text:
    Mrs. Virginia Mae PUTMAN v. Woodrow BUSH and Mabel Vaughn Bush.
    No. 49665.
    Supreme Court of Mississippi.
    Nov. 16, 1977.
    Keeton, Cofer & Embry, Edwin Tharp Cofer, Grenada, for appellant.
    Moore & Moore, Paul M. Moore, Sr., Calhoun City, for appellee.
    Before INZER, P. J., WALKER and BROOM, JJ., and J. D. THAMES, Commissioner.
   Appeal from Chancery Court, Calhoun County; William H. Anderson, Chancellor.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    John N. TURNAGE v. Guy RYE.
    No. 49635.
    Supreme Court of Mississippi.
    Nov. 16, 1977.
    Houston, Chamberlin & Houston, David W. Houston, III, Aberdeen, for appellant.
    Johnny N. Tackett, Aberdeen, for appel-lee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   Appeal from Chancery Court, Monroe County; Fred P. Wright, Chancellor.

AFFIRMED ON DIRECT AND CROSS-APPEAL.


text:
    Elwyn COPELAND v. SERVICE FINANCE CORPORATION OF HATTIESBURG.
    No. 49725.
    Supreme Court of Mississippi.
    Nov. 16, 1977.
    Kepper & Leggett, Lee S. Leggett, Karl W. Kepper, Hattiesburg, for appellant.
    Larry 0. Norris, Hattiesburg, for appel-lee.
    Before INZER, P. J., and WALKER and BROOM, JJ.
   Appeal from Chancery Court, Forrest County; Michael Sullivan, Chancellor.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, SUGG, LEE and BOWLING, JJ., concur.


text:
    A. C. TOLBERT and Dorothy Tolbert v. STATE of Mississippi.
    No. 49911.
    Supreme Court of Mississippi.
    Nov. 16, 1977.
    Rehearing Denied Nov. 30, 1977.
    William T. Bailey, Lucedale, for appellants.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and WALKER and BROOM, JJ.
   Appeal from Circuit Court, Greene County; Merle F. Palmer, Judge.

CONVICTION IS AFFIRMED AS TO DOROTHY TOLBERT AND THE CONVICTION OF A. C. TOLBERT IS REVERSED AND HE IS REMANDED TO THE CUSTODY OF THE SHERIFF OF GREENE COUNTY TO AWAIT ACTION OF NEXT GRAND JURY.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, SUGG, LEE and BOWLING, JJ., concur.


author: WALKER, Justice, for the Court:

text:
    In the Matter of the Last WILL and Testament of Clinton M. JOHNSON, Deceased. Mrs. Willie Mae C. JOHNSON v. Mrs. Marilyn ROBINSON, Executrix of the Estate of Clinton M. Johnson, Deceased.
    No. 50101.
    Supreme Court of Mississippi.
    Nov. 16, 1977.

      George G. Williamson, Mendenhall, for appellant.
    Willis T. Matthews, Magee, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice, for the Court:

This is an appeal from the Chancery Court of Simpson County, Mississippi, wherein the chancellor dismissed Mrs. Willie Mae C. Johnson’s renunciation of the will of her late husband, Clinton M. Johnson. The sole question presented is whether the agreement executed by the appellant, Mrs. Willie Mae C. Johnson, on May 12, 1972, not to renounce her husband’s will is binding on her.

The record shows that Clinton M. Johnson and Mrs. Willie Mae C. Johnson were married on July 9,1971, in Simpson County, Mississippi. Mrs. Johnson was sixty years of age at the time of the trial and had only an eighth grade education. Mr. Johnson had been married twice before, the last marriage being dissolved by divorce in 1970. On May 12, 1972, Mr. Johnson picked up Mrs. Johnson at the Dog’N Suds, where she worked, and carried her to the office of his attorney where Mrs. Johnson was requested to and did sign a prepared contract which prohibited her from renouncing and contesting Mr. Johnson’s last will and testament. Mrs. Johnson had no prior notice that such a request would be made of her. As consideration for this promise, Mr. Johnson was to provide in his will that Mrs. Johnson would receive a life estate in the homestead property and other considerations which were not named. That same day, Mr. Johnson executed his last will and testament devising a life estate in the homestead to Mrs. Johnson with the remainder in the homestead to his daughter by a previous marriage, Mrs. Marilyn Robinson, as well as any residue of his estate to Mrs. Robinson.

Mississippi Code Annotated section 91-5-25 (1972) provides that a husband or wife may renounce the will of another. However, proper contracts not to renounce are enforceable. Sadler v. Lee, 232 Miss. 349, 98 So.2d 863 (1957).

I.

The appellant testified that she did not, prior to the execution of the agreement not to renounce the will, nor did she thereafter receive any consideration for the contract except the provision in her husband’s will that she was to have a life estate in the homestead property. Her testimony in this regard went uncontradicted and she was not cross-examined on this question. The appellee meets this by contending that since the contract recited that there were other considerations besides the life estate devised to the widow that the appellant could not show by parol evidence that there was in fact no other consideration and that the appellant is bound by the recitation in the contract. However, that rule of exclusion does not apply to evidence of failure of consideration. In the case of Meyer v. Casey, 57 Miss. 615 (1880), this Court addressed itself to that point:

The consideration of [for] the bill of sale of the cotton wholly failed as to Casey. The written instrument recites a consideration, and it is claimed that it is not allowable to contradict the writing in this respect. The rule of exclusion does not apply to evidence of failure of consideration. It is not admissible to vary by parol the terms of a valid written instrument. If it has a valid existence, it must stand as the sole expositor of the terms of the contract it evidences; but it is allowable to show by parol that the writing never had validity, or, that having had a legal existence, it has for some reason ceased to be operative. (Id. at 617.)

See also 20 Am.Jur. Evidence § 1112 (1939).

We therefore hold that the chancellor properly admitted parol evidence to show that there was in fact no consideration other than the devise to the widow of a life estate in the homestead.

II.

Appellant contends that because she already had a statutory right to a life estate in the homestead property, the devise to her of the same right does not constitute consideration for her agreement not to renounce the will. We would certainly agree with this contention if the terms of the devise were identical to the terms of the statute. See Hill v. Aldrich, 242 S.W.2d 465 (Tex.Civ.App.1951); Schaadt v. Mutual Life Ins. Co. of New York, 2 Cal.App. 715, 84 P. 249 (1906). However, in this case the two provisions contain crucial distinctions. Under Mississippi Code Annotated section 91-1-23 (1972), the widow is given a life estate only during her widowhood. The provision ceases to operate when the widow remarries. Jefcoat v. Powell, 235 Miss. 291, 108 So.2d 868 (1959). The will, by contrast, gave appellant a life estate in the property so long as she did not “. . . permanently vacate the above described premises or land. . . ,” Thus, under the terms of the will appellant could remarry and as long as she continued to live on the property her life estate in it would remain vested in her. In view of Mrs. Johnson’s age (she was 60 at the time of the trial) and the fact that the will eliminates a right granted to her by the statute, i. e., to use the property without living on it (see Tiser v. McCain, 113 Miss. 776, 74 So. 660 (1917)), the value of the right conferred upon appellant by the will must certainly be minimal. We recognize the rule that “[t]he law will not weigh the quantum of consideration in a contract, and so long as it is something of real value in the eyes of the law it is sufficient.” Ogle v. Durley, 223 Miss. 32, 43, 77 So.2d 688, 693 (1955). However, it is also the law that courts of equity will not enforce an unconscionable contract. In Terre Haute Cooperage, Inc. v. Branscome, 203 Miss. 493, 35 So.2d 537 (1948), this Court defined an unconscionable contract as “. one such as no man in his senses and not under a delusion would make on the one hand, and as no honest and fair man would accept on the other. . .

If the parties to this contract had been dealing at arms length, we would be bound by the rule cited in Ogle, supra, and would be forced to uphold the agreement not to renounce. However, the parties in this case were husband and wife and the rule in Mississippi is that the husband is presumed to extend a great deal of influence over his wife. Pennington v. Acker, 30 Miss. 161 (1855).

Moreover, the circumstances under which this agreement was executed by appellant do not evince good faith on the part of her late husband. Appellant’s testimony which was not contradicted, was that her husband picked her up after she got off work for the day and they went to his attorney’s office where she was requested to sign some papers which had already been prepared. She knew nothing of the agreement prior to this time. She was not given an opportunity to read the entire agreement nor was it explained to her. She was urged to sign and she did.

In determining whether this contract was unconscionable, it is necessary to analyze what the widow was to receive under the will in contrast to her rights absent the will under the laws of descent and distribution.

Under the will, the widow was to receive a life estate in a house situated on approximately three acres of land so long as she did not permanently vacate the same (even if she remarried) — and nothing more. All of the rest, residue and remainder of Clinton M. Johnson’s estate was devised to Mrs. Marilyn Robinson, a daughter by a former marriage.

Under the laws of descent and distribution, Mrs. Johnson would inherit a one-half undivided interest in fee simple to the house and three acres, Mississippi Code Annotated section 91-1-7 (1972), plus the exclusive right to the use and occupancy of the house and three acres with all the incidents of a life estate therein (it was their homestead) and not subject to partition or sale during her widowhood, Mississippi Code Annotated section 91-1-28 (1972), plus a one-half undivided interest in and to all other real and personal property comprising Clinton M. Johnson’s estate.

It is readily apparent from the above comparison that the benefits which Mrs. Johnson would receive under the laws of descent and distribution upon her husband’s death so far outweighed the purely speculative benefit of occupying the property if she remarried that the contract she signed not to renounce falls within the category of those unconscionable contracts which are unenforceable. It was such an agreement that no wife in her senses and not under a delusion would agree to and no fair-minded husband would propose.

We are therefore of the opinion that the chancellor erroneously sustained the motion to dismiss the renunciation of the will of her husband, Clinton M. Johnson, which she had the right to do under the statute. Miss. Code Ann. § 91-5-25 (1972).

This cause is therefore reversed and remanded to the lower court for further proceedings consistent with this opinion.

REVERSED AND REMANDED TO THE LOWER COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

PATTERSON, C.. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, BROOM, LEE and BOWLING, JJ., concur.

      . We recognize, of course, that if Mrs. Johnson took under the law and not the will her right to the exclusive use and possession of the subject property would terminate in the event of her remarriage, and her right of possession would revert to that of a tenant in common with Mrs. Robinson.


author: SUGG, Justice, for the Court.

text:
    Jimmy Lee GRAY v. STATE of Mississippi.
    No. 50159.
    Supreme Court of Mississippi.
    Nov. 16, 1977.

      Louis Fondren, Jr., Pascagoula, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.
   SUGG, Justice, for the Court.

Defendant was convicted of capital murder and sentenced to death by the Circuit Court of Jackson County. We reverse and remand for a new trial.

This is the first death penalty verdict we have considered since Jackson v. State, 337 So.2d 1242 (Miss.1976) which was tried in two stages as required by Jackson, the first to determine guilt, the second to determine punishment.

Defendant assigns twenty-seven errors and in his fourteenth assignment of error he attacks the constitutionality of the statute under which he was indicted. This assignment of error is stated in the following language:

The Section 97-3-19(2) of The Mississippi Code of 1972 is unconstitutional in that it is vague in its terminology in requiring no design to effect death, so that no criminal intent upon the part of the Defendant is even essential in finding him guilty of Capital Murder under that section.

Defendant was indicted under section 97-3-19(2) Mississippi Code Annotated (Supp. 1977) which reads as follows:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies; .

Defendant’s main argument is that the language contained in subparagraph (e), “When done with or without any design to effect death,” is so vague that it is constitutionally deficient. This argument overlooks the other provisions of the statute under which he was indicted. The statute requires, (1) that a person kill a human being without authority of law, (2) while such person is engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies. The statute is not vague and simply defines the crime of capital murder as the killing of a human being without authority of law when engaged in the commission of the crime of kidnapping and the other felonies enumerated therein. We believe that the intent of the legislature in enacting the statute was to save the lives of victims of crimes. If the perpetrators of the crime of rape, burglary, kidnapping, arson or robbery know there is a possibility they will suffer the death penalty for killing their victims, such knowledge may, and probably will, deter such persons from taking the life of the victim of the crime. We perceive no constitutional infirmity because the statute clearly defines the elements of the crime and the indictment charged each element set forth in the statute.

Three errors occurred during the guilt stage of the trial which require reversal. The first error was the trial court refused to permit defendant to argue his case to the jury. During the argument at the guilt stage of his trial defendant requested permission to “make a statement to the jury.” In effect, defendant was requesting the right to argue his own case and his request was erroneously denied. Mississippi Constitution Article 3, section 26 (1890) provides in part:

In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, .

The refusal to permit defendant to argue his case is in direct violation of the above constitutional provision and requires reversal.

The second error was permitting the state to show that defendant was on parole which was simply another way of showing that he had been convicted of another crime. The defendant did not testify at the first stage of his trial so evidence that defendant was on parole was not admissible for the purpose of impeaching his testimony under section 13-1-13 Mississippi Code Annotated (1972). It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See, Smith v. State, 223 So.2d 657 (Miss.1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 25 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss.1969), cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970). We have numerous cases on .this point, but the fact that defendant was on parole does not fall within any of the recognized exceptions. It was therefore error to permit the state to prove that the defendant was on parole at the guilt stage of the trial. A prior conviction “of another capital offense or of a felony involving the use or threat of violence to the person” is admissible at the second stage of a trial for a capital crime as an aggravating circumstance to be considered by the jury in determining punishment. Miss.Gen.Laws Ch. 548, § 5(b) (1977).

The third error was the testimony of an officer who was permitted to state that he asked the defendant if he had ever taken the little girl who was the victim in this crime and a little boy under a bridge at Bartlett Street. Initially an objection to the testimony was overruled but later sustained; however, the officer further testified that defendant stated he had never taken the children under the bridge but found them there while walking in the area. The officer stated that, at this time, he determined the defendant should be taken to the police station for questioning. This evidence, together with the evidence that the defendant was on parole was especially damaging and deprived defendant of a fair trial. The evidence should have been eon-fined solely to the question of his guilt or innocence of the crime with which he was charged. The only purpose for introducing this evidence was to prejudice the jury by inferring that defendant was a child molester.

At the punishment stage of the hearing the court required the defendant to proceed before the state. This was error because the state has the burden to prove, not only the guilt of the defendant, but also to prove aggravating circumstances as set forth in Miss.Gen.Laws Ch. 458 (1977). This is error which requires reversal of the punishment stage of the trial.

Further in the punishment stage the court limited the argument of defendant’s counsel to twelve minutes. This was clearly an abuse of discretion because this stage of the trial is for the purpose of determining whether defendant will live or die and a defendant should be given ample time to fully argue this important question. The court also limited the content of the argument of defendant’s counsel. The trial judge should not interfere with argument unless counsel clearly and conclusively exceeds the legitimate field of the argument. In the case of Nelms & Blum Co. v. Fink, 159 Miss. 372, 131 So. 817 (1930) this Court stated, with reference to argument of counsel, the following:

Counsel necessarily has and must have to serve his function and office, a wide field of discretion. He may comment upon any facts introduced in evidence. He may draw whatever deductions seem to him proper from these facts, so long as he does not use violent and abusive language, and even in many cases invectives may be justified and even called for, as eloquently pointed out by Chief Justice WHITFIELD in Gray v. State, 90 Miss. 235, 43 So. 289. Counsel is not required to be logical in argument; he is not required to draw sound conclusions, or to have a perfect argument measured by logical and rhetorical rules; his function is to draw conclusions and inferences from evidence on behalf of his client in whatever way he deems proper, so long as he does not become abusive and go outside the confines of the record. Usually when the argument is considered as a whole it is found consistent and logical and frequently eloquent. Some of the greatest speeches in our history have been made within the courthouse. As has been said, the court cannot control the substance and phraseology of counsel’s argument; there is nothing to authorize the court to interfere until there is either abuse, unjustified denunciation, or a statement of fact not shown in evidence.
Counsel may draw upon literature, history, science, religion, and philosophy for material for his argument. He may navigate all rivers of modern literature or sail the seas of ancient learning; he may explore all the shores of thought and experience; he may, if he will, take the wings of the morning and fly not only to the uttermost parts of the sea but to the uttermost limits of space in search of illustrations, similes, and metaphors to adorn his argument. He may reach the uttermost heights of attainable eloquence, soar into the empyrean heights where his shadow may fall on the loftiest mountain top, as the eagle in its loftiest flight. He may borrow from every source, modern and ancient, such materials as he needs for his argument. He may clothe the common occurrences of life in the habiliments of poetry and give to airy nothings a habitation and a name. He may weave of words a rhetorical bouquet that enchants the ear and mesmerizes the mind. He may make the learning of the ages the servant of his tongue. His argument may be as profound as logic and learning can make them. He may give wing to his wit and play to his imagination so long as he does not imagine fact not in evidence, which the court does not take judicial knowledge of, or does not go out of the record for the facts not in evidence. As to the facts in evidence, he may array them in such figures and form and clothe them with such ideas and conclusions as he can conjure up in his mind for the best interest of his cause. He cannot, however, state facts which are not in evidence, and which the court does not judicially know, in aid of his evidence. Neither can he appeal to the prejudices of men by injecting prejudices not contained in some source of the evidence. (159 Miss. at 382, 383; 131 So. at 820, 821).

Defendant also argues that it was error for the court to grant Instruction No. 4 for the state. This instruction is proper in a death penalty case because the jury should be informed that death penalty cases are tried in two stages. The court also granted defendant’s instruction pertaining to lesser included crimes. During the closing argument for the state the following occurred:

But the Court has instructed you that when you go out to consider your first verdict, your first verdict will be that the defendant is guilty, or he’s not guilty. That’s all. And after you have decided that question, and brought that verdict back into this Court, that the Court then will allow you to hear additional evidence, and give you additional instructions. Then on the second part of the trial you decide the verdict of the punishment.
BY MR. FONDREN: Your Honor. Excuse me, Your Honor. I hate to interrupt, but, there are a number of alternatives, including kidnapping, other than a guilty or a not guilty. So counsel is incorrect. I want to point that out.
BY THE COURT: Counsel is not incorrect on what he has stated about Capital Murder. There are two trials. The first is to determine his guilt or innocence, and then, if they find him guilty, then they hear the case on the punishment. That’s the law. I didn’t write the law, but that’s what the Supreme Court of the United States said the law is, and what the law is of the State of Mississippi.

Defendant argues that the statement of the trial judge and the statement of the district attorney effectively negated the effect of his instruction on lesser included offenses. We would not reverse if this were the only error in the records; however, the district attorney, when defendant obtains an instruction as to lesser included offenses, should not couch his argument, and the court should not make its ruling, in such terms as to negate the effect of defendant’s lesser included offense instruction.

Defendant argues that the court erred by overruling his motion to quash his psychiatric examinations as being insufficient. Two psychiatric examinations were performed on the defendant, the first by Dr. W. D. Bridges, a psychiatrist on the staff of the Jackson County Singing River Hospital, the second by the staff at the Mississippi State Hospital at Whitfield. The only evidence produced by defendant on the motion to quash was his testimony that the psychiatric examination by Dr. Bridges lasted approximately twenty minutes and that he was examined three or four times at Whitfield with each examination lasting approximately fifteen minutes.

Defendant relies on Hill v. State, 339 So.2d 1382 (Miss.1976) as authority for his contention that his psychiatric examinations were insufficient. In Hill the first psychiatrist who examined Hill recommended further psychiatric examination. Because of that fact, we ordered further psychiatric examination of defendant in Hill. Unlike Hill, in this case, there was no recommendation for further psychiatric examination so no error was committed by the court when it did not order further psychiatric examination.

Of course, under his plea of not guilty, defendant was entitled to present the defense of insanity. McLeod v. State, 317 So.2d 389 (Miss.1975). However, the defendant did not present any evidence of insanity on his motion to suppress or at either stage of his trial.

Defendant also contends that the court erred by not allowing tapes of his statements given to the police to be admitted as evidence on his motion to suppress. On the motion to suppress it was developed that defendant was given his Miranda warnings before statements were taken from him and he charges that the tapes should have been admitted in evidence for the purpose of the motion only. The colloquy surrounding this assignment of error shows that the state tendered the tapes to the defendant but defendant merely requested the court to have them marked for identification. No error resulted because the court complied with defendant’s request and permitted the tapes to be marked for identification.

Defendant assigns as error the failure to give the following instruction:

INSTRUCTION D-6
The Court instructs the jury that it is not incumbent upon the Defendant to show how the deceased came to her death, and although the jury may believe from the evidence that she died from smothering or inhalation of aspirated muddy material, yet that alone is not evidence of Defendant’s guilt; that before the jury can convict the Defendant, the jury must believe from the evidence and beyond a reasonable doubt and to a moral certainty:
Both that the deceased came to her death by smothering or inhalation of aspirated muddy material; and that the Defendant personally caused her death by smothering her or by forcing her to inhale aspirated material for the purpose and with the intent to kill and murder the deceased; and if you have a reasonable doubt as to any one of these facts, then it is your duty to find the Defendant Not Guilty of Capital Murder.

The court did not err in refusing the instruction as submitted because intent to kill and murder a victim is not a necessary element in the crime of capital murder when the defendant kills his victim in the commission of the crime of kidnapping or in an attempt to commit the crime of kidnapping.

Defendant contends that the trial judge erred when he defined reasonable doubt in an oral instruction to the jury before it was questioned for cause. Defendant did not brief this question but argued it orally. Before the jury was questioned for cause by the court and counsel for the state and the defendant, the court made a lengthy statement explaining to the prospective jurors the procedure that would be followed and in the course of this explanation gave the jury some instructions on the law that applied to the case. Among these instructions was a definition of reasonable doubt. An instruction defining reasonable doubt is not proper. See Pittman v. State, 350 So.2d 67 (Miss.1977) and cases cited therein.

Although some explanation to prospective jurors, before they are questioned for cause, is necessary to inform them of the charge against the defendant and the procedure that will be followed in the trial, judges should not attempt to give any instructions about the law pertaining to the case at this time. Instructions are to be given in writing at the conclusion of the testimony and before argument by counsel.

Defendant also argues that the trial court erred when it identified the instructions to the jury as instructions given by the court, instructions given for the state, and instructions given for the defendant. In Newell v. State, 308 So.2d 71 (Miss.1975) we held that, in addition to the written instructions requested by the attorneys for the litigants, the trial judge may initiate and give appropriate instructions in order that the jury may be fully instructed as to the law in each case. In Newell we stated:

These instructions bearing the court’s approval will be read to the jury by the judge before the argument of the attorneys as the instructions of the court and will be taken out by the jury when considering its verdict. . . . (308 So.2d at 78).

Following our decision in Newell the circuit judges of the state adopted Rule 28 of the Uniform Rules for the Circuit Courts of Mississippi. Rule 28 provides that all instructions shall not be identified other than by a letter prefix. Trial judges should instruct the jury as to the law of each case by reading the instructions to the jury before the argument of the attorneys and identifying all instructions as the instructions of the court. Failure to follow this procedure was not reversible error under the facts of this case, but to avoid the possibility of reversal, trial judges should follow the procedure in Newell, supra, rather than experimenting with other procedures.

While not assigned as error, we deem it advisable to comment on the form of the verdict of the jury at the second stage of the trial which is a separate sentencing proceeding where the jury determines whether the defendant will live or die. The verdict of the jury was:

We, the Jury, find unanimously after weighing the mitigating circumstances and the aggravating circumstances do not outweigh the aggravating circumstances and that the Defendant should suffer the penalty of death.

Miss.Gen.Laws Ch. 458, § 3 (1977) deals with the conduct of the sentencing proceedings and provides:

Section 3. The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in the charge and in writing to the jury for its deliberation. The jury, if its verdict be a unanimous recommendation of death, shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstance or circumstances which it unanimously found beyond a reasonable doubt. Unless at least one (1) of the statutory aggravating circumstances enumerated in this act is so found or if it is found that any such aggravating circumstance is overcome by the finding of one or more mitigating circumstances, the death penalty shall not be imposed. If the jury cannot, within a reasonable time, agree as to punishment, the judge shall dismiss the jury and impose a sentence of imprisonment for life.

It will be observed that the statute requires a different form of verdict than the one set forth in Jackson v. State, supra. Miss.Gen.Laws Ch. 458 (1977) was enacted after our decision in Jackson, supra, and sets forth aggravating and mitigating circumstances to be considered by the jury at the punishment stage of a capital case. Juries shall be instructed in accordance with the statute in all trials after April 13, 1977, the effective date of the statute.

The other assignments of error have been considered and we find no merit in them.

REVERSED AND REMANDED.

All Justices concur.

      . INSTRUCTION S-4
      The Court instructs the Jury that this phase of the trial deals only with the question of the guilt or innocence of the Defendant. In the event that you find the Defendant guilty of Capital Murder another hearing will be held to determine whether the Defendant shall be sentenced to death or life imprisonment.

      . INSTRUCTION D-5
      The Court instructs the jury that if the jury can deduce from the facts and circumstances surrounding the case, either from the evidence or lack of evidence, any reasonable hypothesis consistent with the Defendant’s guilt of a lesser offense than Capital Murder, then there is a reasonable doubt of his being guilty of Capital Murder, and the jury should return one of the following verdicts:
      “We, the jury, find the Defendant not guilty of Capital Murder, but we do find the Defendant guilty of Murder, in which event it will be the duty of the Court to sentence the Defendant to life imprisonment.,” OR,
      “We, the jury, find the Defendant not guilty of Capital Murder, but we do find the Defendant guilty of Kidnapping, in which case you, the jury, may sentence the Defendant to life imprisonment or, if you cannot agree upon his punishment, it is the duty of the Court to sentence him as provided by law.”: OR,
      “We, the jury, find the Defendant not guilty of Capital Murder, but we do find the Defendant guilty of Manslaughter, in which case the Court shall sentence him as provided by law.”


author: ROBERTSON, Justice, for the Court:

text:
    TEMPLE CONSTRUCTION COMPANY v. Daniel NAYLOR.
    No. 49691.
    Supreme Court of Mississippi.
    Nov. 16, 1977.
    Megehee, Brown & Williams, Raymond L. Brown, Pascagoula, for appellant.
    Bryan, Nelson, Allen & Schroeder, E. S. Ned Nelson, Vincent J. Castigliola, Jr., Pas-cagoula, for appellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   ROBERTSON, Justice, for the Court:

Daniel Naylor brought suit against Jack D. Rocko and Temple Construction Company in the Circuit Court of Jackson County, for the recovery of damages resulting from an automobile collision.

Before the case was submitted to the jury, the plaintiff nonsuited as to Rocko, leaving Temple Construction Co., his employer, as the only defendant. The jury returned a verdict of $100,000, and judgment was entered for that amount. Temple Construction Company appeals.

Liability was admitted, so the only issue before the trial court and jury was the amount of damages, and the only issue before this Court is the amount of damages.

Plaintiff testified that he stopped because of the traffic on U.S. 90 east of Pascagoula about 5:00 p. m., July 31, 1974. Plaintiff’s 1973 Dodge panel truck was rear-ended by a pickup truck driven by Rocko, and owned by Temple Construction Co. Plaintiff’s truck was repaired at a cost of approximately $1300.

The force of the impact broke the back of the truck seat, according to the plaintiff, and later on “my shoulders started to tighten up around my neck.” Naylor saw Dr. Enger on Sunday following the collision on Wednesday. Dr. Enger prescribed medication and a neck collar. Plaintiff returned to work at Ingalls on Monday. His was a desk job and his salary was $12,800 a year.

On September 11, 1974, in order to be near his parents, he moved with his wife and two children to New Jersey, and went to work for Boeing-Vertol at a starting salary of $15,200. Six weeks later his salary was raised to $16,200. At Boeing he was employed as a master production scheduler, but when business slowed in November of 1974, he was put to work on helicopters. He worked at this until February, 1975.

Naylor testified that he had to lie on his back and pull electrical cables, that he could not handle this work, and asked for a transfer back to his original desk job. The next day he was laid off.

After several weeks, the only job he was able to get in the New Jersey area was a job with J. J. Henry, at a salary of $10,000 a year. He also got an extra job sweeping floors at $2.50 an hour.

In October, 1974, Naylor began to go to Dr. Burton Pearl, an orthopedic surgeon in New Jersey. Dr. Pearl, by deposition, testified that plaintiff complained of neck pain and pain radiating into both shoulders with limitation of motion of the neck. Dr. Pearl stated that the limitation of motion waxes and wanes, with motion being good at times and then at other times being limited up to 50%.

Dr. Pearl further stated that Naylor’s situation is unpredictable as to future problems because the body tends to get rid of pain but that he will probably have some limitation of motion in his neck.

Dr. Pearl recommended physical therapy at least once a week, but Naylor could not afford the cost of $15 a treatment. He also recommended a cervical myelogram which Naylor did not take. Dr. Pearl performed an electro-myelogram in October, 1975, which was negative. Naylor informed Dr. Pearl that x-rays made in Pascagoula were normal, so Pearl thought additional x-rays unnecessary. He prescribed muscle relaxants. Dr. Pearl was asked the question:

“When you last saw the man, was he still employed?”

He answered:

“Boeing-Vertol had a big layoff, and he was unemployed for about a week or two weeks, and I think he switched over to another company.”

Dr. Pearl saw Naylor about 18 times, stretching from October 15, 1974, to November 18, 1975.

In its first assignment of error, Temple contends:

The trial court erred in permitting, over objection, testimony by the appellee that he was told by someone at Boeing-Vertol that he had been laid off from his job there because of the injury growing out of the accident with the Appellant.

This is the objectionable testimony, according to the appellant:

“Q Mr. Naylor, is it your opinion that you lost the Boeing job because of this injury?
“A Yes, sir. Absolutely. I was told by my supervisor—
BY MR. BROWN: — May it please the Court, I object to what someone else may have told him.
BY THE COURT: Sustained.

BY MR. NELSON:

“Q All right, you can’t answer that. Were you advised, whether it was true or not, that that was the reason you were laid off? Were you advised by someone at Boeing that that was the reason?
BY MR. BROWN: We object again. BY MR. NELSON: That’s an exception to the hearsay rule, Your Honor. I’m not saying that it was true; I’m just saying was he advised—
BY MR. BROWN: — May it please the Court, that doesn’t wash. If someone else told him, that is hearsay, and not admissible.
BY THE COURT: No, I disagree with that.
BY MR. BROWN: Not a defendant.
BY MR. NELSON: Well—
BY THE COURT: — Overruled. Go ahead.
BY MR. NELSON: That’s an—
BY THE COURT: — I’m going to let him.
BY MR. NELSON: Were you advised or told by someone at Boeing that that was the reason you were laid off? BY THE WITNESS: Yes, sir.
BY MR. NELSON: That’s all.”

In 29 Am.Jur.2d, Evidence, sec. 493, pp. 551-52, (1967), hearsay is defined as:

“[Ejvidence which derives its value, not solely from the credit to be given to the witness upon the stand, but in part from the veracity and competency of some other person. .
“The basis for the exclusion of hearsay testimony appears to lie in the fact that hearsay testimony is not subject to the tests which can ordinarily be applied for the ascertainment of the truth of testimony. The declarant is not present and available for cross-examination, and both the court and the jury are without opportunity to test the credibility of hearsay statements by observing the demeanor of the person who made them.”

Again in 29 Am.Jur.2d, Evidence, sec. 497, at page 555, it is said:

“The clearest case of hearsay is where a witness testifies to the declaration of another for the purpose of proving the facts asserted by the declarant.”

And, on page 556, we find this language:

“The testimony of a witness as to his knowledge of a fact which is based upon what others have said is inadmissible hearsay, . . . .”

Whether Naylor lost his job because of his injury or because of economic conditions causing a layoff at Boeing-Vertol becomes very important to the jury in fulfilling its sole duty of determining the amount of damages to be awarded to Naylor to compensate him for his injuries wrongfully caused by the defendant. Of necessity, an accurate and truthful answer to that question is required and yet the person who advised Naylor that he was laid off because of his physical condition was not present and available for cross-examination to test the basis and accuracy of his knowledge of why Naylor was laid off. The court and jury were not afforded the opportunity of testing the credibility of the person so advising Naylor.

Naylor asked for and was granted three jury instructions. Instruction No. 1 simply instructed the jury to find for the plaintiff.

Instruction No. 2 listed all the elements of damages which the jury was instructed to consider in arriving at the amount of its verdict. It contained this language:

“[I]n calculating the amount of the verdict you may take into consideration . all of the evidence, if any, of any impairment of the plaintiff’s earning capacity; ... as all such items are proper for the consideration of the jury in determining the damages suffered by the plaintiff, and in fixing the amount of the verdict.”

Plaintiff’s Instruction No. 3 used this language:

“[A]ny loss of time or loss of earning capacity, both temporary and permanent, suffered by him, if any; . . . ”

It is quite apparent from these two instructions that the plaintiff laid great stress on, and wanted the jury to gravely consider, his loss of earning capacity caused by his injury. If he did lose his job at Boeing-Vertol because of his injuries, then he suffered an annual loss of $6,200 because his salary at Boeing-Vertol was $16,200 a year and after he was laid off there the very best he could do was $10,000 a year at J. J. Henry.

Naylor himself bolstered and buttressed his opinion, that he was laid off because of his disabilities, by referring to his supervisor or some other employee at Boeing as having told him just that. This testimony bears repeating:

“Q Mr. Naylor, is it your opinion that you lost the Boeing job because of this injury?
“A Yes, sir. Absolutely. I was told by my supervisor—
BY MR. NELSON: Were you advised or told by someone at Boeing that that was the reason you were laid off?
BY THE WITNESS: Yes, sir.”

Where a fact in issue has been proved by hearsay evidence, this Court has consistently held that the admission of such hearsay evidence constituted reversible error. See State Farm Mutual Automobile Insurance Co. v. Stewart, 288 So.2d 723 (Miss.1974); Pevey v. Alexander Pool Co., Inc., 244 Miss. 25, 139 So.2d 847 (1962); Johns-Mansville Products Corp. v. Cather, 208 Miss. 268, 44 So.2d 405 (1950).

It is impossible for this Court to determine what influence this improperly admitted hearsay testimony had on the jury. The jury did bring in a very large verdict.

The judgment of the lower court must be, and is, reversed and this cause remanded for a new trial on the issue of damages only.

REVERSED AND REMANDED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    In the Interest of Danny Wayne PETTIT v. STATE of Mississippi.
    No. 50265.
    Supreme Court of Mississippi.
    Nov. 16, 1977.
    Murray L. Williams, Water Valley, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   PATTERSON, Chief Justice, for the Court:

The Sheriff of Yalobusha County petitioned the Youth Court of the Second Judicial District of that county to find Danny Wayne Pettit, a minor of sixteen years, delinquent and to commit him to a training school or to other appropriate supervised care. Pettit was charged with driving under the influence of alcohol following an automobile accident in which a youthful passenger in the car was fatally injured.

On October 25, 1976, a youth court proceeding was conducted in which it was established that on August 4, 1976, Pettit, Charles Winters and Tony Allred, sixteen years of age, were riding in an automobile driven by Pettit. They drove to the home of Susanne Davis and, seeing no one at home, continued their drive. As they descended a steep gravel roadway, the brakes of the automobile malfunctioned leaving Pettit unable to stop the car or to turn into a paved road at the foot of the hill. The ear crossed the intersection, jumped a ditch, and rolled over into a field, killing Tony Allred.

About 11:00 p. m. the deputy sheriff was called to the scene several miles south of Water Valley, Mississippi. This officer smelled beer on Pettit’s breath and arrested him for driving under the influence. Officer Watson of the Water Valley Police Department administered an intoximeter test to Pettit which registered 0.12, indicating intoxication. After the car was towed into town, the deputy tested the brakes and found they were inoperable. He stated: “I did go back to the vehicle and tried the brakes, and the brake pedal would go all the way to the floor. It didn’t appear to have any brakes on it.”

The court asked the appellant’s mother the following question among others:

BY THE COURT: Did you tell him about driving without brakes?
A. He said that he didn’t know that he didn’t have any until he got on the brakes and he didn’t have any much.

Charles Winters also testified about the brakes. His testimony was that he, Pettit and Allred drove by Susanne Davis’ home because Allred had dated her, and continued:

Q. You went to Larry Davis’ house, then?
A. We didn’t stop, you know, we just drove up there, by there, and we didn’t see no cars there, and so we were going down the road, and we seen the other road, down the gravel road, and then he hit his brakes and he said there wasn’t no brakes, and I said hold on—
Q. You said “he”. Who was driving?
A. Danny.
Q. Danny was driving?
A. Yes, sir.
Q. Whose car was it?
A. Danny’s.
Q. About when was it that he hit the brakes?
A. I’m not for sure the exact time, but it was way before we got to the end of the road, you know. He hit it and then pumped it, and there wasn’t no brakes, and that’s when he said there wasn’t any brakes and he just kept on pumping.
Q. Did he put it in gear?
A. I don’t know, sir. Then we went across the road, and all I remember was flipping, and I don’t remember nothing else.
* * * * * *
Q. Now, you say that Danny — did you feel him pumping the brakes?
A. I think I heard him pumping them, and then that’s when he told me, you know, after he pumped them the first time, and I said, “hold on”.
% sf: sf: ^
Q. At any rate, you did hear Danny say that his brakes wouldn’t hold, that he didn’t have any brakes?
A. Yes, sir.
Q. And you grabbed onto the dash, and were holding onto that with your eyes closed.
A. Yes.
Q. And the next thing you knew, the car had turned over?
A. Yes.
# * * * * *
Q. Danny wasn’t driving at an excessive rate of speed, was he?
A. No, sir, he wasn’t going fast.
Q. It was just an unavoidable accident? Is that what you would say it was?
A. Yes, sir.

The court adjudicated Danny Pettit to be delinquent and directed that an earlier youth court file be made a part of this record. It discloses that Pettit had previously been adjudicated delinquent when thirteen years old for aiding an escaping felon. For this former delinquency Pettit was placed on probation from which he was favorably discharged in 1974.

At the conclusion of the hearing the court placed Danny Pettit in the custody of an uncle and took the case under advisement. At a later proceeding, but without additional testimony, the court committed Pettit to Oakley Training School until he should reach twenty years of age or until further orders of the court.

On appeal it is urged:

1. The lower court erred in admitting into evidence the results of the intoximeter test.

2. The order committing appellant to the state training school was cruel and unusual punishment in violation of the United States Constitution and the Constitution of the State of Mississippi, and

3. The lower court erred and was manifestly wrong in committing the appellant to the state training school due to an unavoidable accident.

The first assignment of error is directed to the qualifications of Officer Watson to give an intoximeter test. However, the officer’s qualifications are in accord with statutory standards and the test appears to have been given in conformance with Mississippi Code Annotated section 63-11-19 (1972) which states in part as follows:

A chemical analysis of the person’s breath, blood or urine, to be considered valid under the provisions of this section, shall have been performed according to methods approved by the state board of health and the commissioner of public safety and performed by an individual possessing a valid permit issued by the state board of health for making such analysis.

We find no factual or legal basis to sustain this assignment of error.

This Court addressed appellant’s second assignment of error of whether a commitment to the training school was cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and Section 28 of the Mississippi Constitution (1890) in In Interest of Wilder, 347 So.2d 520 (Miss.1977). There three thirteen-year-old youths were adjudicated delinquent for falsely reporting that a bomb had been placed in a school and were committed to a training school until they should attain the age of twenty years or until earlier orders of the court. The penalty for the offense was no more than one year imprisonment and no more than $500 fine or both. In that case the youths could potentially have been deprived of their freedom for seven years. This Court noted the distinction between the penal statutes and the juvenile delinquency statutes observing that the latter are in lieu of the penalty of imprisonment and are designed to aid a youthful defendant by providing specialized, selective treatment for rehabilitation. The present commitment is greater than the limits of Section 63-11-31 (1972), six months imprisonment or $500 fine. However, Wilder, supra, controls and we find no merit in this assignment.

Lastly, appellant argues the sentence was manifestly wrong and calls our attention to Mississippi Code Annotated section 43-21-19 (1972) which permits discretionary alternatives upon a finding of delinquency as follows:

(1) Place the child under supervision in his own home or in the care of a relative, under such terms as the court shall determine and direct, or
(2) Place the child in a suitable family home, or commit him to the custody of a suitable private institution or agency able and willing to receive him; or if adjudged delinquent, may commit the child to the custody of a state-supported training school.

It is established law in cases involving a child’s loss of freedom that the proof must establish beyond a reasonable doubt each and every essential element of the charge. In Interest of Napp, 273 So.2d 502 (Miss.1973). In our opinion there is no reasonable doubt that Pettit was driving under the influence. We do have considerable doubt and therefore concern as to whether this youth was committed to the training school for driving under the influence of alcohol or whether the lengthy, albeit lawful, commitment resulted from his companion’s unfortunate death. Our solicitude results from the uncontradicted brake failure causing the accident. The evidence suggests no connection between the drinking and the accident.

As in Wilder, supra, we are unable to say the youth court abused its discretion in committing the appellant to a training school and the judgment is affirmed. However, the case is remanded and the youth court is directed to hear additional evidence concerning the behavior and attitude of the appellant from the date of the commitment order until the present for determination as to whether it should be modified. We have no alternative because of the language of the court in committing this youth:

It would have been better had he kept himself redeemed instead of getting into this awful situation in which he got himself on this night when the Allred boy gave up his life as a result of his driving, whether it resulted from defective brakes or whether it resulted from driving while under the influence of “slop” — another meaning for beer — or a combination of both of them.

As mentioned, we find no evidence to support a finding of delinquency emanating from the death of Tony Allred and therefore no reason for a sentence based upon it. We do not condone the delinquency of driving under the influence, but we do think the commitment should be proportionate to that transgression.

AFFIRMED AND REMANDED.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: SHORES, Justice.

text:
    Rodney W. TRIMBLE v. BRAMCO PRODUCTS, INC. MITCHELL MOTORS, INC. v. Rodney W. TRIMBLE. FORD MOTOR COMPANY v. Rodney W. TRIMBLE.
    Nos. S.C. 2240, S.C. 2268 and S.C. 2294.
    Supreme Court of Alabama.
    Nov. 18, 1977.

      Edward O. Conerly, Birmingham, for Ford Motor Co.
    Henry E. Simpson, Harry L. Hopkins and Charles C. Pinckney, Birmingham, for Mitchell Motors, Inc.
    J. David Knight, Cullman, for appellee and cross-appellant Rodney W. Trimble.
    Larry W. Harper of Dunn, Porterfield, Scholl & Clark, Birmingham, for appellee, Bramco Products, Inc.
    Lanny S. .Vines of Emond & Vines, Birmingham, for amicus curiae.
   SHORES, Justice.

This is an appeal from an order of the Circuit Court of Jefferson County granting plaintiff Trimble’s motion for new trial against Ford Motor Company (Ford) and Mitchell Motors, Inc. (Mitchell), but denying his motion for new trial against Bramco Products (Bramco). Trimble appealed the judgment denying his motion for new trial against Bramco; and Ford and Mitchell appealed the judgment granting new trials as to them.

Rodney W. Trimble was injured when a truck in which he was a passenger ran off the road and overturned. Trimble sued Bramco, alleging that it was the employer of Ronald Crumbley, the truck driver, and liable for his alleged negligence under the rule of respondeat superior. The claim against Ford charged negligent manufacture and defective design of the truck and breach of the implied warranty of fitness. The complaint charged Mitchell, the local dealer who sold the truck to Crumbley, with breach of warranty, failure to inspect, and negligence in the presale preparation process. The plaintiff’s claim against both Ford and Mitchell was based upon the alleged failure of the flexible coupling which connects the steering shaft of the truck with the input shaft to the frame. The coupling, made of rubberized fabric, was designed to absorb the noise and vibration otherwise transmitted through the frame into the steering shaft. Trimble claimed that the separation of this coupling caused Crumbley to lose control of the vehicle and was the proximate cause of the accident.

Prior to the trial, Trimble filed an amendment to his complaint alleging a theory of strict liability in tort against Ford. The trial court granted a motion to strike this amendment; and the case went to trial against all defendants on the theories of negligence and breach of warranty.

The jury returned a general verdict in favor of all three defendants. Trimble’s motion for new trial against all defendants contained over 100 grounds of alleged error, including the court’s action in striking his amendment charging Ford with strict tort liability. The trial court denied the motion for new trial as to all defendants. Thereafter, upon reconsideration of the new trial motion, with the permission of this court, the trial court granted a new trial against Ford and Mitchell based upon the decision of this court in Jett v. Honda Motor Co., Ltd., 339 So.2d 66 (Ala.1976).

I. The Trimble Appeal.

The plaintiff’s theory of liability against Bramco rested upon the doctrine of respondeat superior and the issue at trial was whether Crumbley, the driver of the truck, was an employee of Bramco or an independent contractor. Bramco denied liability and insisted that Crumbley was not its employee, agent or servant at the time of the accident complained of. This issue was tried to the jury. Suffice it to say that there were facts from which the jury could have concluded that Crumbley was not an employee of Bramco. Since 1970, he had installed and repaired equipment in chicken houses for Bramco pursuant to a written contract. He was paid by Bramco on a unit or footage basis which was determined by a schedule. He was paid by the hour for service work performed. When Crumbley hired someone to help do a particular job, he was paid by Bramco for the total number of hours at a single rate and Crumbley, in turn, paid the person hired at a rate determined by him. The truck involved in the accident was bought, paid for and insured by Crumbley.

Trimble argues on appeal that Rule 59(a), ARCP, compels the trial court to grant a new trial as to all defendants if it grants a new trial as to any one. His argument is that inasmuch as Rule 59(a), ARCP, requires a new trial on all of the issues in actions tried to a jury, the new trial must be granted as to all parties because otherwise the new trial will not encompass all of the issues.

Rule 59(a) provides in part:

“A new trial may be granted to all or any of the parties and (1) on all of the issues in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of Alabama; and (2) on all or part of the issues in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Alabama. . . . ”

Under Alabama practice, it has long been permissible in proper cases to grant a new trial as to one or more defendants and deny a new trial motion as to the others. In Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223 (1927), cited with approval in Harnischfeger Corporation v. Harris, 280 Ala. 93, 190 So.2d 286 (1966), the following statement of the rule appears:

“ ‘We do not assent to the proposition asserted by the counsel for the plaintiff in error, that the court could not grant a new trial as to one party who was jointly sued, and refuse it as to another. In actions of tort, it is competent for the jury to find one of the parties guilty, and another not guilty. It may turn out also, that there may be no evidence conducing to show the guilt of one of the codefendants, while, as to the others, there may be a strong case made out. In all such cases, should the jury find a verdict of not guilty as to all, and the court should think a new trial ought to be granted, it would be doing great injustice to the innocent party, as against whom there was no evidence, to order a new trial as to him.’ [Pounds v. Richards, 21 Ala. 424, 426 (1842)]” (216 Ala. at 336, 190 So.2d at 290).

It would be manifestly unfair to require Bramco to defend the suit against it again. The plaintiff has had one trial against it which went to the jury. The jury returned a verdict in Bramco’s favor. The trial court has twice denied the plaintiff’s motion for new trial as to Bramco. Rule 59(a) does not require a reversal of the trial court.

Trimble also argues that the trial court erred in denying his motion for new trial against Bramco because the verdict in Bramco’s favor was against the great weight of the evidence. Whether Crumbley was an agent of Bramco, acting within the scope and authority of his agency at the time of the accident, was a question for the jury. Solmica of Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So.2d 638 (1970). The trial court denied Trimble’s motion for new trial based on the sufficiency of the evidence to support the jury’s verdict. We cannot reverse the trial court unless we are clearly convinced that the jury’s verdict is palpably wrong and manifestly unjust. Dixie Electric Co. v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975). This is not such a case.

Trimble also complains that the trial court must be reversed in failing to grant a new trial because the trial judge failed to inform the attorneys prior to closing arguments as to which of the requested jury charges he intended to give. Rule 51, ARCP, does require the court to inform counsel before argument of its action with respect to requested charges and the rule should be observed. However, its failure to do so does not mandate reversal unless the court refuses to follow the rule after its attention has been called to it or prejudice results therefrom. Pruett v. Marshall, 283 F.2d 436 (5th Cir. 1960); Hardigg v. Inglett, 250 F.2d 895 (4th Cir. 1957); Beloit Corp. v. Harrell, 339 So.2d 992 (Ala.1976). In the instant case, Trimble did not ask the court to inform him as to which charges it intended to give and he has not shown that any prejudice resulted from the court’s failure to do so. He made no objection to any given charge, nor to the court’s oral charge. Under these circumstances, there is no reversible error.

During the trial one John McNabb, a member of the jury, was seen by one of Trimble’s attorneys speaking with one of Ford’s witnesses. McNabb was questioned by the court in chambers and was found to have disobeyed several of the court’s instructions to the jury concerning discussion of the case with others and introduction into the jury room of personal observations of the accident scene. McNabb was excused from the jury and replaced by an alternate. He returned to the jury room before leaving the courthouse.

Trimble argues that the plaintiff’s case could not be fairly decided by the jury following McNabb’s conduct and his dismissal. He made this argument to the trial court on motion for new trial.

The trial court heard evidence on this motion and found no evidence of prejudice to the plaintiff. Once McNabb’s misconduct was discovered, the trial court promptly discharged him. There is no evidence that the jury verdict was affected by bias or corruption in connection with McNabb’s conduct. Carr v. Irons, 288 Ala. 511, 259 So.2d 240 (1972); Blakeney v. Alabama Power Company, 222 Ala. 394, 133 So. 16 (1931). It is within the trial court’s discretion to view the evidence and decide whether the rights of any party have been prejudiced by such incidents during the trial. Boudrow v. H. & R. Construction Co., 284 Ala. 60, 222 So.2d 154 (1969); Foster & Creighton Co. v. St. Paul Mercury Indemnity Co., 264 Ala. 581, 88 So.2d 825 (1956). The trial judge was present when McNabb committed his misdeeds, and was able to view the effect upon the jury and their demeanor throughout the trial. He promptly dismissed McNabb; and with no evidence that any further action was necessary to assure all parties a fair trial, we cannot reverse the trial court on this issue.

We have carefully considered other arguments advanced by Trimble for reversal of the cause and find no basis for doing so. All of his contentions have first been considered by the trial court on motion for new trial and that court has denied his motion. We are constrained to affirm.

II. The Ford Appeal.

In Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), and Casrell v. Altec Industries, Inc., 335 So.2d 128 (1976), this court delineated the Alabama Extended Manufacturer’s Liability Doctrine. No mention was made in either of those cases of any limitation to the doctrine which would preclude its application retroactively. Ford contends that it should not be applied retroactively to cases which have been litigated beyond the pleading stage. Although this argument has some appeal, we cannot agree.

We reversed the dismissal of a strict liability claim in Jett v. Honda Motor Co., Ltd., supra, based upon the Casrell and Atkins cases, supra. The accident from which the cause of action arose, and the drafting of the complaint in Jett occurred prior to our adoption of the Extended Liability Doctrine. The effect of our reversal was to apply the Doctrine retroactively. Although Jett involved an appeal at the pleading stage and Ford’s comes after a trial, we cannot agree that Casrell and Atkins are inapplicable to Ford where a strict liability claim was asserted by the plaintiff at the pleading stage. In adopting the various forms of strict tort liability now prevalent in this country, other jurisdictions have applied the concept retroactively to eases in which that theory of recovery was raised. Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 (1964); Winnett v. Winnett, 9 Ill.App.3d 644, 292 N.E.2d 524 (1973); Dealers Transport Co. v. Battery Distributing Co., 402 S.W.2d 441 (Ky.1965). Because the plaintiff in the instant case attempted to raise the strict liability claim against Ford prior to trial, consistent with Jett, we must hold that he is entitled to proceed against Ford on that theory. The judgment of the trial court granting the plaintiff’s motion for new trial against the defendant Ford is affirmed.

III. The Mitchell Motors Appeal.

The motion for new trial granted to the plaintiff against Mitchell Motors and Ford Motor Company was expressly based upon Ground 30 in the plaintiff’s motion for new trial. The order of the trial court clearly demonstrates this:

“This cause coming on to be heard on the plaintiff’s motion to reconsider the Court’s ruling on his motion for a new trial rendered on October 28, 1976, the Court is of the opinion the Order overruling plaintiff’s motion for a new trial should be and is hereby modified to the extent that the plaintiff’s motion for a new trial against the defendants, Ford Motor Company, a corporation and Mitchell Motors, Inc., should be and is hereby granted, solely on the basis of Ground 30 of the motion for new trial and in response to the Supreme Court’s decision in [Jett v. Honda Motor Co., Ltd., 339 So.2d 66 (Ala.1976)].
“The Court is further of the opinion that the motion for a new trial should be denied on all other grounds . . . ”

Ground 30 of plaintiff’s motion for new trial follows:

“30. For that the Court erred in disallowing the plaintiff’s amendment charging the defendant, Ford Motor Company, with liability under the doctrine of strict liability in tort.”

At no point in the pleadings, the pretrial order or elsewhere in the record has the plaintiff attempted to assert a claim for relief against Mitchell Motors based upon a theory of strict liability in tort or the Alabama Extended Manufacturer’s Liability Doctrine which, of course, was not stated until after this case was tried. Atkins v. American Motors Corp., supra; Casreli v. Altec Industries, Inc., supra. Although Jett v. Honda, supra, reversed the trial court in granting defendants’ motion to dismiss and remanded the cause for reconsideration in light of Casreli and Atkins, supra, Jett v. Honda (like Casreli and Atkins) had not been tried at the time appellate review was sought. Additionally and significantly, the complaint which was dismissed sought relief on the basis of “strict liability in tort.” This case has been tried to a jury. Every theory of liability advanced by the plaintiff against Mitchell has been tried. A jury has rendered a verdict in Mitchell’s favor and judgment has been entered thereon. Although the Casreli and Atkins decisions do have some retroactive effect, such retroac-tivity cannot extend to controversies between parties which have been adjudicated. The principle of res judicata is predicted upon the doctrine that litigation must come to an end. Any issue which has been adjudicated, or which could have been adjudicated, is by that doctrine barred from further litigation. Heiser v. Woodruff, 327 U.S. 726, 66 S.Ct. 853, 90 L.Ed. 970 (1946). That principle, so fundamental to our jurisprudence, would be violated if the law as it evolves to meet new conditions of society, were made retroactive to re-open, for another trial, matters laid to rest under theories of liability existing at the time they were tried. See Restatement Judgments, § 65(1).

Trimble argues that his proffered amendment (count three) can be construed to state a claim based upon strict liability in tort against Mitchell Motors. We cannot so read it. It expressly states such a claim against Ford Motor Company. The only construction by which Mitchell Motors can be made a party in that count is to treat it as a party because at one or more points the 'count refers to defendants plurally. The reference to plural defendants in that count is clearly a typographical or grammatical error. Clerical errors may be self-correcting by the context of the pleading. Hudson v. Coffee County, 291 Ala. 596, 285 So.2d 101 (1973). A reading of the entire count clearly shows the assertion of a strict liability claim against Fort Motor Company only. We are not inclined to revert to a requirement of technical accuracy in pleadings, nor are we inclined to resort to strained interpretation of pleadings. Given a fair reading, count three states a claim based upon strict liability in tort against Ford Motor Company, and no other defendant. We also note that Ground 30 of the motion for new trial, asserting error in striking the amendment, is also limited to Ford.

Because the trial court determined that it had erred in disallowing the plaintiff’s amendment stating a claim based upon strict liability in tort, it granted his motion for new trial. Since, however, that amendment does not assert that claim against Mitchell Motors, the court erred in granting the plaintiff’s motion for new trial as to it. To that extent, the judgment of the trial court is reversed. In all other respects, the judgment of the trial court is affirmed.

The judgment denying Trimble’s motion for new trial as to Bramco is affirmed. The judgment granting his motion for new trial as to Ford is affirmed. The judgment granting a new trial as to Mitchell is reversed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: MADDOX, Justice.

text:
    PLYWORLD, INC., a corporation v. ST. PAUL FIRE & MARINE INSURANCE CO., INC., a corporation.
    SC 2357.
    Supreme Court of Alabama.
    Nov. 18, 1977.
    Robert E. Parsons, Birmingham, for appellant.
    C. William Gladden, Jr. and S. Allen Baker, Jr., Birmingham, for appellee.
   MADDOX, Justice.

Plyworld, Inc., was the lessee of a showroom and warehouse which was totally destroyed by a fire, believed to have been set by an arsonist.

St. Paul Fire and Marine Insurance Company paid the owners of the building the policy limits under a policy of insurance and, being subrogated to the rights of the owners, sued Plyworld, claiming that Ply-world negligently maintained a fire door on the premises, thereby allowing the fire to spread from the warehouse to the showroom.

The jury returned a verdict in favor of St. Paul and assessed its damages at $24,-000. Plyworld appeals claiming, (1) that the evidence was legally insufficient to establish that it was guilty of negligence which proximately caused the loss and (2) that the trial court erred in allowing into evidence testimony and other facts as to conditions of the fire door both before and after the time of the fire, because it was not first made to appear that the conditions were substantially the same on the two occasions. The facts, succinctly stated, are as follows:

On March 18, 1974, the leased building, consisting of a combination warehouse and showroom, located in Birmingham, was totally destroyed by fire. A large warehouse to the rear was constructed of wood. The front showroom was masonry block. A masonry block wall separated the warehouse from the showroom, and a steel fire door was installed for the purpose of closing off the entrance way from the warehouse to the showroom.

The fire door was on tracks, and when operable was held open by weights. The weights were suspended by any kind of suitable rope or twine and a “fusible link” would form part of the suspension system. The fusible link was designed so that when the temperature from a fire would increase to a certain level, the link would melt causing the rope or suspension system to break, thus releasing the holding effect of the weights, permitting the door to roll on the tracks to a closed position due to its own weight or gravity.

The leased premises were owned by Allen K. and Mary H. Wood and were insured for loss by fire by St. Paul.

Before trial, Plyworld, made a motion in limine that the plaintiff not be allowed to mention or prove that on several occasions prior to the date of the fire the Birmingham Fire Department had issued or threatened citations to Plyworld with regard to the condition of the fire door. The grounds assigned in support of the motion in limine were that such evidence would be immaterial, irrelevant and would have no bearing on the condition of the fire door at the time of the fire or shortly before the fire; in particular, it was argued that the evidence of the prior condition of the fire door as found by the Birmingham Fire Department was entirely too remote and would be very prejudicial to the defendant. After arguments, the motion in limine was overruled and the trial proceeded, and concluded with the jury verdict in St. Paul’s favor.

I

Plyworld’s argument that the jury’s verdict was reached by basing an inference on an inference is not supported by the record. The primary issue before the jury was whether Plyworld had negligently maintained the fire door. Evidence was introduced at trial that the fire door was blocked by a chain and that no fusible link, which would have permitted the proper operation of the fire door, was found in the debris. Of course, this evidence was disputed.

St. Paul introduced evidence that the use of a chain to block the proper operation of the door was not necessarily typical of an arsonist. Plyworld introduced evidence which showed that arsonists typically block a fire door to prevent its operation. The jury apparently believed St. Paul’s version of what happened.

As this Court said in Land v. Niehaus, 340 So.2d 760 (Ala.1976),

“When proof in a negligence suit reveals a state of facts, whether controverted or not, from which different inferences and conclusions may be reasonably drawn, the resolution of the question is one for the jury. * * * The jury’s verdict will not be disturbed, not being plainly erroneous or manifestly unjust.” [citations omitted.] [emphasis supplied.]

The Land decision also answers Ply-world’s contention that the proof which goes no further than to show that the fire damage could have occurred in an alleged way does not warrant the conclusion that it did so occur where from the same proof the fire damage can with equal probability be attributed to some other cause. In other words, Plyworld contends that the jury’s verdict is based on mere conjecture and cannot be reasonably explained. As this Court said in Southern Railway Co. v. Dickson, 211 Ala. 481, 100 So. 665 (1923):

“ * * * There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.”

We think that there was sufficient evidence from which the jury could have found that Plyworld undertook to maintain the fire door and negligently failed to do so, and that this negligence proximately caused the fire loss to the showroom. Therefore, the evidence was sufficient to prove the fact in issue.

II

Plyworld further argues that it was error to allow the jury to consider evidence concerning prior inspections by the Birmingham Fire Department and to allow the introduction of pictures depicting the chain attached to the fire door in such a way as to block its proper operation. What Plyworld basically relies on is that line of cases which holds that if a party, in an effort to show negligence, attempts to introduce evidence as to conditions before or after the time of the accident, it must be first made to appear that the conditions were substantially the same on the two occasions. Holley v. Josey, 263 Ala. 349, 82 So.2d 328 (1955).

At the outset, the record clearly shows that the evidence concerning the prior inspections by the Birmingham Fire Department was not introduced to prove negligence, but was allowed to prove identity of ownership or control over the fire door and that Plyworld undertook to maintain the fire door. The rule expressed by Josey is inapplicable. See Norwood Clinic v. Spann, 240 Ala. 427, 199 So. 840 (1941). And, as stated in Leeth v. Roberts, 295 Ala. 27, 322 So.2d 679 (1975):

“ * * * In cases where the testimony does not go directly to the ultimate issue of liability, * * * the Josey court concluded that the right of cross-examination * * * would amply protect the defendant. * * * ”

Similarly, Plyworld argues that the trial court erred when it allowed St. Paul to introduce photographs taken after the fire. Again, Plyworld relies on Josey saying that St. Paul did not predicate the introduction of the photographs with evidence that the conditions had not changed. The photographs in question were taken within a few hours after the fire began and the testimony was that no one had entered the area or disturbed the door after the fire began. As this Court noted in Leeth, this type evidence should be corroborated by proof that the condition had not been changed. Plyworld was allowed to take St. Paul’s witness on voir dire. The record shows and the trial, judge had before him sufficient evidence to justify his allowing the photographs to be introduced.

We find no prejudicial error in permitting St. Paul to show the prior inspections, under the facts of this case. Neither do we find prejudicial error in allowing the photographs taken after the fire to be introduced into evidence.

The judgment is due to be affirmed.

AFFIRMED.

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


author:
MADDOX, Justice.
      BEATTY, Justice

text:
    Donald BOATWRIGHT a/k/a Donnie Boatwright v. STATE of Alabama.
    SC 2441.
    Supreme Court of Alabama.
    Nov. 18, 1977.
    Robert M. Shipman, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   MADDOX, Justice.

A putative father appeals a jury’s finding that he was the father of a child born to the prosecutrix. His principal claim for error is that the mother was allowed to state that, in her opinion, he was the father of her child. We find no error here.

The mother of the child testified that she had intercourse with the putative father on one occasion during November, 1974, that this was the first time she had ever had intercourse, and as of the date of trial, she had never had intercourse with anyone other than the putative father.

The alleged father claims that in a paternity proceeding, a mother should not be permitted to testify that any particular person is the father of her child, citing State v. Giles, 41 Ala.App. 363, 133 So.2d 62 (1961). Admittedly, Giles does question some earlier opinions which permitted a mother to state who she thought was the father of her child. But the question of the permissibility of such testimony was unnecessary to a decision in Giles, and we reject it. In Bembo v. State, 20 Ala.App. 406, 102 So. 786 (1924), cert. den. 212 Ala. 406, 102 So. 787 (1925), the facts were very similar to this case and the court not only found that the mother’s opinion was admissible, but sufficient to prove an essential element in the proceeding. The court, on rehearing, noted:

“The prosecutrix testified that the defendant was the father of the bastard child, and that he had intercourse with her in Covington County before the birth of the child. The statement that the defendant was the father of the child was sufficient, if believed by the jury, to show the acts of intercourse referred to occurred within the period of gestation.”

Any attempt to reconcile the cases which involve the so-called Opinion Rule would be fruitless. They have constructed a “jurisprudential mare’s nest.” Daniell v. State, 37 Ala.App. 559, 73 So.2d 370 (1954), cert. den. 261 Ala. 145, 73 So.2d 375 (1954). Consequently, we will not add yet more confusion by trying to harmonize the cases which apply the rule. Suffice it to say that it has caused problems enough, not only for judges, but also for legal writers. See Wigmore, Vol. VII, 3rd Ed., §§ 1917, 1918; McElroy’s Alabama Evidence, 3rd Ed. § 127.01(2).

One thing we can say. There certainly was no error to allow the mother to state who, in her opinion, was the father of the child in this case.

AFFIRMED.

TORBERT, C. J., and SHORES, J., concur.

JONES and BEATTY, JJ., concur specially-

BEATTY, Justice

(concurring specially).

By this decision we have approved the testimony of a lay witness giving her opinion on the ultimate fact in issue. In the past, we have refused to apply that rule when bastardy was in issue, as we have in others, e. g., when insanity was in issue. Williams v. State, 291 Ala. 213, 279 So.2d 478 (1973). We should go on to expressly overturn the ultimate fact rule in any case. Contrary to the views of its adherents, it does not invade the province of the jury any more than any other opinion, and its retention as an evidentiary rule is nothing but an anachronism. There is no satisfactory data upon which to conclude that jurors either do or would substitute such an opinion for their own judgment, any more than they do or would make such a substitution of any other allowable opinion. McElroy suggests an opposite conclusion. McElroy, Alabama Evidence, 3rd Ed. § 127.01(2). See generally McCormick, Evidence at 26-29 (2d Ed. 1972). The federal courts allow such evidence. Rule 704, Federal Rules of Evidence. That should be the rule in our jurisdiction as well.

JONES, J., concurs.


text:
    Mary Q. MARTIN et al., etc. v. William Harlan BORDEN et al.
    SC 2446.
    Supreme Court of Alabama.
    Nov. 18, 1977.
    Myron K. Allenstein, Gadsden, for appellants.
    H. Wayne Love, Anniston, for appellees.
   SHORES, Justice.

Sometime prior to January, 1971, the Bordens brought an action against the Martins to settle a boundary line dispute between them. They were coterminous landowners.

The case was set for trial in January, 1971; and, after some evidence had been presented, the dispute was settled, according to the decree, by agreement announced in open court. Pursuant to that agreement, the trial court appointed an independent surveyor to fix the disputed line and, thereafter, again, expressly noting that the decree was being entered pursuant to an agreement reached in open court, entered a decree fixing the boundary between the properties of the two parties.

The instant action was begun by the Martins in 1974. The thrust of their complaint is to challenge the decree entered in 1971, because of the asserted inability of Mr. Martin to understand the agreement which he entered into. It was their contention that Mr. Martin suffered from a mental disorder, schizophrenia, paranoid type, chronic, and that this disorder prevented him from understanding the agreement reached in open court in the 1971 proceedings.

After a hearing, the trial court entered its judgment, concluding:

“After considering the evidence presented, and the Court’s personal observation of plaintiff, the Court is of opinion that plaintiff, Robert L. Martin, has failed to prove his incompetence at the time in question; and that his agreement made in open Court is binding upon him.

The Martins appeal from this judgment.

They argue, in brief, that the agreement which they reached with the Bordens in the 1971 litigation is void for failure to comply with old Equity Rule No. 71, then in effect, which provided:

“Orders and decrees by consent. Orders and decrees by consent can be made only in open court, or upon written agreement signed by the parties or, in proper cases, by their attorneys of record.”

However, the record shows without contradiction that the decree was entered by consent of the parties, announced in open court. Not only does the decree recite that it was made pursuant to an agreement reached in open court, the record of the 1971 proceedings so indicate.

In support of his contention that he was mentally incompetent to enter into the agreement, Mr. Martin testified that he had suffered from a mental or emotional disorder for many years, and was taking medication prescribed for such disorder at the time of the first trial. He admitted, however, that he accepted the recommendation of his attorney to accept the compromise and settle the case. The record shows the following exchange:

“Q But did you understand that this was to be a settlement of the questions involved in that litigation?
“A I was under the impression that it was a settlement that day; but I wanted to have a chance to bring in witnesses and have a rehearing on it.
“Q That day you wanted to bring in—
“A No, at a future date.
“Q But that day you intended at some future time to bring in witnesses?
“A That was my intent.”

Mr. Martin testified that he understood the agreement, but he accepted it because he wanted to get out of the courtroom. His attorney testified that the agreement was thoroughly explained to Mr. and Mrs. Martin, and neither gave any indication that they disagreed.

In support of his contention that he lacked mental capacity to understand the agreement, Mr. Martin brought in a psychiatrist who testified that it was his opinion that, at the time he evaluated him in 1976, Mr. Martin suffered from a mental disorder commonly referred to as schizophrenia; but he had no knowledge whatsoever what his mental condition would have been in 1971, nor did he have a personal opinion as to what his mental condition was in 1971. It was his opinion, however, that one suffering with the mental disorder which Mr. Martin had could at times thoroughly understand the business being transacted.

Although other witnesses testified that Mr. Martin sometimes became uncommunicative and withdrawn, there was ample evidence that he was capable of transacting business normally. He operated a bulldozer business for many years, maintained bank accounts, bought and sold real estate, held mortgages, and collected mortgage payments on at least one parcel. He kept records on this transaction and marked the mortgage satisfied upon the records when the debt was paid.

We cannot, on the record before us, reverse the trial court. The record supports its finding that the 1971 decree was entered pursuant to an agreement reached between the parties, both represented by counsel, who consented in open court. This is sufficient under old Equity Rule 71. Additionally, the evidence supports its finding that Mr. Martin was mentally capable of understanding the agreement at the time he consented to it.

The decree appealed from is, therefore, affirmed.

AFFIRMED.

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


text:
    Mary L. SMITH, mother of Kennedy Smith, Deceased v. UNITED STATES STEEL CORP. et al. Doris WARD, mother of Kenneth Watts, Deceased v. UNITED STATES STEEL CORP. et al.
    SC 2472, SC 2473.
    Supreme Court of Alabama.
    Nov. 18, 1977.
    J. Wm. Thomason, Birmingham, for appellants.
    Robert G. Tate and T. Thomas Cotting-ham, Birmingham, for appellees.
   SHORES, Justice.

Kennedy Smith and Kenneth Watts, each aged thirteen, drowned in a water pollution control reservoir maintained by U. S. Steel Corporation. The mother of each brought an action against U. S. Steel charging negligence, wantonness and the maintenance of an attractive nuisance. U. S. Steel filed a motion for summary judgment supported by affidavits and the plaintiffs filed a coun-teraffidavit. The trial court granted the motion and the plaintiffs appealed.

At the time the boys were drowned, the reservoir was surrounded by an eight-foot cyclone fence. Strands of barbed wire were on top of the fence. In some places around the pond, there were two fences. The property was posted with signs which stated: “Danger No Trespassing — United States Steel Property.” There were two gates into the pond area which were either guarded or locked at all times. An employee of U. S. Steel patrolled the area at least twice a day. Sometime in the late afternoon or early evening of May 9, 1974, the boys entered the property by removing the metal strips which secured the cyclone fence to a pole and bending back the bottom corner of the fence. They climbed the inside fence to gain access to the pond.

Although the complaints filed by the plaintiffs do not contain a “dangerous instrumentality” count, they argue in brief that, although the boys were trespassers, the trial court erred in granting U. S. Steel’s motion for summary judgment because the rule frequently announced and recently restated in Earnest v. Regent Pool, Inc., 288 Ala. 63, 257 So.2d 313 (1972), “ . . . was at least partially tacitly overruled by Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976).” They do not argue that the trial court erroneously granted the motion for summary judgment as to the wanton and attractive nuisance counts. The affidavits do not raise any issue of fact as to these two theories.

We affirm on authority of Hammond v. Realty Leasing, Inc., 342 So.2d 915 (Ala.1977). That case also involved the drowning of two children in a pond on the defendant’s property. There, the complaint charged that the defendant was negligent in creating or permitting the existence of a dangerous condition on its property. This court said:

“ . . . We affirm on authority of Tolbert v. Gulsby . . . [supra], holding that:
“ ‘Under a negligence count, the duty owed by a landowner depends on the status of the injured party in relation to the defendant’s land. See Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972); Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969). If the injured party is determined to have been a trespasser, the landowner owes only the duty not to wantonly or intentionally injure him. City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217 (1964); Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964). “Under ordinary conditions trespassing children, or children on the land of another as bare licensees, occupy the same position as trespassing adults.” Alabama Great Southern Railroad Co. v. Green, supra; Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972). If plaintiff is found to have been on defendant’s property with his consent or as his guest, but with no business purpose, he attains the status of licensee and is owed the duty not [to] be willfully or wantonly injured or not to be negligently injured after the landowner has discovered his peril. Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969).’ ” (342 So.2d at 915, 916)

This case is indistinguishable from Hammond v. Realty Leasing, Inc., supra.

AFFIRMED.

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