrett used corporate funds to satisfy personal obligations. In light of this evidence, the trial court erred if it disallowed the individual claims of Celeste Barrett on the basis of the separate corporate existence of Barrett Builders, Inc. The evidence offered to prove that Barrett Builders, Inc., was merely the alter ego of Raymond Barrett is undisputed and clearly compels the treatment of the corporation and the individual as one.

Treating Barrett Builders, Inc., and Raymond Barrett as one, we must entertain the alternative ground for disallowance of the individual claims and decide the issue raised by the parties, which is whether Code 1975, § 7-3-306(b), permits the maker of a negotiable instrument to assert prior party set-off (i.e., an unrelated claim that would have been available as a set-off had the original holder sued the maker on the instrument) as a defense against one not a holder in due course. Section 7-3-306, corresponding to § 3-306, Uniform Commercial Code (UCC), provides in part:

“Unless he has the rights of a holder in due course, any person takes the instrument subject to:
“(b) All defenses of any party which would be available in an action on a simple contract ....”

Comment 3 to § 7-3-306 states that “Paragraph (b) restates the first sentence of the original Section 58.” The first sentence of § 58 of the Uniform Negotiable Instruments Law (NIL) provided: “In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable.” Code 1940, tit. 39 § 60, corresponding to § 58, NIL.

The language of UCC § 3-306(b) and NIL § 58 “appears to allow prior party set-off against a mere holder any time such a set-off would be available against the assignee of a non-negotiable contract right.” Note, Prior Party Set-off as a Defense under U.C.C. Section 3-306(b), 1981 U.Ill.L.Rev. 869, 875-6. However, a comment accompanying § 58 raised questions regarding its proper interpretation. Note, supra at 876. A discussion of the comment provides:

“The Commissioners’ Note stated that local law was still relevant to the availability of prior party set-off, but did not clearly indicate whether prior party set-off was allowed whenever the local statutes made set-off available against assignees of contract rights or only when the local statute explicitly mentioned negotiable instruments.”

Note, supra at 876.

Two interpretations of the language of § 58 are available to the courts presented with the question of the meaning to be given to “defenses” in § 3-306. Note, supra at 876. The majority of courts addressing this issue have interpreted the Commissioners’ Note to indicate that the NIL drafters did not intend any change in prior state law regarding the rights of parties who did not qualify for holder-in-due-course status and have relied on pre-NIL state law to determine the availability of prior party set-off. Note, supra at 881-8 (that Note refers to this interpretation as the “current judicial interpretation”). The other interpretation focuses on the plain meaning of § 58 and would allow prior party set-off against a mere holder whenever state law allowed prior party set-off against the assignee of non-negotiable paper. Note, supra at 876. Pursuant to either of these interpretations, we would allow the maker of a negotiable instrument to assert prior party set-off as a defense against one not a holder in due course.

The Alabama set-off statute provides: “All contracts and writings, except such as are governed by the Uniform Commercial Code, and paper issued to circulate as money, are subject to all payments, setoffs and discounts had or possessed against the same previous to notice of an assignment or transfer.” Code 1975, § 8-5-25. The language of this statute would seem to exempt from set-off any writings or instruments governed by the UCC, but the Court in President, etc., Bank of Mobile v. Poelnitz, 61 Ala. 147 (1878), limited the exception in favor of commercial paper. This exception relieves commercial paper from liability to set-off only when it has been negotiated in good faith before maturity. President, etc., Bank of Mobile, 61 Ala. at 149. This pre-NIL interpretation of the exception provided by the set-off statute is consistent with the language of Code 1975, § 6-8-83, which provides: “Paper governed by the commercial law, negotiated before maturity, is not subject to counterclaim.” It is also consistent with present UCC provisions, as will be shown by this opinion.

A careful reading of the Alabama statutes relating to set-off, along with the cases interpreting these provisions, would indicate that pre-NIL Alabama law would allow the maker of a negotiable instrument to assert prior party set-off as a defense against one not a holder in due course who took after maturity. President, etc., Bank of Mobile v. Poelnitz, 61 Ala. 147 (1878); Carroll v. Malone, 28 Ala. 521 (1856); Stone v. Goldberg & Lewis, 6 Ala.App. 249, 60 So. 744 (1912). In Robertson v. Breedlove, 7 Port. 541 (Ala.1838), a different conclusion was reached, but in Carroll v. Malone, 28 Ala. at 527, this conclusion was labeled as dictum and questioned by the Court. Even if the conclusion in Robertson was not dictum, it was reversed by the later decisions in Carroll and President, etc., Bank of Mobile. In light of these decisions, we can conclude that Alabama courts prior to the adoption of the NIL allowed the maker of a note to assert prior party set-off as a defense against a mere holder who took after maturity. Therefore, pursuant to the first interpretation of the language of § 3-306, and the comments, we would interpret “defenses” in our § 7-3-306(b) to include prior party set-off.

The second interpretation focuses on the plain meaning of § 3-306 and § 58 and would allow prior party set-off as a defense against a mere holder whenever state law allowed prior party set-off against the as-signee of non-negotiable paper. Section 8-5-25 provides that all contracts and writings, except those governed by the UCC, are subject to all payments, set-offs, and discounts had or possessed against the same previous to notice of assignment or transfer. The language of this statute is consistent with the wording of § 167(1) of the Restatement of Contracts (1932), which provides:

“An assignee’s right against the obli-gor is subject to all limitations of the obligee’s right, to all absolute and temporary defenses thereto, and to all set-offs and counterclaims of the obligor which would have been available against the obligee had there been no assignment, provided that such defenses and set-offs are based on facts existing at the time of the assignment, or are based on facts arising thereafter prior to knowledge of the assignment by the obligor.”

The provisions of § 8-5-25 clearly allow prior party set-off against the assignee of non-negotiable paper, and, therefore, pursuant to the second interpretation, we would allow prior party set-off as a defense against a mere holder of negotiable paper who took after maturity as long as the claim for the set-off arose prior to notice of assignment or negotiation.

Following the second interpretation, which leads to simplicity and uniformity, w'e interpret “defenses” in § 7-3-306(b) to include prior party set-off when the instrument is negotiated after maturity and the claim for the set-off arose prior to notice of assignment or negotiation. The note in question was assigned after maturity, but the record is not clear as to when the individual claims of Celeste Barrett arose. Therefore, we remand this ease to the trial court for that court to determine when these claims arose and to allow a set-off against the amount of the note for those claims which arose prior to notice of assignment.

Appellant also questioned the trial court’s method of computing the interest due on the note. The trial court ruled that the full amount of the principal should bear interest until the date of maturity, and that all principal and interest accrued as of that date should bear interest from that date till the date of assignment, at which time the amount of the claim for breach of warranty ($6,880.00) should be subtracted. Appellant argued that the principal should have been reduced by $6,880.00 initially and that the interest should be calculated on the difference between the face amount of the note and $6,880.00.

We find no controlling authority in Alabama on the issue. Apparently, courts considering the question have reached differing results. See Macri v. United States, 353 F.2d 804, 808 (9th Cir.1965).

If the trial court’s decree is allowed to stand, the purchasers will be forced to pay interest on the entire principal up until the date of maturity, and then to pay interest on the combined principal and interest until the note was assigned, even though $6,880.00 of the $13,001.45 represents payment for work which was unsatisfactory. Since the builder’s breach resulted in a diminution of the fair market value at the time of the sale, allowing a recovery for interest based on the full amount of the principal would be tantamount to charging the purchasers interest on money which, due to the breach of warranty, they never in fact owed. Such a result would, in our opinion, result in unjust enrichment. Interest should be computed on the difference between the face amount of the note and $6,880.00, from the date of execution until maturity, and then until payment, interest should be computed on the combined principal and interest accrued as of the maturity date.

REHEARING GRANTED; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

      . No contention is made that Odom is a holder in due course.

      . The court was interpreting two sections of the Alabama Code of 1876 which are similar in language to the present code provisions:
      § 2100 "All contracts and writings, except bills of exchange, promissory notes, payable in money at a bank or private banking house, and paper issued to circulate as money, are
      subject to all payments, sets-off and discounts had or possessed against the same previous to notice of the assignment or transfer."
      § 2995 "The foregoing provisions relating to sets-off, do not apply to bills of exchange nor notes payable in bank [sic], or at a private banking house, which have been in good faith negotiated before maturity.”
      Ala.Code (1876).-

      . In Robertson, the opinion indicated that a "holder is not subject to a set-off, in respect of a debt due from the endorser to the maker of the note, arising out of a collateral contract.” 7 Port, at 543-4.

      . The author of the note discussing prior party set-off as a defense under UCC § 3 — 306(b) lists several significant advantages of the "plain meaning" interpretation over the "current judicial interpretation," which looks to pre-NIL state law:
      "First, this interpretation is more consistent with the language of section 3-306(b) and accords with several other provisions in the text of the U.C.C. Second, this alternative approach avoids the complex search into pre-U.C.C. state law often required by the current judicial interpretation. Finally, the alternative interpretation results in a more uniform rule regarding the availability of prior party set-off under section 3-306(b).”
      Note, supra at 889.