text:
    The LAITRAM CORPORATION v. John F. HALE and Pantrade S.A.
    No. C-1189.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 4, 1983.
    Writ Denied Nov. 4,1983.

      Sam A. LeBlanc, III, Frank M. Adkins, Luis A. Perez, Brian J. Rodan, New Orleans, for relator.
    Miles P. Clements, New Orleans, for respondent.
    Before BARRY, WARD and CHIASSON, JJ.
   The Laitram Corporation sued for breach of contract and breach of fiduciary obligations by the defendants who were formerly plaintiffs sales agents in Europe and elsewhere. Defendants are John F. Hale, an American citizen residing in Switzerland, and Pantrade S.A., a corporation (solely owned by Hale) organized under the laws of Panama with its principal place of business in Switzerland. Both Hale and his corporation filed exceptions of lack of personal jurisdiction and improper service of process which were overruled.

After dismissal of the exceptions both parties commenced substantive discovery. Defendants’ interrogatories to Laitram were answered and depositions were taken of persons connected with Laitram. Lai-tram made numerous requests for Hale to appear at a mutually convenient time and place for his deposition, but Hale refused to make himself available. Plaintiff then propounded interrogatories and document requests which were served by mail on defendants’ New Orleans counsel who forwarded them to defendants in Switzerland. The interrogatories primarily involve defendants’ relationship with Laitram and defendants’ operations as sales agents.

Defendants objected to all of the 52 interrogatories, alleging that Swiss law prohibits a response, and attached letters from their Swiss attorney and the Swiss Federal Prosecutor’s Office to that effect.

Plaintiff moved to compel answers to the interrogatories and for Hale to give his deposition: defendants objected. The lower court granted the motion to compel and defendants now seek writs, alleging that their response will subject them to potential criminal prosecution in Switzerland.

Defendants base their fear on Articles 271 and 273 of the Swiss Penal Code, as interpreted by their Swiss counsel and by the Swiss Prosecutor’s Office. According to translations in the record the articles provide:

Article 271:

Whoever performs acts on Swiss territory on behalf of a foreign state which fall within the competence of a government authority or a government official, whoever performs such acts on behalf of a foreign party or another foreign organization,
whoever furthers such acts,
shall be punished by imprisonment or, in serious cases, by penitentiary.
Article 273:
Whoever spies out a manufacturing or business secret for the purpose of making it accessible to a foreign official, foreign organization or foreign private enterprise, or their agents,
whoever makes accessible a manufacturing or business secret to a foreign official, foreign organization or foreign private enterprise, or their agents,
shall be punished by imprisonment or, in serious cases, by penitentiary. A fine may be combined with the jail sentence.

In support of their expansive construction of these articles, defendants cite an opinion letter which they solicited from the Swiss Federal Prosecutor’s Office which states:

[T]he direct postal delivery of the ques-tionary to your clients contradicts the federal provisions relating to the international judicial assistance both in civil and in criminal matters. Considering that the service of this questionary took place through the counsels of the opposing party for pending legal proceedings, this concerns, according to Swiss law, a procedural act belonging exclusively to a public authority or a civil servant, regardless of whether, according to American procedural law, the subject matter of the lawsuit is to be compiled by the parties. Hence it follows that the procurement of evidence in Switzerland for foreign judicial proceedings is admissible only within the framework of the official international legal aid channels. The authority competent for this at the federal level is the Federal Office for Police Matters. The American plaintiff, i.e. the firm of LAI-TRAM Corp., is bound, like other foreign litigant parties, to keep to this course of action.

Defendants also rely on a law review article which stresses the Swiss government’s view that all official matters pertaining to foreign judicial proceedings should be channeled through the Swiss governmental offices. In the article Prof. Miller declares that “the Swiss insistence upon official intervention is based upon Art. 271 of the Swiss Penal Code” [quoted above], but he admits that:

[S]wiss courts have never had occasion to apply article 271 to the service of documents in connection with proceedings pending before a foreign tribunal; the instances in which the provision has been applied involve either egregious encroachments upon Swiss sovereignty or obvious attempts to circumvent Swiss Law. Nonetheless, some Swiss scholars believe that its proscriptions apply to service by a foreign official or by a person acting on behalf or under the imprimatur of a foreign tribunal, and the Swiss Federal Department of Justice and Police has taken the position that article 271 forbids service without the intervention of the Swiss authorities even when made by one private party on another or when the papers are sent by the attorney for one party to the attorney for the other party.

According to Prof. Miller, the Swiss government does not allow oral depositions involving foreign litigation to take place privately in Switzerland. He also notes that “Letters rogatory ordinarily represent the only practical way to ... compel testimony from a witness in Switzerland.”

Defendants also cite Ings v. Ferguson, 282 F.2d 149, (2d Cir.1960) wherein the court modified a subpoena duces tecum served on a New York agent of a Canadian bank seeking production of records located in Canada. While there was conflicting evidence as to whether such production violated the laws of Quebec, the court stated:-

It is not necessary to attempt an interpretation of Canadian law. The fact that a conflict of theories exists between Canadian counsel only demonstrates the problem inherent in the issuance of subpoenas having extraterritorial effect upon Canadian subjects and parties to the litigation and points to the desirability of having the impact of Canadian statutes passed upon by Canadian courts.
An elementary principle of jurisdiction is that the processes of the courts of any sovereign state cannot cross international boundary lines and be enforced in a foreign country. Thus service of a United States District Court subpoena by a United States Marshal upon a Montreal branch of a Canadian bank would not be enforceable.
For many years the time honored custom of seeking evidence in foreign countries, particularly in cases in which the aid of foreign courts may be necessary to secure the production of records, has been by letters rogatory.
⅜ ⅝: ⅜ # ⅜: sfc
Upon fundamental principles of international comity, our courts dedicated to the enforcement of our laws should not take such action as may cause a violation of the laws of a friendly neighbor or, at the least, an unnecessary circumvention of its procedures.
Subpoena power is not absolute. Even if exercised within proper territorial limits, the subpoena may be scrutinized by the courts. Every reason exists for careful scrutiny here. No claim is being made against either bank by any litigant. At most the bank is being called as a witness. The transactions did not originate in the New York Agencies. And the records sought are in the custody of branches in Canada. Under these circumstances it seems highly undesirable that the courts of the United States should countenance service of a subpoena upon a New York agency of a foreign bank which is not a party to the litigation and whose country has provided procedures for securing information, the production of which is consistent with its laws.

Thus, Ings v. Ferguson, supra, repeatedly stressed that the foreign bank under subpoena was not a party to the suit, that there was no claim against it by any litigant, and that “at most the bank is being called as a witness.” The court refused to compel a foreign bank not a party to the litigation to produce confidential records of its customers’ transactions without going through diplomatic procedures.

We find Ings distinguishable from this case. Here a party to the litigation in this forum (the defendants), who have conducted extensive discovery of their adversary (the plaintiff) and who responded to one set of interrogatories, now refuses to provide discovery because of a sudden fear of criminal prosecution by the Swiss government.

The same Swiss codal provisions were invoked with much more serious concern by the plaintiff in Societe Internationale Pour Participation Industrielles et Commerciales v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). There our United States Supreme Court held that discovery of documents in Switzerland was properly ordered by a federal district court, despite the plaintiff-recipient’s good faith and a judicial finding that the Swiss criminal law prevented compliance. The Societe Internationale litigation was based on Rule 37 of the Federal Rules of Civil Procedure, a provision virtually identical to LSA-C.C.P. Arts. 1469 and 1471. In Societe Internationale a Swiss company sued in federal court to recover assets seized by the United States during World War II. Our government’s defense was that the plaintiff had dealt with Nazi interests during the war, so it served requests for production of numerous documents relating to that claim. The documents were in Switzerland and many were constructively seized by the Swiss government which prohibited their production. There was no question of collusion between the plaintiff company and the Swiss government; plaintiff had borne the entire burden of securing the Swiss government’s consent to release the documents and had actually succeeded in obtaining permission to furnish over 200,000 documents. Nonetheless, the district court dismissed plaintiff’s suit because of its noncompliance with the document production order. The Supreme Court found that, under the circumstances, dismissal was too severe a sanction, but it specifically affirmed the trial court’s authority to mandate such discovery, despite the prohibitions of the Swiss criminal law. The Court declared:

[W]e think that a party “refuses to obey” simply by failing to comply with an order .... Whatever its reasons, petitioner did not comply with the production order. Such reasons, and the willfulness or good faith of petitioner, can hardly affect the fact of noncompliance and are relevant only to the path which the District Court might follow in dealing with petitioner’s failure to comply. 357 U.S. at 208, 78 S.Ct. at 1094

The Supreme Court further held that, despite plaintiff’s good faith and its actual inability to comply with the discovery order, plaintiff could be severely penalized by the district court:

This is not to say that petitioner will profit through its inability to tender the records called for.... It may be that in a trial on the merits, petitioner’s inability to produce specific information will prove a serious handicap in dispelling doubt the government might be able to inject into the case. It may be that in the absence of complete disclosure by petitioner, the District Court would be justified in drawing inferences unfavorable to petitioner as to particular events. So much indeed petitioner concedes....
On remand, the District Court possesses wide discretion to proceed in whatever manner it deems most effective. It may desire to afford the Government additional opportunity to challenge petitioner’s good faith. It may wish to explore plans looking toward fuller compliance. Or it may decide to commence at once the trial on the merits. We decide only that on this record dismissal of the complaint with prejudice was not justified. 357 U.S. at 212-13, 78 S.Ct. at 1096

The rule of Societe Internationale was applied in In Re Uranium Antitrust Litigation, 480 F.Supp. 1138, 1145 (N.D.Ill.1979), in which the court held:

Once personal jurisdiction over the person and control over the documents by the person are present, a United States court has power to order production of the documents. The existence of a conflicting foreign law which prohibits the disclosure of the requested documents does not prevent the exercise of this power.

Similarly, the plaintiff in General Atomic Co. v. Exxon Nuclear Co., 90 F.R.D. 290 (S.D.Cal.1981) moved for sanctions after the defendant failed to produce documents protected by Canadian Security Regulations. The court specifically found that: (1) production of the documents would violate Canadian Security Regulations punishable by up to five years imprisonment and (2) defendant had unsuccessfully negotiated with the Canadian government for relaxation or waiver of the Regulations, had pursued the matter in Canadian courts, and had taken every reasonable effort to overcome the prohibitions of the Regulations.

The discovery was properly ordered and sanctions were imposed on the defendant. The court chose not to dismiss the case, but instead ordered that certain allegations would be presumed true, the principal defense would be struck, certain otherwise-inadmissible documents would be admitted, and costs and attorneys’ fees would be awarded.

The defendants in this case have not been advised by the Swiss government that sending the requested documents and answers to the interrogatories would subject them to criminal sanctions. Defendants appear to have confused the provisions of Swiss Penal Code Art. 271, which may, in the Swiss view, affect the validity of plaintiffs service of the discovery requests, with the substantive proscriptions of Swiss Art. 273 regarding disclosure of business secrets. In the Swiss prosecutor’s letter, defendants were advised:

... the provisions relating to legally protected secrets, hence in particular Art. 273 of the Swiss Penal Code, are also to be observed by the examined witness or the person giving information within the scope of legal aid proceedings. We are not in a position to issue the authorization desired by you to furnish the information requested by the plaintiff, because the penal provision made mention of does not provide for such an authorization. The person questioned is to decide on his own responsibility how far he may go in giving information. As we are not able to grasp the legally relevant facts on the basis of the documents submitted to us, we are not in a position either to procure you pertinent hints. (Our emphasis.)

The Swiss Prosecutor’s Office did, however, furnish the following guidelines for defendants to use in determining whether any of the documents requested would violate Art. 273:

1. As far as an information regards exclusively circumstances in which solely the person giving information has a secrecy interest, the decision as to the
disclosure of such interests may be left to the person concerned.
2. According to Art. 273 of the Penal Code it is, however, prohibited and liable to punishment to give information to foreign parts about economic conditions
a) in which there exists a (direct) general Swiss interest of secrecy, or
b) in the secrecy of which a third party that has not previously and in all due form agreed to the disclosure, owns an interest worth being protected.

Defendants have made no showing that any of the requested information would violate protected secrecy interests. Since the requested documents concern defendants’ relationship with plaintiff corporation, and plaintiff is obviously not asserting a privacy interest therein, defendants do not appear to be in any real danger of prosecution if they produce the documents.

Defendants’ real argument appears to be that plaintiff’s service of the discovery requests by direct mail violated Art. 271 of the Swiss Penal Code and that defendants would likewise violate this provision if they mailed their responses directly to plaintiff’s counsel in New Orleans. The opinion from the Swiss Prosecutor’s Office says nothing about any criminal culpability of defendants under Art. 271 but merely asserts: “The American plaintiff, i.e. the firm of Laitram Corp., is bound, like other foreign litigant parties, to [procure evidence in Switzerland through official channels].”

We note, however, that defendants are not responsible for violations of Swiss law committed by plaintiff in serving the requests directly, in accordance with the procedural law of Louisiana, the forum state. If defendants are genuinely afraid to send answers and documents directly from Switzerland to the U.S., they are certainly free to submit their responses to the Swiss authorities for approval and to have them delivered to plaintiff corporation in any manner mandated by the Swiss government. Likewise, we see no reason why defendant Hale should not make himself available for a deposition at some convenient location outside Switzerland, since Swiss law presents obstacles to private depositions in Switzerland.

It is obvious that defendants have not made a good-faith attempt, or any attempt, to comply with the discovery requests. We are satisfied the district court had authority to order the defendants to comply, even if defendants were in good faith (they appear not to be) and a real danger of prosecution by the Swiss government were present (which is not apparent).

The writ is therefore denied.

      . Plaintiff propounded preliminary interrogatories which were answered without objection.

      . “International Cooperation in Litigation Between the U.S. and Switzerland,” 49 Minn.L. Rev. 1069 (1965).


source: Caselaw Access Project

author: REDMANN, Chief Judge.

license: Public Domain

text:
    Dorothy James ARAMBURO, et al. v. The TRAVELERS INSURANCE COMPANY, et al.
    No. 12921.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Writ Denied Dec. 9,1984.

      J. Paul Demarest, Favret, Favret, De-marest & Russo, New Orleans, for plaintiffs-appellants.
    Richard Creed, Jr., Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendants-appellees.
    Before REDMANN, C.J., and LOBRANO and WARD, JJ.
   ON MOTION TO ALTER PHRASEOLOGY

REDMANN, Chief Judge.

Plaintiff moves that we clarify our now-definitive judgment in this matter, reported at La.App., 426 So.2d 260. We deem her motion one to amend the phraseology but not the substance of our judgment (see C.C.P.1951 and its Comment (d); see also State, Dept. Hwys. v. Anselmo, 309 So.2d 769 (La.App. 4 Cir.1974)).

The occasion for plaintiff’s motion is a disagreement over the meaning of our judgment as amended on application for rehearing: does it change a judgment for $50,000 plus interest and costs to $49,900 plus interest and costs, or $49,900 without interest and costs?

The trial court judgment, based on a jury finding that a lower uninsured motorist limit had been selected, awarded that lower limit of $5,000 “with legal interest from judicial demand and all costs.”

Plaintiff’s appeal argued that no effective selection of a lower limit had been made, and that therefore La.R.S. 22:1406 D(l)(a) imposes UM coverage in the amount of the policy’s $50,000 bodily injury limit. The original brief of defendant Louisiana Insurance Guaranty Association (for Reserve Insurance Company, insolvent) argued only the contrary view. Defendant did not in that brief contend that, if the limit were held to be $50,000, there was any statutory problem with this court’s awarding the full policy limit of $50,000 as well as interest and costs. We agreed with plaintiff’s position, noting “The jury fixed quantum in excess of the $50,000 UM coverage thus imposed by statute .... ” Our opinion never mentioned any statutory limit relative to defendant LIGA. Our decree read “The judgment is amended in quantum to $50,000, at appellee’s cost.” It is not arguable that “quantum” in our decree included interest and costs, not only because that is not the word’s ordinary usage, as an abbreviation of quantum damnificatus, but also because the decree expressly added costs.

LIGA’s application for rehearing included two paragraphs of argument against our conclusion that a lower limit had not been selected, and then concluded:

“In addition, the judgment of the Court of Appeal casts the LIGA for $50,000.00, when its maximum exposure pursuant to statute is $49,900.00. See R.S. 22:1382(l)(a) which provides $100.00 deductible on all claims against the Guaranty Association and a ceiling of $50,-000.00.”

That first' mention of the $49,900 statutory limit of LIGA’s liability did not expressly suggest that the limit was so absolute as to prevent the addition of interest and costs. To the contrary, by its silence in the face of an amendment of “quantum” to the $50,000 policy limits “at appellee’s cost,” when the judgment being amended had also provided interest from judicial demand, appellee’s application for rehearing impliedly suggested there was no problem as to interest and costs, but only a problem with “eastpng] the LIGA for $50,000.00, when its maximum exposure pursuant to statute is $49,-900.00.” In acting on that application by LIGA, we wrote “we agree with its argument that La.R.S. 22:1382(l)(a) limits its liability to $49,900, and our decree is amended to that amount.”

After the supreme court refused writs, defendant tendered $49,900 without interest and costs, prompting the motion for clarification or amendment now before us.

LIGA’s argument is twofold: that R.S. 22:1382(l)(a) does not permit a judgment in excess of $49,900, and thus prohibits a judgment for $49,900 plus interest and costs; and that the wording of our decree (“our decree is amended to that amount,” i.e., $49,900) limits the judgment to a total of $49,900, including interest and costs. We disagree.

The statutory limit only applies to the original amount of the claim, and does not prevent an award of interest and costs in addition to the $49,900 limit. We read R.S. 22:1382(l)(a) and (b) together:

“(1) The association shall:
“(a) Be obligated to the extent of the covered claims existing prior to the determination of the insurer’s insolvency [or under other specified time limits] ..., but such obligation shall include only that amount of each covered claim ... which is in excess of one hundred dollars and is less than fifty thousand dollars .... “(b) Be deemed the insurer to the extent of its obligation on the covered claims and to such.extent shall have all rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent.” (Bracketed matter supplied.)

First, legal interest on a covered claim would continue to run and is therefore not “existing prior to the ... insolvency” or other time limit by which “covered claims” are limited in § 1382(l)(a). For that reason we would reject a claimant’s argument that interest and costs, in a suit for a $100 loss, raise the claim to over $100, and that LIGA is therefore liable for the excess (i.e., the interest and costs in the $100 suit). We therefore conclude that legal interest and costs are not part of a “covered claim” in the case of an ordinary personal injury claim.

Second, R.S. 22:1382(l)(b)’s deeming LIGA “the insurer to the extent of its obligation on the covered claim” — -here, $49,900 —with “all the ... duties and obligation of the insolvent insurer as if the insurer had not become insolvent” places upon LIGA the obligation that the insurer sued on such a claim would have, including the payment of legal interest and costs in addition to the claim, even when the claim is for the statutory maximum of $49,900.

Third, these statutes must be “liberally construed to effect the purpose under [§ 1376], which shall constitute an aid and guide to interpretation.”

§ 1376 declares as two purposes “to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer .... ” Liberal construction to achieve those purposes requires (1) that LIGA not be rewarded for excessive delay in payment, as it would be if it could invest the $49,900 limit in a large claim yet not have to pay interest, and (2) that the claimant not be forced to suffer the added financial losses of interest and costs in a disputed claim (here said to amount to about $20,-000).

Legal interest and costs are therefore not part of the “covered claim” limited by § 1382(l)(a) to $49,900, but are part of LIGA’s obligations under § 1382(l)(b); and a contrary conclusion would defeat rather than serve the express statutory purposes of § 1376 to accomplish which § 1378 commands a liberal construction.

Nor does the wording of our amendment to our decree exclude interest and costs atop the $49,900 principal award. The trial court’s judgment was for $5,000 plus interest and all costs. We amended it in “quantum” to $50,000 “at appellee’s cost” in an opinion context that can leave no doubt that we substituted $50,000 for $5,000 (not for “$5,000 with legal interest”), making the judgment for $50,000 plus interest and all costs (including costs of the appeal). And finally, in the context of the application for rehearing that LIGA then filed, and in the context of the statutes discussed at length above, our action on application for rehearing must be read as “we agree that La.R.S. 22:1882(l)(a) limits [LIGA’s] liability [on the principal amount, the ‘covered claim’] to $49,900, and our decree is amended [in principal] to that amount.”

Our decree is therefore changed, to “alter the phraseology of the judgment, but not the substance,” C.C.P.1951, to read as follows:

The judgment appealed from is amended in principal to $49,900, and is affirmed insofar as it awarded legal interest from judicial demand and all costs; appellee is to bear the costs of this appeal.


author: WALKER, Presiding Justice,

text:
    Clayton CARLETON v. STATE of Mississippi.
    No. 54332.
    Supreme Court of Mississippi.
    Sept. 7, 1983.
    William D. Bethea, III, Gulfport, Thomas J. Lowe, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Harrison County, Mississippi, wherein appellant was indicted and tried for an attempted jail escape. Upon conviction he was sentenced to a term of two years in the custody of the Mississippi Department of Corrections to run consecutively with the sentence he was serving in Cause Number 17,670.

Appellant, having been convicted of murder on March 18, 1981, was then sentenced to serve a term of life in the Mississippi Department of Corrections. On May 15, 1981, while housed in the Harrison County Jail in Gulfport, Mississippi, the appellant in an attempt to escape jail was apprehended by two of the county jailers. Following trial the jury entered its verdict “We, the jury, find the defendant guilty of attempted jail escape.”

The appellant does not contest his guilt but asserts the lower court erred in sentencing him under the wrong statute.

The lower court sentenced appellant under Mississippi Code Annotated section 97-9-49 (Supp.1982) which reads in part:

If any person confined in any jail upon any conviction for a criminal offense shall escape therefrom, or shall escape from custody before confinement therein, he shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding two (2) years, or in the county jail not exceeding one (1) year to commence from the expiration of his former sentence.

This is the general statute dealing with a prisoner’s escape.

Appellant contends that he should have been sentenced under Mississippi Code Annotated section 97-9-45 (Supp.1982) which reads in part:

If any person sentenced to the penitentiary for any term less than for life shall escape, or shall escape from custody before confinement therein, he shall, upon conviction, be punished by imprisonment in such prison for a term not exceeding five (5) years, to commence from and after the expiration of the original term of his imprisonment as extended in consequence of such escape, and shall forfeit all earned time toward a parole; provided, however, that if any person sentenced to the penitentiary for life shall escape, he shall, upon conviction, forfeit all earned time toward a parole.

Both statutes apply to escape of prisoners. However, section 97-9-45 is more applicable in that it specifically covers persons who escape from custody, before confinement and after being sentenced to the penitentiary for life. These provisions fit the facts of this case like a glove. At the time of Carleton’s attempted escape he was under a penitentiary sentence for a term of life and had not been confined in the penitentiary. In McCrory v. State, 210 So.2d 877 (Miss.1968), this Court stated:

It is a fundamental rule of statutory construction that when two statutes encompass the same subject matter, one being general and the other specific, the latter will control.

210 So.2d at 877.

We are therefore of the opinion the lower court erred in sentencing appellant to a term of two years under section 97-9-49. The correct sentence for this appellant under section 97-9-45 is that he forfeit all earned time, including any time he has presently earned as well as any future earned time that he would otherwise accumulate.

For the above stated reasons Carleton’s sentence of two years is reversed and modified to the extent that he shall forfeit all present earned time as well as any future earned time that he would otherwise expect to earn. A copy of this order shall be furnished the clerk of the Circuit Court of Harrison County and entered on the minutes thereof and a copy furnished the appellant as well as the attorneys involved.

SENTENCE REVERSED AND MODIFIED.

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

      . See Mississippi Code Annotated section 97-1-7 (1972).

      . The indictment did not specify which statute Carleton was being tried under and the record is unclear and ambiguous in this regard.

      . Forfeit has been defined as follows: To “lose or lose the right to by some ... offense, or crime....” (Webster’s Third New International Dictionary 891 (1971)).


author: ROBERTSON, Justice,

text:
    Phillip GANDY, Appellant, v. STATE of Mississippi, Appellee.
    No. 53900.
    Supreme Court of Mississippi.
    Sept. 28, 1983.

      E. Hugh Cunningham, William B. Kirk-sey, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

Phillip Gandy has been convicted in the Circuit Court of Hinds County on a charge of conspiracy to deliver cocaine in violation of Miss.Code Ann. § 41-29-139(c) (Supp. 1982). He has been sentenced to serve five years in the custody of the Mississippi Department of Corrections.

As he is of right entitled, Gandy has on this appeal asked that we review his conviction. Most serious of the questions presented regards the admissibility of an incriminating fingerprint Gandy says was obtained through an illegal arrest. Other evidentia-ry rulings, as well as the court’s refusal to grant several requested instructions, have also been assigned as error.

Having carefully reviewed this entire matter concentrating of course on the errors urged, we affirm.

II.

The operative facts occurred in late autumn of 1980. Officers of the State Bureau of Narcotics had under investigation one Jimmy Birdwell who lived in the Clinton, Mississippi, area. In November of 1980 Officer Eddie Berry, utilizing the services of a confidential informant, made a buy of four grams of cocaine from Birdwell for $600. On December 6, 1980, another buy was made from Birdwell, this time one ounce of cocaine for $2,000. In the course of these two buys the officers learned that Bird-well’s potential supplier was James Dale Nicholson.

A week later, Berry and Agent Pam Van-denberg set up a new deal with Birdwell. They proposed to purchase five ounces of cocaine for $10,000. The agents were confident that Birdwell would obtain his supply from Nicholson. They arranged a surveillance on Nicholson’s residence in hopes of nabbing the person from whom Nicholson obtained his supply. Their plan was to “bust” Birdwell, Nicholson and Nicholson’s supplier, if detected.

On the afternoon of December 14, 1980, state narcotics officials had Nicholson’s residence under surveillance. Their dual purpose was to see if a supply would be delivered to Nicholson and to follow Nicholson when he left to make his anticipated delivery to Birdwell. At this time the officers had never heard of Phillip Gandy. They did know that the buy from Birdwell had been arranged for later that afternoon. Based upon their prior observations of Nicholson and Birdwell, they anticipated that Nicholson would that afternoon deliver to Bird-well the cocaine the undercover agents were going to buy from Birdwell. They did not know who would supply Nicholson.

At approximately 1:45 p.m. on December 14, Gandy drove up to Nicholson’s residence. He got out of his car and went inside. A few moments later, Gandy came back to his car, got something, and went back inside. Two of the officers testified that Gandy appeared to be carrying a brown paper bag of unknown contents when he came back into Nicholson’s house.

At about 3:20 p.m., Gandy and Nicholson emerged from the house and got in their respective ears. Just as they were leaving, a young man pulled up in a Volkswagen, got out of his car and walked over to Nicholson. The two spoke briefly and then all of them — Gandy, Nicholson and the young man — went their separate ways. At this time, the narcotics agents surveilling the house separated and followed Nicholson and Gandy who drove off in different directions. The record does not show that anyone followed the Volkswagen.

In any event, as soon as it became clear to the officers that Nicholson was going to Birdwell’s apartment, they pulled him over. A quick search revealed that Nicholson had in his custody three and a half ounces of cocaine plus a quantity of Inisotol, a cut. Nicholson also had three-quarters of a gram of cocaine in a vial on his person. At this point the officers became convinced that Nicholson had obtained the cocaine from Gandy. They radioed the other agents following Gandy and instructed them to arrest him, which was done.

Armed with the information recited above, undercover Agent Bill Marshall stopped Gandy as he was leaving the Jackson area headed South. Marshall placed Gandy under arrest, searched Gandy and the car but found no drugs or drug related paraphernalia. Clearly, Gandy was breaking no law at the time he was pulled over. He was, nevertheless, taken to the Jackson Police Department, fingerprinted and questioned briefly.

Subsequently, the officers conducted a search of Nicholson’s home. They found an additional quantity of cocaine, along with various items of cocaine paraphernalia. On Nicholson’s dresser, they found Phillip Gan-dy’s telephone number written on a piece of paper.

Most significant was a brown pyrex bowl which had been used to “cut” the cocaine. The bowl was dusted for fingerprints. One of the prints obtained matched one of the prints taken from Phillip Gandy the afternoon of his original detention.

The chief witness for the State was the co-defendant, James Dale Nicholson. Nicholson had entered a guilty plea in exchange for a plea bargain that he would receive a five year sentence, two to be served and three suspended.

Nicholson testified that shortly before December 14 Birdwell had called him and asked if he (Nicholson) could supply five ounces of cocaine. Nicholson said he in turn called Gandy who lived in Crystal Springs and told Gandy he needed five ounces of cocaine. According to Nicholson, on December 14 Gandy brought him three ounces and that he (Gandy) took the cocaine and cut it with Inisotol, increasing its volume. He said that the cocaine and the cut were mixed in the brown pyrex dish.

Gandy’s version was that he was discussing with Nicholson the sale of a motorcycle. Gandy had asked that Nicholson sell his motorcycle on a commission basis. Gandy said that when he went back out to his car, he retrieved not a brown paper bag but an operators manual and other papers related to the motorcycle. He explained his fingerprint on the brown pyrex dish by saying that he had used it as an ashtray while he was visiting Nicholson.

The Nicholson-Gandy connection received modest corroboration from telephone company records. These reflected a series of calls prior to and- on December 14, 1980, from Nicholson’s telephone to the house where Gandy lived.

At the conclusion of all of the evidence, the jury found Gandy guilty as charged. This appeal has followed.

III.

Gandy challenges the State’s use of the fingerprint obtained on the evening of December 14, 1980. This fingerprint was an important piece of evidence in the State’s case, for, when matched with the print lifted from the brown pyrex bowl, it served to corroborate the testimony of the co-defendant turned State’s witness, James Dale Nicholson. Gandy charges that his original arrest was made without probable cause, and was thus illegal, and that any evidence which became available to the State as a result of that arrest was “the fruit of the poisonous tree”, and thus inadmissible.

Our question turns on whether Officer Marshall had probable cause to arrest and detain Gandy on the afternoon of December 14, 1980. Without doubt, if that arrest be found not supported by probable cause, receipt of the fingerprints as evidence would be reversible error. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

The standard we apply is found in Florence v. State, 397 So.2d 1105 (Miss.1981) where we stated:

Probable cause or reasonable grounds justifying an arrest without a warrant exists where the facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a narcotics offense has been or is being committed. 397 So.2d at 1106.

Here the officers knew that the buy (from Birdwell) had been arranged. They had reasonable grounds for believing Nicholson was Birdwell's supplier. They thought it possible, if not likely, that the person supplying Nicholson would make a delivery to Nicholson’s home at some time the day of December 14. Shortly after Gandy arrived at Nicholson’s home, he retrieved a brown paper bag from his car. Approximately an hour later, Nicholson and Gandy left simultaneously, going in opposite directions. Law enforcement officers followed each. As it had become clear that Nicholson was on his way to Birdwell’s home (as had been anticipated), Nicholson was stopped. A quantity of cocaine was found in his possession. This information was radioed to Marshall who was following Gandy. At this time, Officer Marshall had reasonable grounds for believing that Gan-dy was involved in the by now aborted cocaine sale.

We emphasize that it is not necessary that, in order to arrest Gandy lawfully, Marshall have sufficient information to convict. Before a warrantless yet lawful arrest could be made, it was not necessary that Marshall have reasonably believed beyond a reasonable doubt that Gandy was involved in the cocaine deal. Marshall need only have entertained a reasonable belief that Gandy was involved—a belief rising above mere unfounded suspicion.

The prescience of a Hercule Poirot was hardly requisite to a belief that earlier that afternoon Gandy had been involved in unlawful cocaine trafficking, in association with Nicholson. Most reasonable men knowing what Marshall knew immediately before ordering Gandy to pull over would have so believed. That there may have been other equally plausible explanations for Gandy’s presence at Nicholson’s home— to arrange for the sale of a motorcycle, to pay a social visit, or whatever—does not negative Marshall’s probable cause to believe that Gandy may likely have some involvement in the Nicholson-Birdwell cocaine deal. Had Marshall failed to stop Gandy for questioning (and fingerprinting), he would have been derelict in his duty.

IV.

In rebuttal, the State introduced computer printouts of two telephone statements on Nicholson’s telephone number for the months of December 1980 and January 1981. These statements reflected charges for telephone calls made to or from a telephone listed in the name of Kenneth Bowman, Jr. in Crystal Springs, Mississippi. Gandy had been living with Bowman. The exhibits indicated two calls on the morning of December 14, 1980, and eight calls in the ten days immediately prior.

Gandy made timely objection to introduction of these telephone records. Here he urges that the State had not laid the proper foundation to establish their reliability and cites King v. State Ex Rel Murdock Acceptance Corp., 222 So.2d 393 (Miss.1969) and Chrysler Credit Corp. v. Bank of Wiggins, 358 So.2d 714 (Miss.1978).

The documents introduced were copies of microfiche records maintained by South Central Bell Telephone Company. The records were regular on their face and did suggest telephone calls from a number where Nicholson lived to and from a number where Gandy lived. The records were identified as telephone company records, a proposition Gandy does not seriously dispute.

Gandy urges that the King and Chrysler cases required that the State demonstrate positively, first, that the electronic equipment preparing the records was standard, second, that the entries were made in the regular course of business and, third, that the records have such trustworthiness as to justify their admission. A review of these records makes it clear that these requisites are met. That the State failed to take up a half a day of the Court’s time describing the intricacies of the electronic equipment used by the telephone company in the preparation and storage of these records is hardly grounds for reversal.

There is an anomaly in Gandy’s position here that proves the point. Both Nicholson and Gandy testified that there were telephone calls back and forth between the two prior to and on December 14. Their memories were vague. Neither remembered the number of calls or their exact dates. (Gan-dy, of course, suggests that these calls were in connection with the sale of the motorcycle.) No one would question admissibility of this general and. nonspecific testimony of these two witnesses, obviously imprecise as it was. The telephone company’s microfiche records are far more credible evidence of the exact dates and times of the telephone calls (although nothing is suggested identifying the parties or the subject matter of the conversations). It would be absurd to allow introduction of what Gandy and Nicholson remembered without allowing that evidence to be supplemented by the records from the telephone company.

Nothing said here gives any note of sanctity to electronically stored data or other similar records. Those records can be in error as any others. Trial judges are to assure their trustworthiness before they are to be allowed into evidence. Here, Gandy offers not one word of credible testimony that there is any inaccuracy or incompleteness in the records. Under these circumstances, the trial judge properly received them into evidence. Gandy’s objection, if anything, goes to weight and not to admissibility. .

V.

Gandy asserts as error the trial court’s refusal to grant requested jury instruction no. 27. That instruction would have told the jury it could not convict “upon mere suspicion or conjecture”. The beyond-a-reasonable-doubt standard was repeated, albeit in our reading confusingly.

Defendant’s instruction no. 5, which was given, contains a proper statement of the State’s burden of proof. Taken as a whole, the instructions given the jury made it abundantly clear that the jury was not to base its verdict on suspicion or conjecture. This assignment of error, accordingly, is without merit.

VI.

Finally, Gandy urges that he was entitled to a peremptory instruction. He correctly notes that the indictment charges conspiracy to “deliver” cocaine in violation of Miss.Code Ann. § 41-29-139(c). This section provides:

Except as authorized by this Article, it is unlawful for any person to sell, barter, or transfer a controlled or counterfeit substance for money or for other consideration.

Since the statute does not use the word “deliver”, Gandy claims that the indictment was faulty. The point is specious. In the first place “transfer” is surely equivalent to “deliver”. Besides, Gandy never challenged the indictment below. Miss.Code Ann. § 99-7-21 (1972) requires a defendant to demur to the indictment before the jury is impaneled and not afterward. We find no defect in the indictment, but if there was one it has been waived. Jones v. State, 383 So.2d 498 (Miss.1980); Bowen v. State, 309 So.2d 524 (Miss.1975).

Our general concern is whether there is in the record evidence sufficient to support the jury’s verdict that Phillip Gan-dy was guilty of conspiracy to deliver cocaine. As we have said repeatedly, the jury is charged with the responsibility for weighing and considering conflicting evidence and the credibility of witnesses. See, e.g., Gathright v. State, 380 So.2d 1276, 1278 (Miss.1983). Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that on the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560, 576 (1979); Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983).

In his brief, Gandy recognizes these well settled limitations on our appellate review powers. He even acknowledges several of our cases to that effect. Lee v. State, 338 So.2d 395 (Miss.1976); Glass v. State, 278 So.2d 384 (Miss.1973); Davenport v. State, 144 Miss. 273, 109 So. 707 (1926).

In this case, if all the evidence is considered in the light most favorable to the State, one must take as true the testimony of James Dale Nicholson, Gandy’s accomplice and co-conspirator. In this state, the uncorroborated testimony of an accomplice may be sufficient to convict even when the charge is capital murder and the sentence imposed is death. Oates v. State, 421 So.2d 1025 (Miss.1982). While an accomplice’s testimony is to be viewed with great caution and suspicion, it is sufficient to sustain a conviction unless it is improbable, self-contradictory, or substantially impeached. Catchings v. State, 394 So.2d 869 (Miss.1981); Pearson v. State, 428 So.2d 1361, 1363 (Miss.1983).

Nicholson s testimony, of course, was not wholly uncorroborated. The presence of Gandy’s fingerprint on the pyrex mixing bowl was quite incriminating. The telephone records offered mild corroboration. And Gandy’s own testimony confirmed everything the State claimed about his relationship with Nicholson except criminal activity. In this state of the record we are without power to disturb the jury’s verdict.

AFFIRMED.

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


author: BROOM, Presiding Justice, PRATHER, Justice,

text:
    MAGNOLIA FARM SERVICES, INC. v. TUNICA OIL CO., INC.
    No. 54439.
    Supreme Court of Mississippi.
    Sept. 28, 1983.

      W. Dean Belk, Clark, Davis & Belk, Indi-anola, for appellant.
    Bard E. Selden, Jr., Tucker & Tucker, Tunica, for appellee.
   BROOM, Presiding Justice,

for the Court:

Attorney’s fees accrued for filing suit on an open account is the chief feature of this suit, appealed from the Circuit Court of Tunica County, the Honorable Elzy J. Smith, circuit judge, presiding. Plaintiff/appellee Tunica Oil Company, Inc., filed suit against Magnolia Farm Services, Inc., defendant/appellant, pursuant to Mississippi Code Annotated § 11-53-81 (Supp. 1982), and the jury found for the appellee and awarded an attorney’s fee of $3,108.60, which is 25% of the amount owed on the account when suit was filed against Magnolia Farm Services, Inc. (appellant herein). We reverse.

Appellee, Tunica Oil Company, Inc., a farm supply merchant, had previously extended credit to appellant (Magnolia) on a 30-day basis, and when appellant’s account became several months delinquent in 1981, appellee attempted to contact appellant. Resolution of the issue over the telephone failed, so on February 10, 1982, appellee sent appellant a demand letter (certified mail) pursuant to Mississippi Code Annotated § 11-53-81 (Supp.1982), which letter appellant received February 16, 1982. Mr. Sands, appellee’s president, testified that he next heard from appellant on February 20, when appellant’s bookkeeper, Marsha Brademan, called. Sands testified that Brademan agreed to send a check for $5,000 within the next four or five days and the balance by March 10. Sands further testified that on or about March 12, appellee attempted to contact appellant but was informed that the bookkeeper was in Texas and had the checkbook with her, but that upon her return the money would be paid. Finally, in April, appellee turned the account over to an attorney for collection.

Appellant’s bookkeeper, Brademan, testified that the conversation in which she agreed to immediately send $5,500 and the balance soon thereafter occurred during the week of April 19. She also testified that the checks aggregating $5,500 were hand-delivered on April 27.

On April 30, 1982, appellee began this litigation by filing its complaint upon open account with affidavit as to correctness for the remaining balance of $12,434.63. Process upon appellant’s registered agent was accomplished May 5, 1982, and on June 7, 1982, appellant forwarded a check to appel-lee in the amount of $12,467.79, the full amount due plus accrued interest. Telephone conversations between counsel resulted in an agreement that the funds be accepted in liquidation of the account with the understanding that the question of whether appellee was entitled to attorney’s fees, and if so the amount thereof, would be reserved for court trial.

At trial, as to the issue of attorney’s fees, appellee’s president testified that it had retained its attorney on a contingent fee contract to collect the balance of the account. A member of the Tunica County bar testified that he usually undertook the collection of open accounts on a ¼⅛, and sometimes Vsrd, contingent fee basis. He also testified that a maximum of seven or eight hours would be necessary to complete the task of collecting on an open account. The witness charges an hourly rate of $50 to $65 per hour.

After hearing this testimony, the trial court found that a reasonable fee for an open account of the size involved in the suit would be $3,108.66: ¼⅛ of the $12,434.63 sued for.

Appellant first argues that, inasmuch as no judgment for the principal amount due on the account was ever actually rendered, appellee was not entitled to attorney’s fees under Mississippi Code Annotated § 11-53-81 (Supp.1982). Enacted by the Mississippi Legislature in 1980, § 11-53-81 provides in pertinent part:

§ 11-53-81. Recovery of attorney’s fees in suit on open account.
When any person fails to pay an open account within thirty (30) days after receipt of written demand therefor correctly setting forth the amount owed and an itemized statement of the account in support thereof, that person shall be liable for reasonable attorney’s fees to be set by the judge for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the plaintiff. ... (Emphasis added).

Statutory interpretation is the issue before us. § 11-53-81 provides two contradictory interpretations which are asserted by each party. According to appellant’s view, a plaintiff is not entitled to attorney’s fees unless suit is brought for collection of the account, goes through trial, and to final judgment. On this basis it is urged that attorney’s fees should not be awarded where subsequent to the filing of the complaint and service of process, but before formal entry of judgment by the court, the defendant tenders payment of the principal amount due on the account. Adopted by the appellee and the court below is the interpretation which results from a broader reading of the statute. According to this rationale, the legislature “intended § 11-53-81 as a measure of relief to creditors and states clearly in its contents the time for payment to avoid its action [is] ‘within 30 days of receipt of written demand therefor.’ ”

Careful reading of § 11-53-81 discloses the language under consideration examined in isolation, the first half of the first sentence could be said to indicate that attorney’s fees are recoverable at any time beyond 30 days of receipt of demand letter,

When any person fails to pay an open account within thirty (30) days after receipt of written demand ... that person shall be liable for reasonable attorney’s fees to be set by the judge for the prosecution and collection of such claim....

However, the last half of the sentence indicates otherwise,

... when judgment on the claim is rendered in favor of the plaintiff. (Emphasis added).

The critical inquiry is: at what point do attorney’s fees become recoverable, i.e., .31 days after receipt of demand, after suit is filed, or after judgment is formally rendered in favor of the plaintiff?

No Mississippi ease has decided this issue, and the legislative history of § 11-53-81 provides no clue as to which of the above interpretations the legislature intended. In addition to Mississippi, four other jurisdictions have statutes allowing for attorney’s fees for suits on open account. Of these four, the parties rely heavily upon the Louisiana statute. The Louisiana statute on attorney’s fees for collection of open accounts is quite similar to the Mississippi statute, and apparently was the model for the original Mississippi House Bill. The Louisiana statute provides, inter alia,

When any person fails to pay an open account within thirty days after receipt of written demand therefore correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. ...

Relying on this statute and Barbato, Super & Robinson, Inc. v. Koerner, 394 So.2d 820 (La.App.1981), appellee argues that attorney’s fees are mandated when statutory procedures are complied with and the defendant has failed to pay the account by the time of the filing of the suit. We find Barbato as factually distinguishable and not persuasive, because there an actual trial transpired on the account resulting in a judgment for the plaintiff.

Our study causes us to conclude that in passing § 11-53-81, supra, the legislature intended to provide relief to creditors who not only employed an attorney but prosecuted the case in court until “judgment on the claim is rendered....” Here before trial the account (claim) was paid in full and no judgment was ever rendered on the once-delinquent account. The statute: § 11-53-81, in allowing attorney’s fees as to open account suits is obviously in derogation of common law which did not allow such fees, and therefore must be strictly construed. Had the legislature intended for attorney’s fees to become attached when suit is filed, such intent could have been easily expressed. Instead, § 11-53-81 allows for the fees “when judgment of the claim is rendered in favor of the plaintiff ...” No such judgment having been “rendered”, the attorney’s fees are not recoverable and reversal must be ordered here. Having so held, we do not reach the issue of whether the attorney’s fee was excessive.

REVERSED AND RENDERED.

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

PRATHER, BOWLING and HAWKINS, JJ., dissent.

PRATHER, Justice,

dissenting:

Tunica Oil Company gave written demand for account payment February 10, 1982. Suit was filed April 30, 1982, demanding judgment for the amount of the open account, plus interest, plus attorney’s fees and costs.

No answer by defendant was filed. However, the defendant paid the entire past due account, without attorney’s fees, by mailing to plaintiff’s attorney. Hereafter, demand was made for attorney’s fees. The parties agreed that the check in payment of the account would be received, with reservation of a ruling by the court on the issue of entitlement to attorney’s fees. The trial court allowed fees, interest, and court costs.

The question for decision is whether attorney’s fees are a part of the claim allowable on a suit for open account under Miss. Code Ann. section 11-53-81 (Supp.1982).

Three considerations need addressing. The first is the legislative intent in passage of House Bill No. 1005, Chapter 443, effective July 1, 1980.

The title of the house bill states that the purpose of the act was to provide “.. . for reasonable attorney’s fees and for related purposes” on delinquent open accounts. The legislative intent is defeated, if after filing suit, the plaintiff has to pay his attorney’s fees upon tender of the account prior to judgment. The statute intended to change the common law; however, we submit that the majority view defeats that intent.

Secondly, the language of the statute allows attorney’s fees when judgment is rendered “on the claim.” The claim is the total demand. The demand sub judice is for the open account, attorney’s fees, interest, and costs, being all the rights of action appearing in the pleading. The payment of the open note alone does not extinguish the other demands of the pleading.

Lastly, the majority view holds that no attorney’s fees are allowable until the “open account” (or the “claim” as interpreted in the majority opinion) is reduced to judgment. We respectfully submit that the defendants payment of the open account under these circumstances amounts to a confession of judgment.

We would affirm the lower court in allowance of attorney’s fees, interests, and costs after suit was properly filed which resulted in the defendant’s payment of the account.

BOWLING and HAWKINS, JJ., join this dissent.

      . The trial judge likewise felt that payment after suit is filed would not defeat the operation of the statute,
      BY THE COURT: Don’t you think, Mr. Belk, that if they said that because the account has been paid that it would defeat the intent of the statute by simply after a substantially delinquent account, after suit is filed, then are you saying a debtor should be forgiven for the attorney’s fee portion of it, because after finally, some four months or more after the account is delinquent, or even more than that, then once suit is filed, then the debtor runs in and pays the account. Wouldn’t this defeat the whole intent of it?
      The Court believes the statute is applicable in the case and cannot be defeated by payment after suit is filed.


text:
    Doyle E. VALENTINE v. STATE of Mississippi.
    No. 53920.
    Supreme Court of Mississippi.
    Oct. 5, 1983.
    Thomas Tucker Buchanan, Billie J. Graham, Buchanan & Graham, Laurel, for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

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

REVERSED AND REMANDED.

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


text:
    Glenn GRISSOM v. Kay GRISSOM, Ellie Moore & Miriam Moore.
    No. 54527.
    Supreme Court of Mississippi.
    Oct. 5, 1983.
    T. Victor Bishop, Brown & Bishop, Fulton, for appellant.
    Douglas M. Wright, Roger F. Wicker, Tu-pelo, for appellee.
   Appeal from Chancery Court, Itawamba County; James E. Bost, Chancellor.

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

AFFIRMED.


text:
    Darryl D. DORSETT, Frank G. Appleby, Peter F. Kersten and Robert B. Merrell v. George N. LeFEBVRE.
    No. 54488.
    Supreme Court of Mississippi.
    Oct. 5, 1983.
    H. Rodger Wilder, Eaton, Cottrell, Galloway & Lang, Gulfport, for appellant.
    Raymond L. Brown, David C. Frazier, Megehee, Brown, Williams & Mestayer, Pascagoula, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

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

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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

BOWLING, J., not participating.


author: DAN M. LEE, Justice,

text:
    Ken RAINER v. STATE of Mississippi.
    No. 54472.
    Supreme Court of Mississippi.
    Oct. 5, 1983.
    Franklin C. McKenzie, Jr., Laurel, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Jones County wherein the appellant, Ken Rainer, was found guilty of possession of stolen property. Rainer was sentenced to four (4) years in the custody of the Mississippi State Department of Corrections. We reverse. '

Ken Rainer was indicted for possession of stolen property, 350 cases of Prestone antifreeze allegedly taken from Gibson’s warehouse. Rainer has never contested the fact that the antifreeze in his possession was stolen; however, he does deny that he had any knowledge it was stolen until after his arrest. Therefore, the key issue at trial was whether Rainer had knowledge that he was purchasing stolen antifreeze.

Darnel Blackledge, director of security for Gibson’s Department Stores, testified that Gibson’s received an anonymous letter stating that someone was stealing antifreeze from their warehouse. Rick Shadix, a buyer for Gibson’s, testified that he became concerned about Gibson’s inventory when he was in the B & B Muffler Shop and noticed Prestone antifreeze on sale for $3.50 per gallon. This caused him to be suspicious because he was aware that Gibson’s paid $4.33 per gallon wholesale. Sha-dix purchased a case of Prestone antifreeze from B & B and matched the type numbers with those in Gibson’s warehouse. He testified that the case of antifreeze he purchased at B & B Muffler Shop had an identical type number to that in the Gibson warehouse. An inventory revealed that one thousand cases of antifreeze were missing. Blackledge’s investigation led to an admission by two Gibson employees, Corey Barker and George Allen Smith that they had taken the antifreeze.

Barker was the chief witness for the prosecution. He admitted that he had stolen the antifreeze from Gibson’s warehouse over a period of two to three weeks, taking fifty cases of antifreeze five or six times. Each time he would load a Gibson’s delivery truck with the antifreeze and take it to a store owned by Rainer’s father. There Rainer would pay him $350 cash for the fifty cases of antifreeze. Barker testified that Rainer never knew where the antifreeze came from, but that Rainer’s father told him, in Rainer’s presence, to quit bringing the antifreeze over or they would get in trouble. Barker also testified that after confessing to Blackledge he called Rainer and told him, “We have been caught doing this.” On cross-examination it was revealed that Barker had pled guilty to embezzlement and had been promised that the state would recommend probation and a fine, but he had not been sentenced at the time of Rainer’s trial. Barker admitted that he had given three conflicting statements concerning the theft of the antifreeze, originally confessing to stealing all one thousand cases, but later recanting and admitting to taking only three hundred fifty

The owner of the B & B Muffler Shop, E.T. Barefoot, testified that Rainer asked him if Barefoot would allow Rainer to place some antifreeze in his muffler shop for sale. This is the antifreeze that Shadix saw and purchased in the muffler shop. Jimmie Earl Bunch, a part-time security guard for Gibson’s testified that he followed Barker after he admitted taking the antifreeze. Bunch testified that Barker made a phone call and went to lunch. Bunch was then assigned to go to Rainer’s father’s curbstore and see if any antifreeze was brought in or taken out of the store. Bunch testified that he watched Rainer come out of the store and hire two people to help him load a truck with antifreeze. He followed Rainer around town to a truck stop where Rainer went in and reemerged a few moments later. Rainer did not unload any of the antifreeze but instead took it back to his father’s curbstore.

The final witness for the state was James E. Davis. Davis admitted that there was “bad blood” between himself and Rainer because Rainer called his daughter a whore and fired her from a job. ’ Davis testified that Rainer had asked him if he knew where he could get rid of any antifreeze and in response Davis delivered antifreeze to some people in Sandersville. Davis also testified that when talking with Rainer about the antifreeze Rainer said, “I told the boy that I would take all that he could steal.” Davis stated that he was present when Rainer’s father told Rainer and the boy delivering the antifreeze, “Boys, you had better quit it, you are going to get caught.” Davis had been convicted eleven years prior of possession of stolen property.

The defense introduced testimony that it was not unusual for the curbmart to pay for its purchases in cash. Mr. Randolph Pickett testified that he was present when Barker arrived with a truckload of antifreeze and that he heard Rainer ask Barker “Where is this stuff coming from” to which Barker replied, “My company gave it to me to disburse of it because it was getting old, was outdated and the cartons it was in was deteriorating.” This testimony was corroborated by James Perkins who testified that Barker came to sell antifreeze at the curb-mart and that when there he said it was damaged merchandise and that he was selling it for Gibson’s. Perkins testified that Barker said that Gibson’s had allowed their sales people the first opportunity to sell their old or damaged goods. Rainer did not testify in his own behalf and at the close of the evidence the jury returned a verdict of guilty.

Rainer’s first assignment of error is that the trial court erred in denying his motion for a directed verdict made at the close of the state’s evidence. Because Rain-er put on evidence after the denial of this motion, he is precluded from raising the issue on appeal. Robinson v. State, 418 So.2d 749 (Miss.1982).

Rainer next assigns as error the lower court’s refusal to grant his motion for a directed verdict at the close of all the evidence and refusal to set aside the verdict and enter a judgment of acquittal or in the alternative grant a new trial. Rainer argues that the state failed to prove beyond a reasonable doubt that at the time he received the property he knew that it was stolen. Rainer argues that the testimony of Barker, as an accomplice and felon, must be viewed with great caution and suspicion. It is true that the uncorroborated testimony of an accomplice will support a conviction, but only if that testimony is not unreasonable, improbable, self-contradictory or impeached by an unimpeached witness. Barker’s testimony was certainly impeached by that of both Randolph Pickett and James Perkins who testified that they heard Barker tell Rainer that he was selling the antifreeze for Gibson’s as it was old or damaged. Also, Barker’s testimony was self-contradictory when compared to the statements he had given the police. In Feranda v. State, 267 So.2d 305 (Miss.1972), this Court held that the testimony of an accomplice which is impeached by prior statements given to the police seriously devalues its credibility. Therefore, Barker’s testimony must be viewed with great suspicion. In fact, the only testimony that substantially corroborates Barker’s story is that of Davis. Davis’ testimony was that Rainer said he told the boy delivering the antifreeze that he would take all the boy could steal. Davis also related that he heard Rainer’s father tell “the boys” that they had better quit or that they were going to get caught. Davis’ testimony is also suspicious in that he had previously been convicted of possession of stolen property and he admitted that there was “bad blood” between him and Rainer. Although this evidence is slim, we must accept all reasonable inferences as true when this Court reviews the sufficiency of evidence. Hyde v. State, 413 So.2d 1042 (Miss.1982). Therefore, this assignment of error standing alone does not warrant reversal.

Rainer’s next assignment of error regards the jury instructions. He argues that there were a number of errors associated with the granting of Instruction S-2. That instruction reads:

The defendant, KEN RAINER, has been charged by an indictment with the crime of receiving stolen property for having bought or received 350 cases of type AF542 Prestone II antifreeze which had been feloniously taken from Gibsons Products Company of Laurel, Inc., knowing that the property had been so taken.
If you find from the evidence in this case beyond a reasonable doubt that the 350 cases of type AF542 Prestone II antifreeze, being of value, was the personal property of Gibsons Products Company of Laurel, Inc., and was feloniously stolen and taken away from Gibsons Products Company of Laurel, Inc., and on or about the 10th day of November, 1981, the Defendant, KEN RAINER, did buy and receive the aforementioned antifreeze, and the Defendant had good reason to believe from facts and circumstances in evidence that the 350 cases of type AF542 Pre-stone II antifreeze had been feloniously stolen, then you shall find the Defendant guilty of receiving stolen property.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt then you shall find the Defendant not guilty. (Emphasis ours)

Rainer first argues that the instruction is defective because it allows the jury to find him guilty if it determines that he had “good reason to believe from facts and circumstances” that the property was stolen rather than actual knowledge. His position is that this instruction allows the jury to find him guilty if it finds that he violated the reasonable man standard even in the absence of actual knowledge. The state argues that the instruction was cured by the granting of Instruction D-10 which instructed the jury that Rainer must have known that the antifreeze was stolen at the time he received any of it. Rainer also argues that S-2 was defective in that the first sentence assumes as true all of the material facts of the charge. We have previously held that the granting of an instruction which assumes as true material facts which were for the determination of the jury is reversible error. Church v. State, 288 So.2d 855 (Miss.1974); Eubanks v. State, 227 Miss. 162, 85 So.2d 805 (1956). There can be no doubt that the first sentence of S-2 does assume as true the fact that the antifreeze was stolen, a material fact for the determination of the jury and it was therefore defective whether Rainer contested that fact or not.

Rainer also assigns as error the refusal of the trial court to grant Instruction D-2' which instructed the jury that in their deliberations they should not consider the indictment as evidence of guilt. The state counters by arguing Instruction C-03 defines the evidence which the jury was to consider and that it impliedly excludes the indictment. Instruction C.03 in pertinent part reads:

The evidence which you are to consider consists of the testimony of the witnesses and the exhibits offered and received. You are also permitted to draw such reasonable inferences from the evidence as may seem justified in light of your own experience.

That instruction fails to instruct the jury that the indictment was not evidence, in fact, it mentions that arguments, statements and remarks of counsel are not evidence, but nowhere does it mention the indictment. The jury received no instruction concerning the indictment whatsoever. This Court has previously held that when the jury is permitted to take the indictment into the jury room it should be instructed that the fact that the defendant has been indicted is not evidence of the facts charged in the indictment and that the indictment should not be considered as evidence of guilt. Wood v. State, 275 So.2d 87 (Miss.1973). While the record does not reveal whether the jury was given a. copy of the indictment, they were certainly reminded of it through Instruction S-2. Recalling that Instruction S-2 referred to the indictment in a manner which assumed as true material facts which were within the province of the jury to decide, that instruction was equivalent to handing the jury a copy of the indictment. The granting of Instruction S-2 coupled with the denial of Instruction D-2 require that we reverse.

REVERSED AND REMANDED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and HAWKINS, PRATHER and ROBERTSON, JJ., concur.

ROY NOBLE LEE and BOWLING, JJ., not participating.


author: ALMON, Justice.

text:
    BOYKIN TIMBER & FARM RESOURCES, INC., Richard A. Boykin, Sr., and Richard A. Boykin, Jr. v. Joseph B. NIX, Jr. and Robert G. Kendall.
    81-690.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    Herbert P. Feibelman, Jr. and Russell S. Terry of Feibelman & Shulman, Mobile, for appellants.
    Joseph B. Nix and Robert G. Kendall, pro se.
   ALMON, Justice.

This is an appeal from the trial court decree which enforced an attorneys’ lien on behalf of the attorney of record and another attorney employed by the client corporation against proceeds from the shareholders’ unilateral transfer and sale of a corporate asset.,

In 1977 Boykin Timber & Farm Resources, Inc. (Boykin Timber), an Alabama real estate development corporation comprised of two shareholders, Richard A. Boy-kin, Sr. and Richard A. Boykin, Jr. (the Boykins), entered into an agreement with their accountant, Robert W. Turnbow. In the agreement Turnbow received all of the outstanding common shares of Boykin and Lagman, Inc. (Lagman), an Alabama corporation whose sole asset was the Florida condominium development known as Seas-pray. In exchange for the stock, Turnbow promised to pay all of the indebtedness of Lagman and pledged the Lagman stock as security for his performance. Lagman also granted Boykin Timber a security interest in certain second mortgages on Seaspray condominium units. When, after several years, the Lagman indebtedness totalled hundreds of thousands of dollars, Boykin Timber, in a 1981 proceeding, successfully recovered the Lagman stock and prevented Turnbow and Lagman from disposing of any Lagman assets pending transfer of the stock.

Attorney Joseph B. Nix, Jr. originally referred the Boykins to Mr. Robert G. Kendall, who became the attorney of record in the successful Boykin Timber litigation. The terms of the fee agreement were in dispute. The attorneys contend that the Boykins agreed to give them a ½ interest in the Seaspray condominium unit belonging to Lagman at the time of the stock foreclosure action, whereas the Boykins contend that they agreed to give only Kendall a ½ interest in the Lagman stock recovered from Turnbow. Following the recovery of the Lagman stock, the Boykins transferred the condominium unit in question to themselves and then resold the unit to a bona fide purchaser without the consent of either Nix or Kendall. Nix and Kendall then filed a motion to impress a lien pursuant to Code 1975, § 34-3-61, seeking 33⅛% of the value of the condominium unit sold by the Boy-kins or the proceeds thereof. In the Boy-kins’ answer, they admitted transferring the condominium unit to themselves “in partial satisfaction of debts paid by them for the corporation Boykin and Lagman, Inc.” but denied that Nix was entitled to a fee, contending that Kendall agreed to receive ⅛ of the value of the Lagman stock as his sole remuneration.

The trial court awarded Nix and Kendall $18,847.10, representing ½ of the sum received by the Boykins for the rental and sale of the condominium unit in question. To enforce the attorneys’ lien in favor of both Nix and Kendall against the Boykins personally, the trial court made the following findings of fact: 1) the Boykins, as sole shareholders of Boykin Timber, were the corporation’s alter ego and thus proper parties in the lien enforcement proceedings; 2) Nix, a practicing Alabama attorney, performed legal services in referring Boykin Timber to Kendall and was thus a proper party to enforce the attorneys’ lien; 3) Boy-kin Timber’s suit to recover the heavily indebted Lagman stock was in actuality a suit to recover the condominium unit in question, Lagman’s sole asset; 4) Kendall and Nix agreed to receive ½ of the value of the condominium unit in question rather than ½ of the value of the heavily indebted Lagman stock as their fee; and 5) the Boy-kins’ unilateral transfer of the condominium unit in question to themselves with actual notice of the attorneys’ alleged outstanding interest constituted fraud on the court and the attorneys which was not vitiated by their subsequent sale of the unit to a bona fide purchaser. Boykin Timber and the Boykins then filed a joint notice of appeal.

The issues presented for review are 1) whether attorneys Nix and Kendall are proper parties to enforce an attorneys’ lien pursuant to Code 1975, § 34-3-61; 2) whether the lower court had subject matter jurisdiction to enter a judgment for monetary damages under Code 1975, § 34-3-61(c) against persons not parties to the original action creating the attorney/client relationship; and 3) whether the Boykins were entitled to a jury trial under Code 1975, § 34-3-61.

Only attorneys of record, the practicing attorneys who actually sign pleadings and actively participate in the crucial phases of their clients’ litigation, are proper parties to enforce a lien under the authority of Code 1975, § 34-3-61. McBride v. Ellard, 273 Ala. 467, 142 So.2d 895 (1962); Gulf States Steel Co. v. Justice, 204 Ala. 577, 87 So. 211 (1920). Although Gulf States, supra, which relegates attorneys not of record to contract remedies, dealt specifically with attorney intervention proceedings following a prejudgment settlement entered into without the attorney’s consent, we see no reason to limit its holding to those facts. We, therefore, hold that in either a prejudgment or post judgment statutory lien enforcement proceeding, only the attorney of record may recover from the client the full amount stated in the employment contract, but he recovers subject to a duty to account to other attorneys pursuant to the contract. See Gulf States, supra, 204 Ala. at 584, 87 So. at 217-18.

In the Boykin Timber litigation, Nix, whose only legal services consisted of his referring the Boykins to Kendall, could in no way be deemed an attorney of record. Kendall, therefore, as the only attorney of record, is the sole party capable of enforcing the statutory lien, and Nix’s name should be stricken from the judgment below. Kendall will recover the full amount indicated by the employment agreement as interpreted by the trial court, ½ of the value of the condominium unit rentals and sale, subject to a duty to account to Nix pursuant to the employment contract, unless the trial court lacked the requisite subject matter jurisdiction.

The Boykins contend that the circuit court lacked subject matter jurisdiction to enter a personal judgment for monetary damages to enforce a § 34-3-61(c) lien on realty or personalty recovered in the original action. In a § 34r-3-61(c) proceeding, the attorney’s lien can attach only to the actual property recovered in the original action: “Upon all actions for the recovery of real or personal property, and upon all judgments for the recovery of the same, attorneys-at-law shall have a lien on the property recovered .... ” Code 1975, § 34-3-61(c) (emphasis added). The recovery of the Lagman stock in the original action necessarily circumscribed the subject matter jurisdiction of the circuit court, and the stock thus represented the only property upon which the § 34-3-61(c) lien could attach.

Moreover, even if the condominium unit was deemed to be tantamount to the stock recovered in the original action, the trial court would be without power under § 34-3-61(c) to impress a lien upon the unit because the unit was transferred to a bona fide purchaser without notice. Code 1975, § 34-3-61(c) (“the property recovered shall remain subject to said liens, unless transferred to bona fide purchasers without notice”).

Although Kendall argues that the proceeds from the sale of the condominium unit to the bona fide purchaser would be “property recovered” within the meaning of the statute, where the statute failed to include the word “proceeds” within its terms, we decline to expand its scope absent a clear legislative manifestation to the contrary. Grace v. Solomon, 241 Ala. 452, 454, 3 So.2d 3, 3-4 (1941) (“The lien here provided for cannot be extended beyond the fair intendment of the statute .. . ”).

Furthermore, just as the statute fails to allow liens upon “proceeds,” it also fails to authorize the entry of personal judgments. If, therefore, an attorney wishes to seek a personal judgment against a former client, or the shareholders of a former corporate client, he must seek a legal remedy in the form of a new action based upon the employment contract or quantum meruit. Crittenden v. Parker, 350 So.2d 1058, 1060 (Ala.Civ.App.1977).

Because the circuit court is without subject matter jurisdiction or power to enter a personal judgment for monetary damages in a § 34-3-61(c) proceeding, we pretermit consideration of the remaining issue. The judgment of the circuit court is reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    Kathy E. SEGLER v. FORD MOTOR COMPANY, a corporation, and Ed Sherling Ford, Inc., a corporation.
    81-692.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    George E. Trawick, Ariton, for appellant.
    Tabor R. Novak, Jr., of Ball, Ball, Duke & Matthews, Montgomery, for appellee Ford Motor Co.
    N.T. Braswell, III, of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellee Ed Sherling Ford, Inc.
   ALMON, Justice.

This is an appeal from a judgment granting defendants’ motions for directed verdict. Appellant Kathy Segler sued in one count for negligent design, manufacture, maintenance and sale of an automobile and in another count under the Alabama Extended Manufacturers’ Liability Doctrine. In addition to complaining that the trial court erred in granting directed verdicts for the defendants, Segler contends that the court erred in sustaining objections to proposed expert testimony.

On August 27, 1978, Kathy Segler and her father Curt Segler purchased a 1978 Ford Thunderbird automobile from Ed Sherling Ford in Enterprise, Alabama. Between 10:30 and 11:30 p.m. on March 29, 1980, Kathy was injured when the car ran off Alabama Highway 123 and hit a large oak tree. It had been raining that day, and the roads were wet. Kathy testified that she was going 30 to 35 miles per hour as she approached the curve where the accident occurred. She heard water under the tires and applied the brakes, whereupon the car “grabbed to one side” and skidded off the road. Kathy tried to turn the car back to the left, but the car would not respond. The car skidded into the oak tree and hit it on the right front fender and bumper.

The car was removed from the scene by a wrecker owned and operated by Amorine Ivey. Mr. Ivey testified that as he pulled the car away from the tree, the right front wheel was locked and only began turning once it reached the pavement. Don Howell, the investigating police officer, also stated that the wheel was locked until the car reached the pavement. Mr. Ivey testified that the right front bumper shock absorber had bent rather than collapsed telescopically as it was designed to do. He also found some bolts missing in the right front fender which he believed had never been installed, a conclusion shared by Kathy’s father.

Kathy’s father, Curt Segler, owned a service station and had been an automobile mechanic for 38 years. When he was asked to give his opinion as an expert as to why the accident happened, the trial court sustained the defendants’ objection on the ground that he was not properly qualified. He was allowed to testify on voir dire outside the presence of the jury as to what his opinions were and the basis for them.

One of Segler’s contentions was that the brakes locked, causing Kathy to lose control of the car. He stated that a shield, which would protect the brakes from water thrown up from the highway, was not present. However, in giving his opinion that the brakes locked, he added, “Now, whether it locked off of the master cylinder, the equalizer, water getting up between the pad or not, I don’t know.” The court observed that to let Mr. Segler testify in this regard would be “getting into the realm of speculation.”

Mr. Segler also held the opinion that the torsion bars or swaybars were improperly designed, that the front ones were too big and the rear ones too small. He felt that the size of the front bars would make the car more difficult to turn or control. However, on voir dire, he admitted that he had no experience in designing swaybars, that he was not aware of the factors which an engineer or automotive manufacturer would take into consideration in determining the proper dimensions of swaybars, and that he had no formal training or experience that would tell him the proper dimensions a swaybar should have.

When Mr. Segler was asked about the function of the bumper shock absorbers, it was similarly shown that he had no expert knowledge as to their design or purpose. Finally, he was allowed to testify that the bolts which were missing from the right front fender would have added strength to the car.

“The determination of whether a witness is competent to testify as an expert on a particular subject is within the discretion of the trial judge, whose ruling will not be disturbed on appeal unless it was a patent abuse of that discretion.” Lucky Mfg. Co. v. Activation, Inc., 406 So.2d 900 (Ala.1981), citing Ford Motor Co. v. Rodgers, 337 So.2d 736 (Ala.1976). See also Meadows v. Coca-Cola Bottling, Inc., 392 So.2d 825 (Ala.1981); Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972). We see no abuse of that discretion in this case. As shown above, Mr. Segler’s qualifications to testify about design defects were sufficiently in dispute that the trial court cannot be held in error for sustaining objections to his testimony. Furthermore, in regard to Mr. Se-gler’s opinion that the brakes locked, he could only speculate as to the cause, so his opinion was not admissible to prove a design defect or negligence.

The trial court did not err in granting the defendants’ motions for directed verdict. Without the evidence which Mr. Segler proposed to give, there was no evidence of any defect in the automobile which caused the injury.

“... Liability is not established merely by showing that the product failed in furthering or performing its intended use....
“... The burden of proof rests with the injured consumer to prove that the product left the defendant’s control in an unreasonably dangerous condition not fit for its expected use, and that which rendered the product in such an unfit condition in fact caused the injury. The plaintiff’s burden will not be sustained without evidence to support the conclusion that the product is defective. Restatement (Second) of Torts, § 402A, Comment g.”

Sears, Roebuck & Co., Inc. v. Haven Hills Farm, Inc., 395 So.2d 991, 995 (Ala.1981). See also, Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976); Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976); Edwards v. Sears, Roebuck & Co., 512 F.2d 276 (5th Cir.1975).

The only evidence of any defect in the car showed that some bolts were missing from the right front fender. Both Segler and Ivey, who repaired the car, testified that this could not have caused Kathy to lose control of the car. Segler testified that the car would have been more solid or stronger with the bolts, but there was no evidence that any such lack of strength proximately contributed to Kathy’s injuries. The proof that the bumper shock absorber bent in an unusual manner, that the right front wheel may have locked, and that the front sway-bar is larger than the rear one, fails to raise a reasonable inference that these parts were defective or were not properly designed for the use to which they were put. There was no evidence that the bumper shock absorber was designed to lessen an impact of the force and angle at which Kathy’s car hit the tree. On the contrary, there was evidence that the absorber was designed to cushion a blow at five to ten miles per hour and would not collapse at an angle. Although there was testimony that the right front wheel locked, there was none before the jury as to why it locked. Mr. Segler testified that a larger swaybar would “make it harder to cut back” and straighten the car after a turn; however, there was no evidence regarding the proper size for a swaybar for the car in question.

When there is not a scintilla of evidence supporting a reasonable inference of liability of the movant, a court should grant a motion for directed verdict. Rule 50(e), A.R.Civ.P.

“To be sure, the trial Court must exercise extreme caution not to usurp the fact finding function of the jury; but it is the office of a directed verdict motion (Rule 50(a)) to test the sufficiency of the opponent’s evidence. And where, as here, the strongest tendencies of all the evidence fall short of raising a reasonable inference of the movant’s alleged liability, the motion is due to be granted .... ”

Coburn v. American Liberty Ins. Co., 341 So.2d 717, 719 (Ala.1977). See also, Alabama Power Co. v. Smith, 409 So.2d 760 (Ala.1981); United States Fidelity & Guaranty Co. v. Jones, 356 So.2d 596 (Ala.1978). The trial court did not err in directing a verdict for defendants.

For the reasons stated, the judgment is due to be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    George GARMON, et al. v. Anna M. MOON.
    82-286, 82-320.
    Supreme Court of Alabama.
    Aug. 26, 1983.

      David Lee Jones of Ogden, Warnes & Jones, Gunterville, for appellants.
    Tyrus M. Dorman, Jr., Guntersville, guardian ad Litem for Robert Moon, a minor.
    Clyde D. Baker, Guntersville, for appel-lee.
   EMBRY, Justice.

This appeal is from the judgment of the circuit court holding valid the last will and testament of Buford W. Moon, Jr., deceased, and construing that will to bequeath all of his property to Anna M. Moon.

The will reads:

Buford W.’Moon, Jr. being oi sound and disposing mind and memory, and considering the uncertainty oí this life, do make, publish and declare this to be my last ®SI til and ¾⅛£⅛3†11£!11 as follows, hereby revoking all other former Wills by me at any time made. First, after my lawful debts are paid, I give f.An.na..-. ⅞_: — Moon . at.L. jBy — _=-personal belonging, including any auto and property I have except I leave five dollars to each of my four children David Moon, Steven Moon, Carolyn Moon, Robert Moon. Anna M. Bastón Moon is to do as she wishes with the property as she see fit. But if still has any property, I leave her at her death it is to goto my son George William Gorman to do as he sees fit.

The issues to be resolved are whether the trial court erred in holding the will validly-executed; that no undue influence was exerted over Buford W. Moon, Jr., by Anna M. Bastón (Moon?), and that it was the testator’s intention to make Anna the principal beneficiary of his will. We hold there was no error in the trial court’s resolution of these issues and, accordingly, we affirm.

Appellants state the issue to be:

“Did the trial court err in its judgment as to finding a valid execution of the document purporting to be the Will of Testator to the extent that it was plainly and palpably wrong in light of the evidence?. ..
“Did the trial court err in its judgment by failing to find sufficient evidence to raise the presumption of undue influence by the favored beneficiary Anna M. Ba-stón to the extent that said finding was plainly and palpably wrong in light of the evidence?...
“Did the trial court err in its judgment by finding that the testator intended to give all his property, both real and personal, excluding $20.00, to Anna M. Ba-stón to the extent that said finding was plainly and palpably wrong in light of the evidence?...
“Did the trial court err in its judgment as to the interpretation of the Will of Testator by holding that said Will covered and disposed of Testator’s real property to the extent that said holding was plainly and palpably wrong in light of the evidence?...
“Did the trial court err in its judgment ' by failing to set or fix an attorney’s fee for the court appointed guardian ad li-tem?. ..”

The last question is not before us because the trial court continued the motion of the guardian ad litem to fix his attorney’s fee pending disposition of this appeal.

The judgment reads as follows:

“JUDGMENT”
“This action, coming on to be heard was submitted upon the pleadings, process and proof ore tenus, and was taken under advisement.
“The first issue herein is the determination of the validity of the alleged Last Will and Testament of Buford W. Moon, Jr. The probate file, introduced herein is improperly and inexpertly drawn and the dates do not conform with each other; however, none of the parties herein raise any objection to the admission of the document to probate, rather all seem to agree that any impropriety in such probate proceedings are waived.
“The judgment of the Probate Court admitting the will to probate was dated January 3, 1981 and noted to be filed in such court on January 3, 1981. The initial complaint was filed in this action on the 15th day of October, 1981, nine months after probate. There was, however, no guardian of the minor Robert Moon, nor was guardian ad litem appointed to represent him in the probate proceedings, therefore it will be considered herein that such minor is contesting the will. [Section 43-1-81, Code of Alabama].
“The court finds that document purporting to be the will of Buford W. Moon, Jr., in his valid will. The court further finds that the testator was of sound mind at the time he executed the will, that he was not under the undue influence of any party and that he acknowledged such will to the witnesses of such will.
“As to the construction of such will and the companion matter of the action to quiet title, the court finds that the testator intended to give all his property, both real and personal, excluding Twenty Dollars, to Anna M. Bastón, with whom he had lived for nine years. This devise, however, contains a condition subsequent in that if any of the estate remains at Ms. Baston’s death, such estate will pass to George William Garmon. (Bradley v. Eskridge, Ala. 361 So.2d 100).
“It is therefore ADJUDGED that the will of Buford W. Moon, Jr., deceased, filed herein is the valid Last Will and Testament of Buford W. Moon, Jr. It is further ADJUDGED that Anna M. Ba-stón is the sole devisee of the estate of Buford W. Moon, Jr., with the exception of the four-five dollar bequests; it is further adjudged that Anna M. Bastón is the owner of the realty owned by Buford W. Moon, Jr., at his death.

Careful review of the entire record discloses that of the hotly disputed evidence, it is more than ample to support the trial court’s conclusions and there was no error in the application of law to that evidence. This being the case, the judgment will not be disturbed. Leslie v. Pine Crest Homes, Inc., 388 So.2d 178 (Ala.1980).

The judgment below is due to be and is hereby affirmed.

AFFIRMED.

FAULKNER, ALMON and ADAMS, JJ., concur.

TORBERT, C.J., concurs in result.

      . Although the will was in handwriting, it has been reproduced here in print on a form like that used by the testator.