author: HAWKINS, Justice,

text:
    Larry Donnell RUFFIN v. STATE of Mississippi.
    No. 54071.
    Supreme Court of Mississippi.
    Feb. 22, 1984.

      Ken Rose, Atlanta, Ga., Kennie E. Middleton, Fayette, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before BROOM, P.J., and HAWKINS and DAN M. LEE, JJ.
   HAWKINS, Justice,

for the Court:

Larry Donnell Ruffin was convicted of murder and given a life sentence at a bifurcated trial in Harrison County. A change of venue from Forrest County had been granted due to pre-trial publicity.

FACTS

In the rural community of Eatonville in Forrest County, on May 4, 1979, the residences of Dwayne and Eva Gail Patterson and Charles Smith were approximately 200 feet distance from each other. Dwayne Patterson was employed on an offshore oil rig and not home that day.

Around 10 that evening, as Mrs. Smith and her daughter Michelle Jones were preparing to retire, there was a banging on the door and a ringing of the doorbell. Eva Gail Patterson was at the back of her house, floundering. Her two little children were following her, and the little four-year-old son was screaming: “A Black man tried to hurt my mommy.”

Mrs. Patterson died in a pool of her own blood in the carport of the Smith residence. She died from massive blood loss from a seven-inch slash around her throat which severed veins, arteries and the trachea. She had also been stabbed four times in her abdomen. Live spermatozoa were found in her vagina.

Her gown and bedspread contained hairs of Negroid origin.

On May 4 Ruffin was living at the Restitution Center of Forrest County, following a conviction of burglary in March. He was 20 years old. That afternoon he was given a twelve-hour pass, but did not return. He was apprehended May 5, hiding in the bathroom of his girl friend, and was arrested for parole violation, was kept at the jail and not returned to the Restitution Center. Investigation of Ruffin on suspicion of the murder of Mrs. Patterson was begun.

Investigation implicated two other Blacks, Bobby Ray Dixon and Philip Leo Bivens, who were indicted for and pleaded guilty to murder charges, and sentenced to life imprisonment. Both were state witnesses in Ruffin’s trial.

After his arrest Ruffin made two separate written confessions to raping and murdering Mrs. Patterson, one on May 30, and the other June 12. On July 3 law enforcement officers at his direction went to the Patterson residence, and Ruffin described how he stood outside the home, how he gained entrance and how he left following the crimes.

On August 2, 1979, he was indicted by the Forrest County Grand Jury for murder of Mrs. Patterson while engaged in the commission of the crime of rape, in violation of § 97-3-19(2)(e) Mississippi Code of 1972, as amended.

In a bifurcated trial Ruffin was found guilty of capital murder, but in the sentencing phase the jury could not agree on the form of punishment.

Further pertinent facts will be set forth under the assignment of error.

SUFFICIENCY OF THE EVIDENCE

No claim is made the circuit judge erred in admitting the confessions into evidence. Rather, it is contended that the confessions are so contradictory, and the testimony of the two accomplices so inconsistent and incredible as to defy belief.

As an appellate Court we must view the evidence offered on behalf of the state in its most favorable light. Young v. State, 425 So.2d 1022 (Miss.1983); Warn v. State, 349 So.2d 1055 (Miss.1977); and Carroll v. State, 196 So.2d 878 (Miss.1967).

The physical facts demonstrate as ghastly a murder as can be envisioned. A harmless young housewife was raped in her home, and her throat slashed from ear-to-ear in the presence of her two little terrified children.

On May 30 Ruffin confessed to standing outside her home, peeping through the windows and door, gaining entrance by the sliding door, and hiding behind some curtains. He further confessed to springing on her and at knife point raping her. After relating the rape, the confession concludes:

... I was afraid the little boy was going to see me and she was hollering that she was going to call the police and the little boy started crying. I told her to shut up and I put my knife on her side and I told her that I would stick it through her ribs if she don’t shut up. I took my knife and stuck it round her throat and I meaned to cut her straight down but the knife went round her throat. I got up and she grabbed her throat and then I went to the kitchen and I ran by the little boy and I grabbed a towel that was hanging by the sink and I wiped my knife off with the towel. Then I ran out the back sliding door to my car and I went back to Brooks.

His confession of June 12 is essentially a repetition, concluding as follows:

... I then forced her to get her clothes off, she went to hollowing and just kept on hollowing and I had her down on the bed screwing her and she kept on hollowing and I guess she woke up the little boy he came into the room just about the time I cut the lady I cut her with my pocket knife. I ran into the kitchen and got a towel off the sink and I then run out the door. I then ran down the road toward Brooks and as I got to the soybean field just pass it I throwed the knife into the woods. I took the towel down to Lou Etta Robinson house and washed it out and then put it into the dirty clothes bag at Helen White house which is behind Lou Etta Robinson house. The ten-nies shoes that I wore belong to my brother Jack Ruffin I had got then and put them on to play ball in. I then wore them up to Brooks and to the lady house and when I came back from the lady house that I cut I pulled the tennies shoes that belong to Jack Ruffin off and put my own tennies shoes back on. My shoes was torn up and had holes in them was why I put on Jacks Ruffin shoes.

As to the confessions, Ruffin claims the first states he borrowed a car while the second states his brother carried him to the Patterson home. Further, it is asserted none of the physical evidence mentioned in the confessions was ever recovered, namely: the knife, towel, tennis shoes, shirt or trousers.

Defense counsel overlooks the consistencies of the confessions and the fact that law enforcement officers testified Ruffin knew the location of the Patterson home, directed them to it, and there explained how he gained entrance to the house. The weight of this evidence was for the jury. While tangible, physical evidence would have been desirable, the fact that none was ever found is also understandable.

The weight and credibility of these confessions, which they had the right to believe were freely and voluntarily given to this most dastardly murder, was for the jury. In Diddlemeyer v. State, 234 So.2d 292 (Miss.1970), the appellant contended his confession was not worthy of belief. We stated, at page 296:

Appellant contends that his conviction was based upon incredible evidence, that the state failed to meets its burden of proof and that the verdict of the jury is against the overwhelming weight of the evidence and evinces bias, passion and prejudice on the part of the jury. We find no merit in this contention. The evidence on behalf of the state established without question that Harry Bennett met his death as a result of a criminal agency. Appellant’s confession, if believed by the jury, constituted ample evidence to establish this criminal agency. Counsel for appellant points out that appellant repudiated his confession and anyone reading the newspaper account of the killing or hearing television and radio reports of the killing could have secured enough information to have made a confession to the crime. It is also pointed out that there are certain discrepancies between the facts establishing the crime and those in appellant’s confession. The jury had all these facts before it and the jurors observed the appellant while he was testifying and heard his reasons why he confessed. They determined these issues. Confessions are not conclusive and may be of little weight or of great weight according to the circumstances of the case, however, ordinarily, this is a matter for the jury to determine and not for the court. After a review of the evidence in this case, we cannot agree with appellant’s contention that the confession together with the other testimony is contrary to human experience and is inherently incredible.

See also: Norwood v. State, 258 So.2d 756 Miss. (1972); Craft v. State, 380 So.2d 251 (Miss.1980); McNeal v. State, 405 So.2d 90 (Miss.1981).

There is ample evidence in the record to support Ruffin’s conviction independent of the testimony of Dixon and Bivens.

Dixon’s testimony at trial was contradictory. He first testified the three of them went to the Patterson home, both Ruffin and Bivens raped Mrs. Patterson, and Ruf-fin cut her throat when she would not give him any money. He also testified Bivens stabbed her in the stomach.

Dixon asked to talk to the circuit judge privately, and in chambers informed him that Ruffin and Bivens raped Mrs. Patterson and they cut her throat, and that he told them he could hold it no longer. According to Dixon they told him they were going to get him when they got out, and he was afraid.

At Ruffin’s request, a pre-trial videotaped confession of Dixon was played before the jury. On the video tape Dixon stated Ruffin held Mrs. Patterson’s hands while Bivens had sex with her, and then Ruffin had sex with her. Also, he said he held her legs while she was raped. On the tape he said Bivens cut her throat.

On direct, cross-examination and video tape, Dixon told that all three went to the Patterson house together, about the little boy hollering, about asking her for money, about her being cut in the stomach as well as around the throat. His marked inconsistency came from precisely who did the slaying, except he did not do it.

On redirect examination Dixon testified at one time Ruffin cut her throat, and another time Ruffin had sex with her. Then, he abruptly changed his testimony, saying he did not see Ruffin on the night of May 4, that he did not go in the house, was not even there, and that he had never seen Mrs. Patterson before.

Bivens, who was apprehended in California, testified the three of them went to Mrs. Patterson’s house from Brooks place, forced themselves in, and that Ruffin assisted by Dixon forced her into a room where Ruffin raped her. He further testified Dixon helped Ruffin to rape her. He also testified Mrs. Patterson and the children kept screaming. He said Ruffin cut her throat, and that he did nothing beyond helping the three of them push their way into the house.

Again, at the request of the defense counsel a video tape of Bivens’ confession was played before the jury. Contrary to Dixon, Bivens’ video tape confession was detailed, telling about the three of them going into the Patterson home, Ruffin demanding money, slapping Mrs. Patterson around, and raping her. A little child was screaming, Mrs. Patterson was screaming and Ruffin started cutting on her. On the video tape he said no one else raped her but Ruffin.

Also, on the video tape he said when the three of them left and went to Etta Robinson house, that Ruffin was “full of blood,” and after removing his clothes, “threw them out back.” The video tape was made November 1, 1980.

No doubt any jury would have a marked indisposition to accept very much of the testimony of Dixon at face value. Bivens testimony was not filled with the contradictions Dixon’s was. The jury had sufficient evidence from the two of them to believe all three of them were in the Patterson home, that Mrs. Patterson was raped and then murdered, and that all three of them in some manner participated. Since Adam and Eve, it is not at all unusual for accomplices in an offense to each blame the other. When a crime is committed, and more than one person is present, the only conclusion which can possibly be drawn is that one or more of them committed the crime, and then each proceeds to blame the other for the actual perpetration of the crime, it is up to a jury to determine which one, or both, were guilty. See Young v. State, supra; Grooms v. State, 357 So.2d 292 (Miss.1978); Hill v. State, 237 Ga. 794, 229 S.E.2d 737 (1976); and Cochran v. State, 278 So.2d 451 (Miss.1973).

It was for the jury to evaluate the testimony of the accomplices, accept that part they deemed valid, and reject the other part. See Oates v. State, 421 So.2d 1025 (Miss.1982); Jones v. State, 381 So.2d 983 (Miss.1980); Nash v. State, 278 So.2d 779 (Miss.1973); Alexander v. State, 251 Miss. 847, 171 So.2d 517 (1965); Gathings v. State, 46 So.2d 800 (Miss.1950); and Duke v. State, 166 So. 919 (Miss.1936).

Moreover, as we have stated, there was ample evidence, aside from the testimony of either Dixon or Bivens, to sustain Ruf-fin’s conviction.

At trial Ruffin’s defense was he was elsewhere when the crime was committed. He produced several witnesses. The weight of this testimony likewise was for the jury.

RIGHT TO REQUIRE STATE TO PAY EXPENSE OF INDEPENDENT EXPERT

At trial, by agreement between defense counsel and the district attorney, it was stipulated the State Crime Laboratory obtained in their investigation on May 5,1979, blood which was of the same type as Mrs. Patterson’s, hairs of Negroid origin on the bedspread and her nightgown, and live spermatazoa in her vagina. (Vol. XIII, pp. 2426-2427). Following this stipulation Joe E. Andrews of the State Laboratory testified to these facts before the jury. There was no cross-examination.

On appeal it is assigned as error that the circuit judge overruled a pre-trial motion to pay the expense of the defense hiring as independent expert from New York to examine blood, hair and fiber samples, as well as “fingerprints”.

Prior to* trial Ruffin was represented by Percy W. Watson of Hattiesburg, Kennie E. Middleton of Fayette, and Andria I. Young, Millard C. Farmer and Joseph M. Nursey of Atlanta. These attorneys filed a motion on June 6, 1980, to require the state to provide the defendant with reasonable funds to employ experts, and requested the court to conduct an evidentiary hearing to determine what experts were required.

At the evidentiary hearing on June 26, 1980, Nursey testified he had reviewed the samples at the State Laboratory and in his opinion as a criminal lawyer from the Florida and Georgia Bar the defense should have tests made by an independent expert on the pocket knife seized from Ruffin, a knife from the Patterson home, and fingerprints taken from various areas of the Patterson home, as well as the blood, hair and semen samples. He said none of the fingerprints were identified as Ruffin’s. He recommended an expert from New York City, and said the cost would be approximately $500.00.

There is no merit in this assignment of error. That there can conceivably be instances when the state in fairness should be required to pay the cost of an expert needed by the defense to insure a fair trial for an indigent accused must be conceded. Those cases can only be left to the discretion of the trial court, and they will be rare. See: U.S. v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1952); U.S. v. Pennsylvania, 452 F.2d 557 (3rd Cir.1971); Aldisert, C.J., p. 563; State v. Grant, 560 S.W.2d 384 (Mo.1977); Graham v. State, 547 S.W.2d 531 (Tenn.1977); and State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 (N.C.1976).

As aptly stated in Oregon v. Acosta, 41 Or.App. 257, 597 P.2d 1282 (Ore.1979), p. 1284:

It is apparent that an indigent’s statutorily enacted right to defense expenses is not absolute, but is conditioned upon a showing that such expenses are needed to prepare and present an adequate defense. (Citations omitted) Neither the statute nor the constitutional guarantees of effective assistance of counsel and of equal protection require that an investigator or expert be furnished at public expense upon demand. (Citations omitted) There is no single test for determining whether the services of an investigator or an expert are necessary; that decision will depend on the facts and circumstances of the particular case and must be committed to the sound discretion of the court to which the request for expenses is directed. (Citations omitted) [Emphasis added.]

See also, 34 A.L.R.3rd 1256, §§ 7 through 17.

The trouble with appellant’s argument in this case is, first, the evidence of which he attempt to complain on appeal was admitted by stipulation and without objection. None of the evidence identified Ruffin.

As for the failure to find Ruffin’s fingerprints, as contended by his pre-trial defense counsel, if true, defense counsel had excellent opportunity to ask all investigating officers whether or not Ruffin’s fingerprints were found anywhere in or around the Patterson residence.

The claim the defendant needed money for an independent expert to examine these samples from the State Laboratory has a hollow ring. If such examination could have been of any possible benefit to Ruffin, it is inconceivable to this Court that diligent defense counsel would not somehow have raised the small sum necessary for such tests. Diligence and zeal of attorneys in our adversary system are commendable. In this case we must conclude the defense was not nearly as desirous of obtaining facts favorable to the defendant for presentation to the court and jury as to sandbag a trial court into reversible error by getting him to overrule the motion. Barnard v. Henderson, 514 F.2d 744 (5th Cir.1975), and White v. Maggio, 556 F.2d 1352 (5th Cir.1977), the only cases cited by Ruffin in support of this assignment, do not apply. Those cases involved a refusal by a Louisiana state court to permit pre-trial examination of a bullet and of pellets found in the victims by an independent expert employed by the defense. There was no refusal in this case, and the evidence in this case, contrary to those cited, was not vital to the state.

PROPRIETY OF ACCESSORY INSTRUCTION

The circuit judge granted the state the following instruction:

If Larry Donnell Ruffin was present against the will of Eva Gail Patterson on May 4, 1979, in her home, and aided Bobby Ray Dixon or Philip Bivens but did not actually commit the rape or murder of Eva Gail Patterson, he is a principal to the crime and is punishable as such.

In view of the testimony of Dixon and Bivens, an instruction on accessory before the fact in some form was proper in this case. Otherwise, the jury would have been without any guidance on this material point. The instruction given was in the abstract, and should have been more specific. When read with all instructions, however, the jury could not have been misled. The jury was adequately instructed on the elements of murder and rape, and in order to convict Ruffin, it was necessary for the jury to believe one of the three committed the actual murder and the rape, and further that Ruffin, being present, aided in the commission of the offenses.

Newton v. State, 12 So. 560 (Miss.1893), cited by appellant is distinguishable. The instruction in that case assumed as true an alleged rape, and was condemned for that reason, not because it was in the abstract. In Gilmer v. State, 271 So.2d 738 (Miss.1973), we distinguished Newton from a case such as this, and further held the mere fact an instruction is abstract is not ground for reversal. This is especially true where, as in this case considering all instructions, the jury was adequately instructed. See: Polk v. State, 417 So.2d 930 (Miss.1982); Norman v. State, 385 So.2d 1298 (Miss.1980); Barr v. State, 359 So.2d 334 (Miss.1978); and Meyer v. State, 309 So.2d 161 (Miss.1975).

For the reason that, considering all instructions, the jury was adequately instructed, there is not merit the instruction violated any constitutional standard for vagueness.

REFUSAL OF INSTRUCTION REQUESTED BY DEFENDANT

The circuit judge refused instruction D-22 requested by the defendant:

The Court instructs the jury that Larry Ruffin’s theory of this case is that Philip Bivens and Bobby Ray Dixon committed the capital murder of Eva Gail Patterson; that Philip Bivens and Bobby Ray Dixon gave statements implicating Larry Ruf-fin in this crime for the purpose of inducing the prosecutors to allow them to enter guilty pleas to the lesser included crime of murder, which carries a sentence of life in prison, and thereby escape the possibility of receiving a sentence of death for their crime....

This is assigned as error. By instruction D-2 granted the defendant the jury was instructed that the testimony of Dixon and Bivens was to be “considered and weighed with great care and caution.” With this instruction it was proper for defense counsel to argue, as they did, to the jury that the testimony of these two accomplices was unworthy of belief. Instruction D-22 as to Ruffin’s “theory of the case” was improper as well as cumulative.

ADMISSION OF PHOTOGRAPHS

There are instances where photographs of the slain victims serve no eviden-tiary purpose except to horrify the jury. Such a case would be where the defendant admits the slaying and all details, but claims self-defense, or accident, or for some other reason the homicide was justified or excusable. In such case such photographs prove nothing not specifically admitted, or about which there is no question. We have held in numerous cases, however, that the admission of such photographs lies in the sound discretion of the circuit judge. See: Wiley v. State, No. 54,642 (decided January 4, 1984, and not yet reported); Hubbard v. State, 437 So.2d 430 (Miss.1983); Hill v. State, 432 So.2d 427 (Miss. 1983); Palmer v. State, 427 So.2d 111 (Miss.1983); and Shearer v. State, 423 So.2d 824 (Miss.1983).

In this case the photographs had eviden-tiary value in proving the brutality of the slaying, and were proper evidence. This was a capital murder case involving rape.

There being no reversible error, this case is therefore affirmed.

AFFIRMED.

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

      . “Brooks” mentioned in both confessions is a nearby poolroom where Blacks drank beer and socialized.


source: Caselaw Access Project

license: Public Domain

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. TANT PACKING COMPANY, et al.
    No. 54780.
    Supreme Court of Mississippi.
    March 14, 1984.
    Guy M. Walker, Joseph A. Runnels, Jr., Laurel, for appellant.
    Thomas Gene Clark, David Massey, Clark & Massey, Laurel, for appellees.
   Appeal from Special Court of Eminent Domain, Jones County; Billy Joe Landrum, County Judge.

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

AFFIRMED.


text:
    Jack HARRISON, a/k/a Richard (Jack) Harrison v. Jinah HARRISON.
    No. 54177.
    Supreme Court of Mississippi.
    March 14, 1984.
    G. Jyles Eaves, Eaves & Eaves, Louisville, for appellant.
    Thomas L. Booker, Weir & Booker, Philadelphia, for appellee.
   Appeal from Chancery Court, Winston County; Edward C. Prisock, Chancellor.

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

AFFIRMED.


text:
    Billy PEACOCK v. STATE of Mississippi.
    No. 54787.
    Supreme Court of Mississippi.
    March 14, 1984.
    Morgan Brackeen, Liston, Gibson & Lancaster, Eupora, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Webster County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.


text:
    Stanley Larry DAVIS v. STATE of Mississippi.
    No. 54781.
    Supreme Court of Mississippi.
    March 14, 1984.
    Duncan Lott, Langston, Lott & Lang-ston, Booneville, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Union County; W.W. Brown, Judge.

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

LOWER COURT’S DENIAL OF PETITION FOR WRIT OF ERROR CORAM NOBIS AFFIRMED.


text:
    Robert Earl THOMAS v. STATE of Mississippi.
    No. 54790.
    Supreme Court of Mississippi.
    March 14, 1984.
    Sidney J. Martin, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Gray Evans, Judge.

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

AFFIRMED.


text:
    Paul B. OSBORN, et ux. v. Lamar Allen HARRISON, et ux.
    No. 54775.
    Supreme Court of Mississippi.
    March 14, 1984.
    Jack McCormick, Richard C. Davis, Oxford, for appellants.
    Glen W. Hall, Curtis G. Kirby, Jr., Jackson, for appellees.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   HAWKINS, Justice,

for the Court:

Paul B. Osborn and his wife Mildred M. Osborn have appealed from a decree of Chancery Court of the Second Judicial District of Hinds County cancelling a tax deed to them for 40 acres.

The only issue we address on this appeal is whether the chancellor erred in holding Lamar Allen Harrison and his wife Marceil Harrison, the holders of the record title, made a reasonable effort to redeem the land within the two-year redemption period. We find the chancellor was correct, and affirm.

On November 24, 1976, Robert W. Hines and his wife conveyed 200 acres of land in the Second Judicial District of Hinds County to the Harrisons. At the time the Hines lived at 4812 Oxford Drive in Mobile, Alabama, and Mr. Hines was an employee of Harrison’s. The Harrisons lived then, and at the time of the trial, in Wilmer, Alabama. The deed was filed with the Chancery Clerk on January 14, 1977, and recorded on the land deed records. On September 30, 1978, 40 acres of this 200-acre tract, and the land in controversy, was struck off and sold to Osborn for delinquent 1977 taxes.

The Harrisons experienced some difficulty getting information about their taxes, and unfortunately relied upon an Alabama attorney to assist them. Failing to be satisfied, Harrison telephoned the Tax Collector’s Office in Raymond and the Chancery Clerk’s Office in Raymond on February 28, 1980, inquiring what was owed. Harrison was told what he owed, and on February 28, 1980, he sent a check in the amount of $274.91 to the Tax Collector of Hinds County. The check stated it to be “prop, tax 4967-0996-000, 4967-0997-000, 4967-0998-000.” Soon thereafter he received a letter by the deputy clerk, as follows:

FEBRUARY 28, 1980
MR. LAMAR E. HARRISON
P.O. BOX 143
WILMER, ALABAMA 36587
Dear Mr. Harrison:
The taxes due on your property is as follows:
1977 Taxes-Sale # 104 Par. # 4967-996— 201.32
1978 Taxes-Sale # 112 Par. # 4967-996— 175.97
Make check payable to Pete McGee, Chancery Clerk, and mail to above address.
On payment of same Redemption Certificates will be mailed to you.
Very truly yours,
PETE MCGEE,
CHANCERY CLERK
BY/S/ Ina Prine D.C.

Harrison mailed a check for $377.29 on March 6, 1980, made to Pete McGee, Chancery Clerk.

Following this Harrison received two releases from delinquent tax sales for the years 1977 and 1978, mailed to his correct address in Wilmer, Alabama, by the Chancery Clerk of Hinds County. These releases are dated March 10, 1980. They describe 120 acres of the 200-acre tract, but not the 40 acres in question. One release recites the 120 acres had been sold September 18,1978, to Joe Harkins for 1977 taxes, and the other recites the 120 acres had been sold September 17, 1979, to P.B. Osborn for 1978 taxes.

On June 20, 1980, the Chancery Clerk sent notice by certified mail to “Lamar, Allen Harrison, 4812 Oxford Drive, Mobile, Alabama.” This notice stated that the 40 acres in question had been sold September 18, 1978, to Paul B. Osborn for 1977 taxes, and the title would become absolute unless redemption was made on or before September 18, 1980. Hines, who had lived at this Mobile address, had moved in the meantime. The notice was returned. The Harri-sons did not receive any redemption notice as to this 40 acres.

Suit was filed February 23, 1982, to cancel the tax deed. The complaint is inexcusably carelessly, and inartfully drawn. A lis pendens notice was filed. Two different 40 acres are described in the complaint, and still another 40 acres are described in the lis pendens notice.

Upon motion the chancellor required a more definite statement, and the defendants answered.

Following a hearing the chancellor held the Harrisons had made a reasonable effort to redeem, and their failure to do so was not their fault. In his decree he ordered the Harrisons to pay all sums to the Os-borns required by statute.

The chancellor set aside the tax deed and a deed of trust on the land from Osborn to his wife Mrs. Osborn.

LAW

Upon their appeal the Osborns argued the Harrisons never proved a void tax sale. That is not the issue, the right of redemption was, and is.

The Osborns argue the Harrisons did not in their complaint deraign title. Under our present rules it is not necessary to deraign title in the bill of complaint. Moreover, this omission was not objected to in any motion or pleading of the Osborns. While it is necessary, in order to have standing to sue to remove a tax deed as a cloud on title, that the plaintiff prove title in himself, or such interest as will warrant the action, this was never made an issue before the chancellor. We simply hold that as a matter of pleading, it is no longer necessary to deraign title in the plaintiff in the initial complaint. A competent attorney in his complaint will be wise enough, however, to state sufficient facts for the court to conclude he has standing to sue. In this case the Harrisons recited the deed to them from the Hineses, and attached a copy to their complaint. This was not disputed.

As to the redemption, this case is controlled by Levy v. McCay, et al., 445 So.2d 546 (1984, and not yet reported). Redemption statutes are liberally construed. We find no error in the chancellor’s ruling.

AFFIRMED.

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


author: BOWLING, Justice,

text:
    Norman Ray SHELLEY v. STATE of Mississippi.
    No. 54120.
    Supreme Court of Mississippi.
    March 14, 1984.
    Harry L. Kelley, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County for the crime of embezzlement. The facts of the case are undisputed. The question before us is simply whether or not under these facts, a person may be found guilty of the crime charged.

The embezzlement statute under which appellant was indicted is Mississippi Code Annotated, Section 97-23-25 (1972), which reads as follows:

If any person shall fraudulently appropriate personal property or money which has been delivered to him on deposit, or to be carried or repaired, or on any other contract or trust by which he was bound to deliver or return the thing received or its proceeds, on conviction, he shall be punished by imprisonment in the penitentiary not more than ten years, or be fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.

Mr. and Mrs. Talmon Caston purchased a lot for the purpose of building a home for their retirement. Mr. Caston was a funeral director and Mrs. Caston was a counselor at a public junior high school. The Castons entered into an initial written contract with appellant Shelley whereby the latter was to do certain framing and blocking in of the house for the sum of $12,000. At a later time, a new contract was entered into between Mr. and Mrs. Caston and appellant whereby for the sum of $20,000, appellant was to construct the building completely according to plans furnished by the Ca-stons. The contract set out in somewhat detail the specific work to be done under the terms of the contract.

After the clearing of the house site, most of which was performed by appellant, the Castons paid appellant the sum of $2,000, which was the first payment toward the initial contract and according to the Ca-stons, this payment was so that appellant could purchase the materials for framing the house.

Eleven days later, the Castons gave appellant a second check in the amount of $550, although no work had been done on the house.

The second contract for the completion of the house for $20,000 was entered into by appellant and the Castons on February 26, 1980. The $20,000 consideration was to include the $2,550 already paid appellant.

On March 13, 1980, the Castons executed a third check in the amount of $500 to the appellant. On April 3, 1980, the Castons executed another check to the appellant in the amount of $7,500. At this time, no further work had been done on the house to any extent since the grading. Another check was issued on April 25, 1980, from the Castons to the appellant in the amount of $2,700. At this time, no work on the house was in progress. These payments brought the total amount paid by the Ca-stons to appellant to $13,250.

After roughing out the foundation of the house, appellant did no further work thereon, except for bringing a small amount of materials, such as pipe, to the building site.

The Castons made repeated attempts to persuade appellant to complete the building of their house according to the contract.

Appellant advanced several assignments of error, but the disposition required of the appeal, mandates the consideration of only one; that is, the court erred in overruling appellant’s motion for a directed verdict.

This appeal presents in reality a case of first impression in this jurisdiction. A case nearly in point is Howington v. State, 256 So.2d 382 (Miss.1972). There the accused and the prosecuting witness entered into an agreement whereby the accused was to take a car that was for sale and try it out, and if satisfied, the car would be purchased. To guarantee the transaction, the accused left a $200 check with the seller. The alleged purchaser, the accused, did not return the car. The alleged seller presented the check for payment and found that he had only a piece of paper. The alleged purchaser was indicted and tried for embezzlement. In reversing and rendering the cause, we held that the bad check in the transaction amounted to a civil debt under an embezzlement charge, and said:

The testimony, taken as a whole, shows conclusively that there was a sale of the automobile to defendant by Newman, and that this sale is evidenced by the exchange of the check in the amount of $200. Wharton’s Criminal Law and Procedure, Volume 2, section 519, pages 201-202 (1957), provides as follows:
Generally, when dealings between two persons create a relation of debtor and creditor, a failure of one of the parties to pay over money does not constitute the crime of embezzlement. Ordinarily, whether the relation of debtor and creditor exists depends upon the facts of the particular case.
We find that the transaction between defendant and Newman created the debt- or-creditor relationship. For the reasons stated, we are of the opinion that this case should be and is reversed and rendered.

As may be seen from the language of the statute under which appellant was indicted, appellant would be guilty of embezzlement only if he “had fraudulently appropriate(d) personal property or money which ha(d) been delivered to him ... on any other contract or trust by which he was bound to deliver or return the thing received or its proceeds.... ” [MCA § 97-23-25 (1972) ] It is almost trite to say that every case of this nature is different. This Court, sitting not as a fact finder, as the facts are undisputed, must decide whether or not under these facts the charge comes within the language of the statute alleged to have been violated.

A similar situation existed in the recent case from Pennsylvania in Commonwealth of Pennsylvania v. Austin, 258 Pa.Super. 461, 393 A.2d 36 (1978). There the Pennsylvania court was confronted with almost the identical situation as here. Pennsylvania had a statute with stronger language than the one with which we are here concerned. The court in reversing and discharging the convicted accused contractor made several observations as follows:

With respect to the first element, “the obtaining of the property of another,” we do not feel the acceptance of advance 'money on a construction contract is the property of another.
His duty was to perform the services under the contract and failure to perform was a breach of that contract with its proper remedy in a civil forum.
Hence we believe the cumulative effect of the foregoing evidence is highly probative of appellant’s lack of criminal intent in this case. While he may have to answer for his actions in a civil forum, appellant’s conduct does not constitute a criminal offense.
(393 A.2d at 38, 39, 41)

Analyzing the undisputed facts in the case sub judice, we have a clearly written and executed contract between the Castons and appellant. The Castons were intelligent people as evidenced by their employment. Even though they might have received some “fast talk” from appellant and even though appellant may be a “known crook”, the Castons parted with their money and gave it completely to appellant. When he ■ received the money, it belonged to him. Admittedly, he did not produce what is now claimed to have been the “proceeds” under the quoted embezzlement statute. It is inescapable that these proceeds were for the completion of the house under the civil contract. We hold that appellant was not properly indicted and convicted under MCA § 97-23-25 (1972), and under the facts of this case, the conviction of embezzlement just cannot be upheld. There possibly are other statutes under which appellant could be indicted. If there is any way to produce a question for the jury as to criminal intent, he should be so indicted. We, therefore, reverse and render the cause and discharge the appellant as a result of his conviction under the code section discussed herein. We do this without prejudice for the state to re-indict appellant under any statute applicable to any evidence that may be produced by the state.

REVERSED AND RENDERED.

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

      . This had nothing to do with the “bad check” laws.


text:
    Fred J. PETERMAN, Jr., Linda Mae Lerille and Sharon P. Balkum v. Hunter I. PETERMAN.
    No. 54175.
    Supreme Court of Mississippi.
    March 14, 1984.

      Nicholas M. Haas, Bay St. Louis, for appellants.
    W.F. Holder, II, Gulfport, for appellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   BOWLING, Justice,

for the Court:

This appeal involves the attempt to set aside a conveyance of real property executed by the deceased prior to her death. Mrs. Amelia Lott Moreau, a resident of Hancock County, Mississippi, died on July 27, 1980, at the age of 83. On March 11, 1980, Mrs. Moreau executed a deed to her only surviving child, the appellee Hunter I. Peterman, a resident of New Orleans, Louisiana. The appellants, complainants below, are the three children of Mrs. Moreau’s deceased son, Fred J. Peterman. He and Hunter were Mrs. Moreau’s only children. The children’s father had been deceased for a number of years.

Beginning the latter part of 1979, Mrs. Moreau had a very upsetting and depressing life. A great grandson, the son of Fred J. Peterman, Jr. one of the appellants, was killed in an accident; the husband of her granddaughter, one of the appellants, died; on January 26, 1980, Fred J. Peterman, Sr., one of her two sons and the father of appellants, died; and during this period of time Mrs. Moreau suffered a severely injured hip. The evidence is undisputed that all of these occurrences, particularly the death of her son, Fred J. Peterman, threw Mrs. Moreau into a state of deep depression. She was carried to New Orleans and on February 12,1980, taken to the office of Dr. Lelia Angel, an internal medicine specialist. Mrs. Moreau was confined at Tou-ro Infirmary under Dr. Angel’s care for a number of days. According to Dr. Angel, during the first part of this hospitalization Mrs. Moreau was “near comatose and lethargic.” She improved and following her discharge, Dr. Angel saw her again on March 7. Dr. Angel testified that at that time Mrs. Moreau was alert and the doctor described this condition to mean that if Mrs. Moreau was spoken to she would respond and if asked to turn over or take a deep breath, she would respond. At Dr. Angel’s suggestion, Mrs. Moreau was placed in a nursing home where she stayed only a short time and was taken by appel-lee Hunter I. Peterman to his home in New Orleans. During the period of time prior to her death, Mrs. Moreau again was placed in a nursing home, but remained there only a short time before being transferred to appellee’s home again. Dr. Angel last saw Mrs. Moreau on March 24 when she advised placing Mrs. Moreau in a nursing home with close supervision.

At the trial the chancery judge of Hancock County, at the conclusion of appellant’s evidence, excluded that evidence on appellee’s motion and entered a decree for appellee. The chancellor held that a fiduciary or confidential relationship was not shown to exist between Mrs. Moreau and her son Hunter I. Peterman. The chancellor further held affirmatively that appellants did not meet their burden of proving the deed from Mrs. Moreau to appellee to have been secured by misrepresentation or undue influence.

As stated the deed was executed by Mrs. Moreau on March 11, 1980, after she had had the shocks and gone into a deep depression as hereinbefore described and in the physical condition as described. It was executed shortly before a competent physician advised close supervision of Mrs. Mor-eau in a nursing home. Mrs. Moreau was staying in appellee’s home at the time the deed was executed.

There are three different principles of law that require a reversal of this case. These principles have been gone into thoroughly by this Court over many years and we hope that we can set them out in such plain and unmistakable ways that the bench and bar will recognize them in the future as was not done in the case sub judice.

Included in the record of the cause both before the lower court and this Court, are pretrial interrogatories and answers thereto served on appellant Fred J. Peterman, Jr. and included in the record both before the chancellor and this court is a deposition taken of appellant Fred J. Peterman, Jr. by appellee, defendant below, at appellee’s sole instigation. Without going into details, a reading of this deposition shows just about as clear a case of fiduciary and confidential relationship between Hunter I. Peterman and the deceased as could be described. The record coming from the chancery court is not clear as to what happened in regard to the interrogatories and answers thereto and the deposition being in the record. Regardless of this, the situation resulting from these instruments would be the same.

As stated, although the record is rather cloudy, the chancellor was of the opinion that appellant Fred J. Peterman, Jr. could not testify under Mississippi Code Annotated, Section 13-1-7 (1972), which is the well known “dead man’s statute”. In the recent case of Rand v. Moore, 414 So.2d 885 (Miss.1982), we reaffirmed what the cases from this court before indicated for many years. We had a similar situation as we have in the case sub judice, where the testimony of a witness Coleman was denied under the “dead man’s statute” after the party, whom the statute gave a privilege to, secured the deposition and answers to interrogatories of Coleman. We stated in that case clearly and unmistakably the following:

The trial court properly overruled the appellee’s objection to the testimony of Ross Coleman, which objection was made on the grounds that it was in violation of the so-called dead man’s statute, Mississippi Code Annotated section 13-1-7 (1972). Coleman’s testimony was competent because the appellee propounded interrogatories to Coleman with reference to the gift of certificate No. 1189 and by so doing made Coleman a witness and thereby waived any privilege that the estate might have had under the dead man’s statute. The appellee had the right to waive the privilege on behalf of the estate since her suit was seeking to recover assets for the benefit of the estate. Lipson v. Lipson, 183 So.2d 900, 906 (Miss.1966). Taking the deposition of, or serving interrogatories upon, a person who would otherwise be incompetent as a witness under the dead man’s statute is the equivalent of calling such a person as a witness and is a waiver of the witness’ incompetency. Lipson, su pra; 81 Am.Jur.2d Witnesses § 407 (1976); citing Fant v. Fant, 173 Miss. 472, 162 So. 159 (1935).

A second principle involved in this appeal occurred when appellants attempted to call appellee as an adverse witness. The chancellor sustained an objection to this procedure on the ground that it was prohibited under the dead man’s statute. As stated above, the statute gives the right to a party to object to a person testifying if he is attempting to propound a claim either directly or indirectly against an estate. In the case before us, a will had not been presented and probated. The appellants were attempting to set aside a deed of Mrs. Moreau’s property conveying that property to appellee. Without the deed, the property would have passed to Mrs. Moreau’s estate. The appellants therefore were the ones, and the only ones, who could object to appellee testifying under the dead man’s statute. There was no administrator or executor. It follows, therefore, as night follows day, that when they attempted to call appellee as an adverse witness they waived the privilege they, and only they, had under the statute. This is borne out by the language in Coleman, supra, in discussing the waiver of the statute as to appellants by appellee when he took appellant Peterman’s deposition and forced him to answer interrogatories. The appellee, Hunter I. Peterman, otherwise could have objected to appellants’ evidence at the trial. Under the question we are now discussing the appellants could have objected to appel-lee Hunter I. Peterman getting on the stand and testifying. This was not the situation. Appellants clearly waived their right to object to the testimony of appellee and no objection by Hunter I. Peterman to his own testimony existed. Appellants had waived a right they and only they had. See McAlister v. McAlister, 183 So.2d 513 (Miss.1966); Lipson v. Lipson, 183 So.2d 900 (Miss.1966); Manning v. Hammond, 234 Miss. 299, 106 So.2d 51 (1958); Birchett v. Hundermark, 145 Miss. 683, 110 So. 237 (1926); and Whitehead v. Kirk, 104 Miss. 776, 61 So. 737 (1913). In addition to the cause having to be reversed on the waiver questions discussed above, the lower court erroneously held that a confidential and fiduciary relationship did not exist between the deceased Mrs. Moreau and appellee Hunter I. Peterman under the evidence in the record. The testimony of Mrs. Fred J. Peterman, Jr., and Dr. Angel was sufficient under our prior decisions to require that the chancellor agree with appellants that appellee’s relationship with Mrs. Moreau during the time discussed above was clearly confidential and fiduciary. Reference should be made to two recent cases from this Court; namely, Murray v. Laird, 446 So.2d 575 (1984), and Harris v. Sellers, 446 So.2d 1012, (1984). These cases discuss the prior cases of this Court, and there is no need to rehash them here. The chancellor erroneously held that the confidential and fiduciary relationship did not exist. It did exist, and under the prior cases of this court, the chancellor should have required appellee, defendant below, to assume the required burden of proof.

We therefore hold that (1) appellee Hunter I. Peterman waived the privilege he could have claimed under the dead man’s statute by making appellant Fred J. Peter-man, Jr. answer interrogatories and by making the latter submit to a deposition. (2) Appellants waived their objection to Hunter I. Peterman’s testimony by calling him as an adverse witness. They, appellants, had the privilege of this waiver and the court erroneously denied this privilege. (3) The evidence in the record, either with or without the answers of Fred J. Peter-man, Jr., to interrogatories and his deposition, and excluding any speculation as to the testimony of Hunter I. Peterman, was sufficient to establish a confidential relationship between appellee and Mrs. Mor-eau.

REVERSED AND REMANDED.

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


author: ROY NOBLE LEE, Presiding Justice,

text:
    Dependents of Lawrence EVANS, Deceased v. MARKO PLANNING, INC. and Travelers Insurance Company.
    No. 54130.
    Supreme Court of Mississippi.
    March 14, 1984.
    Peggy A. Jones, Warren & Jones, Holly Springs, for appellants.
    Reed Hillen, Holland, Ray & Upchurch, Tupelo, for appellees.
    Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

The Circuit Court of Tippah County, Honorable William R. Lamb, presiding, affirmed an order of the Mississippi Workmen’s Compensation Commission denying compensation benefits to the dependents of Lawrence Evans, deceased. They have appealed to this Court, and we affirm.

The appellants assign four errors in the trial below, but the question presented by them is whether or not the order of the Mississippi Workmen’s Compensation Commission was supported by substantial evidence and whether or not the lower court erred in affirming that order denying compensation benefits.

Lawrence Evans was employed by Marko Planning Company (Marko) as a concrete finisher. On May 3, 1979, he and other employees of the company reported to work. However, the work day was can-celled because of rain, and the men were credited with one and one-half (1½) hours’ time for reporting. On the previous day, the employees had been told by Marko that the payroll checks would be available on May 3 (Thursday) at the job site and would be cashed by the company. Payroll checks were one week late because of the unavailability of a Federal Land Bank draw from the employer’s loan account at the Peoples Bank of Booneville. Marko would cash the checks of employees at the job site, if they so desired, which service, according to Marko, was offered as a convenience to the employees. The service was a practice, not a requirement, and some employees cashed their checks at the bank on occasions. After the job was shut down for the day, Evans and several other employees began drinking beer while waiting for their paychecks. The employees were told they could not drink on the job, and such employees, including Evans, left the premises.

The record does not reflect Evans’ activities or whereabouts until approximately 12 noon. Dallas Walls testified that he picked up Evans around 12 noon or 1 p.m. on May 3, 1979, at an intersection approximately one mile from Walls’ home; that Evans asked Walls for a ride to Marko for his check; and that, while en route to Ripley, Walls was involved in a two-car accident about 2 or 2:30 p.m. in which Evans was seriously injured. Subsequently, on July 27, 1979, Evans died of a pulmonary embo-lus secondary to immobility of the lower extremity as a result of the injuries sustained in the automobile accident.

The administrative law judge found that Evans sustained a compensable injury which totally disabled him and resulted in his death. Pertinent parts of his order follow:

2. That the employer had told the employees to come to the job site on May 3, 1979 to receive their paychecks which were two weeks late;
3. That it was in the best interest of the Employer that the Claimant and other employees come to the job site for their paychecks rather than seek other methods of collection for this money;
4. That the Claimant sustained a com-pensable injury arising out of and in the course and scope of his employment with Marko Planning Company, Inc., on May 3, 1979, which caused him to be temporarily totally disabled from May 3, 1979, until his death on June 27, 1979, ...

The full Commission held that there was no causal connection between the injuries and death of Evans and his employment with Marko, reversed the order of the administrative judge, and denied compensation with the following observation:

In reversing the order of the administrative judge in denying benefits in this cause, the full Commission notes that deceased was acting within the course and scope of his employment from the time he arrived on the employer’s premises on the morning of May 3, 1979, until he terminated his employment for the day later that morning. Further, had deceased arrived on employer’s premises later that afternoon to collect his pay, an act incidental to his employment, his actions would have been within the course and scope of his employment. However, events which occurred as the deceased departed employer’s premises that morning or as he proceeded to employer’s premises that afternoon must be considered in light of the “going and coming” rule which precludes compensation for injuries suffered by employees while going to or returning from their regular place of work and off the employer’s premises, in absence of extraordinary circumstances.

On appeal to the Circuit Court of Tippah County, the lower court affirmed the Mississippi Workmen’s Compensation Commission and said:

Although this Court is not convinced that the “coming and going to work” rule and the exceptions thereto as discussed in Wallace vs. Copiah Lumber Company, [223 Miss. 90] 77 So.2d 316 (Miss.1955) is applicable to the facts in this case; the Court is nevertheless of the opinion that there is substantial evidence in the record to support the Commission’s order finding that the deceased, Lawrence Evans, was injured outside the scope and course of his employment while the deceased was on a purely personal mission; and that, therefore, the decision of the Commission should be affirmed.

The “coming and going to work” rule is referred to in the Commission order and discussed in the briefs. However, the appellant does not contend that such rule is applicable in the present case. We agree that it does not. See Wallace v. Copiah Lbr. Co., 223 Miss. 90, 77 So.2d 316 (1955); Stepney v. Ingalls Shipbuilding Division, Litton Systems, Inc., 416 So.2d 963 (Miss.1982).

The appellants take the position that Evans was instructed to pick up his check at the Marko plant; that he was following those instructions at the time of the accident which resulted in his death; that, therefore, the mission was job-related and there was a causal connection between his work and the accident. They cite numerous cases to sustain such contention, among them being Kerr-McGee Corp. v. Hutto, 401 So.2d 1277 (Miss.1981); Burnham Van Service v. Dependents of Moore, 250 Miss. 165, 164 So.2d 733 (1964); and Big “2" Engine Rebuilders v. Freeman, 379 So.2d 888 (Miss.1980).

In the above cases, there was no contradiction to the fact that the employees were actually working within the contours of their jobs and the question was whether or not the injury sustained was incidental to and the result of that employment. Such is not the situation here. Also, appellants cite cases from other jurisdictions where receiving pay was held to fall within the scope of the claimant’s employment. After a review of those cases, we think they are distinguished from the case sub judice.

In Sam Jones Casing Crews v. Dependents of Skipper, 199 So.2d 436 (Miss.1967), James Skipper was hired by Sam Jones, Jr., owner of Sam Jones Casing Crews, and was given a check in the amount of $50.00 and was instructed by Jones to take it to a truck stop in Laurel and get it cashed. Skipper was killed on the way in a one-vehicle accident. The Commission found that Skipper was on a mission personal to himself at the time of the accident and that his death did not arise out of, or in the course of, his employment with Sam Jones, Jr., and was not compensable. The circuit court, on appeal, reversed the Commission and ordered compensation. This Court stated:

It is well established in this state that the commission is the trier of facts and its order will be affirmed if there is substantial evidence to support the order. ...
* # * ⅜ * ⅝
If there is substantial evidence to support the commission’s finding, it is the duty of the circuit court to affirm a Commission order. [199 So.2d at 438]

See Babb v. GTE Sylvania, Inc., 417 So.2d 545 (Miss.1982); Coleman v. Chattanooga Container Co., 377 So.2d 606 (Miss.1979); Holloway v. Prassell Enterprises, Inc., 348 So.2d 771 (Miss.1977).

We are of the opinion that the Commission order was supported by substantial evidence and that even though it was based on the “coming and going rule,” the issue of compensability was properly decided. In our opinion, the lower court committed no error in affirming the Commission order.

AFFIRMED.

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

      . The normal procedure was for the company to -withhold a week's paycheck prior to each pay period. Marko apparently was in financial straits and thus the reason for its delinquency in meeting the payroll.

      . The paychecks actually did not arrive until approximately 6 p.m. that day.

      . Marko’s job site was in excess of twenty miles from Ripley.


author: FAULKNER, Justice.

text:
    NATIONAL SECURITY FIRE & CASUALTY COMPANY, et al. v. Stanley R. BOWEN.
    82-182.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied March 2, 1984.

      John B. Givhan of Albrittons & Givhan, Andalusia, for appellants.
    Griffin Sikes, Earl V. Johnson and Jerry E. Stokes of Sikes, Johnson, Stokes & Taylor, Andalusia, for appellee.
   FAULKNER, Justice.

This is the second time that this case has been appealed to this court. In the first appeal this court reversed and remanded the case to the trial court on the ground that Bowen had not carried the burden of proving bad faith on the part of National Security when it denied his claim for loss of equipment because of fire. National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179 (Ala.1982). Even though presented, this court did not decide the issues of malicious prosecution and outrageous conduct. Those issues are presented in this appeal.

Following remand to the trial court, the case was tried to a jury on two claims alleged in the complaint. Claim one alleges malicious prosecution. The crux of that claim is:

“2. Plaintiff claims that defendants, Ed Pierson and Gene Bosche, agents, servants or employees of the defendants, National Security, while acting within the line and scope of their authority for said defendants, maliciously and without probable cause therefor, caused the plaintiff to be indicted on the 17th day of June, 1977, by the Covington County Grand Jury and tried therefor on a charge of (1) false pretenses; and (2) arson.”

Claim Two is based on harassment, and is set out below:

“2. Plaintiff alleges that defendants, Ed Pierson and Gene Bosche, agents, servants or employees of the defendants, National Security, while acting within the scope of their authority for said defendants, (beginning at a time prior to and continuing after said indictment) did intentionally and maliciously harass the plaintiff in the course of an investigation by defendant corporations concerning an insurance claim made by plaintiff against defendant corporations. That defendants, Ed Pierson and Gene Bosche, acting as investigators for said defendant corporations and acting within the scope of their authority as an agent, servant, or employee of said defendant corporations, did bribe witnesses to testify falsely against plaintiff in the judicial proceedings referred to in Claim One in order to coerce plaintiff to drop said claim against defendant corporations; that defendants, Ed Pierson and Gene Bosche, acting within the scope of their authority as agent, servant or employee of said defendant corporations, did attempt to coerce the plaintiff to drop said insurance claim and plead guilty to the criminal charges referred to in Claim One by telling plaintiff they could obtain probation for the plaintiff if plaintiff would plead guilty to the criminal charges.
“3. Plaintiff alleges that defendants, Ed Pierson and Gene Bosche, acting within the scope of their authority as agents, servants or employees of said defendant corporations, did harass the plaintiff by continually telephoning, at all times of the day, the plaintiff and other members of plaintiff’s family and threatening the plaintiff and members of his family in an effort to coerce plaintiff to drop the insurance claim against said defendant corporations; that said abusive telephone calls did cause the plaintiff and his family extreme mental suffering and anguish.”

Damages of $1,000,000.00 were alleged in each claim of the complaint. The jury returned a general verdict of $1,500,000.00, in favor of Bowen and against National Security. National Security timely filed a JNOV motion, or in the alternative a motion for new trial. The trial court denied both motions. National Security appealed. Its appeal can be reduced to three issues, namely: (1) sufficiency of the evidence, (2) denial of certain written requested charges, and (3) excessive damages.

In 1976, Stanley Bowen was in the business of logging, pulpwooding, livestock raising, and operating a service station and store. Bowen’s brother, Donald Bowen, was in charge of the pulpwood and logging operation. On September 10, 1976, Bowen bought a used John Deere skidder, and a Windham loader to be used in the logging business. Bowen’s security agreement for this equipment was assigned to Commercial Credit Equipment Company, Montgomery, Alabama. This equipment was insured by National Security.

During the Thanksgiving weekend of 1976, the skidder was found in a creek— put there by an unknown person or unknown persons. It suffered water damage, and a claim was filed with National Security’s agent, R.D. Johnson of Lomax-John-son, Dothan, Alabama. After investigation by a local adjuster, the claim was paid.

In April 1977, Bowen’s skidder and loader were burned. The loss notice filed by Bowen stated that the equipment had been left “in the woods.” The agent, R.D. Johnson, became suspicious. He suspected arson. Bowen was unsure as to the cause of the fire, but he pointed a finger at “Frog” Williamson, who had been fired by Donald Bowen prior to the fire. Williamson had let Stanley know that he was greatly displeased with the dismissal. However, Stanley refused to overrule his brother.

Coincidentally, a week before the fire loss notice, R.D. Johnson received a letter from Beneficial Investigative Services, Co-nyers, Georgia, introducing itself as an organization offering a unique service to the insurance community. The letter, signed by Eugene Bosché, stated that the firm wanted to tell Johnson of its services, “which you may have a need for at this time.” Upon receipt of the letter from Beneficial, Johnson telephoned Gene Bosché, its president, and asked if he could determine the origin of the loss, the cause of the loss, and the party responsible. On May 2, 1977, Johnson wrote Bosché a letter confirming their conversation:

“RE: Special Investigation
Insured: Stanley R. Bowen
Reported Fire Loss — Date of Loss:
April 12, 1977
“Dear Mr. Bosche:
“In accordance with our telephone conversation of this date, we are enclosing herewith the information presently contained in our file. As you will see, the information consists only of the loss notice and a file copy of the policy with attachments.
“It is reported to us that the insured left both of the machines that are insured under this policy in the woods and upon returning the next morning found that both of the machines had burned and would in the insured’s opinion, be a total loss. The facts would certainly suggest that these machines were deliberately burned and we would like to investigate the possibility of proving who burned the machines.
“It is my understanding that your investigator will call me before he leaves the area or concludes his investigation so that we can have an opportunity to discuss his file material and determine if any further investigation is merited.
“Very truly yours,
“R.D. Johnson”

Subsequently, Gene Bosché and Ed Pearson were employed by Johnson to conduct the investigation. They were paid on an hourly basis, and their bill amounted to more than $4,000.00 when it was submitted to Johnson.

The investigation by Bosché and Pearson appears to have been conducted in an unorthodox manner as far as so-called private investigators are concerned. When interrogating persons, they would flash some kind of a badge; they used each other’s names; they attempted to bribe or threaten persons whom they interrogated to induce them to implicate Bowen as the arsonist; and on one occasion stuffed $200.00 in a person’s (Willie Byrd) shirt pocket with the admonition that he was counted on to help them out. On this occasion, the evidence shows that Johnson was with the investigator (Pearson) when the $200.00 was given to Byrd. About a week later the investigator, Mr. Pearson, attempted to get Byrd to sign a statement implicating Bowen in the burning. When Byrd refused, Pearson threatened Byrd by telling him that he could have him “locked up.”

On another occasion, Pearson and Johnson talked to Dick Gavan at a place called the Fish Bowl. They were in a black sports car. Johnson asked Gavan if he knew Bowen (Johnson had some papers in his hand) and Gavan answered yes. Pearson got out of the car and asked Gavan to “sign some papers” stating that Bowen had hired him to burn the equipment. Pearson offered Gavan money to sign. Gavan refused; Pearson flashed his badge, and Ga-van walked away.

Pearson went to the home of James Darrell Williamson one night and told him that he was from National Security and he wanted Williamson to sign a statement implicating Bowen. Pearson showed him a badge and told him that if he did not sign he would lock him up for selling drugs. Later on, Pearson went to the Covington County Jail and asked Ronnie Worrells to get on the stand and "lie against Stanley Bowen.” Worrells, who could neither read nor write, signed a statement implicating Bowen.

Next, Pearson, accompanied by a deputy sheriff, went to the home of “Frog” Williamson — a person who could neither read nor write — and obtained a statement that implicated Bowen. Pearson gave “Frog” $100.00 designated as “hush money.”

Bowen was subsequently indicted by the grand jury for two separate offenses — arson III, and false pretenses. Pearson and Deputy Sheriff Harrell were the only witnesses who appeared before the grand jury. The indictments were based upon the statements of Worrells and “Frog” Williamson. Bowen’s trial on the charge of false pretenses resulted in a mistrial. Both cases were eventually nol-prossed by the district attorney.

Meanwhile, even after the indictments, Bosché and Pearson continued to harass Bowen. They threatened to kill his two small sons; they threatened to cut off the children’s arms; they called Bowen and told him that he would look good lying beside his dead brother (who, by the way, had suffered a gunshot wound to his head).

Finally, the last time Bowen saw Pearson was while driving north of Brantley. He was stopped by Pearson and two other men on the highway and forced at gun point to drive out into the woods. Once in the woods, they forced him to lie on the ground and placed a gun to his head and threatened to kill him right there. They would snap the hammer on the gun, and Bowen stated he thought they were going to kill him. This continued for approximately one and one-half hours, after which time they forced Bowen back into his truck and drove him to a country store where Pearson said he had a call to make. While Pearson was making his call, Bowen managed to escape.

Out of this lengthy statement of facts, we first must consider the threshold question: Was there a principal-agent relationship between Bosché and Pearson, and National Security? And, it goes without saying, the related questions are authority, express-implied, and in line and scope of, etc. National Security contends that Bosché and Pearson were independent contractors; that it did not authorize in any manner the beastly conduct of Bosché and Pearson; that National Security did not withhold any social security taxes, did not withhold any federal or state income taxes, and had no control over their actions.

First, it is axiomatic that for an agency relationship to exist, there must be right 0/ control by the principal over the agent. Robinson v. Allstate Ins. Co., 399 So.2d 288 (Ala.1981); Hatton v. Chem-Haulers, Inc., 393 So.2d 950 (Ala.1980); Wood Chevrolet Co., Inc. v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977). But, it is not essential that the right of control be exercised so long as that right actually exists. Hodges & Company, Inc. v. Albrecht, 288 Ala. 281, 259 So.2d 829 (1972).

Second, agency is determined by the facts, and not by how the parties characterize the relationship. Semo Aviation, Inc. v. Southeastern Airways, 360 So.2d 936 (Ala.1978).

Third, the existence and scope of a principal-agent relationship is normally a question of fact to be determined by the jury. Oliver v. Taylor, 394 So.2d 945 (Ala.1981); Cashion v. Ahmadi, 345 So.2d 268 (Ala.1977). It is quite obvious that the jury believed that a principal-agent relationship existed in this case. And, we agree with the jury.

Unfortunately, we do not have the benefit of testimony from either Bosché or Pearson on the question of their relationship with R.D. Johnson and National Security. Johnson denies any agent or employee relationship with them. Yet, Johnson accompanied Pearson on occasions when a bribe was offered and given to Willie Byrd for a statement which would implicate Bowen, and again when Dick Gavan was offered money by Pearson to sign some statements that Bowen had hired him to burn the equipment. (Of course, Johnson denied every fact concerning any principal-agent relationship between National Security, Bosché, and Pearson.) If Bosché and Pearson were mere independent contractors, it would seem unlikely that Johnson would become involved with any part of the investigation by traveling with the investigators. Moreover, Bosché and Pearson called on Johnson at his office at least twice during the investigation. (The investigation lasted approximately two weeks.) Finally, Johnson’s letter to Bosché suggests that Johnson would have the final authority as to the completion of the investigation. He wrote Bosché that before the investigation was completed he wanted to talk to the investigator to determine if any further investigation was merited.

We conclude by stating that the question of agency in this case was for the jury. The jury found that there was a principal-agent relationship between National Security, Bosché and Pearson. Its finding was strengthened by the judge when he overruled the motions for new trial and JNOV. Having found that an agency relationship existed, the next question for discussion is authority of Bosché and Pearson.

National Security contends Bosché and Pearson conducted the investigation without any knowledge on its part as to what they were doing or how the investigation was conducted. Mr. Johnson denies each and every bit of the testimony presented by Bowen as to his involvement in the investigation. He testified that he was physically unable to participate in the investigation because he was paralyzed from his armpits down; that he must have a wheelchair to move about. This denial, of course, is a direct contradiction of the testimony of two of Bowen’s witnesses, who testified that Johnson was with Pearson when he offered them money to give testimony implicating Bowen in the burning of the equipment.

We opine that the preponderance of the evidence shows that Johnson was very much involved with the investigation; that he knew how and to what extent Bosché and Pearson were investigating the loss. The trial judge saw and heard the witnesses; the jury saw and heard the witnesses, and neither judge nor jury believed Mr. Johnson. We are of the opinion that Bosché and Pearson were acting either with actual authority or implied authority when they were conducting their investigation. We do not believe that Johnson can deny that Bosché and Pearson had authority to act as they did, when the evidence shows that he was with one of them on at least two occasions during the investigation.

We now decide whether the evidence is sufficient to support the jury’s general verdict returned under the claims of malicious prosecution and outrageous conduct.

This court stated in S.S. Kresge Co. v. Ruby, 348 So.2d 484 (Ala.1977):

“To be successful in an action for malicious prosecution the plaintiff must prove the following elements: ‘... (1) a judicial proceeding initiated by the defendant, (2) without probable cause, (3) malice on the part of the defendant, (4) termination of the judicial proceedings favorable to the plaintiff, and (5) damages.”

The evidence shows that the criminal charges against Bowen were initiated by National Security’s agents. It was they who obtained false information from Ronnie Worrells and “Frog” Williamson that, along with appearances before the grand jury by Deputy Sheriff Harrell and Pearson, formed the basis of the indictment of Bowen.

Next, was there probable cause? In S.S. Kresge Co., supra at 488, this court stated some general principles of law on this issue: ■

“ ‘Probable cause’ as the term is employed in actions for malicious prosecution, is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.” Birwood Paper Co. [v. Damsky ] 285 Ala. [127] at p. 134, 229 So.2d [514] at p. 521.
“Consequently, the mere fact that the plaintiff was acquitted of the charge does not prove that there was no probable cause to believe him or her guilty at the time the warrant was issued. Piggly-Wiggly Alabama Co. v. Rickies, 212 Ala. 585, 103 So. 860 (1925); Gulsby v. Louisville & N.R.R. Co., 167 Ala. 122, 52 So. 392 (1910). The question in an action for malicious prosecution arising from a criminal charge is whether the defendant, at the time he or she instituted the prosecution, had probable cause to believe that the accused was guilty. Hanchey v. Brunson, 175 Ala. 236, 56 So. 971 (1911); Gulsby; Jordan.
“Where evidence of the lack of probable cause is presented by plaintiff and the facts ofthe case are not in dispute, a question of law is presented to be decided by the court. Birwood Paper Co.; King v. Farrell, 55 Ala.App. 147, 314 So.2d 68 (1975). However, where the material facts are disputed, the issue of probable cause must go to the jury. Key v. Dozier, 252 Ala. 631, 42 So.2d 254 (1949); Gulsby; Alabama Dry Dock & Shipbuilding Co."

This court also stated in Union Indemnity Co. v. Webster, 218 Ala. 468, 478, 118 So. 794, 803 (1928):

“In malicious prosecution the general rule is that the finding of an indictment by a grand jury against one charged with crime is prima facie evidence of the existence of probable cause, and that the acquittal of a defendant upon the trial does not tend to show a want of probable cause for believing him guilty of the offense charged when the arrest is made or prosecution initiated. Such differing results are rested upon the fact that an acquittal is based upon any reasonable doubt of the defendant’s guilt on all the evidence.” (Emphasis in the original.)

However, the finding of an indictment by the grand jury is not within itself a full defense to an action for malicious prosecution. The finding and return of an indictment must not be induced by fraud, subornation, suppression of testimony, or other like misconduct of the party seeking the indictment. Morgan v. Baird, 219 Ala. 225, 121 So. 526 (1929). In the instant case, the indictment was induced by false evidence, and when the district attorney discovered the falsity of the evidence, he nolprossed both cases, even though one of the cases had been tried and had resulted in a mistrial. Using false evidence, or, alternatively, suppressing the true evidence, is sufficient misconduct to bring this case from within the general rule.

We opine that the issue of probable cause was properly submitted to the jury.

Next, malice — inducing an indictment by procuring and giving false evidence before a grand jury shows a malicious motive. Any other motive than a bona fide purpose to bring the accused to punishment as a violator of the criminal law or another purpose associated with such bona fide purpose is malicious. Fowlkes v. Lewis, 10 Ala.App. 543, 65 So. 724 (1914). Malice may also be inferred from the circumstances surrounding and attending the prosecution. The existence of malice being a fact which in the nature of things is incapable of positive, direct proof, it must of necessity be rested on inferences and deductions from facts which can be laid before a jury. Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308 (1890). The issue of malice was correctly submitted to the jury.

Next, damages. We believe that what we said on the question of excessive damages in S.S. Kresge, supra at 489-490, can also be said in this case:

“In an action such as this where punitive damages are allowed, we cannot find that the verdict is so excessive as to require reversal.
“ ‘This court has laid down the principle that a verdict will not be disturbed as excessive where the trial court has refused to disturb the amount unless so excessive as to indicate passion, prejudice, corruption or mistake. Montgomery City Lines v. Davis, 261 Ala. 491, 74 So.2d 923. And we have held that the correctness of a jury’s verdict is strengthened when the presiding judge refuses to grant a new trial.’ South Highlands Infirmary v. Camp, 279 Ala. 1, 7, 180 So.2d 904, 909 (1965).
Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975); Louisville & N.R.R. Co. v. Dollar, 294 Ala. 276, 314 So.2d 867 (1975).”

Additionally, we find from the record that Bowen testified that he lost over $50,000.00 defending himself against the charges. While these damages were proven by estimate, it was for the jury to determine the extent and amount of the damages. American Life Insurance Co. v. Shell, 265 Ala. 306, 90 So.2d 719 (1956).

Outrageous Conduct

This court stated in American Road Service Company v. Inmon, 394 So.2d 361 (Ala.1981), that one who by conduct so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society, intentionally or recklessly causes another person emotional distress so severe that no reasonable person could be expected to endure it is subject to liability for such distress. We opine that the facts are sufficient to meet that standard in this case.

National Security contends that there is no evidence of “severe emotional distress” that was suffered by Bowen. It argues that Bowen said that he went to the scene of the fire, and other places, with Bosché, and because of this he could not have suffered any emotional distress. However, the evidence shows that these visits took place before the conduct complained of occurred.

After a thorough review of the evidence, we opine that the conduct of National Security’s agents was so horrible, so atrocious, so barbaric, that the jury could find as a matter of fact that Bowen suffered severe emotional distress; that no civilized person could be expected to endure the acts committed without suffering mental distress.

Requested Charges

National Security claims error because the trial judge refused the following written requested charges:

“19. The Court charges you that you cannot return a verdict in favor of the Plaintiff on his claim of outrageous conduct unless you are first reasonably satisfied by the evidence that the Defendant, National Security Insurance Company, either authorized certain individuals to engage in conduct which you find to have been outrageous or ratified such conduct after being advised that it had been committed.
“20. The Court charges you that the tort of outrageous conduct is based upon intentional acts of the Defendant. In this case you must be reasonably satisfied by the evidence not only that certain persons intentionally engaged in conduct against the Plaintiff which you find to be outrageous as I have defined the term, but you must also be reasonably satisfied by the evidence that the Defendant, National Security Insurance Company, actually and intentionally authorized those persons to commit the conduct you find to have been outrageous or you must be reasonably satisfied by the evidence that the Defendant, National Security Insurance Company, had knowledge that such conduct had been committed and with such knowledge intentionally ratified it, before you would be authorized under the law to return a verdict.
“21. The Court charges you that you cannot award the plaintiff punitive damages based upon his claim of outrageous conduct unless you are reasonably satisfied by the evidence that the Defendant, National Security Insurance Company, either authorized the conduct or ratified it after having knowledge that such conduct had been committed.
“22. The Court charges you that even if you should be reasonably satisfied by the evidence that certain individuals engaged in outrageous conduct against the Plaintiff, you would not be authorized under the law to return a verdict in favor of the Plaintiff on his claim of outrageous conduct if you have not been reasonably satisfied by the evidence that such conduct was actually authorized by the Defendant or ratified by the Defendant after the Defendant had knowledge of such conduct.”

Rule 51, A.R.C.P., provides that the refusal of a requested written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s oral charge.

After a review of the court’s oral charge, we opine that the trial judge substantially and fairly charged the jury on the question of agency, the elements of the tort of outrageous conduct, and the question of damages.

CONCLUSION

This is one of the most bizarre cases to come before this court in a long time. Two juries have heard the evidence, and twice they have awarded the plaintiff damages. The trial judge has twice denied a motion for new trial. This court has said on innumerable occasions that on review of the refusal of a motion for new trial by the trial judge, a very strong presumption of correctness is indulged in favor of the trial court’s action. Shiloh Construction Co., Inc. v. Mercury Construction Cory., 392 So.2d 809 (Ala.1980). “Granting or refusing a motion for new trial rests within the sound discretion of the trial court; exercise of that discretion carries with it a presumption of correctness which will not be disturbed by the Supreme Court unless some legal right was abused and the record plainly and palpably shows that the trial court was in error.” Hill v. Cherry, 379 So.2d 590 (Ala.1980).

The order of the trial court denying the motion for JNOV, or alternatively, for new trial, is affirmed.

AFFIRMED.

TORBERT, C.J., and JONES, ALMON and ADAMS, JJ., concur.

      . National Security contended that it had nothing to do with presenting Bowen’s case to the grand jury: that the decision was made by District Attorney McGill. McGill on direct examination testified:
      “Q. Now, Frank, who made the decision to present these two cases to the grand jury?
      "A. I did.
      "Q. Did anybody else make that decision for you or you make it yourself?
      "A. I made it myself.
      Yet, on cross-examination McGill testified:
      "Q. Now, you say you based your decision to indict Stanley or to present this to the grand jury, and you named everybody in the sheriff's department except, and you didn’t name Ed Pearson. You didn’t base your decision on anything that Ed Pearson did?
      "A. I can’t remember whether he gave me the report then or he brought the report over when he came to testify, but he likewise had some diagrams and Don had similar and same diagrams, and I imagine I looked at all of them.

        “Q. Well, the reason you got Frog in to take the statement from him was because you had read the statement that Don Harrell read, right?
      "A. Yes, sir.
      "Q. Do you know who took this statement?

      "Q. Well, if Don Harrell said that Ed Pearson took this statement and this was in his handwriting. He didn’t tell you that?
      "A. That is not Don Harrell’s handwriting. I’d recognize Don Harrell’s handwriting.
      “Q. That is what I say, he said that is Ed Pearson’s handwriting.
      “A. Whatever Don told me, I imagine he told the truth. If he said he took it, he took it.
      "Q. He didn’t tell you about that Ed Pearson took this statement that he showed you?
      “A. I am sure he did.
      "Q. Alright.
      "A. But, I don’t recall him saying, Mac ... Ed Pearson took this statement.
      "Q. What I am getting at, Mac, you have carefully left Ed Pearson out?

        “A. No, sir, I didn’t very carefully leave anybody out.
      "Q. Well you didn't name him when you said who you based—
      “A. Well I’ll name him now. I based it on some of the diagrams and things that he had and showed me.
      "Q. Who had?
      "A. I assume Ed Pearson had them.
      "Q. Alright.
      “A. But, Don is the one that showed them to me.
      "Q. Alright, all I want you to do is to include Ed Pearson in it.
      "A. Alright, we’ll- include him.”


author: PER CURIAM.

text:
    Ex parte Honorable W.G. WARD, Jr. (Re METROPOLITAN LIFE INSURANCE COMPANY, et al. v. W.G. WARD, Jr., etc., et al.). Ex parte AMERICAN EDUCATORS LIFE INSURANCE COMPANY, et al. (Re METROPOLITAN LIFE INSURANCE COMPANY, et al. v. W.G. WARD, Jr., etc., et al.). Ex parte METROPOLITAN LIFE INSURANCE COMPANY, et al. (Re METROPOLITAN LIFE INSURANCE COMPANY, et al. v. W.G. WARD, Jr., etc., et al.).
    82-813, 82-825 and 82-851.
    Supreme Court of Alabama.
    Nov. 10, 1983.
    Probable Jurisdiction noted April 16, 1984.
    See 104 S.Ct. 1905.
    Phillip E. Stano, Dept, of Ins. and Warren B. Lightfoot, Montgomery, E. Mabry Rogers and E. Glenn Waldrop, Jr. of Bradley, Arant, Rose & White, Birmingham, for petitioners-cross-respondents in No. 82-813.
    Harry Cole and Robert W. Bradford, Jr., Montgomery, for petitioners-cross-respondents in No. 82-825.
    Richard F. Allen and Henry B. Harde-gree, Montgomery, for petitioners-cross-respondents in No. 82-851.
    Richard F. Allen and Rufus M. King, Montgomery, for respondents-cross-petitioners in No. 82-813.
    Richard F. Allen and Henry B. Hárde-gree, Montgomery, for respondents-cross-petitioners in No. 82-825.
    Phillip E. Stano, Dept, of Ins. and Warren B. Lightfoot and Harry Cole, Montgomery, for respondents-cross-petitioners in No. 82-851.
   ON APPLICATION FOR REHEARING

PER CURIAM.

On October 13, 1983, the parties filed a document in this Court styled: “Joint Request for Suspension of the Rules and Joint Stipulation and Motion of the Parties for a •Rehearing and Entry of Judgment.” In that document, the parties stipulated as follows:

“III. JOINT STIPULATION AND MOTION
“NOW, THEREFORE, the parties hereto do jointly and voluntarily stipulate that there has been a full, complete and knowing waiver, by, for and on behalf of the Foreign Insurers, of any right to an evidentiary hearing or trial on the second, factual issue, to-wit: Whether the Legislature could have reasonably believed that the premium tax statute’s use of the classification of insurance companies as foreign and domestic would promote any of the purposes which the lower courts have determined to be legitimate.
“In view of this stipulation and agreement, the parties hereby submit that this Court’s orders of September 23, 1983, should be reviewed and the parties do therefore respectfully move the Court to conduct a rehearing and, upon such rehearing, to enter a final judgment in favor of the State and the Intervenors, denying the Foreign Insurers’ equal protection challenge to the Alabama premium tax statute, Ala.Code § 27-4-4 et seq. (1975), so that the case can go forward to its ultimate conclusion.”

We have considered the motion of the parties and are of the opinion that it is due to be granted, that the rules should be suspended, that rehearing should be granted, the writ of certiorari granted, and that a final judgment in favor of the state and the intervenors should be entered, and that the foreign insurers’ equal protection challenge to the Alabama premium tax statute should be denied. It is so ordered.

MOTION GRANTED; RULES SUSPENDED; REHEARING GRANTED; WRIT OF CERTIORARI GRANTED; JUDGMENT OF THE COURT OF CIVIL APPEALS, 437 So.2d 535, MODIFIED; AFFIRMED AS MODIFIED.

MADDOX, FAULKNER, JONES, EM-BRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and SHORES, J., re-cused.

ALMON, J., not sitting.


author: MADDOX, Justice.

text:
    Tillman DUKE v. D.W. PRESNALL.
    82-708.
    Supreme Court of Alabama.
    Nov. 23, 1983.
    Rehearing Denied Feb. 24, 1984.

      Lee B. Williams, Grove Hill, for appellant.
    Wyman 0. Gilmore, Grove Hill, for appel-lee.
   MADDOX, Justice.

This case involves a boundary line dispute and the only issue before the Court is whether the trial court erred in determining the true boundary line between the coterminous landowners. We affirm.

D.W. Presnail, appellee, filed a complaint against Tillman Duke, appellant, in which he alleged that the boundary line between their land was disputed; he requested the court to appoint a surveyor. Defendant’s motion to dismiss was denied by the trial court, whereupon he filed an answer, with a survey attached, prepared by one Daniel Andress, Jr., a licensed surveyor. In his answer he alleged that the true and correct boundary between the parties’ lands was shown in the plat as a fence, which was located north of an existing woods road.

The plaintiff filed a response to paragraph five of defendant’s answer, in which he alleged that the actual boundary was a line surveyed by Ralph McVay, also a licensed surveyor, which placed the boundary line on the south side of the dirt road running between the parties’ property. The plaintiff further alleged that the fence indicated on his opponent’s plat had never been recognized as the true and correct boundary line.

The trial court heard the evidence without the benefit of a jury, and subsequently ruled that the McVay survey showed the true and correct boundary line between the parties. The trial court ordered that judicial markers be set according to the McVay survey and that the defendant be permitted to use the woods road lying north of the judicial boundary as a means of ingress and egress to any property he might own lying to the east of the plaintiff’s property.

The defendant moved for a new trial, which, after a hearing, the trial court denied. This appeal ensued.

The defendant, as appellant, still asserts that the boundary line separating his land from the plaintiff’s land is the fence line located on the north side of the woods road as indicated by the Andress survey plat. On the other hand, plaintiff, relying on his surveyor’s plat, argues that the boundary line is not the fence, but that it is actually located some forty feet to the south, on the southern side of the road.

The testimony of the witnesses at the trial as to whether the fence had in the past been considered the boundary line between the two parcels of land was conflicting. Likewise, both surveys of the boundary line, which were based on the descriptions contained in the deeds of the respective parties, and both surveyors’ testimony as to the correct boundary line, were contradictory. Consequently, where the facts are disputed in boundary line cases, we uphold the trial court’s finding unless it is palpably erroneous or manifestly unjust to do so. Kendall v. Bay La Launch Community Ass’n., Inc., 413 So.2d 1050, 1051 (Ala.1982). In view of conflicting evidence and testimony, we find no palpable error in the trial court’s finding that the boundary line as established by the McVay survey is the true and correct boundary.

Appellant argues that the McVay plat should have been disregarded by the trial court, based on the testimony of his surveyor, Mr. Andress, given during the trial and during the hearing on appellant’s motion for new trial. Appellant claims that the McVay plat was not performed in accordance with the description of the land contained in the complaint. Mr. Andress stated that the survey as based on the calls of the description in appellee’s complaint did not “close.” While a true boundary line between coterminous landowners may differ from the calls described in the pleadings, “[s]uch difference does not necessarily mean that the court erred in determining the boundary line.” Crew v. W.T. Smith Lumber Co., 268 Ala. 628, 634, 109 So.2d 721, 727 (1959).

Because the trial court made no findings regarding adverse possession of the disputed strip of land, we decline to comment on the sufficiency of the evidence regarding appellant’s alleged adverse possession. Sandlin v. Sanders, 360 So.2d 977, 982 (Ala.1978). Nevertheless, we hold that the evidence was sufficient to sustain the establishment by the court of the true boundary line between the parties.

For the reasons stated above, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . Appellant’s surveyor testified that the reason his survey varied from McVay's survey was because McVay did not determine the size of the section which contained an excess. He testified he ignored the 15 links excess on the east boundary of the section. Appellant also claimed McVay did not attempt to locate an old dirt road referred to in the deed, but used a blacktop road instead.