author: ROBERTSON, Justice,

text:
    Charles Larry MURRAY v. Cecil H. PAYNE and James M. Flanagan.
    No. 54393.
    Supreme Court of Mississippi.
    Sept. 7, 1983.

      Conrad Mord, Breed O. Mounger, Jr., Tyl-ertown, for appellant.
    J. Hal Ross, Brandon, Joseph M. Stinson, Tylertown, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This case presents questions respecting the duties of guarantors who pay the maker’s secured note and pending disposition of the collateral use it to make a profit. The guarantors, statutory subrogees by virtue of their having honored their guaranty obligations in favor of the secured party bank, liquidated the collateral and have here sued the maker for a deficiency judgment. The maker claims setoff for profits earned by the guarantors while the collateral was in their possession and used by them prior to sale.

After less than timely objection, the trial judge excluded all evidence of profits. Judgment was entered in favor of the two guarantors after jury verdict for $4,620.00, the amount of the deficiency sued for. Claiming that the two guarantors had an obligation to credit all profits derived from their use of the collateral to the underlying debt — and, therefore, that he should have been allowed to offer proof as to the nature and extent of those profits, the maker appeals. We reverse.

II.

A.

There are three principal players in this civil action.

(a) Charles Larry Murray (hereinafter “Murray”) is an adult resident citizen of Walthall County, Mississippi, who was the Defendant below and is the Appellant here. Murray was the maker and primary obligor on the promissory note, default in the payment of which set in motion the chain of events which led to this civil action.

(b) Cecil H. Payne (hereinafter “Payne”) and James M. Flanagan (hereinafter “Flanagan”) are adult resident citizens of Rankin County, Mississippi, who were the Plaintiffs below and are the Appellees here. Payne and Flanagan were guarantors of the note in issue.

From May,. 1974, until November 13, 1976, Murray, Payne and Flanagan did business as partners using the trade name Rankin County Flying Service. They were engaged in an agri-flying or crop dusting business. In November of 1976, Murray withdrew from the partnership. Incident thereto, Murray took title to a Grumman G-164A airplane previously owned by the partnership. The plane was at that time subject to a purchase money security interest and debt held by Rankin County Bank in Brandon, Mississippi, of approximately $14,000.00. Murray assumed all obligations incident thereto.

Murray determined to establish a new business. He would provide air conditioning equipment, installation and servicing for airplanes. To obtain start up and operating capital, Murray negotiated a loan from the Rankin County Bank. The new loan to Murray was combined with a refinancing of the then outstanding original purchase money indebtedness on the Grumman which Murray had assumed following the dissolution of the partnership. The loan was closed on December 1,1976, when Murray executed in favor of Rankin County Bank his promissory note in the principal amount of $36,479.99, plus interest. The note was payable in eight months, to be specific, on July 29, 1977. As security for the note, Murray gave to the bank a valid, enforceable and perfected security interest in the Grumman airplane.

On the same date, December 1, 1976, Payne and Flanagan executed a guaranty agreement in favor of the bank. Without qualification or equivocation, Payne and Flanagan guaranteed payment of Murray’s $36,479.99 note, together with interest and expenses of collection and including renewals and extensions thereof.

As fate would have it, Murray did not pay the note when due. The Rankin County Bank called upon Payne and Flanagan to honor their obligations under their guaranty agreement. Payne and Flanagan responded. They reached an agreement with the bank that they would attempt to sell the collateral, the Grumman airplane, and raise enough money to pay the debt. Exercising remedies lawfully vested in it by virtue of Murray’s default, the bank took possession of its collateral and authorized Payne and Flanagan to negotiate a sale.

Payne and Flanagan originally advertised the Grumman for sale at $40,-000.00. They found no buyers. In May of 1978, they negotiated a deal with a purchaser in Greenwood, Mississippi. The more valuable Grumman was traded for a smaller Cessna airplane plus $20,000.00 cash. This transaction was consumated, and no challenge is made concerning its commercial reasonableness.

On May 25, 1978, Payne and Flanagan took the $20,000.00 and delivered it to the bank which applied it to reduce the Murray note. They then gave their own note to the bank in the principal amount of $21,801.27. This note was a renewal of the principal and interest then outstanding on the original December 1, 1976, note made by Murray. It was payable one year from date, to-wit, on May 25,1979. The bank, of course, had released its security interest in the Grumman but as security for this new note, took a security interest in the Cessna. The Cessna in fact and in law became substitute security in the place and stead of the Grumman. The understanding was that Payne and Flanagan would now try to sell the Cessna as soon as feasible, and discharge the remaining balance of the original Murray note, as now renewed by the Payne and Flanagan note.

The facts pertinent to the principal issue raised on this appeal occur at this point. The Cessna airplane was in the custody of Payne and Flanagan. Payne and Flanagan were still in the agri-flying business. While seeking a sale for the Cessna, they used it as a spare plane in their business. Payne testified that it was flown approximately 100 hours by them over a two month period. Payne also testified that they had rented an airplane like this for $19.00 an hour to fly an ant contract for the State of Mississippi. He stated that ordinarily, however, he would not charge for this plane by the hour, but by the acre covered and the amount of fertilizer or water applied. He stated that he would normally charge on an hourly basis and that actual charges to the customers would range between $100.00 and $150.00 per hour.

Thereafter, Payne and Flanagan sold the Cessna for $17,500, which amount was immediately delivered to the Rankin County Bank. Again, there is no question of the commercial reasonableness of the sale of this substituted collateral. After interest and expense calculations have been made, and after the $17,500 had been applied to the indebtedness, there remained due and owing to the bank, traceable back to the original Murray note, the sum of $4,620. On July 21,1978, Payne and Flanagan each paid the bank from their personal funds the sum of $2,310. The original Murray indebtedness to the Rankin County Bank was thus discharged in full.

B.

On April 3, 1981, Cecil H. Payne and James M. Flanagan brought this civil action by filing their declaration in the Circuit Court of Walthall County, Mississippi. They recited briefly the history stated above and asked that Murray be required to indemnify them for what they had been required to pay under their guaranty agreement. They specifically demanded judgment of and from Murray in the amount of $4,620.

In due course, Murray filed his answer. In a counterclaim he asserted that Payne and Flanagan had had the use of both the Grumman and the Cessna and that he, Murray, was entitled to a credit for the profits realized from utilization of these two airplanes.

The case was called for trial in the Circuit Court of Walthall County at the February 1982 Term thereof, Honorable Joe N. Pi-gott, Circuit Judge, presiding. On February 1, 1982, the jury returned a verdict in favor of Payne and Flanagan in the amount of $4,620. On February 8, 1982, final judgment was entered on the jury verdict. After Murray’s motion for a new trial was overruled and denied, this appeal has followed.

III.

The primary issue tendered on this appeal is whether Murray is entitled to credit or setoff for the amount of profits earned by Payne and Flanagan through their use of the collateral. We are here concerned only with the Cessna which, as explained above, was substitute collateral. Our time frame, if we understand the record correctly, is May 25, 1978, the date the Cessna was acquired, until July 21, 1978, the date the Cessna was sold to Payne and Flanagan’s new partnership.

A.

Initially, we inquire concerning the rights, if any, these sureties have against the original maker to recover a deficiency between the sum received upon disposition of the collateral and the amount due on the note. Our inquiry, obviously, is one which must be made within the four corners of the Uniform Commercial Code, as adopted in this state. Miss.Code Ann. §§ 75-1-101, et seq. (Supp.1982).

Payne and Flanagan were guarantors, or sureties, on the note executed by Murray. The contract of guaranty provided that, upon default on the note by its maker, Payne and Flanagan would pay the note along with any charges incurred by the bank in collection. Having signed in that capacity, Payne and Flanagan are accommodation parties and their rights and duties are governed by Miss.Code Ann. §§ 75-3-415, 75-3-416 and 75-3-606 (Supp.1982). When the facts of this case are considered under these sections, there is no question but that Payne and Flanagan have fulfilled their obligations to the bank by paying the note after the maker defaulted.

Under the above circumstances, accommodation parties do have the right to proceed against the maker for a deficiency. The law provides:

(1) An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.
(2) An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party. Miss.Code Ann. § 75-3-415 (Supp.1982).

Payne and Flanagan are sureties, and because they are sureties they are accommodation parties. A surety’s right of sub-rogation, recognized by the above statute, is his equitable right to assert the rights of the creditor against the debtor. Upon payment, the surety is said to “stand in the shoes” of the creditor.

Not only is the accommodation party entitled to sue the maker of a note to recover the amount that the accommodation party ends up paying, but he is also entitled to any collateral securing the note. In Reimann v. Hybertsen, 275 Or. 235, 550 P.2d 436 (1976), a surety, who had paid off a note, brought suit against the original creditor for his failure to assign mortgages securing the original note to the party who paid them off. The court found that the accommodation party did have such a right. It found:

“Against the creditor, the right is strictly equitable and is simply a right that the creditor assign to the surety his claim against the principal, as well as any security held by him.” quoting Simpson on Suretyship, 206-07, ch. 2 § 47 [550 P.2d at 437].

To like effect, see Anna National Bank v. Wingate, 63 Ill.App.3d 676, 21 Ill.Dec. 84, 381 N.E.2d 19 (1978); Simson v. Bilderbeck, 76 N.M. 667, 417 P.2d 803 (1966). Once an accommodation party has paid a note and received the collateral securing it, he is subject to the same rights and obligations the creditor had with regard to disposition of the collateral. Miss.Code Ann. § 75-9-504(5) (Supp.1982).

B.

Disposition of the issue tendered is ultimately controlled by Article 9 of the Uniform Commercial Code. Miss.Code Ann. §§ 75-9-101, et seq. (Supp.1982).

First, Payne and Flanagan became statutory subrogees. When the bank called on them to honor their obligations under their guaranty agreement, and when they responded, Payne and Flanagan became subrogated to the Bank’s rights against Murray. Miss.Code Ann. § 75-9-504(5) (Supp.1982) provides:

A person who is liable to a secured party under a guaranty, endorsement, repurchase agreement or the like, and who receives a transfer of collateral from the secured party or is subrogated to his rights has thereafter the rights and duties of the secured party.

With respect to the collateral, Payne and Flanagan succeeded to the rights and duties of the Rankin County Bank. To determine what those duties are, we turn to Miss.Code Ann. § 75-9-501(1) (Supp.1982) which provides in pertinent part:

A secured party in possession has the rights, remedies and duties provided in Section 75-9-207.

Payne and Flanagan, of course, were in possession of the Cessna. By virtue of § 9-504(5), they stepped into the shoes of the secured party. For purposes of this case, Payne and Flanagan were secured parties in possession.

The rights and responsibilities of a secured party in possession are set out in Miss.Code Ann. § 75-9-207 (Supp.1982). Our specific concern is with Section 75-9-207(2)(c) which provides:

Unless otherwise agreed, when collateral is in the secured party’s possession, ... the secured party may hold as additional security any increase or profits (except money) received from the collateral, but money so received, unless remitted to the debtor, shall be applied in reduction of the secured obligation; .... [Emphasis added].

Keeping in mind that, by virtue of Section 9-504(5), Payne and Flanagan stand in the shoes of the secured party, we find it inescapable that they were obligated under Section 9-207(2)(c) to apply profits received in reduction of the secured obligation. At the time of their use of the substituted collateral, Payne and Flanagan were operating under their note to the bank dated May 25, 1978, a renewal note. Still there is no question but that the phrase “the secured obligation” in the statute covers all obligations of the parties owing to the Rankin County Bank arising out of the original note of December 1, 1976, including all extensions and renewals thereof.

We have only one prior decision construing a secured party’s obligations under Section 9-207: Vinson v. McCarty, 413 So.2d 1026 (Miss.1982). The Vinson case recognizes the general obligation of the secured party in possession of collateral to act with reasonable diligence and in good faith to preserve the collateral and to deal fairly with the debtor. The facts of the Vinson case, however, as well as the precise legal issues tendered, offer no real aid here.

The notion that a secured party in possession is, under UCC Article 9, obligated to the debtor to account for profits and to apply profits to the debt secured was recognized in Madsen v. Prudential Federal Savings & Loan Assn., 558 P.2d 1337, 1340 (Utah 1977). In Madsen, the Supreme Court of Utah recognizes that this general legal premise may be traced back to the early days of the common law pledge, long before anyone ever dreamt of the Uniform Commercial Code. For example, as long ago as 1929, the rule was stated in 21 Ruling Case Law, Pledge 665-666, § 28, as follows:

If from the use of the property pledged profits are derived, the pledgee must in the absence of a special agreement to the contrary, account therefor to the pledgor, and apply the net proceeds of such use to the extinction of the debt. So if any profits accrue from the property held as collateral, such profits, while they may be collected and retained by the pledgee, must be credited to the pledgor, or applied to the sum due from him.

The Madsen court goes on to add:

The foregoing principles of the law of pledge are not new. Indeed, Madsen’s counsel cites the Code of Manu and that of Hammurabi, for early examples [fn. 2] I.A. Rocureck and J.S. Wigmore, Source of Ancient and Primitive Law, p. 401 (1915). These principles have not been discarded. 558 P.2d at 1340.

The same rule is found in the Restatement of Security, § 27, p. 91:

The pledgee has the duty to account to the pledgor for the increase or profits accruing to the pledgee as a result of the possession of the pledged chattel.

Madsen, of course, concludes by recognizing that the rule has now been brought forward and expressly included in Section 9-207(2) of the Uniform Commercial Code. And, to be sure that the applicability of the rules stated above to this ease is not lost, Flanagan and Payne are statutory subro-gees by virtue of Section 9-504(5) and, to the extent that they held possession of the Cessna as substituted collateral, they stood in the eyes of the law as pledgees in possession, with the attendant obligation to account for profits.

C.

A point needs to be made crystal clear here. We are talking about net profits. In no way is Murray entitled to a credit for all gross receipts of Payne and Flanagan from the use of the substituted collateral. Murray is entitled to credit in the amount of the net profits attributable to Payne and Flanagan’s use of the Cessna airplane. We have no doubt that it can be ascertained, in accordance with generally accepted accounting principles, what part of the net earnings from the use of the Cessna are attributable to the airplane itself, and the efforts and industry of Payne and Flanagan.

On the authority of Section 9-207(2)(c), as construed above, the Circuit Court erred in refusing to allow the jury to consider evidence of profits earned by Payne and Flanagan through the use of the Cessna airplane.

IV.

In reply, Payne and Flanagan argue that this Court should not reverse because Murray’s counsel failed to make his record at trial sufficient to preserve the point for appeal. They urge that, once the Circuit Judge sustained the objection to the proof respecting profits, it was then incumbent upon Murray to place in the record what his proof would have been. This is frequently done by counsel’s dictation into the record of a statement of what his proof would have shown had he been allowed to offer it. The more cumbersome way to do this, of course, is for the witness, outside the presence of the jury, to be allowed to testify.

Payne and Flanagan are correct that, under the clearly established decisions of this Court, we require that, before we will reverse, the complaining party preserve and advise us through the record just what the excluded testimony would have been. See, e.g., Foster v. Miss. State Highway Commission, 244 Miss. 57, 140 So.2d 267, 271 (1962); Dazet v. Bass, 254 So.2d 183, 187-188 (Miss.1971); Martin v. Wadlington, 337 So.2d 706 (Miss.1976). The rule, however, is not nearly so wooden as counsel argues.

It is not necessary that the parties place in the record every detail of what their proof would have shown. All we require is that the party offering the excluded testimony make a clear record showing to us that there is substance to his point, that on reversal and remand there is a substantial likelihood that he will be able to offer evidence which may reasonably be expected to have an impact on the outcome of the case. We do not require that the appealing party place in the record the total and complete details of the proffered but excluded testimony. Nor do we require certainty that exclusion of that testimony affected the outcome of the first trial.

Against this backdrop, we notice first that Payne and Flanagan admitted in their pleadings that profits were earned. In Paragraph IV of their Answer to Counter-Claim, the following appears:

The plaintiffs and counter-defendants [Payne and Flanagan] admit that the Grumman and Cessna aircraft profits were utilized for profit during the years 1976, 1977, 1978 and 1979; ....

In view of this admission and the circuit judge’s complete exclusion of all consideration of profits, we would be inclined to reverse if nothing more were before us.

Our review of the record, however, reflects that Cecil H. Payne gave two pages of testimony respecting profits before his lawyer had the presence of mind to object. To be sure, that objection was sustained. Still, we have before us for our consideration Payne’s testimony that he flew the Cessna for approximately 100 hours, earning anywhere between $100 and $150 per hour. Murray’s counsel did not make a formal proffer for the record following the sustaining of the objection. He didn’t have to. Enough was already in the record so that we could see without doubt that some profits were earned.

V.

Our reversal here is a limited one. Payne and Flanagan have established a legally-binding and subsisting obligation on the part of Murray to pay them $4,620.00, or $2,310.00 each. This obligation was not seriously disputed at trial. The jury’s verdict establishes it. Since there has been no assignment of error on this appeal challenging it, we hold that this much of the proceedings below require affirmance.

On remand, Murray is entitled to prove the net profits received by Payne and Flanagan attributable to their use and operation of the Cessna until it was sold to the new partnership. The amount of net profits so determined shall be set off against the $4,620.00 obligation Murray owes to Payne and Flanagan.

We, therefore, reverse the judgment of the Circuit Court and remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . After Murray’s default and the Bank’s repossession, it is not clear just where title to the Grumman reposed. Likewise, once the Grumman was traded for the Cessna, it is not shown who took title to the Cessna. However important title may be for other purposes, it is irrelevant here. This case is controlled by Article 9 of the Uniform Commercial Code as adopted in this state. Miss.Code Ann. § 75-9-202 (Supp. 1982) provides:
      Each provision of this chapter [Article 9] with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or in the debtor.
      While this provision was originally inserted into the UCC to obliterate formalistic distinctions between the conditional sales contract and the chattel mortgage, it is equally applicable here. The Grumman was collateral [Miss. Code Ann. § 75-9-105(l)(c) (Supp.1982)] and the Cessna was substitute collateral. For purposes of this case, title is irrelevant. See Anderson v. First Jacksonville Bank, 243 Ark. 977, 423 S.W.2d 273 (1968); and Ellzey v. Fyr-Pruf, Inc., 376 So.2d 1328, 1331 (Miss.1979).

      . We recognize that the liquidation of collateral by a secured party, such as the bank, or by subrogated secured parties, such as Payne and Flanagan, is governed by statute. Miss.Code Ann. § 75-9-504(3). The same must be “commercially reasonable”. The debtor (here Murray) is entitled to notice prior to sale. No issues, however, have been raised regarding the sale of the Grumman, and we do not intend to invent any.

      . In a very real sense, the Cessna constitutes “non-cash proceeds” of the bank’s original collateral. As such it became subject to the bank’s perfected security interest immediately upon its acquisition in trade for the Grumman, the original collateral. See Miss.Code Ann. § 75-9-306 (Supp.1982). The record makes clear, however, that the parties did not regard the secured transaction as having ended with the acquisition of the Cessna on May 25, 1978. Rather, the Cessna was substituted collateral securing the renewed balance of the December 1, 1976, note. The parties did not in fact regard the secured transaction at an end until the sale of the Cessna to the new partnership on July 21, 1978, as described below.

      . See footnote 2, supra. The Cessna was sold to a new partnership comprised of Payne, Flanagan and Joe Carraway. No question is raised regarding the validity or legality of this sale, nor with respect to the adequacy of the considerations paid.

      , Although the pleadings allege use by Payne and Flanagan of both the Grumman and the Cessna, we find from the record that the only serious question surrounds the Cessna. The evidence received at trial contains no hint of any use or profits earned with respect to the Grumman.

      . We are by no means unaware that there is a federal overlay to the law of secured transactions where an airplane is the collateral. Federal law, for example, dictates the procedures by which security interests in airplanes may be perfected. Under the Federal Aviation Act, all conveyances of aircraft must be recorded with the FAA at its central office in Oklahoma City. 49 U.S.C. § 1403. This recording system has been held to preempt all state laws governing the same matters. Philko Aviation, Inc. v. Shacket, - U.S. -, 103 S.Ct. 2476, 76 L.Ed.2d 678 (1983). In Philko, the court also held that § 1403 preempted substantive state law regarding title transfers to the extent that the federal law provides that unrecorded transfers of title cannot be valid against innocent third party purchasers. The term “conveyance” is defined by the act as “a bill of sale, contract of conditional sale, mortgage, assignment of mortgage, or other instrument effecting title to, or interest in, property”. 49 U.S.C. § 1301(20) (Supp. VI 1982). See also 14 C.F.R. § 49.31 (1983). In Philko, the court has held that failure to record any title transfers renders these transfers invalid as against innocent third parties. In the incomplete record that has come to this Court, there is no evidence that any of the conveyances of aircraft with which we are here concerned have been recorded as required by federal law. However, due to the narrowness of the issue that we have been asked to decide, these federal laws and regulations have no effect on the outcome of this case.

      . Subsection (4) authorizes use or operation of the collateral for the purpose of preserving the collateral or its value. It is not completely clear that this is why Payne and Flanagan were using the Cessna or how their use helped preserve it or its value but no objection is raised to the fact of use or operation, so we inquire no further here.

      . These general rules refer to the obligations of a secured party in possession before default. Section 75-9-501(1) provides that the same rules apply after default.

      . We emphasize again that Payne and Flanagan treated the Cessna as collateral securing the note they made May 25,1978, which in turn renewed the outstanding balance of the original December 1, 1976, note. The secured transaction was still on. Payne and Flanagan continued to treat the Cessna as collateral until July 21, 1978. If in fact Payne and Flanagan had after May 25 treated the original secured transaction of December 1, 1976, as having been concluded, there would have been two attendant consequences. First, Payne and Flanagan would have had no obligation to account to Murray for profits. Second, Payne and Flanagan would have forfeited any rights they may have had to bring suit against Murray for a deficiency judgment. See Miss.Code Ann. § 75-9-505(2) (Supp.1982).

      .Again, if we understand the record correctly, the time frame which Payne and Flanagan, as subrogated secured parties in possession, used the Cessna was May 25, 1978, to July 21, 1978. Profits earned after the sale of the Cessna to the new Payne, Flanagan and Carraway partnership are not considered.


source: Caselaw Access Project

author: HAWKINS, Justice,

license: Public Domain

text:
    Robert EDWARDS v. CLEVELAND FOOD, INC., D/B/A Sunflower Food Store.
    No. 53812.
    Supreme Court of Mississippi.
    Sept. 7, 1983.
    McTeer & Bailey, Willie L. Bailey and Willie Griffin, Greenville, for appellant.
    Lake, Tindall, Hunger & Thackston, W. Wayne Drinkwater, Jr., Greenville, for ap-pellee.
    Before PATTERSON, HAWKINS and ROBERTSON, JJ.
   HAWKINS, Justice,

for the Court:

Robert Edwards appeals from a judgment of the Circuit Court of the Second Judicial District of Bolivar County in favor of Cleveland Food, Inc., d/b/a Sunflower Food Store.

Cleveland Food, Inc., a corporation, owns the Sunflower store in Cleveland, and was sued by Edwards following his falling in the store. When Edwards rested his case in chief, the circuit judge sustained Sunflower’s motion for a directed verdict for lack of showing any negligence, and entered judgment in favor of Sunflower. Persuaded sufficient evidence was adduced to withstand the motion, we reverse and remand.

This is the only issue addressed on this appeal.

Edwards was a customer in the defendant’s Sunflower store in Cleveland on December 20,1979, when he slipped and fell on a wet place in the store. He sued for injuries sustained in the fall.

Edwards did not know what the wet substance was on the floor. After his fall, the store manager, James Williams, told him it was milk.

Williams and two store clerks assisted Edwards, a corpulent individual, in getting up following his fall. Edwards quoted Williams as stating:

“Somebody left some milk down here. Some milk was wasted. You Hurt?”
Edwards responded, “Yeah.”
Williams then directed some employee of the store: “Go get the mop and get this milk up. Finish gettin’ the milk up.” (Emphasis added).

Edwards described the condition on the floor as follows:

“It was wet. It looked like it had been mopped up but not good — ”
And again:
“It was smeared like water. Like you mop and don’t mop it all up. It was damp.”

At the beginning of the trial of this cause, Edwards called Williams as an adverse witness, and had asked him a few questions, establishing he had been store manager for several years, and knew Edwards as a customer, when defense counsel interposed an objection.

Counsel then approached the bench, and the record reveals the following:

“(WHEREUPON, COUNSEL FOR BOTH PARTIES APPROACHED THE BENCH FOR A BRIEF CONFERENCE OUT OF THE HEARING OF THE COURT REPORTER).
(WHEREUPON, THE COURT, COUNSEL FOR BOTH PARTIES, THE CIRCUIT CLERK, AND THE COURT REPORTER RETIRED TO CHAMBERS).

IN CHAMBERS

(Discussion off the record about adverse witness)

BY MR. BAILEY: We’ll withdraw and proceed with the Plaintiff in this case.” (Emphasis added).

Edwards called two other customers who were in the store at the time of his fall, but neither furnished any information about the substance on the floor.

Following conclusion of plaintiff’s case in chief, the circuit judge sustained a motion for directed verdict in favor of the defendant.

LAW

The declaration in this cause charged the plaintiff “... slipped and fell in spilled milk that was negligently mopped up by an employee of the defendant.” In the pretrial order, the plaintiff claims: “Prior to plaintiff entering the store some milk or liquid substance was spilled on the floor. An employee of the defendant half mopped the milk up.”

On this appeal we apply two well-known principles, the duty of care a store owner owes a customer, and the rule governing granting or denying a motion for a directed verdict.

As to such a store proprietor, in Millers of Jackson, Meadowbrook Road, Inc. v. Newell, 341 So.2d 101 (Miss.1977), we said, at 103: “Furthermore, our law requires that he must remove those hazards of which he has actual or constructive notice.”

In Downs v. Corder, 377 So.2d 603, 605 (Miss.1979), we cited 65 C.J.S. Negligence § 63, at 734, as follows:

The duty of reasonable care owed to an invitee includes the exercise of such care and protection of the invitee and the finding of reasonably discoverable conditions which may be dangerous, and if such are found, the occupant of the premises has a duty to correct them, or to warn the invitee thereof.

In this case, on liability, the following questions of fact were for determination: (1) Was there a hazard on the floor? (2) Did the employee know of the condition? and (3) Had they taken reasonably necessary steps to (a) correct it, or (b) warn customers of the danger?

In Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652, 655 (Miss.1975), we stated:

We have held many times that in passing on a motion for a directed verdict the court must look only to the testimony adduced for the plaintiff and accord truthfulness to it and indulge all favorable inferences that could be drawn therefrom, and if either is sufficient to support a verdict, then the motion for a directed verdict should be overruled. We have also stated in considering a motion for a directed verdict that it should be overruled even though a verdict in favor of the plaintiff would be contrary to the overwhelming weight of the evidence. King v. Dudley, 286 So.2d 814 (Miss.1973).

These two principles are so well embedded there is no need to cite additional authority from the litany of cases in which we have considered them.

Taking the undisputed testimony and all favorable inferences that can be drawn therefrom, we find that a jury question was presented on whether there was a hazard on the floor. Although somewhat more difficult of application, we also find that there was sufficient evidence to withstand the motion for a directed verdict as to whether the employees had learned of the condition and taken reasonably necessary steps to correct it. They manifestly did nothing to warn of the danger.

Sunflower argues the etiology of the physics of this floor condition, scienter by the store employees, as simply speculative. Of course, they are “speculative.” But, what inferences may be “speculated” with reasonable probability, giving the plaintiff the benefit of the rule? This is the principle to which we must adhere. Many inferences could be drawn from the evidence, some of them unfavorable, but we are restricted to the favorable testimony and favorable inferences.

This suit was brought on the allegations that the store had not taken proper steps to remove from the floor the hazard of some spilled milk.

The store manager stated, “Finish getting the milk up.” Edwards testified the floor appeared to have been mopped up, but not good, and it appeared that not all of it had been mopped up.

Adopting as we must the favorable inference from the testimony we find there was sufficient testimony for initial submission to the jury on the question of whether the store employees had discovered, and then taken reasonably necessary steps to remove the hazard of spilled milk from the floor.

In the interest of judicial economy it is unfortunate defense counsel objected to Williams’ testifying as an adverse witness (if that in fact was the basis of his objection — the record is not clear), because his testimony in all likelihood would have removed serious questions on the existence of liability. It was manifestly proper that he be called as an adverse witness and testify as such. Counsel for plaintiff, however, voluntarily decided to withdraw Williams as a witness, made no record, and assigned no error on this aspect of the trial. This question, therefore, is not before us.

REVERSED AND REMANDED FOR A NEW TRIAL.

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

      . No question of constructive notice is presented in this case because there is no evidence from which it can be deduced how long the milk had been on the floor before Edwards fell.

      . In a request for a peremptory instruction at the conclusion of the case, or motion for judgment notwithstanding the verdict of the jury following trial, a slightly broader test governs. Paymaster Oil Mill Company, supra. We are only concerned here with the propriety of granting a directed verdict for the defendant.


author: PATTERSON, Chief Justice,

text:
    Robert FORBES (Ford) v. STATE of Mississippi.
    No. 54424.
    Supreme Court of Mississippi.
    Sept. 7, 1983.
    M. Charles May and C. Eiland Harris, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.
   PATTERSON, Chief Justice,

for the Court:

Robert Ford was indicted and convicted in the First Judicial District of the Circuit Court of Hinds County for armed robbery. He was sentenced to twenty years imprisonment with five years suspended. Ford appeals, assigning the following as error:

The court erred:

1. In not granting the appellant’s motion for a directed verdict after the State had concluded its case.

2. In not striking for cause the members of the jury that had been burglarized or robbed.

3. In not granting appellant a mistrial or continuance when the jury panel contained 19 persons who had been burglarized or who had been robbed in a recent period of time.

4. The verdict of the jury was against the overwhelming weight of the evidence.

The night of January 26, 1982, a beige Plymouth Satellite automobile parked behind the Church’s Fried Chicken store on Ellis Avenue in Jackson. One of the two men inside the car emerged, entered the store, and robbed it at gunpoint. Following his instructions, the employees put the one dollar bills from the cash registers into a Church’s bag and gave the robber the five, .ten and twenty dollar bills which he put into his pocket. He then ordered the employees into the office and left the store. Immediately afterward Diane Liddell, an employee of Church’s, called the police.

Officer Terry Grice took descriptions from the witnesses about 12:30 a.m., January 27, approximately 30 minutes after the robbery. Deputy Tommy Powell heard the information over the radio and stopped a vehicle south'of the intersection of Rose and Capital Streets which fit Grice’s description. Both the driver, Robert Ford, and the passenger, Charles Carter were arrested.

Ford first contends his motion for directed verdict was erroneously denied. In considering such motion we accept as true all evidence most favorable to the state, together with its reasonable inferences, and disregard evidence favorable to the appellant. If such evidence will support a guilty verdict, the motion for directed verdict will be denied. Bullock v. State, 391 So.2d 601, 606 (Miss.1980).

While the record discloses no direct testimony identifying Robert Ford as one of the men who robbed the chicken store, the state did present evidence from which reasonable inferences of Ford’s guilt could be drawn. Ida Haynes testified there were two black men inside the car from which the armed robber emerged. At the time of Ford’s arrest within 30 minutes of the robbery he was driving a Plymouth Satellite fitting Haynes’ description. Officers found a Church’s chicken bag with 44 one dollar bills on the front seat between Ford and Charles Carter, whom Ida Haynes and Dianne Liddell positively identified as the man who took the store’s money at gunpoint. Additionally, Officer Powell saw protruding from underneath the passenger’s seat a revolver which matched the employees’ description of the robbery weapon. We are of the opinion reasonable inferences of Ford’s guilt could be drawn from this evidence and that the case was therefore properly submitted to the jury.

Ford’s next two contentions involve the following proceedings had during voir dire:

BY MR. MAY:
... I would like to challenge Mr. McComb, Ms, Mallard, Ms. Kelly, Ms. Dow and Ms. Sanders for having been involved or their relatives have been involved in criminal actions and we feel like their attitude would be prejudical [sic] to the defendant.
BY MR. WINGATE:
We object.
BY THE COURT:
I am going to overrule those. I think we cleared it up on all of those that they had no ill feelings, had no preconceived ideas and that they could fairly try this case. Your challenges will be noted and they will be overruled. Anything further?
BY MR. MAY:
We would like to move the Court for a mistrial or, in the alternative, for a continuance of this case until such time as another jury panel is selected due to the fact that nineteen of the forty-three remaining jurors have been involved with a burglary and two of them have been involved with an armed robbery and the defendant feels like this would prejudice his case in that these people could not fairly give him a just trial and we feel like we should either have a mistrial or a continuance for a pre-set date for another jury, Your Honor.
BY THE COURT:
Well, it’s been my experience that you will get the same reaction from any juror or from any jury panel that was summoned and, on the voir dire, each and every one of them stated that they would not hold that against the State or the defendant in the trial of the case so the objection will be overruled and the motion will be denied. (Emphasis added.)

Ford argues the court should have struck for cause those 19 jurors, or, in the alternative, granted a mistrial or continuance.

Had it become apparent that any juror would be unable to fairly try the case regardless of personal experiences with crime, the trial court would have been required by Atkinson v. State, 371 So.2d 869 (Miss.1979), to strike that juror for cause. However, in view of the remarks emphasized above by the trial court, we conclude there was no error in refusing to strike for cause the 19 jurors in question.

In his third contention, the court erred in refusing to grant a mistrial or continuance, Ford relies on Wetzel v. State, 225 Miss. 450, 76 So.2d 188 (1954). While that case rejected appellant’s argument that popular excitement or prejudice generated by media publicity entitled him to a continuance, the court did state the following, “The correct remedy is a change of venue, but a continuance would be proper where unusual circumstances exist.” 225 Miss, at 474, 76 So.2d at 193. Ford argues it was an unusual circumstance that 19 of 43 potential jurors admitted on voir dire they had been robbed or burglarized and therefore, the trial court should have granted a continuance.

We have held that the granting of continuances is a matter of the trial judge’s discretion and that we will not reverse where defendant has failed to show he was prejudiced by the denial of his motion. Howell v. State, 246 So.2d 95, 96 (Miss.1971). In this case all the jurors stated they would not allow their personal experiences to influence their verdict. The jurors finally selected were sworn to fairly try the case. Additionally, they were directed by instruction No. 1 that they should “not be influenced by bias, sympathy or prejudice.” It is presumed that the jury followed this instruction. Edwards v. State, 413 So.2d 1007 (Miss.1982). We conclude the denial of defendant’s motion, not having been shown to have prejudiced the defendant, was within the trial judge’s discretion. Further we are of the opinion the percentage of potential jurors who had had experience with robbery and burglary is not so unusual or extraordinary as to require reversal under Wetzel for failure to grant a continuance.

Ford’s last argument, the verdict of the jury was against the overwhelming weight of the evidence, is without merit. Having scrutinized the record, we are of the opinion the evidence and the reasonable inferences drawn therefrom support the jury’s verdict.

AFFIRMED.

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


text:
    Albert G. COLEMAN v. STATE of Mississippi.
    No. 54425.
    Supreme Court of Mississippi.
    Sept. 7, 1983.
    Collins & Dreher and David W. Dreher, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before WALKÉR, P.J., and ROY NOBLE LEE and HAWKINS, JJ.

Affirmed.

PATTERSON, C.J., BROOM, P.J., and BOWLING, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


text:
    William COOK v. STATE of Mississippi.
    No. 54372.
    Supreme Court of Mississippi.
    Sept. 7, 1983.
    Vance & Perrier, Travis T. Vance, Jr., Eugene A. Perrier, Vicksburg, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; John E. Ellis, Judge.

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

AFFIRMED.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS and ROBERTSON, JJ., concur.


text:
    H. Alva BRUMFIELD, III v. Elizabeth B. ALLEMANDI, et al.
    No. 53872.
    Supreme Court of Mississippi.
    Sept. 7, 1983.
    Rushing & Guice, William Lee Guice, III, Biloxi, John L. Jeffries, Laurel, for appellant.
    Dan R. Wise, J. Robert Ramsay, Hatties-burg, for appellee.
   Appeal from Chancery Court, Walthall County; Bert H. Jones, Chancellor.

Before BROOM, P.J., DAN M. LEE and PRATHER, JJ.

AFFIRMED.


text:
    Mac LEONARD a/k/a Max Leonard v. STATE of Mississippi.
    No. 54427.
    Supreme Court of Mississippi.
    Sept. 7, 1983.
    Sidney J. Martin, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Washington County; B.B. Wilkes, Judge.

Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.


author: DAN M. LEE, Justice,

text:
    Vance WITT, Successor Administrator of the Estate of Frances Mitchell Mayes, Deceased, et al. v. Mark MITCHELL.
    No. 53558.
    Supreme Court of Mississippi.
    Sept. 7, 1983.
    Mitchell, McNutt, Bush, Lagrone & Sams, F.M. Bush, III, Tupelo, for appellant.
    Ford & Cornelius, Robert T. Cornelius, Will R. Ford, New Albany, for appellee.
   ON PETITION FOR REHEARING

DAN M. LEE, Justice,

for the Court:

This matter is presented to us by the appellee’s petition for rehearing following our decision handed down March 30, 1983. Finding merit in appellee’s petition, we hereby withdraw our previous decision and issue this as the opinion of the Court.

This appeal originated in the Chancery Court of Union County wherein Mark Mitchell, appellee, filed his amended petition to notify of heirship in the estate of Frances Mitchell Mayes, deceased. His mother was Gussie Wright, who lived on the estate of George Mitchell. Appellee alleged in his petition that his father was Mark L. Mitchell, the son of George Mitchell. Mark L. Mitchell was committed to the State Mental Hospital at Jackson in 1918 where he subsequently died in 1962. Mrs. Frances Mitchell Mayes, the sister of Mark L. Mitchell, died intestate on October 17, 1973, without children or lineal descendants. She was survived by one sister, Mrs. Ethel Mitchell Montgomery, her brothers Mark L. and Louie having predeceased her. Louie Mitchell died intestate and his estate was administered by the Chancery Court of Union County in Cause No. 2136. Letters of administration were issued on August 18, 1919. He was never married and had no lineal descendants. Appellee therefore sought one-half of the Mayes estate, which is estimated to be of the value of approximately $1,000,000.

At the conclusion of a rather lengthy hearing, the chancellor found that Gussie Wright and Mark L. Mitchell were never married, either ceremonially or by common law. However, based on the evidence, the chancellor found that appellee was the illegitimate son of Mark L. Mitchell. The chancellor held that Mississippi Code Annotated section 91-1-15 (1972), in effect prior to the amendment of April 1, 1981, which barred an illegitimate child from inheriting from or through his intestate father unless the father married the mother and acknowledged the child, was unconstitutional in light of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). The chancellor further held that Trimble should be given retroactive application to the death of Mrs. Frances Mitchell Mayes.

Mark L. Mitchell was born in 1883. Records from the Mississippi State Hospital showed he was admitted as a patient on April 22,1918, and remained there until his death on August 22, 1962. It was believed at that time that Mitchell had never married nor that he had any lineal descendants. Although the records disclosed that Mark L. Mitchell was continuously institutionalized from 1918 until his death, the evidence disclosed, as will be shown, that he was seen in Union County as late as 1926. The court records reflected that Mark L. Mitchell was declared a lunatic and his sisters, Frances and Ethel, were appointed his guardians on June 2, 1924. On August 23, 1974, Ethel died testate and her will is being probated in the Chancery Court of Union County in Cause No. 9417.

On January 21, 1980, appellee filed his petition, which was subsequently amended on April 15, 1980, alleging he was entitled to one-half of the Mayes estate estimated to be of the value of approximately $1,000,000. At that time the estates of both Frances and Ethel remained open. The successor administrator of Frances’ estate, the executor of Ethel’s estate and the remainder beneficiaries of Ethel’s will and their assigns were named as defendants to appel-lee’s petition.

The proof showed appellee was born in Union County on October 26, 1918. His mother was Gussie Wright, a sharecropper’s daughter who lived with her parents and brothers and sister on a farm owned by George Mitchell, Mark L. Mitchell’s father. Throughout his life, as reflected by various records, his relatives and other acquaintances, appellee had been known as Mark Louie Mitchell and Mark George Mitchell. Appellant’s middle names were allegedly derived from Louie Mitchell and George Mitchell, Mark L. Mitchell’s brother and father.

The general reputation in the community was that Mark L. Mitchell was appellee’s father. Gussie Wright also told various people that Mark L. Mitchell was appellee’s father and that she and Mark had been secretly married. There was evidence that upon learning of Gussie’s pregnancy, Gus-sie’s mother visited George Mitchell who thereafter paid Mrs. Wright $15 a month for support of appellee. There was also evidence that appellee visited in the George Mitchell household, calling George Mitchell grandpa, and Ethel and Frances, Aunt Ethel and Aunt Fan. On one of these visits, in approximately 1923 or 1924, George Mitchell gave appellee a picture of Mark L. Mitchell and told him it was his father. This picture was produced at trial.

Mark L. Mitchell was seen sporadically in Union County until approximately 1926, although the records from the state hospital reflected his continuous confinement since 1918. During this time, Mark L. Mitchell frequently visited the Wrights. Also, in the late 1920’s, Gussie had two more children who also went by the Mitchell name. Mark L. Mitchell, however, was never seen again in Union County following an alleged incident in 1926, when he poured motor oil over Frances’ furniture.

Witnesses for the appellant, who were mostly third cousins of Frances, asserted they had never heard of appellee or any children of Mark L. Mitchell during family discussions. Mary Bean Lambert, who lived with Frances for about one year in 1926, asserted she never saw or heard appellee’s name mentioned. She also denied any knowledge of the alleged motor oil incident. Evidently, the only thing that was ever said of Mark L. Mitchell was that he had been committed to the state mental hospital. When it was suggested to Frances that she prepare a will following her husband’s death, she replied a will would not be necessary because Ethel was her only living relative.

DID THE CHANCELLOR ERR IN DECIDING THE CAUSE ON A THEORY NOT IN ISSUE UNDER THE PLEADINGS?

Appellee in his original petition and amended petition alleged that he was the son of Mark L. Mitchell, deceased, and the nephew of Frances, deceased. Appellants entered a general denial thereto. Nowhere in appellee’s petition or amended petition did he allege to be the illegitimate son of Mark L. Mitchell nor did he attack the constitutionality of Mississippi Code Annotated section 91rl-15 (1972). In fact, ap-pellee sought to prove at trial that he was the legitimate son of Mark L. Mitchell by virtue of either the existence of a ceremonial or common law marriage between his mother and Mark L. Mitchell.

In Lucas v. Lucas, 415 So.2d 709 (Miss.1982), this Court stated:

This Court has quoted Griffith, Mississippi Chancery Practice, C.J.S. and Am. Jur.2d at length on this subject in Seymore v. Greater Mississippi Life Insurance Company, 362 So.2d 611 (Miss.1978), in part as follows:

The issues are framed, formed and bounded by the pleadings of the litigants. The Court is limited to the issues raised in the pleadings and the proof contained in the record. Judge Griffith, in his monumental work on Mississippi Chancery Practice, gave these sound reasons why it must be so:
“Courts do not instigate or initiate civil litigation. They act only when called on for aid and only in respect to that which is within the call. The potentiality of a court to consider and determine a given class of cases over which it has jurisdiction is made actual, in a particular case within that class, only when a party entitled to relief with respect thereto has applied to the court by his written pleading and even then his written application must state the facts upon which it is based or else it will still be ineffectual to actuate the court to grant any relief. The power of the court, then, will be exerted only upon and will not move beyond, the scope of the cause as presented by the pleadings, for the pleadings are the means that the law has provided by which the parties may state to the court what it is they ask of the court and the facts upon which they ask it; and proof is received and is considered only as to those matters of fact that are put in issue by the pleadings, and never beyond or outside of them. If the rule were otherwise courts could become the originators instead of the settlers of litigious disputes, and parties would never know definitely what they will be required to meet or how to meet it.” Griffith, Mississippi Chancery Practice (Second Edition 1950), § 564, pp. 586-87. (Emphasis added).
In 89 C.J.S. Trial, § 633 b, at page 464 (1955), we find this language:
“The findings when compared with the pleadings must be within the issues and be responsive thereto, and must cover the material issues raised by the pleadings, and this is required whether or not evidence is introduced on such issues. It is improper to make findings outside the scope of the issues made by the pleadings; and where such findings are made, they are nugatory and cannot support conclusions of law or the judgment; they must be disregarded or treated as immaterial.”
76 Am.Jur.2d, Trial, § 1264, at page 215 (1975) says:
“The findings of fact made by the court should respond to and be within the issues, and a finding outside the issues cannot be considered in determining whether the judgment is supported by the findings.” (emphasis ours). (362 So.2d at 614-615)

415 So.2d at 712.

At the conclusion of the evidence presented by both parties, arguments were presented to the chancellor. It was at this june-ture that the constitutionality of section 91-1-15 was first mentioned.

Upon these facts, this case falls squarely within the confines of Estate of Miller v. Miller, 409 So.2d 715 (Miss.1983). There Justice Roy Noble Lee, writing for the Court, so aptly stated:

In his pleadings, appellee did not claim that he was entitled to inherit from J.D. Miller, deceased, as his illegitimate son, nor did he attack the constitutionality of MCA § 91-1-15 (1972), providing for descent among illegitimates, upon equal protection grounds as discriminating against illegitimates. While the appellant did plead the adverse possession statute, Section 15-1-7, Miss.Code Ann. (1972), as a bar to the claim of appellee, she did not plead the six-year general statute of limitations contained in Section 15-1-49, Miss.Code Ann. (1972). The parties, in their pleadings, should have hit the issues of illegitimacy, unconstitutionality and statute of limitations head on like two wild rams during the mating season. Instead, they danced, bobbed and weaved like boxers in the ring, skirting those questions.

409 So.2d at 716-17.

Concluding that the constitutionality of the statute was not properly before the lower court, we held:

As stated, the record reflects that the constitutional question was not raised by the pleadings, or during the trial of the case below, seized upon and declared the statute, Section 91-1-15 (1972), unconstitutional. In State v. The Cabana Terrace, 247 Miss. 26, 153 So.2d 257 (1962), the court, quoting from Pacific States Box & Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138 (1935), said:
It is well-settled that the constitutionality of a statute will not be considered unless the point is specifically pleaded. 247 Miss, at 37, 153 So.2d at 260.

See also Stewart v. City of Pascagoula, 206 So.2d 325 (Miss.1968); Comfort v. Landrum, 52 So.2d 658 (Miss.1951); Adams v. Board of Supervisors of Union County, 177 Miss. 403, 170 So. 684 (1936).

We are of the opinion that the constitutionality of the statute was not properly before the lower court and that the court erred in declaring the statute unconstitutional of its own volition.

409 So.2d at 718.

Based on the foregoing we hold that the chancellor erred by deciding this case upon a theory not in issue under the pleadings. Because the case must be reversed, we need not reach the other assignments of error. For the above reasons, the cause is reversed and remanded to the chancery court to allow the parties to amend their pleadings, if they desire, and proceed therein.

Upon consideration of the appellee’s petition for rehearing, we hereby withdraw our opinion of March 30, 1983, and issue this decision as the opinion of the Court. Reversed and remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

ROBERTSON, Justice, specially concurring:

I concur in everything that has been said by Justice Dan Lee in his opinion for the Court on Petition for Rehearing. I write separately, however, to set forth my understanding of the effect of our remand and to highlight for the bar the new and diminished office of pleadings under the Mississippi Rules of Civil Procedure, effective with respect to all civil actions commenced after January 1, 1982.

I.

In my view, on remand Mark Mitchell is now in a position to present his more than facially valid claim to inheritance by and through his natural ancestors.

It is clear to me as a matter of fact and law that, by virtue of Senate Bill No. 2651, 1983 Miss.Laws ch. 339, the Legislature has created a new, separate and distinct remedy for the benefit of all illegitimates without any classifications. The effect of our reversal is that Mitchell is now free, on reformed pleadings, to present and litigate his claims under Senate Bill No. 2651.

II.

The original petition in this case was filed on January 1, 1980. It was subsequently amended on April 15, 1980.

The opinion of the Court relies heavily upon Estate of Miller v. Miller, 409 So.2d 715 (Miss.1983); and Lucas v. Lucas, 415 So.2d 709 (Miss.1982). Both of these cases are concerned with the office of pleadings and their role in the phases of a lawsuit. Both are perfectly good law when applied to cases filed prior to January 1,1982. And because this action was commenced prior to January 1, 1982, our former rules apply, even on the proceedings on remand.

The pleadings we hold inadequate under Lucas and Miller would, in my view, be wholly adequate under the Mississippi Rules of Civil Procedure, and particularly under Rules 8(a) and (e). On this record, if our new rules applied, we would further hold that the issues in question had been tried by express or implied consent and, under Rule 15(b), Miss.R.Civ.P., treat those issues in all respects as if they had been raised in the pleadings.

Whether Rule 8 goes all the way and adopts the theory of “notice pleadings” is an issue I do not address. See Official Comment to Rule 8, Miss.R.Civ.P. But, the rules do significantly' change — and diminish — the office of pleadings in a lawsuit. Most fundamentally, the scheme of our new rules has postponed the stage at which the details of a party’s case must be disclosed. What once (under Miller and Lucas) had to be disclosed in pleadings now need not be disclosed until discovery or pre-trial conference. The most important thing to remember about pleadings under the Mississippi Rules of Civil Procedure is that they simply aren’t very important any more.

All that is necessary at the pleading stage is that the plaintiff provide a short and plain statement of his claim. Here, Mark Mitchell has done this. He has alleged that his father was Mark L. Mitchell, the son of George Mitchell. He has alleged that he is entitled to inherit by and through his natural father and grandfather. Under our new rules, he was not required to anticipate that the Chancery Court would find that Gussie Wright and Mark L. Mitchell were never married. His allegation is sufficient to assert a claim of inheritance by and through Mark L. Mitchell, whatever the latter’s marital state may have been determined to be.

Beyond that, under our new rules Mitchell’s pleadings would not be defective because he did not expressly attack the constitutionality of Miss.Code Ann. § 91-1-15 (1972). Again, his pleadings were clear. He stated a claim to inheritance and under our new rules would have been entitled to present under that statement of a claim any legal theory his counsel might think appropriate.

So much of today’s decision as decides the pleadings issues has no effect as precedent in any action commenced after January 1, 1982.

      . It is noted that the legislature further amended Mississippi Code Annotated section 91-1-15 on March 14, 1983, five days after this case was argued before this Court.


author: SHORES, Justice.

text:
    Floyce Marie REECE, et al. v. Dr. William SIMPSON, et al.
    81-978.
    Supreme Court of Alabama.
    July 1, 1983.
    Rehearing Denied Aug. 19, 1983.
    Ralph E. Coleman of Coleman & Coleman, Birmingham, for appellants.
    Curtis Wright of Dortch, Wright & Russell, Gadsden, for appellees.
   SHORES, Justice.

This is an appeal by the plaintiff from an order denying a new trial in a medical malpractice case in which the jury returned a verdict for the defendants. We affirm.

Plaintiff Floyce Marie Reece had for a number of years prior to June 1, 1978, been treated for ulcers by William H. Simpson, M.D., who was a physician in Gadsden and a member of Simpson and Ennis Clinic (which was also named a defendant). In her complaint, she charged that Dr. Simpson was negligent in prescribing the drug Tanderil to her because this drug was described by its manufacturer as being “contraindicated” to persons who suffer from ulcers.

On appeal, the plaintiff argues that the trial court erred in denying her motion for new trial because, she argues, the trial court’s oral charge to the jury was erroneous. More specifically, she says the court’s oral charge contained an erroneous definition of negligence in a medical malpractice case.

First, we note that no objection was made to the court’s oral charge and, therefore, we would be powerless to reverse even if the plaintiff’s argument was meritorious. As we held in Record Data International, Inc. v. Nichols, 381 So.2d 1 (Ala.1979):

“Rule 51, ARCP specifies that error may not be assigned for the giving of a defective charge unless the party seeking to assign error objects to that portion of the charge which is defective before the jury retires to consider its verdict, and specifically states the matter to which he objects and the grounds of his objection ....
“Rule 51 affords the trial court an opportunity to correct any error in its charge before it becomes error with injury to reversal.”

381 So.2d at 7. The plaintiff did not comply with Rule 51, ARCP. But we have read the court’s entire oral charge and find it to be without error.

The thrust of the plaintiff’s argument is that the court erred in giving the jury a general definition of negligence in a medical malpractice case. This was not error. The court correctly charged the jury on the standard of care in medical malpractice cases; in fact, the oral charge stated the standard several times, as follows:

“[A] doctor, a physician, in performing professional services for a patient, must use that degree of care, skill and diligence which is ordinarily possessed and used by the doctors or physicians in the same general community in the same general line of practice and on the same or similar circumstances.”

It was not error to define negligence for the jury. After all, the plaintiff's complaint charged the defendants with negligence.

Finally, the plaintiff contends that the court erred in denying a new trial because a juror took handwritten notes to the jury room. We disagree. The notes were taken by the juror during the course of the trial and were introduced at the hearing on the motion for new trial. They are no more than notes taken as an aid to memory. The juror’s affidavit indicates that, while she took notes, “we considered all the evidence from the witnesses and the exhibits, along with the Court’s oral instructions, in making a final decision.” She also said none of the jurors was given any instructions by the court not to take notes.

The fact that a juror takes notes during the course of the trial and takes them to the jury room does not per se compel a new trial. As set out in Pattern Jury Instruction 1.15, APJI — Civil:

“Ladies and gentlemen you have a legal right to take notes during the trial but the court does not recommend the taking of notes by jurors generally. Where there is evidence which deals with figures and mathematical calculations note taking may be useful to you. If notes are taken by you, they should be taken simply as an aid to memory and for your assistance in that regard and not as authoritative records to show to other jurors.”

There is nothing in the record before us to indicate that the juror’s notes were treated as anything more than an aid to memory. The trial court’s denial of a new trial on this ground was not error.

The judgment appealed from is affirmed. AFFIRMED.

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


author: PER CURIAM.

text:
    John T. ROACH, Jr., and The Legal Center, Inc., a corporation v. Frank K. BYNUM and James D. Forstman.
    82-78.
    Supreme Court of Alabama.
    July 1, 1983.
    Rehearing Denied Aug. 19, 1983.

      William H. Mills of Redden, Mills & Clark, Birmingham, for appellants.
    Hobart A. McWhorter, Jr. and Robert K. Spotswood of Bradley, Arant, Rose & White, Birmingham, for appellees.
   PER CURIAM.

This is the third appearance for this case before this Court in the last three years. The history of this case, a shareholder dispute involving a closely-held corporation, is well summarized in this Court’s two previous opinions. See, Roach v. Bynum, 403 So.2d 187 (Ala.1981), and Ex parte Roach, 414 So.2d 80 (Ala.1982).

On December 14, 1981, after this Court’s opinion in the first appeal was announced and the cause was remanded, plaintiffs Frank Bynum and James Forstman filed their second petition for relief in this ease, seeking to obtain from defendant John Roach, inter alia, physical control of the books, records, and assets of the defendant corporation, Legal Center, Inc. (the corporation). Roach’s attempts to dismiss plaintiffs’ petition were unsuccessful, and his petition for writ of mandamus was denied by this Court. Ex parte Roach, supra. On June 3,1982, Roach filed both his answer to the petition and a counterclaim, in which he sought specific performance of the Stock Redemption and Shareholders Agreement by having Bynum and Forstman sell all of their shares back to the corporation. The trial court made a finding of facts and entered a final decree, in which it ordered Roach to turn over all books, records, and assets of the corporation, and enjoined Roach from interfering with actions taken by the directors of the corporation. The trial court’s final order also ratified the new bylaws adopted by Bynum and Forstman, as directors and majority stockholders of the corporation; required Roach to return 510 shares of the corporate stock; and dismissed Roach’s counterclaim and held the Stock Redemption and Shareholders Agreement, upon which his counterclaim was based, to be unenforceable.

From this final order of the trial court, the corporation and Roach now appeal. We affirm.

In Roach v. Bynum, supra, this Court held that the bylaws of the corporation, which vest the authority to manage the affairs of the corporation in the president, conflicted with the statutes and with the articles of incorporation and, therefore, were void; secondly, that the bylaw which mandated a shareholder’s vote of seventy percent was void and, unless the Corporation Act imposes a different requirement, a simple majority vote of the quorum present at a shareholder meeting was all that was necessary to validly transact shareholder business; and thirdly, that the bylaws which required a seventy percent shareholder vote to alter, amend, or repeal existing bylaws or to adopt new bylaws were void. We reversed the trial court’s holding that the corporation be dissolved on the grounds that it was hopelessly deadlocked and remanded the cause for further proceedings, holding that “the shareholders themselves hold the power to break any deadlock which may have arisen from Legal’s existing bylaws.”

The cause was remanded on August 28, 1981. On September 24, 1981, Bynum and Forstman delivered to Roach a call and notice of a special meeting of shareholders to be held on October 5, 1981, for the following purposes:

(1) To consider and act upon a proposal to repeal the existing bylaws of the corporation and to adopt new bylaws, a copy of which was attached;

(2) To remove from the board of directors all of the present directors of the corporation;

(3) To elect three members of the board of directors to serve as directors until the next annual meeting of shareholders of the corporation; and

(4) To transact such other business as may properly come before the meeting.

The proposed new bylaws were designed to vest control of the corporate affairs in a majority of its shareholders and directors, as required by this Court’s opinion. They provided that:

(1) A majority of the shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders;

(2) If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the shareholders;

(3) The business and affairs of the corporation shall be managed by its board of directors;

(4) A majority of the whole number of directors of the board shall constitute a quorum for the transaction of business at any meeting of the board of directors.

(5) The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors.

After receiving notice of the meeting and without any notice to Bynum or Forstman, Roach issued an additional 500 shares of common stock of the corporation to himself. He had previously issued to himself an additional 10 shares, without notifying Bynum or Forstman, shortly after the complaint was filed in this case in 1977.

Roach argues that he owned 1,010 shares and that the vote of his stock against them was sufficient to block the proposed new bylaws, even though Bynum and Forstman voted their 500 shares each in favor of the bylaws.

In its July 11, 1979, order, the trial court found that each of the individuals involved, Bynum, Forstman, and Roach, owned a one-third interest in the corporation, with each owning 500 shares. In the final order after remand and the one from which Roach appeals, the court made the following findings and orders with regard to the number of shares owned by Roach:

“The Court has previously implicitly, if not explicitly, found that Roach’s attempt to alter the equal ownership of 500 shares held by each of the three shareholders of Legal at the time this action was commenced, by purporting or attempting to issue unto himself 10 additional shares of Legal stock in July of 1977, was void and of no force and effect, and does hereby confirm that finding. The Court further finds that Roach does not have the unilateral right to issue unto himself additional shares of stock in excess of the 500 shares owned by himself, Bynum and Forstman, and that the attempted or purported issue unto himself of an additional 500 shares of stock on September 24, 1981, is also void and of no force and effect. Roach’s unilateral attempts to issue additional stock unto himself are without equitable or legal basis, are in violation of the preemptive rights of Bynum and Forstman, and are in breach of his fiduciary duty to the other shareholders and directors of Legal.
“(A) The shareholders of record of Legal with respect to the only validly issued and outstanding capital stock of Legal, 1,500 shares, are Bynum (500 shares), Forstman (500 shares), Roach (500 shares), and that Roach, by virtue of the Certificate of Incorporation of Legal or otherwise, has no greater or different or other rights with respect to the issue or acquisition of additional shares of the capital stock of Legal than do the other shareholders of Legal;
“(B) Roach’s attempted or purported issue unto himself of 10 additional shares of Legal in July of 1977, and an additional 500 shares in September of 1981, are each and both of no force and effect, and Roach is directed instanter to deliver to Bynum the certificate purportedly representing the aforesaid 10 shares, and the certificate purportedly representing the aforesaid 500 shares, for cancellation, whereupon Legal is to refund all sums paid to Legal by Roach for the aforesaid 10 shares, and for the aforesaid 500 shares, without interest....”

The court subsequently amended paragraph (B) set out above by striking the words “without interest,” thereby allowing Roach to receive interest on the amounts paid to the corporation for the issuance of the 510 shares.

The trial court upheld the action taken at the special meeting of shareholders on October 5,1981, where the proposed new bylaws were adopted and all three shareholders were elected directors. In upholding the action taken at that meeting, the court also entered an order restraining Roach “from interfering with, delaying or thwarting, or attempting to interfere with ... the action taken by the shareholders” at the October 5, 1981, shareholders meeting.

At the conclusion of the shareholders meeting, a notice of a special meeting of the directors of the corporation was delivered to Roach. Under the new bylaws, special meetings of the board of directors may be called by the chairman of the board or the secretary at the request of two directors, on one day’s written notice to each director. Bynum and Forstman complied with that bylaw and called a directors’ meeting for Tuesday, October 6, 1981, at 1:00 p.m. Bynum and Forstman, acting in accordance with the new bylaws, and constituting a quorum of directors as defined in the bylaws, took the following action:

(1)Adopted a resolution declaring Roach to be ineligible to serve as an officer of the corporation, pursuant to paragraph 2 of a Stock Redemption and Shareholders Agreement dated September 25, 1975;

(2) Adopted a resolution removing all the present officers of the corporation;

(3) Elected Bynum to serve as chairman of the board, president, treasurer and secretary of the corporation;

(4) Elected Forstman to serve as vice-president of the corporation;

(5) Adopted a resolution authorizing the chairman of the board to hire an accountant or an accounting firm to review the financial and accounting books and records of the corporation in order to ascertain the corporation’s financial condition and determine the amount of money owed to the corporation by its shareholders or the amount of money owed to shareholders by the corporation and to prepare appropriate financial statements;

(6) Adopted a resolution authorizing the chairman of the board to explore opportunities for the sale of the office building and/or other assets of the corporation;

(7) Adopted a resolution directing Roach to deliver to Bynum, as chairman of the board and secretary of the corporation, all of the books and records of the corporation; and

(8) Adopted a resolution directing Roach to deliver to Bynum, as chairman of the board and secretary of the corporation, the stock certificates representing 510 shares of the common stock of the corporation which Roach issued to himself, and directing By-num, upon receipt of those stock certificates, to issue a check from the corporation’s bank account payable to Roach in the amount which Roach paid to the corporation for the 510 shares.

At the directors’ meeting, Roach objected, to the transaction of any business, alleging that “the meeting was not lawfully called or convened in that notice was not given as required by the bylaws, and further, because the purposes stated in the purported notice received on October 5, 1981, are in violation of the Shareholders Agreement executed by the shareholders of this corporation and by this corporation and one or more purposes also violates the Articles of Incorporation.”

Roach refused to recognize the instructions, resolutions and orders of the board of directors and continued to assert that the bylaws adopted at the October 5, 1981, shareholders meeting were not the bylaws of the corporation; refused to recognize Bynum as chairman of the board, president, treasurer and secretary and to recognize Forstman as vice-president; refused to deliver all of the books and records to Bynum; and, also, refused to deliver the stock certificates representing 510 shares issued to himself.

In its final order, the trial court held:
“(D) The action taken by Bynum and Forstman, as the majority of the directors of Legal, at the special meeting of directors held on October 6, 1981, as reflected by the minutes of that meeting, introduced into evidence as plaintiffs’ exhibit 50, is hereby ratified and confirmed as appropriate and proper action of and by the directors of Legal;
“(E) Roach is directed to deliver instanter, all books and records of Legal, including, but not limited to, the checkbook and checkstubs of Legal, and all assets of Legal, including, but not limited to, certificates of deposit owned by Legal, and the leases referable to space in Legal’s building, to Bynum as chairman of the board and president of Legal;
“(G) Roach is hereby enjoined and restrained from interfering with, delaying or thwarting, or attempting to interfere with, delay or thwart, the action taken by the directors of Legal, at the meeting of directors held on October 6,1981, and any and all valid and proper future action taken by a simple majority of the directors of Legal.”

The trial court’s order is affirmed. Roach’s argument that he had the right to unilaterally issue to himself 510 shares of the corporation’s stock simply because it was authorized but unissued is groundless. The board of directors has that authority, and Roach’s issuance of the shares to himself is a breach of the duty which he owes to the corporation.

“The rule that directors of a corporation act in a fiduciary capacity, and will be held to the standard of duty required of trustees in the management of the corporate affairs, applies to their acts in issuing stock. And they have no right to issue it to themselves or to their nominees, either for the purpose of making a profit for themselves out of the transaction, or for the purpose of obtaining or retaining control of the corporation, and this rule applies with equal force to increased stock, and authorized but unissued original stock.”

11 W. Fletcher, Cyclopedia of the Law of Private Corporations, § 5156 (1971).

The trial court’s decree holding that Bynum and Forstman had not violated the shareholders agreement is affirmed. The evidence supports this finding on this factual issue and, therefore, will not be reversed on appeal. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972).

Finally, we affirm the trial court’s decree in refusing to grant Roach’s request for specific performance of the shareholders agreement. The trial court specifically found that Roach had obtained the signatures of Bynum and Forstman on the agreement “by fraud, concealment and misrepresentation.” This conclusion is supported by the evidence. Roach was, therefore, not entitled to specific performance of the agreement. See § 8-1—40, Code 1975.

We have carefully considered all of Roach’s arguments for reversal and are convinced that the trial court committed no error and that its resolution of this protracted and bitter litigation is supported by the evidence and is compelled by the applicable law. Its decree is, therefore, affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Thomas R. EDWARDS and Carol J. Edwards v. Dan C. McALLISTER and Dale A. McAllister.
    82-116.
    Supreme Court of Alabama.
    July 1, 1983.
    Rehearing Denied Aug. 19, 1983.
    John 0. Cates of Riley & Cates, Huntsville, for appellants.
    L. Thomas Ryan, Jr. of Ryan & Robins, Huntsville, for appellees.
   JONES, Justice.

This case arose from a conflict between Plaintiffs, owners of undivided one-half interests in real estate, and Defendants, purchasers of the real estate sold at a sheriff’s sale to satisfy a judgment against one of the Plaintiffs. Plaintiffs, after an unsuccessful eviction suit brought by Defendants, sued Defendants for damages allegedly arising from Defendants’ conduct regarding redemption of the property.

The case was submitted to the jury on two theories: 1) tort of outrage; and 2) malicious prosecution. The jury returned general verdicts against both Defendants, and in favor of each Plaintiff, for $20,000. Defendants, raising issues of insufficiency of the evidence as to each claim and juror misconduct, appeal from denial of their JNOV, new trial, and remittitur motions. Because we reverse and render as to the tort of outrage claim and remand the cause for a new trial solely on the malicious prosecution claim, we do not address the juror misconduct issue.

Plaintiffs Dan and Dale McAllister owned a house jointly with right of surviv-orship. In February 1981, Alabama Concrete Company obtained a $411 judgment against Dan McAllister. The sheriff sold Dan McAllister’s interest in the house on May 11,1981, to satisfy the judgment. Defendants Thomas and Carol Edwards bought that interest at the sheriff’s sale.

Shortly thereafter, Thomas Edwards learned the mortgage on the house was in arrears, and that the mortgage company planned to foreclose. Mr. Edwards made arrangements to pay the mortgage indebtedness, in addition to a tax indebtedness recorded against the property. Mr. McAl-lister contacted Mr. Edwards within ten days of the sale and made offers to redeem the property. Mr. Edwards declined the offers, which ranged from five hundred to eight hundred dollars, contending they were too low.

After the Edwardses recorded the sheriff’s deed on June 11, 1981, they wrote a letter to the mortgagee of the property, enclosing payment for overdue mortgage payments and transfer fee, and also enclosing a copy of the deed for the mortgage company’s evaluation. On the same day, the Edwardses sent a letter to the McAllis-ters asking them to vacate the premises.

The record contains evidence of much correspondence among the Edwardses, McAllisters, and the mortgage company regarding the mortgage, insurance on the property, and what items required payment for redemption. The substance of this correspondence reveals: 1) the Edwardses and the mortgage company erroneously believed the Edwardses acquired full interest in the property from the sheriff’s sale; 2) the parties disputed what payment was sufficient to redeem the property; and 3) although the McAllisters offered to pay the mortgage payments made by the Edwards-es, the probate filing fee, the mortgage transfer fee, and the purchase money paid to the sheriff, plus interest on these amounts, the Edwardses demanded a far greater sum.

The Edwardses brought an eviction suit on July 6, 1981, against the McAllisters. While this suit was pending, the McAllisters filed affidavits stating Dale McAllister owned an undivided one-half interest in the property, and that Dan McAllister was staying on the property as Dale’s lessee. The eviction suit came to trial on July 27, 1981, and the district court resolved the dispute in favor of the McAllisters. On the same day, but prior to the district court hearing, the McAllisters filed the instant suit in circuit court. Plaintiffs’ lawyer, having previously been appointed as special process server, served the Edwardses in court immediately after the district judge announced his finding.

The parties settled, by voluntary agreement, the question of Dan McAllister’s right of redemption, and Plaintiffs never vacated the premises. The part of this suit dealing with redemption issues was dismissed on December 15, 1981, and, therefore, does not arise on appeal.

Absent the juror misconduct issue, the issue becomes whether, given the timely motions for directed verdicts, separately and severally, on the tort of outrageous conduct and malicious prosecution claims, sufficient evidence existed to withstand the directed verdict motion on either or both claims submitted to the jury. If the evidence is insufficient on either theory, Defendants are entitled to JNOV on that claim and a new trial on the remaining claim, if any, supported by the evidence. Ex parte Nix, 401 So.2d 64 (Ala.1981).

After careful study of the record, we find insufficient evidence to support the tort of outrageous conduct claim under the principles set forth in Empiregas, Inc. v. Geary, 431 So.2d 1258 (Ala.1983). In Em-piregas, this Court enumerated the elements constituting the tort of outrage, and concluded that no sufficient evidence existed from which permissible inferences could be drawn to support a finding that defendant’s conduct rose to a level “ ‘beyond all possible bounds of decency' ” and “ ‘utterly intolerable in civilized society’ ”. 431 So.2d at 1261.

A comparison of the defendant’s conduct in Empiregas with that of the defendants in the instant case reveals that plaintiff had a much stronger case in Empiregas than in the ease at bar. In Empiregas, defendant compounded an original mistake of removing plaintiff’s gas regulator during bitterly cold weather by persistently failing to return the regulator, despite repeated requests by plaintiff and defendant’s knowledge of the extreme suffering caused by such refusal. The defendant never remedied the problem by returning the regulator.

In the case at bar, however, Defendants’ original conduct — purchase at the sheriffs sale — was proper, despite any distress it may have caused Plaintiffs. Defendants eventually retracted requests for payment of unlawful redemption charges, and the parties settled the issue without Plaintiffs’ eviction. Although the primary focus in a tort of outrageous conduct claim should be upon the gravity of defendant’s conduct, rather than the results of that conduct, even the results of Defendants’ conduct in the instant case are much more remote and tenuous than the result shown by the evidence presented in Empiregas.

Because we find even less evidence of outrageous conduct here than in Empiregas, wherein defendant’s conduct was held insufficient to establish the tort, we conclude Defendants were entitled to a directed verdict or JNOV on the tort of outrageous conduct claim, the test for each motion being the same.

We do find sufficient evidence, however, regarding the malicious prosecution issue to overcome directed verdict and JNOV motions. Because Defendants instituted the eviction action, which was terminated in Plaintiffs’ favor, and because other evidence indicates the Defendants may have known, or should have known, that Dan McAllister had owned only an undivided one-half interest, a jury question is raised as to the existence of the remaining elements necessary to prevail on this theory, such as malice, lack of probable cause, causation, and damages. See Reynolds v. McEwen, 416 So.2d 702 (Ala.1982).

Accordingly, we reverse the judgment and render the cause as to the tort of outrage claim and remand the cause for a new trial on the malicious prosecution claim.

REVERSED IN PART; RENDERED IN PART; AND REMANDED.

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